Penalty fares – Fair to Passengers?

Posted by admin | August 27, 2009 0

Penalty fares – 20 years old this month – began life under British Rail as a reasonable deterrent to fare-dodging. But for some of the privatised rail companies, these £20 fines for not having a ticket have become nice little earners in their own right. One operator made £32 million from them last year alone. Another, Stagecoach’s South West Trains, sparked outrage when it started judging its guards’ job performance by the number of penalty fare warnings they issued.

A confidential memo, seen by The Times newspaper, suggested that South West Trains is planning to introduce a system under which guards are judged according to the amount they collect in penalties. The memo, headed “commercially sensitive, please do not circulate”, instructs guards to treat passengers as fare dodgers even if they ask to buy a ticket on the train. As well as being bad for customers and guards alike, the policy is legally dubious. Rail companies have to rely on the penalty fare rules 2002, made by the then Department of Transport, to levy such charges.

These rules are explicit. A penalty fare may not be charged if there were “no facilities to issue the appropriate ticket”. This, at least arguably, means there must have been a window at which there is no queue. In plain English, a person is not available if he is serving a queue. Nor is a machine available if it is in use. SWT says its policy is to sell a ticket within, at most, five minutes of waiting. Although, that does not tie in exactly with the concept of “availability”.

Indeed the Department of Transport’s own guidance recognises that the burden of proof rests squarely with the Rail Operator rather than the Passenger;

“3.2 A penalty fares scheme reverses the normal ‘burden of proof’ which would apply if a person was prosecuted for not paying their fare. In that case, the train operator would have to prove beyond reasonable doubt that the defendant intended to avoid paying their fare. Under a penalty fares scheme, anyone found without a valid ticket must normally pay a penalty, if they have previously been given the opportunity to buy a ticket and have passed the penalty fares warning signs. In this case, the passenger would have to show that they had a valid reason for not having a ticket. For this reason, we see our main role as making sure that the interests of honest passengers are protected, both in the way existing schemes are run and in the contents of any new schemes which we approve.”

In an attempt to get around the problem, the train companies have come up with “conditions of carriage”. These don’t incorporate the rules’ wording, but say a penalty fare is payable if there is no window open and no working machine. It is doubtful that a passenger who has bought no ticket, and hence made no contract with the rail company, could be subject to any conditions. The conditions are invalid if they do not follow the DoT’s rules. Many passengers complain of a “take-no-prisoners” attitude, even where travellers have good reasons for not buying a ticket and every intention of paying. They say they are being penalised for train companies’ failure to provide adequate station ticket offices, with staff and opening hours cut even as passenger numbers have risen.

But what most people do not know – and what the train companies are understandably reluctant for us to find out – is that more than a few demands for penalty fares are arguably illegal. The railways’ new, hard-line approach is essentially a gigantic bluff, relying on our ignorance of our rights and our unwillingness to make a fuss when collared.

ORR has no remit in dealing with penalty fare notices and penalty fare schemes. In the first instance you should follow the instructions on the penalty fares notice and make an appeal to the Independent Penalty Fares Appeal Service (‘IPFAS’) within 21 days. It is important to observe this deadline.

IPFAS considers appeals on two grounds – inappropriate use of discretion by the member of staff charging the penalty fares and a failure by the train operators to comply with the requirements of the DfT’s Penalty Fares Rules, the Penalty Fares Regulations or the provisions of the train operator’s own penalty fares schemes. However, if you have general comments or concerns about the operation of a penalty fares scheme, you should write to the train operator concerned. If these are not addressed satisfactorily, you may write to Passenger Focus or to the Department for Transport (DfT), which approves and regulates penalty fares schemes.


The value proposition on Britain’s railways

The horror stories are many. The pensioner physically dragged, crying, off a crowded train by two “revenue protection” goons because she had forgotten her senior citizens railcard. The passengers stung for £20 because there was a queue at the ticket office and they had to hop on without paying or miss the train. The people bullied into paying unfair penalties by empty threats of prosecution and a criminal record. Because you do, in fact, have quite extensive rights not to be charged penalty fares, many of them set out in law. Rights designed, in the words of the Government, to “make sure that the interests of honest passengers are protected”.

