Condition 9.5 and Railcards

[skyhigh]

Following on from this thread, so as not to distract from giving advice...

But the fact that the Network Railcard conditions suggest a Penalty Fare can be issued* is not fatal - as this is contradicted by the National Rail Conditions of Travel, which states in 9.5 that the penalty for travelling on a time-restricted ticket at an invalid time is simply payment of the excess. And condition 1.2 of the Network Railcard conditions says:

Playing devil's advocate a little, 9.5 says:

9.5 Where you:
9.5.1 are using a time-restricted Ticket (such as an “off-peak” or “super-off-peak” Ticket) that is correctly dated but invalid for the service on which you are travelling; or
9.5.2 are using a route for which your Ticket is not valid; or
9.5.3 break your journey when you are not permitted to do so;
you will be charged the difference between the fare that you have paid and the lowest price Ticket that is valid for the train you are using.

So seeing as the ticket was an Anytime, could it not be argued that the ticket was not time-restricted, but the discount was? In which case, the Railcard terms would apply and a Penalty Fare would be appropriate?

 

[simbariya]

Does the

"1.2. In addition to the Railcard Conditions, the National Rail Conditions of Travel (“NRCoT”) apply to any journey on the rail network. Where the NRCoT conflict with these Railcard Conditions, the NRCoT override the Railcard Conditions."

not suggest that

"4.7. You will be asked to pay the difference between the price of your discounted ticket and the full price applicable fare (or the Penalty Fare if travelling in the Penalty Fares area)"

is a final statement?

I suppose it is not clear what kind of "OR" is it, whether it's an either/or, and you should be given a choice, or it implies you get a PF unless you are not in PF area (if such exists).

 

[Bletchleyite]

Surely Condition 10 overrides this?

https://www.nationalrail.co.uk/National%20Rail%20Conditions%20of%20Travel.pdf

It says:

10.1 Train Companies are required to ensure that warning notices are clearly displayed at
stations where Penalty Fares apply. You may be charged a Penalty Fare if:

10.1.1 You travel on a train service without a valid Ticket or Permit to Travel; or

10.1.2 You travel in first class accommodation with a standard class Ticket; or

10.1.3 You travel on a train service at a time when your service-specific Ticket is
not valid (unless Condition 9.4 applies); or

10.1.4 You travel with a Train Company for which your Ticket is not valid; or

10.1.5 You do not have the necessary supporting document(s), where required (for
example a valid Railcard or photocard).

10.2 Where notices indicate that Penalty Fares may apply from that station and you do not have
a valid Ticket, you must:

10.2.1 purchase a Permit to Travel if there is a working Permit to Travel issuing
machine at the station where you start your journey, or

10.2.2 acquire a Promise to Pay from a self-service Ticket machine

10.1.1 applies - if you have a Railcard discounted ticket being used outside of the conditions of the Railcard, you do not have a valid ticket. I'm not quite sure what the point of 10.1.2-10.1.5 is, because the wording does not say "for the following reasons" so they are spurious other than the 9.4 exclusion. (9.4 provides for being able to use the next train of the same TOC in the event of a delay causing a missed connection).

Thus a PF is clearly appropriate - and I think in the other thread someone posted confirming that that is also called out on the Railcard leaflet?

 

[skyhigh]

10.1.1 applies - if you have a Railcard discounted ticket being used outside of the conditions of the Railcard, you do not have a valid ticket. I'm not quite sure what the point of 10.1.2-10.1.5 is, because the wording does not say "for the following reasons" so they are spurious other than the 9.4 exclusion. (9.4 provides for being able to use the next train of the same TOC in the event of a delay causing a missed connection).

Thus a PF is clearly appropriate - and I think in the other thread someone posted confirming that that is also called out on the Railcard leaflet?

That would be the view I would take, however in the other thread this has also been posted:

Whilst the RPI's intention to issue a Penalty Fare was wrong, by refusing this, you are now on a pathway to potentially being prosecuted for an alleged offence under Byelaw 18 of the Railway Byelaws 2005 (which makes it a strict liability offence to board a train without a valid ticket) or section 5(3)(a) of the Regulation of Railways Act 1889 (RoRA - which makes it an offence to travel without previously having paid your fare, if you have intent to avoid payment thereof).

