I would concur with what
@island has said, except as follows:
A TOC is not obliged by statute or case law to offer DelayRepay at all.
That is not correct. Article 17 of
EU Regulation 1371/2007 establishes a statutory right to a minimum level of compensation, of 25% of the relevant portion of the ticket for a 60-119 minute delay and 50% for 120+ minutes. The only proviso being that carriers need not pay out compensation of less than €4.
The exemption which domestic British carriers previously benefitted from was not renewed, and thus the provisions of the EU Regulation came into effect for domestic journeys in 2019. The EU Regulation has been retained in British law as part of Brexit arrangements.
Unfortunately, the definition of "delay" provided in Article 3 of the Regulation is somewhat ambiguous, as the term "published timetable" is not further defined:
‘delay’ means the time difference between the time the passenger was scheduled to arrive in accordance with the published timetable and the time of his or her actual or expected arrival
In the unlikely event someone were to bring a legal claim for their entitlement of compensation under the Regulation, I would imagine the TOC in question would seek to argue that the Published Timetable of the Day set out in the NRCoT is the "published timetable" which should be considered.
I am doubtful of whether that argument would succeed, given that this timetable is not truly "published" - it is only stated as being available through the journey planner of a (rather unreliable) industry website, and as others have said, there is no way of definitively proving what was showing in there at 22:00 the night before (unless someone happened to screenshot it for example).
Looking at the counterfactual, most heritage railways do not offer DelayRepay or similar schemes, even where a passenger uses one for long-distance journeys.
Heritage railways and railtour operators are outside the scope of Regulations cited above, because they do not exist to provide carriage (i.e. transport from A to B), but rather to provide an experience (a nice train ride, possibly with some food or other entertainment).
The rights contained in Article 17, for example, are exercisable against a "railway undertaking", a term defined as:
a railway undertaking as defined in Article 2 of Directive 2001/14/EC, and any other public or private undertaking the activity of which is to provide transport of goods and/or passengers by rail on the basis that the undertaking must ensure traction; this also includes undertakings which provide traction only;
On a separate note, I would suggest that the new PToD arrangements could fall foul of one or more of the examples of potentially unfair terms, as listed in
Schedule 2, Part 1 of the Consumer Rights Act 2015:
2. A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations
The PToD arrangements purport to allow TOCs to completely change, if not cancel, the timetable without any recourse beyond a refund
7. A term which has the object or effect of authorising the trader to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer
TOCs apparently have total discretion as to how they vary the timetable to come up with the PToD, including being allowed to remove all services from the timetable if they wish. There is nothing saying that this will only be done "where necessary" or "in extreme circumstances" for example. Yet passengers can't get a full refund on their tickets if they change their mind - a refund is always subject to an administration fee, and in some cases is not available at all.
11-13 have much the same tests as each other:
11. A term which has the object or effect of enabling the trader to alter the terms of the contract unilaterally without a valid reason which is specified in the contract.
The NRCoT do not apply any limitations on the reasons why TOCs might vary the timetable, therefore by definition, there cannot be a "valid reason which is specified in the contract".
12. A term which has the object or effect of permitting the trader to determine the characteristics of the subject matter of the contract after the consumer has become bound by it.
TOCs are apparently authorised to change the timetable as they wish, anytime until 22:00 the night before.
13. A term which has the object or effect of enabling the trader to alter unilaterally without a valid reason any characteristics of the goods, digital content or services to be provided.
See above - although here the reason need not be specified in the contract to qualify as potentially valid. So it is a question of whether there is a valid reason at all.
Now of course it's very unlikely that anyone will try to take the TOCs (and the DfT, if we're being real here) to task on these potentially unfair terms. But I certainly think there are grounds for arguing that the whole PToD mechanism, at least in the way the NRCoT have worded it, is unfair and not binding.
It is certainly disappointing to see an arm of the government signing off on terms which could fall foul of the unfair terms legislation which Parliament saw fit to enact. But I would expect nothing less from the DfT - they are only interested in minimising the liability of running the railway.