The Railways (Penalty Fares) Regulations 2018

Discussion in 'Fares Advice & Policy' started by ForTheLoveOf, 14 Dec 2018.

  1. ForTheLoveOf

    ForTheLoveOf Established Member

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    The introduction of The Railways (Penalty Fares) Regulations 2018 in April, which supersede and repeal the previous Regulations, has affected all Penalty Fares schemes.

    Of particular note, the requirements for signage have been changed. The new requirements for signage are detailed in Regulation 8. The penalty for operators' non-compliance with Regulation 8 is outlined in Regulations 6(2)(b) (I'm ignoring Compulsory Ticket Areas - CTAs - for now, see *).

    Regulations 6(2)(b) and 7(2)(b) state that no Penalty Fare may be issued if Regulation 8 is not satisfied, so any Penalty Fare issued in such circumstances is outside of the statutory basis for Penalty Fares.

    As an example, Northern's Penalty Fare signage is worded as shown in this image (some include "from X date, this station will be.....", but that is immaterial here).

    Regulation 8(2) requires a sign complying with paragraph 1 of Part 1 of Schedule 1 of the Regulations to be displayed at each entrance to a non-CTA part of a station.

    If we take purely the non-CTA signage, paragraph 1 of Part 1 of Schedule 1 of the Regulations sets out the following requirements for signage:
    You will therefore note that the sign linked to above does not contain the wording stipulated by paragraphs 1(c) or 1(d). Whilst the difference between what the signage says and what the Regulations require is not very significant in terms of the meaning of the sign, the Regulations make no room for the sign having wording that has the effect of conveying the messages described; it is a "strict liability" issue and the signage must contain the exact prescribed wording or else it is non-Regulations-compliant.

    A significant number of TOCs other than just Northern are also affected - for example, see this West Midlands Trains signage, this Great Western Railway signage, this Chiltern Railways signage, this Southern signage and this London Overground signage. Some of them contain the wording required by paragraph 1(c); however, none of them contain the wording required by paragraph 1(d) (and one even omits the name/logo required by paragraph 1(f)).

    A further issue is that, at many interchange stations, TOCs also do not have sufficient signage for Regulation 8(4) of the Regulations to be satisfied (this requires that "notices must also be displayed at sufficient locations around the station so that at least one notice is readily visible to passengers prior to boarding a train at the station, including passengers changing from one train to another train.").

    And indeed at some stations no signage at all is displayed at certain entrances to the station, which is a clear general breach of Regulation 8(2).

    Whilst these non-Regulations-compliant aspects of TOCs' Penalty Fares scheme may all be written off as "technicalities", there is no facility in the Regulations for approximately compliant signage to count, nor is it like the Regulation of Railways Act where the passenger's intent (or perhaps, here, understanding of the signage) is relevant; the signage requirements must be complied with in full, otherwise any Penalty Fare issued is invalid.

    Of course this does not mean that refusing to pay a Penalty Fare issued in circumstances as above is the correct approach to take. In some cases, e.g. where there would be sufficient evidence and reason to warrant prosecution (especially if intent to avoid payment and/or fraud may be suggested), a Penalty Fare, procedurally invalid though it may be, may be the easiest and least risky way of administratively disposing of the matter.

    And even if one wishes to appeal a Penalty Fare on a basis as outlined above, it is usually recommendable to pay the Penalty Fare in the first instance, to avoid the appeal being rejected for non-payment and/or debt recovery agents attempting to recover additional amounts.

    But this is certainly an approach which is worth considering for cases where there can be no meaningful accusations of other wrongdoing, beyond a Penalty Fare - e.g. boarding a train without a ticket because the station ticketing facilities do not accept the payment method(s) one wishes to use; something that the current Regulations appear to allow to result in a Penalty Fare.

    There would appear to be a very minimal level of risk associated with paying and then appealing a Penalty Fare on a basis such as above - as Regulation 11(3) provide safeguards to passengers insofar as a TOC becomes statute barred from prosecuting an irregularity under a Railway Byelaw or Section 5(3)(a) of the Regulation of Railways Act, once either the appeal body has made a first stage appeal decision, or 21 days from submission of the appeal have passed (whichever is earlier). The risk would then only be from a TOC cancelling a Penalty Fare before this timeframe - something that does not appear to commonly occur when appeals are made to a paid-up Penalty Fare.

    And of course, a particularly determined passenger may wish to pursue a Penalty Fare further (e.g. in County Court), if they remain unsuccessful after the third stage of appeal. They would remain well-advised to, at the very least, make use of the first-stage appeal process due to the statute bar on prosecution which they thereby achieve.

    *I am disregarding CTAs. CTAs are designated parts of the railway where you must have a valid travel ticket ticket or other valid authority to be present (e.g. platform ticket), even if you are not actually travelling, and where a Penalty Fare can be charged for failure to produce a valid ticket or authority to be present in relation to anyone present in a CTA. CTAs work almost exactly the same as normal Penalty Fares on-train schemes, and there are far fewer CTAs than there are Penalty Fares stations.
     
    Last edited by a moderator: 16 Dec 2018
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  3. Belperpete

    Belperpete Member

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    Surely, if the appeal is rejected, you have 14 days in which to raise a second-level appeal. If you pay the Penalty Fare within this period, there is no debt to recover.

    However, I agree that I would tend toward paying the Penalty Fare in the first place, and recovering it at appeal. 14 days is not long, e.g. you might be on holiday when the result of the appeal came through.

    Regulation 6 para 4 appears to allow for a passenger not being able to pay by a particular payment method, provided that the passenger would usually be able to pay by that method. So, for example, it would cover you being unable to pay by card, if the TVM usually accepts card payment but doesn't that day. The TOC could perhaps argue that you should have paid by cash, but how could they prove you had sufficient cash that day? Likewise, if a machine wouldn't accept cash, how could they prove that you had a card on you that day?
     
  4. robbeech

    robbeech Established Member

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    It is to be used together with the NRCOT surely. You choose the payment method you wish to use. If the machine doesn’t accept that, your first opportunity to purchase moves on to the train etc. A penalty fare would not be valid here
     

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