I don't believe that either offence is made out, as your ticket wasn't fundamentally invalid (it merely required payment of the excess fare, as stated in the NRCoT) and you offered to buy a new ticket when told yours was not valid at that time.

Which suggests that due to 9.5 it's wrong to be issued a PF in these circumstances and also not possible to be prosecuted under Byelaws/RoRA as the only penalty should be an excess.

 

[Watershed]

So seeing as the ticket was an Anytime, could it not be argued that the ticket was not time-restricted, but the discount was?

As with many things in the NRCoT, the crucial term ("time-restricted") is not defined and accordingly the ordinary meaning of the term applies.

I struggle to see how a ticket which can't be used before 10am wouldn't qualify as "time-restricted" - if it walks like a duck and quacks like a duck.... The fact that this restriction arises from a discount to the ticket is immaterial; ultimately, it can be used from 10am but not earlier - in my book that makes it time-restricted, and so it falls within the scope of 9.5.1.

Does the

"1.2. In addition to the Railcard Conditions, the National Rail Conditions of Travel (“NRCoT”) apply to any journey on the rail network. Where the NRCoT conflict with these Railcard Conditions, the NRCoT override the Railcard Conditions."

not suggest that

"4.7. You will be asked to pay the difference between the price of your discounted ticket and the full price applicable fare (or the Penalty Fare if travelling in the Penalty Fares area)"

is a final statement?

I suppose it is not clear what kind of "OR" is it, whether it's an either/or, and you should be given a choice, or it implies you get a PF unless you are not in PF area (if such exists).

Quite the opposite in fact; it makes clear that where there is any contradiction (as for example between Railcard condition 4.7 and NRCoT condition 9.5), the NRCoT prevails.

The intended effect of 4.7 isn't entirely clear, but what is clear is that it is contradicted by 9.5 and thus 9.5 prevails.

Surely Condition 10 overrides this?

No; firstly, generalia specialibus non derogant - this is the well-established legal principle that specific provisions override general provisions. 9.5 specifically deals with the situation of a ticket that is used at a restricted time, whereas 10.1.1 deals with the general situation of not holding a valid ticket. It is therefore clear that the drafters of the NRCoT intended 9.5 to apply in situations such as that in the linked thread.

Furthermore, the principle of contra proferentem, as well as section 69 of the Consumer Rights Act 2015, dictate that any ambiguity here is to be interpreted in favour of the passenger.

10.1.1 applies - if you have a Railcard discounted ticket being used outside of the conditions of the Railcard, you do not have a valid ticket. I'm not quite sure what the point of 10.1.2-10.1.5 is, because the wording does not say "for the following reasons" so they are spurious other than the 9.4 exclusion. (9.4 provides for being able to use the next train of the same TOC in the event of a delay causing a missed connection).

Thus a PF is clearly appropriate - and I think in the other thread someone posted confirming that that is also called out on the Railcard leaflet?

Nowhere do the Railcard conditions state that a ticket used at a restricted time is fundamentally invalid.

Whether a PF can be issued (or a Byelaw prosecution can succeed) depends entirely on whether the ticket is, contractually speaking, valid. Hence my earlier comment that:

*In a sense this is circular reasoning, because a Penalty Fare can only be issued if your ticket is invalid. But the validity is determined by what the conditions of the contract say...

 

[Starmill]

Surely Condition 10 overrides this?

If that were the case it, would say so. It doesn't.

Following on from this thread, so as not to distract from giving advice...


Playing devil's advocate a little, 9.5 says:

So seeing as the ticket was an Anytime, could it not be argued that the ticket was not time-restricted, but the discount was? In which case, the Railcard terms would apply and a Penalty Fare would be appropriate?

Have you just created this thread because Northern's internal guide says to issue a Penalty Fare in these circumstances, and you're seeking to justify that to yourself?

 

[Fawkes Cat]

Have you just created this thread because Northern's internal guide says to issue a Penalty Fare in these circumstances, and you're seeking to justify that to yourself?

This isn't my fight, but this approach does seem rather ad hominem ('playing the man rather than the ball' in Sir Humphrey Appleby's gloss). As someone without any skin in this game, it does seem remarkable that the entire railway industry have got this point wrong while contributors to this forum have got it right. And if we're going to advise people seeking assistance that they can and should fight the railway for complete victory, rather than seeking the lowest practical settlement and moving on, then it's important that we've looked at this problem from all angles and really come to a firm conclusion.