The chances are that if you have a reasonable excuse not to pay a penalty fare, you do not have to pay it – whatever a train company’s staff may claim. If you are prepared to quote your rights and call their bluff, you will usually prevail. You might be surprised to know that the Rail Staff are incentivised to charge you Penalty Fares and get a commission on what they collect. To quote from the Department of Transport’s own guidance;

“4.26 Authorised collectors and other staff who sell tickets on trains often receive commission on the value of the tickets they sell. Some operators also pay staff a small amount of commission (typically 5%) on the value of the penalty fares charged. We have no objection to this, as long as the percentage is small and the relevant instructions about the use of discretion and the circumstances in which penalty fares may or may not be charged are strictly followed.”

Provided always that you do pay the normal single fare, the chances are that any threats made against you, particularly of criminal prosecution, are hollow. Richard Colbey, a barrister at Lamb Chambers, told the Guardian: “The policy is legally dubious. Penalty fares are not enforceable unless a court orders it – and a court would be unlikely to do so with someone prepared to make a fuss. There has been no reported case of a train company suing in this way – the last thing the rail industry would want is a pronouncement by a judge on its levying of penalty fares.”

The DoT’s own guidance says;

“4.31 Minimum payment. The instructions must remind authorised collectors that passengers do not have to pay all of the penalty fare immediately. Authorised collectors may require the passenger to make a minimum payment that is equal to the normal fare payable for the journey which the passenger is making. However, passengers have 21 days in which to pay the rest of the penalty fare. The instructions must give authorised collectors the discretion not to require this minimum payment, but to allow passengers 21 days in which to pay all of the penalty fare. It may be appropriate to use this discretion towards season-ticket holders who have failed to carry their ticket (see paragraph 4.29), as well as towards people who are at risk.”

Another leading rail industry lawyer said he had himself been threatened with prosecution for not paying a penalty fare. “I wrote them a very polite letter explaining why I had not got a ticket,” he said. “I told them to have a go if they felt like it and heard nothing more.”

So here is a summary of your rights – and advice on avoiding unfair penalty fares.

10 RULES FOR BEATING THE TICKET INSPECTOR

This advice is for National Rail services only. TfL has different rules with fewer safeguards.

1. Make a reasonable effort to buy a ticket before you get on.

It will weaken your case if you start from a station where there is a functioning ticket office or machine but make no attempt to use them. This does not, however, mean that you have to wait in a long queue and miss your train. See Rule Eight for the Government’s guidance on what constitutes a reasonable waiting time.

2. If asked for a penalty fare, check that you actually have to pay one.

There are several non-penalty fare locations in London and the South- East – most importantly, Stansted airport. If your journey started at one of these locations, you cannot be charged a penalty fare. This probably applies even if you changed trains on to a penalty-fare service en route (see other box for full details). There are other lines on which one operator has penalty fares and another does not (see box). If, for instance, you are asked for a penalty fare at the excess fares office at Euston and you have arrived on a train run by Virgin, not London Midland, you do not have to pay the penalty.

If you forget your season ticket, you do not have to pay a penalty fare. You may be issued with a “nil fare” penalty notice and asked to send in a photocopy of your season, or asked to buy a normal single ticket (which you can then get refunded at a ticket office on production of your season). You can only do this twice a year. If you have a ticket between two places with multiple rail routes (eg London-Southend) but it is not valid for the route you are using, you cannot be charged a penalty fare – only the difference in price between the routes.

Passenger’s lobbying Lord Adonis, Transport
Minister on rail fares

If you have a ticket for the right journey but it is not valid on the particular train you are using, this is a grey area. The Department for Transport’s

“Penalty Fares Policy” (clause 4.29)

says you should not be charged a penalty fare, just the difference in price. But the National Rail conditions of carriage say holders of “some types of discounted tickets” can be charged a penalty. It is definitely worth arguing the point.

3. Check that the person asking for a penalty fare is an “authorised collector”.

Under the

Penalty Fares Rules 2002, sections 5 (2) and (3),

only an “authorised collector …individually authorised by or on behalf of the operator of that train” is allowed to collect penalty fares. Not all train guards and excess ticket office staff are authorised collectors. You have the right to ask them to produce the special identification document which proves that they are. (This also helps to return a measure of the “embarrassment factor”, which some collectors use to get travellers to pay up.) The DoT’s own guidance states;

“4.25 Penalty fares may only be charged by staff who have been appointed as ‘authorised collectors’ (rule 5 of the Penalty Fare Rules). Under rule 5, authorised collectors must carry formal identification, which should include a photograph and identify the authorised collector by either name or number. To make sure that the form of identification is consistent between different operators, it must follow a code of practice approved by the SRA. ATOC has produced a code of practice which we have approved for this purpose.”

Check also whether the person asking you for a penalty has been authorised by the operator whose train you travelled on. At stations served by more than one Train Company, even where they both have penalty fares schemes, it may be that the people on the ticket barrier are authorised by one operator but not by the operator you used.

