I have the response from my case with the Ombudsman but they have sided with SWR.
I've pasted the response in full below (other than removing names).
As I've also previously posted in their first response to my complaint I was advised that I could only be repaid for delays by submiting a claim using their online Delay Repay form or the form at stations and that this would be measured against the amended timetable. Nevertheless I did just that and my claim was approved (despite SWR stating that they would only pay against the revised timetable not the one that was in place at the time of booking). The money has since gone into my bank account.
So despite it all I'm not out of pocket.
So I don't think I will be able to take this further since I've now been refunded (despite what SWR said). I do think having read the terms and conditions in detail this response is wrong.
The strike isn't my fault (I don't work in the rail industry or for any unions) and my contract is with SWR (not Network Rail, the RMT or whatever) so I feel they should be responsible for the failure to deliver the advertised service when I booked my ticket.
It is also the case that the "amended timetable" was only published 2 days before I was due to travel. It does seem to me the Ombudsman has taken the view that if the timetable is amended then delay repay is only valid against the amended timetable. But how much notice must there be? Otherwise surely if a train was cancelled or delayed a TOC can claim this wasn't the case and the timetable has been "amended" to the new time whenever it happens to get out of paying compensation. I also think it's wrong that the timetable can be amended without any notification to the passengers that have already booked a ticket that is for a specific train. Airlines are obliged to at least notify you if a flight you have booked is cancelled or "re-timed" (and offer a refund or change to an alternate flight at no extra cost). I think the same should apply for trains when tickets are booked onto a specific service and are non-refundable or amendable. It has been previously ruled in cases with airlines that strike actions is NOT considered "outside of their control" (and I've been in exactly that situation in the last year by an airline when the flight I was booked on was cancelled due to an air traffic control strike and treated very well with taxis to another airport, overnight hotel, meals etc all paid for by the airline).
The terms and conditions of Advance tickets are clearly very one-sided. If after I've booked the ticket i want to amend it to travel at a different time or cancel it I must pay a £10 admin fee (and for a change, any difference in the fare - but no refund if the new fare is lower). If the TOC decided to "amend" the timetable I don't get to charge them an admin fee or claim for the delay that this change caused. It's not a fair condition and means the TOC can fundamentaly change the service they sold at a later date at no risk to themselves.
So I suppose lesson learned. For me walk up tickets aren't affordable to me on long-distance journeys, so I book in Advance so that is affordable. But if the ruling is the TOC can change the times of the booked train with no come back from the passenger then I guess in future I'll have to change my approach and plan longer journeys by car or plane.
I've pasted the response in full below (other than removing names).
Dear Mr XXXXX
I am contacting you as the Assistant Ombudsman that has been assigned to your case with South Western, concerning the disruption that you experienced to your journey, due to South Western’s December strikes. I note that you state that this resulted in you arriving at your destination more than 2 hours later than expected on 29 December 2019.
I have now been able to do a full review of your case taking into account the evidence you have provided, and the evidence submitted by the Rail Service Provider ("RSP"). Having reviewed the evidence, and the concerns you have raised in your application form; I have made a decision in the case.
I understand from your application form that the remedy you are seeking is a refund of your tickets, due to the fact that you were delayed on your journey from Woking to Bath Spa.
The RSP’s Passenger Charter affords compensation to passengers who have been delayed by 15 minutes or longer, which also applies if your train is delayed or cancelled and means you miss your connecting train. Nevertheless, if an emergency or amended timetable is in place, this will be published beforehand and your Delay Repay compensation for delays is calculated according to the revised timetable.
The RSP has stipulated the following;
‘We were only given 5 weeks’ notice from the Union that they were going to be holding a month-long strike. We did our best to run the possible service given the situation. This was highly advertised and picked up by the media and all over the news and radio and Consumers were advised to check journeys if travelling throughout December. During such a strike we operate a revised timetable and you may only claim compensation based on the amended timetable.’
I note from your application form that you were told that the cancellation was due to engineering works. The RSP has confirmed that there were engineering works being carried out on their route past Bath, however, has explained that this would not have affected your journey and the train was cancelled due to industrial action.