So please carry on with the challenges to the established view - and the defences thereof. Hopefully by argument we can come to a reasoned and agreed position.

 

[skyhigh]

Have you just created this thread because Northern's internal guide says to issue a Penalty Fare in these circumstances, and you're seeking to justify that to yourself?

I honestly don't know what the internal guide says about Penalty Fares because I've not read it, ever issued a Penalty Fare or had anything to do with them (and I now have nothing at all to do with revenue). I was interested to hear a full explanation given the wording in 9.5.1 where it mentions "(such as an “off-peak” or “super-off-peak” Ticket)" makes it read to me as if the intention is to refer strictly to ticket types rather than those with added Railcard restrictions. I understand where the opposing view comes from and I'm open to change my opinion - not that it will make a difference to anyone else!

I struggle to see how a ticket which can't be used before 10am wouldn't qualify as "time-restricted" - if it walks like a duck and quacks like a duck.... The fact that this restriction arises from a discount to the ticket is immaterial; ultimately, it can be used from 10am but not earlier - in my book that makes it time-restricted, and so it falls within the scope of 9.5.1.

As I said above, I was interested to hear an explanation of your position given the wording in 9.5.1 where it specifically mentions "(such as an “off-peak” or “super-off-peak” Ticket)" makes it read to me as if the intention is to refer just to ticket types rather than time restrictions added due to other discounts - though I do agree with you that as it is actually written without specifying that difference a reasonable interpretation would be that it includes all forms of time restriction.

And if we're going to advise people seeking assistance that they can and should fight the railway for complete victory, rather than seeking the lowest practical settlement and moving on, then it's important that we've looked at this problem from all angles and really come to a firm conclusion.

So please carry on with the challenges to the established view - and the defences thereof. Hopefully by argument we can come to a reasoned and agreed position.

This is really my position. I'd be interested to hear arguments from both sides - if it's the case that on balance anyone who falls into the same 'trap' as the OP in the other thread is safe from prosecution, I would feel much more comfortable seeing them advised that it's safe to play things a little harder. I didn't start this thread to prove my (initial) view, I wanted to hopefully gain a better understanding of the situation. I am open to change my opinion!

 

[Watershed]

As someone without any skin in this game, it does seem remarkable that the entire railway industry have got this point wrong while contributors to this forum have got it right.

I think it's fair to say that many TOCs (particularly when it comes to ticketing and revenue protection) seem to think that the law is whatever they say it is.

The mere possibility that they might be wrong just hasn't occurred to them - hence why you end up with the kinds of class action claims that are currently ongoing (re Boundary Zone fares and brand-specific GTR fares).

It therefore seems perfectly plausible that TOCs have been dealing with this issue wrongly for years.

As I said above, I was interested to hear an explanation of your position given the wording in 9.5.1 where it specifically mentions "(such as an “off-peak” or “super-off-peak” Ticket)" makes it read to me as if the intention is to refer just to ticket types rather than time restrictions added due to other discounts - though I do agree with you that as it is actually written without specifying that difference a reasonable interpretation would be that it includes all forms of time restriction.

I think the inclusion of the words "such as" makes it clear that this isn't the only kind of basis on which the drafters foresaw that a time restriction might arise. Otherwise they could just have said "are using a time-restricted off-peak or super-off-peak Ticket...".

If they wanted it to have the meaning that you are suggesting, they would have to explicitly spell that out (e.g. by defining the term "time-restricted", or changing the wording as above).

 

[Starmill]

I honestly don't know what the internal guide says about Penalty Fares because I've not read it, ever issued a Penalty Fare or had anything to do with them (and I now have nothing at all to do with revenue). I was interested to hear a full explanation given the wording in 9.5.1 where it mentions "(such as an “off-peak” or “super-off-peak” Ticket)" makes it read to me as if the intention is to refer strictly to ticket types rather than those with added Railcard restrictions. I understand where the opposing view comes from and I'm open to change my opinion - not that it will make a difference to anyone else!

I understand. Apologies if my post came across in the way Fawkes Cat suggests as that wasn't my intention.