4. Even if they pass these tests, politely refuse to pay the penalty and simply pay the full single fare.

On the train or at the station, you have the absolute right to make only “a minimum payment that is equal to the full single fare which [you] would have had to pay for [your] journey if penalty fares had not applied.” This is section

8 (2) of the Penalty Fares Rules 2002

– quote it if anyone tries to tell you different. (The full single fare means the fare without any railcard discounts, cheap offers etc.) Ignore any threats that may be made at this point if you refuse to pay the full sum – these are phoney and have no legal basis.

5. Never pay the penalty in the belief that you can recover it on appeal.

You are allowed to appeal against a penalty fare to one of two supposedly “independent” bodies. Most operators use the Independent Penalty Fares Appeals Service (IPFAS), others the Independent Appeals Service (IAS). But IPFAS is in fact owned by Southeastern Trains, is based at Southeastern’s head office and all its staff are Southeastern employees. IAS was also until recently based in railway offices and its company secretary is a director of the company which runs the railways’ ticketing system. In short, the appeal process is not independent of the rail operators, is not operated in your interests and is most unlikely to recover your money.

6. Give your correct name, address and journey details.

Once you have paid the single fare, the collector will then ask for your name and address so that they can send a demand for the rest to be paid within 21 days. They can check names and addresses while you wait with the electoral roll database. The only criminal offence in the whole penalty fares legislation is refusing to give a name and address, or giving a false one. So give the right details.

7. Once you have paid the minimum, they will hand you a form.

Check this carefully. It must show the authorised collector’s name and identity, your correct details, the details of the journey you have taken and how much you have paid. Collectors are often careless. If any of these details are omitted or are wrong, and you can prove it, it is game over.

8. When the letter demanding the rest arrives, write back politely, again refusing to pay, and explaining why you were unable to buy a ticket before travelling.

This is where the most useful part of the Penalty Fares Rules comes in –

Rule 7 (4),

which states that a penalty fare must not be charged “if … there were no facilities available for selling the appropriate ticket or other authority for the journey the person wanted to make”.

The Rules themselves do not define what “no facilities available” means. But in separate guidance on penalty fares (“Penalty Fares Policy”) issued by the Department for Transport, it is made quite clear, in

clauses 4.2 and 4.11,

that passengers must be given “sufficient opportunity” to buy a ticket and that regular queues over three minutes (off-peak) and five minutes (peak) breach the definition of what is “sufficient”. It is not clear whether this definition has any legal force – but if you quote it in your letter back to the train company, you are unlikely to be bothered again.

The Penalty Fares Policy also tells companies to “use discretion” towards the elderly, pregnant women, people who have enough money to buy a ticket “but not in the form needed to use the [ticket] machine” and “all passengers when the train service is severely disrupted”. Once again, if you can truthfully quote any of these, you are unlikely to be bothered.

9. Remember: penalty fares are a civil, not a criminal-matter.

Train companies often scare people into paying up by threatening prosecution and a criminal record. However, the legislation establishing penalty fares, the

Railways Act 1993, section 130,

states that apart from failing to give your right name and address, “nothing in this section creates, or authorises the creation of any [criminal] offence”.

The Penalty Fares Regulations 1994

state that “the recovery of a penalty fare is a civil debt”. So even if after reading your letter the company still decides it wants the money, it has to sue you – probably not worthwhile for such a small sum.

Railway companies sometimes threaten people with the main criminal law against fare-dodgers, the

Regulation of Railways Act 1889

. But this says there has to be “intent to avoid payment”. You could argue that you haven’t intended to avoid payment because you have, in fact, paid the full single fare.

10. Don’t abuse the system.

The safeguards provided in the law and the regulations are intended for people who want to pay the proper fare but occasionally fall foul of inadequate facilities. If you constantly board trains without buying a ticket, or if you lie to train company staff, this could be construed as intent to avoid payment and the chances of criminal prosecution will rise.

In summary;

Those who couldn’t buy a ticket should politely refuse to pay the penalty. The guard is entitled to a name and address and to know where they got on, and will get off. Mentioning

paragraph 7.4

of the penalty fare rules is likely to win the argument, at least on the train.

If the guard issues a penalty notice anyway, there is 21 days to appeal to the company. However even if there is no appeal, or the appeal is not allowed, the company is not automatically entitled to its money. It first has to sue in the county court. Judges hearing such claims would not give judgment for the penalty sum unless the company could justify it.