In line with the above and having assessed the complaint in accordance with the National Rail Conditions of Travel, the RSP’s Passenger Charter, and the respective legislation, I note that the RSP have not acted incorrectly. I must ascribe weight to the RSP’s Passenger Charter regarding the terms of their Delay Repay scheme and note that compensation is not due on this occasion. I therefore consider there to be no legal basis to investigate your complaint any further and do not consider there to be any scope for mediation. I shall therefore be closing your dispute with the Rail Ombudsman.
I understand that my comments may disappoint, however, as the consumer you are not bound by any decision of the Rail Ombudsman, and this decision does not dissolve you of your rights to pursue the claim through alternative channels if you wish to do so.
As I've also previously posted in their first response to my complaint I was advised that I could only be repaid for delays by submiting a claim using their online Delay Repay form or the form at stations and that this would be measured against the amended timetable. Nevertheless I did just that and my claim was approved (despite SWR stating that they would only pay against the revised timetable not the one that was in place at the time of booking). The money has since gone into my bank account.
So despite it all I'm not out of pocket.
So I don't think I will be able to take this further since I've now been refunded (despite what SWR said). I do think having read the terms and conditions in detail this response is wrong.
- The National Rail Conditions are clear you can claim under the TOCs Delay Repay scheme or the National Rail Conditions and make clear that the criteria in the National Rail Conditions is the minimum that can be applied. This gives a 50% refund due to a 1 hour or more delay as a result of a train delay or cancellation - which was the case for me. So whatever SWR put in their charter doesn't take predence over these conditions (though the Ombudsman seems to disagree). The National Conditions don't have any clauses about subsequent timetable amendment. The Delay Repay publicity also doesn't make clear this does not apply if the timetable is later "amended" and I don't think passengers should have to dig into the passengers charter to see if there are any "get out" clauses. After all offering delay repay after 15 minutes was very heavily publicised at the time the franchise was awared of one of the improvements.
- The Consumer Rights Act 2015 (which is now reference in the National Rail Conditions) also makes clear that if you make a purchasing decision based on information provided at the point of sale these are binding unless a variation is agreed by both parties. I booked the ticket on the basis of the information presented, that this train would be running and my ticket was only valid on that train. SWR subsequently cancelled the train and the only alternative is to get there 2.5 hours later than the times I booked. I made clear that had I known this would be the case I would have booked with GWR via Reading. However neither the Omudsman nor SWR have made any reference to this law in their responses even though I explicitly mentioned it and the relevant clauses in my complaint. Payment was taken at the time of booking so I believe a contract was formed at that point.
The strike isn't my fault (I don't work in the rail industry or for any unions) and my contract is with SWR (not Network Rail, the RMT or whatever) so I feel they should be responsible for the failure to deliver the advertised service when I booked my ticket.
It is also the case that the "amended timetable" was only published 2 days before I was due to travel. It does seem to me the Ombudsman has taken the view that if the timetable is amended then delay repay is only valid against the amended timetable. But how much notice must there be? Otherwise surely if a train was cancelled or delayed a TOC can claim this wasn't the case and the timetable has been "amended" to the new time whenever it happens to get out of paying compensation. I also think it's wrong that the timetable can be amended without any notification to the passengers that have already booked a ticket that is for a specific train. Airlines are obliged to at least notify you if a flight you have booked is cancelled or "re-timed" (and offer a refund or change to an alternate flight at no extra cost). I think the same should apply for trains when tickets are booked onto a specific service and are non-refundable or amendable. It has been previously ruled in cases with airlines that strike actions is NOT considered "outside of their control" (and I've been in exactly that situation in the last year by an airline when the flight I was booked on was cancelled due to an air traffic control strike and treated very well with taxis to another airport, overnight hotel, meals etc all paid for by the airline).
The terms and conditions of Advance tickets are clearly very one-sided. If after I've booked the ticket i want to amend it to travel at a different time or cancel it I must pay a £10 admin fee (and for a change, any difference in the fare - but no refund if the new fare is lower). If the TOC decided to "amend" the timetable I don't get to charge them an admin fee or claim for the delay that this change caused. It's not a fair condition and means the TOC can fundamentaly change the service they sold at a later date at no risk to themselves.
So I suppose lesson learned. For me walk up tickets aren't affordable to me on long-distance journeys, so I book in Advance so that is affordable. But if the ruling is the TOC can change the times of the booked train with no come back from the passenger then I guess in future I'll have to change my approach and plan longer journeys by car or plane.