You will be unsurprised to learn, I'm sure, that the guide asks for Penalty Fares to be issued in a handful of situations where my view is that the charge is not lawful.

This isn't my fight, but this approach does seem rather ad hominem

Certainly not. It's reasonable, in my view, to question politely if the challenges are being made in good faith when they rely on unusual reasoning of the meaning of contracts which isn't found in many other types of consumer transactions. Generally consumer transactions aren't approached in the way some TOCs, in England especially, have chosen to, which makes it overwhelmingly likely in my view that they're going to be subjected to more interrogation as to why they're doing it.

It's like the view that the Charter isn't part of the contract. On the face of it, this seems an impossible view to sincerely hold, given the provisions of the Consumer Rights Act, so it's reasonable to pry into the underlying motivations of anyone holding a view so contrary to accepted practice elsewhere in consumer contracts.

However, it has now been explained to me what the approach was, and I of course accept that.

In particular there's no real reason for this conflict of intentions to actually exist. Everyone on this forum wants people to be paying the correct fares for their journey. Nobody supports ticketless travel or views it as a victimless or de minimis transgression. From this point of view, arguably we all have "skin in the game" - unless someone would be interested in proving me wrong here and disagreeing, in which case I will be very interested to hear your arguments! However, there's also very little space for public support of certain rare and unusual practices by private entities. Let alone state-funded ones, as English TOCs are.

 

[Bletchleyite]

No; firstly, generalia specialibus non derogant - this is the well-established legal principle specific provisions override general provisions.

I don't see an issue with that point, but I would read it the other way. Condition 9 refers to the general case - non-PF routes. Condition 10 refers to a specific case - PF routes. Thus the entirety of 10 in my mind overrides 9, and reads like it is written to do so given that one line of 10 refers to one exception in 9, and one alone.

Prosecution is more complex, of course - but there was a case on here not so long ago of someone who had a ticket satisfying one of the conditions in 9 - I believe an Off Peak at the wrong time but might remember wrongly - who was at least threatened with prosecution. Does NRCoT count as an authorised person giving permission?

 

[Starmill]

The mere possibility that they might be wrong just hasn't occurred to them - hence why you end up with the kinds of class actions claims that are currently ongoing (re Boundary Zone fares and brand-specific GTR fares).

I would strongly agree that if, in English law, we had a more US-style approach to collective action, TOC business practices would come under much more pressure as a result of many more of these claims.

Of course, there are also many downsides of the 'class action' approach favoured in the US so I'm not necccesarily recommending that.

Condition 9 refers to the general case - non-PF routes.

I'm afraid that doesn't appear to be what Condition 9 says.

 

[Watershed]

I don't see an issue with that point, but I would read it the other way. Condition 9 refers to the general case - non-PF routes. Condition 10 refers to a specific case - PF routes. Thus the entirety of 10 in my mind overrides 9, and reads like it is written to do so given that one line of 10 refers to one exception in 9, and one alone.

That might be one interpretation. I would have thought that a provision dealing specifically with time-restricted tickets would be seen as more specific than a provision which essentially just summarises the PF Regs. But ultimately, if there is any ambiguity and the potential for different interpretations, that can only be resolved one way.

Prosecution is more complex, of course - but there was a case on here not so long ago of someone who had a ticket satisfying one of the conditions in 9 - I believe an Off Peak at the wrong time but might remember wrongly - who was at least threatened with prosecution.

In principle, I think the existence (or otherwise) of grounds for Byelaw 18 prosecution and for issuance of a Penalty Fare are based on the same issue - is the ticket fundamentally invalid? And here we must distinguish between where the NRCoT and Railcard conditions merely repeat or explain the laws that exist, and where they say what penalty applies in which circumstance.

Does NRCoT count as an authorised person giving permission?

Let's put it this way - I don't think anybody could suggest that using an Advance on the next train of the same TOC, under the circumstances of NRCoT 9.4, would be travelling without an invalid ticket. Or if it's invalid, that the NRCoT didn't count as giving permission to board with an invalid ticket.

I don't think that the situation is really any different here. The ticket requires payment of an excess, but it isn't fundamentally invalid.