There has been no reported case of a train company suing in this way. The last thing the rail industry would want is a pronouncement by a judge on its levying of penalty fares.

The other great imbalance is that no matter how bad the service, no matter how many cancellations or closures for “Improving your Railway” (Translation; Cutting THEIR cost of maintenance and renewal) there is No question of getting a cash refund from a rail operator. Take the chaos after New Year 2009 when the mainline rail into Euston was shut for a week. However, if you were affected by delayed or cancelled trains then you should take the time to claim compensation from your train operators.

Each rail company has a Passenger Charter, which sets out your entitlement to compensation for travel problems. Andrew Adonis, transport minister, says: “I strongly urge passengers who suffered from a series of different incidents that disrupted their journeys to claim what they are entitled to. Compensation forms are available at stations, and for passengers from Euston these can also be downloaded from the Virgin and London Midland websites as appropriate.”

Most of the train operators offer at least a partial refund in cash or rail vouchers if your trains run late. The refunds normally start after a delay of an hour or more but the emphasis is always on the commuter to remember the scheduled arrival time and the actual arrival time so that they can fill in the claim forms. Even then they don’t make it easy. For instance if you look around a Chiltern Railway station all you see are “Customer Comment” forms – you need staff to tell you you use these to claim a refund.

Despite inflation-busting price rises on rail fares announced for the New Year, some train operators are far from generous when it comes to giving customers refunds for lengthy train delays, says Which? The consumer organisation checked the refund and ticketing policies of 22 train companies and found that while a 30 minute hold-up on First TransPennine and London Overground trains would result in a full refund, passengers on Merseyrail would get a refund of just 20% for a delay of three hours.

Ticketing policies were also a postcode lottery. Most train companies only allow ‘anytime’ fares to be bought on board, with no discount for railcards. But customers on First Hull (London to Hull), Grand Central (London to Sunderland) can use railcards and buy off-peak tickets on board, which can make a huge difference to the fare.

Which? also checked prices on five intercity routes over a 12-week period and found that buying in advance could slash the cost of a journey by up to 80% although you have to travel on a specific train. The cheapest prices were generally available from 10 weeks ahead of departure. Good savings were still available on off-peak services until at least two weeks ahead of departure, and on peak services until the day before departure.

Aylesbury Labour Party campaigning against high
rail fares – A tax on Employment and Opportunity?

Nikki Ratcliff, Head of Services Research, Which? magazine, says: “The price of walk-up tickets on peak time train services can be eye-watering. The good news is that buying your ticket in advance can result in big savings, but you may have to book a long way ahead to get the best price, you won’t be able to change your travel plans or get a refund, and there’s no guarantee that a cheaper ticket won’t become available at a later date. Depending on the train company you travel with, you could get surprisingly little back even if there’s a long delay to your journey or you need to cancel your booking, so check with your train operator before you book.”

Here are the policies of the various UK Rail Operators which once again begs the question for the harassed and abused UK rail user “Who represents the customer?”

Train fare refund

Train Operating Company Admin charge for refund on unused ticket >30 min delay % of single fare refunded >60 min delay % of single fare refunded >120 min delay % of single fare refunded >180 min delay % of single fare refunded

Arriva Trains Wales £10.00 0% 20% 100% 100%
C2C £10.00 0% 50% 50% 50%
Chiltern £5.00 50% 100% 100% 100%
CrossCountry £5.00 50% 100% 100% 100%
East Midlands £10.00 50% 100% 100% 100%
FGW £10.00 0% 100% 100% 100%
FGWL £10.00 50% 50% 50% 50%
Wessex Trains £10.00 0% 50% 100% 100%
First Capital Connect £10.00 50% 100% 100% 100%
First ScotRail £10.00 50% 100% 100% 100%
First TransPennine £10.00 100% 100% 100% 100%
Grand Central £10.00 0% 25% 50% 100%
Hull Trains £10.00 50% 100% 100% 100%
London Midland £0.00 50% 100% 100% 100%
London Overground £10.00 100% 100% 100% 100%
Merseyrail £10.00 0% 20% 20% 20%
Northern Rail £5.00 50% 50% 50% 50%
NXEA £10.00 50% 100% 100% 100%
NXEC £10.00 50% 100% 100% 100%
South West Trains £10.00 0% 100% 100% 100%
Southeastern £5.00 50% 100% 100% 100%
Southern £5.00 0% 50% 100% 100%
Virgin £10.00 0% 25% 100% 100%
Wrexham & Shropshire £10.00 50% 100% 100% 100%

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