 

[swt_passenger]

Just my two pennorth, but doesn’t 9.2 come before 9.5? So if you read sequentially doesn’t that branch off to condition 10?

Besides, as a long term user of the Network Card I always thought the T&C were perfectly clear in making it not valid before 1000. Coming up with reasons why you might accidentally use one at 0530 or whenever seems pretty artificial.

 

[Watershed]

Just my two pennorth, but doesn’t 9.2 come before 9.5? So if you read sequentially doesn’t that branch off to condition 10?

Besides, as a long term user of the Network Card I always thought the T&C were perfectly clear in making it not valid before 1000. Coming up with reasons why you might accidentally use one at 0530 or whenever seems pretty artificial.

I don't think that it's the case that the ordering of the terms has any significance as to which prevails. Otherwise 9.5 would never be relevant, and may as well not exist.

 

[furlong]

9.2 has little effect - "we are permitted in law to" - it just tries to summarise other laws, but it's the other laws themselves that actually count, not this summary.

On the time-restricted point, don't forget the former SRA's opinion and the old Rules. Nothing substantive has changed that affects the situation and reasoning so the same conclusion should remain persuasive today under the revised framework IMHO.

Ticket restrictions. Many types of ticket cannot be used at certain times of day, on certain days of the week or on certain trains. These ticket restrictions can be complicated, and even familiar tickets such as cheap day returns can have different restrictions on different routes. If a passenger travels on a train on which their ticket is not valid, it is more likely that the restrictions were not properly explained to them than that they are deliberately trying to avoid paying the right fare. We believe that it is up to the train operators to make sure that each passenger understands the restrictions which apply to the ticket which they are sold. Under rule 7, a passenger may not be charged a penalty fare if he or she has a ticket for the journey which they are making that is not valid on that train only because of a ticket restriction. In these cases, the passenger only needs to pay the excess fare, in line with the National Rail Conditions of Carriage.
...
If a ticket or other authority is only valid for travel when it is used with another document (such as a photocard or railcard), a reference to a ticket includes this document.
...
7.6 An authorised collector must not charge a penalty fare to a person whose ticket is not valid only because of a published restriction, as described in condition 12 of the National Rail Conditions of Carriage.
7.7 Except when he or she is applying rule 6.7, an authorised collector must not charge a penalty fare if this would conflict with the rights given to the person by the National Rail Conditions of Carriage.

Similarly most of condition 10.1 is just a summary provided for information and clarity, as the real authority to charge a PF in any specific circumstances doesn't come from here.

 

[island]

It's also worth taking into account the Penalty Fares Regulations here

The Railways (Penalty Fares) Regulations 2018

These Regulations make provision for the charging of penalty fares for the failure to produce, when required to do so, a ticket or other authority authorising a person to travel by train or to be present in a compulsory ticket area at a station.

www.legislation.gov.uk

As these are a law, they will take precedence over the National Rail Conditions of Travel, which are a contract, if there are any clashes. A contract between parties cannot override the law.

 

[Watershed]

It's also worth taking into account the Penalty Fares Regulations here

The Railways (Penalty Fares) Regulations 2018

These Regulations make provision for the charging of penalty fares for the failure to produce, when required to do so, a ticket or other authority authorising a person to travel by train or to be present in a compulsory ticket area at a station.

www.legislation.gov.uk

As these are a law, they will take precedence over the National Rail Conditions of Travel, which are a contract, if there are any clashes. A contract between parties cannot override the law.

Absolutely. But the Regulations don't (and obviously couldn't even attempt to) define when a ticket is valid - this is always going to be down to the conditions of the ticket to determine. So the wording of the NRCoT is highly relevant, because if it says that a ticket used at a restricted time isn't fundamentally invalid but merely requires payment of an excess, the PF Regs don't even come into it.

 

[some bloke]

Although Regulation 3(2) says "valid" means for that time of day, if the contract is that the ticket can used at any time despite the railcard terms (because of the Conditions of Travel and/or how the retailer presented information, and because ambiguity is to be resolved in the customer's favour), it is valid at that time.

 

[Bletchleyite]

Absolutely. But the Regulations don't (and obviously couldn't even attempt to) define when a ticket is valid - this is always going to be down to the conditions of the ticket to determine. So the wording of the NRCoT is highly relevant, because if it says that a ticket used at a restricted time isn't fundamentally invalid but merely requires payment of an excess, the PF Regs don't even come into it.

Yes, they do. See my quote in the other related thread (there's quite some crossover here).

Although Regulation 3(2) says "valid" means for that time of day, if the contract is that the ticket can used at any time despite the railcard terms (because of the Conditions of Travel and/or how the retailer presented information, and because ambiguity is to be resolved in the customer's favour), it is valid at that time.

Read the clause as a whole. It is made clear that railcard conditions also apply.

It is without doubt in my mind that a PF would be applicable.

 

[yorkie]

stations where Penalty Fares apply. You may be charged a Penalty Fare if:

10.1.1 You travel on a train service without a valid Ticket or Permit to Travel; or

Not at all. Where a specific term states that the remedy is an excess fare, that overrides a generic term.

Where there is ambiguity, the interpretation that benefits the customer is that which prevails.

It's also worth taking into account the Penalty Fares Regulations here

The Railways (Penalty Fares) Regulations 2018

These Regulations make provision for the charging of penalty fares for the failure to produce, when required to do so, a ticket or other authority authorising a person to travel by train or to be present in a compulsory ticket area at a station.

www.legislation.gov.uk

As these are a law, they will take precedence over the National Rail Conditions of Travel, which are a contract, if there are any clashes. A contract between parties cannot override the law.

By that logic a Penalty Fare would be appropriate in any circumstance in which a ticket is deemed invalid for a minor reasons. I disagree with this interpretation.

The PF legislation is generic and applies not only to National Rail services; you need to defer to the contract itself (NRCoT) to determine if a PF is appropriate.

It has always been a long standing principle that a ticket that is invalid due to a time restriction should not be subject to a Penalty Fare; can anyone point to evidence of an actual change of policy in this regard? The evidence put forward in favour of PFs in such circumstances is to disregard Condition 9 of the NRCoT, which would not be appropriate in my opinion, as Condition 9 is absolutely fundamental in determining the remedy in such situations.

 

[some bloke]

It is made clear that railcard conditions also apply.

It refers to "use with any rail card in the possession of that person which they are entitled to use for that journey". What's being argued about the retailer's presentation is that if the retailer says the ticket bought with a railcard is valid at any time, that forms a contract and the customer is entitled to use both the railcard and the ticket for that journey.

 

[island]

Although Regulation 3(2) says "valid" means for that time of day, if the contract is that the ticket can used at any time despite the railcard terms (because of the Conditions of Travel and/or how the retailer presented information, and because ambiguity is to be resolved in the customer's favour), it is valid at that time.

But the contract doesn't say that, so it is moot.

 

[some bloke]

But the contract doesn't say that, so it is moot.

The argument based on information from the retailer is that a contractual term is formed through the retailer's presentation of a ticket as usable at any time, after the customer has chosen the railcard option - bearing in mind that under consumer law if there is ambiguity the interpretation more favourable to the customer wins.

 

[island]

The argument based on information from the retailer is that a contractual term is formed through the retailer's presentation of a ticket as usable at any time, after the customer has chosen the railcard option - bearing in mind that under consumer law if there is ambiguity the interpretation more favourable to the customer wins.

That's an extremely tenuous argument. You don't get to randomly hoover up your favourite information from a retailer's website and say "that's the contract". Everything is considered in the round. And an anytime ticket is not valid "any time"; it can't be used before or after its period of validity, nor in the middle of the night when trains aren't running.

 

[Watershed]

That's an extremely tenuous argument. You don't get to randomly hoover up your favourite information from a retailer's website and say "that's the contract". Everything is considered in the round. And an anytime ticket is not valid "any time"; it can't be used before or after its period of validity, nor in the middle of the night when trains aren't running.

I hardly think it is "random" to put weight on the information provided when booking - as this is highly likely to influence the purchasing decision and therefore to become a term of the contract under section 50 of the CRA. Yes, of course this is just part of the factual matrix - but having told the booking site that a Network Railcard is held, it should take that into account in anything it tells the customer.

I think it is quite clear what the phrase "any time" means; no reasonable person would expect it to mean that the ticket has no expiry date or entitles the holder to demand carriage at any time they want, irrespective of whether there are services in the timetable.