Possible prohibited restriction codes

[Tazi Hupefi]

I have been approached in regards to a potential breach of Fares Regulations in the London area, and would invite the views of this forum.

I have been able to identify that some off peak return fares are regulated and cannot have evening peak restrictions beyond 18:59 departing from the London area.

On that basis:

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This appears to ban travel as late as 19:28.

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This appears to ban travel as late as 19:41.

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This one is a little confusing as it appears legitimate until you wish to travel via London Paddington, in which case travel is banned well after 19:00 too.

Does anyone have a view as to whether this is permitted?

 

[mmh]

For the first of them, it doesn't. There is an evening peak restriction on a London to Portsmouth SVR, there is none on a Reading to Portsmouth SVR.

Quite why the restriction lists all those Reading departure times is something I don't understand. Seems like utter nonsense to me.

 

[Tazi Hupefi]

For the first of them, it doesn't. There is an evening peak restriction on a London to Portsmouth SVR, there is none on a Reading to Portsmouth SVR.

Quite why the restriction lists all those Reading departure times is something I don't understand. Seems like utter nonsense to me.

The 19:00 from Paddington seems to be banned, which I don't think is permitted, as I believe the cut off is 18:59. My reading of the protection is that 19:00 itself should be valid. I wonder whether there's any routes you could legitimately travel via Reading with (and change trains) where the Reading restrictions would be problematic.

This is another one which seems questionable:

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6 trains at or after 1900 are banned.

 

[yorkie]

Wouldn't be the first time a train company has done this! Yes the 1900 from Paddington should be allowed.

 

[Tazi Hupefi]

Wouldn't be the first time a train company has done this! Yes the 1900 from Paddington should be allowed.

What procedures were followed to get them rectified? Simple email with the operator or report to ORR/DfT?

I would also be intending to seek an Order, from a court if necessary, that the operators should publicise the breaches, along with details of how to obtain a refund of any excess fare charged.

 

[yorkie]

It would be interesting to see what the response of the ORR/DfT would be.

Back in Mark Smith's day the SRA/DfT would have dealt with the matter appropriately but these days I suspect not much would happen.

I wouldn't contact GWR directly; either it will be brushed off and ignored because customer services are incompetent (which would at least strengthen the case against them I suppose) or it would be passed onto a manger who would fix it before there is any opportunity for them to be in trouble over it.

I'd love to see them get into trouble and be given a huge fine, but I am fully expecting they will get away with it.

 

[Tazi Hupefi]

Well as long as I am on the right road, and the initial information I was supplied seems to stack up, I'm quite sure in the fullness of time I will make some progress.

This appears to be something which could be subject to an injunction pending judicial review if nothing was to happen of their own volition.

It is curious why this all centres on Paddington, so if anyone knows of any other restrictions which are similar in nature, please do add them here.

 

[jkdd77]

I made a formal complaint to the DfT some time ago regarding Virgin's evening peak restrictions from MKC, eventually resulting in the restrictions being removed.

In brief, not all SVRs/ SSRs are "regulated SVRs" within the meaning of fares regulation; the fare must have existed as a SVR in 1995, and former Network AwayBreaks, as typically historically issued for short distance journeys in the NSE area, do not qualify.

Regulated SVRs must be valid at any time at weekends, and, on weekdays, after 10:30, except that journeys may nevertheless be barred for journeys commencing from stations in London, Watford, Luton, Reading and Stevenage (collectively "London stations"), and made in a direction away from London, between 15:00 and 19:00, inclusive.

On the other hand, it is the view of the DfT that a journey which has been validly broken on a regulated SVR may be resumed in the 'evening peak' at a station which is not a restricted station as per the expanded definition above notwithstanding that the train itself physically departed "London stations" (as per the above broader definition) during the barred period.

Edit: I link to glynn80's post with the official wording: https://www.railforums.co.uk/threads/fgw-september-fares-increases.25650/

 

[Kite159]

Anybody with a route Three Bridges ticket from London to Portsmouth surely won't be touching Paddington? (As per the second example)

(Unless it's somehow valid to go Paddington - Reading - Redhill - Three Bridges - Portsmouth).

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Restrictions probably based on Paddington as the Southern London terminals don't have evening peak restrictions for off-peak tickets but as some tickets are valid from Paddington the wording needs it? (Ie for that first London to Portsmouth any permitted ticket where I assume Paddington - Reading - Basingstoke - Portsmouth via Fareham is valid)

 

[Tazi Hupefi]

Anybody with a route Three Bridges ticket from London to Portsmouth surely won't be touching Paddington? (As per the second example)

(Unless it's somehow valid to go Paddington - Reading - Redhill - Three Bridges - Portsmouth).

----

Restrictions probably based on Paddington as the Southern London terminals don't have evening peak restrictions for off-peak tickets but as some tickets are valid from Paddington the wording needs it? (Ie for that first London to Portsmouth any permitted ticket where I assume Paddington - Reading - Basingstoke - Portsmouth via Fareham is valid)

My understanding is that it is the fare itself which is regulated, and must be in compliance with the protection. The journey itself is not protected. Therefore even if a journey is impossible to make on that ticket, the ticket restriction itself must still accord to the protection. I suspect this is because new routes could be permitted in the future etc.

 

[thedbdiboy]

What procedures were followed to get them rectified? Simple email with the operator or report to ORR/DfT?

I would also be intending to seek an Order, from a court if necessary, that the operators should publicise the breaches, along with details of how to obtain a refund of any excess fare charged.

Fare regulation is not statutory, it a contractual issue between DfT and TOCs so the courts would not get involved.

It would be interesting to see what the response of the ORR/DfT would be.

Back in Mark Smith's day the SRA/DfT would have dealt with the matter appropriately but these days I suspect not much would happen.

I wouldn't contact GWR directly; either it will be brushed off and ignored because customer services are incompetent (which would at least strengthen the case against them I suppose) or it would be passed onto a manger who would fix it before there is any opportunity for them to be in trouble over it.

I'd love to see them get into trouble and be given a huge fine, but I am fully expecting they will get away with it.

When TOCs took commercial risk there was a mechanism by which any 'benefit' obtained from failing to adhere to fares regulation was entitled to be clawed back from operators, but the revenue belongs to DfT now so the 'beneficiary' is DfT itself.
Fares Regulation didn't exist under BR. Instead, price rises were agreed between the Ministry and the BRB with an eye on both the economics and the politics. I suspect that the relationship between GBR and Government will be similar; indeed although the regulatory mechanism is still theoretically in place, in practice TOCs are just awaiting direction from the DfT on when and by how much fares should increase next year.

 

[Tazi Hupefi]

Fare regulation is not statutory, it a contractual issue between DfT and TOCs so the courts would not get involved.

When TOCs took commercial risk there was a mechanism by which any 'benefit' obtained from failing to adhere to fares regulation was entitled to be clawed back from operators, but the revenue belongs to DfT now so the 'beneficiary' is DfT itself.
Fares Regulation didn't exist under BR. Instead, price rises were agreed between the Ministry and the BRB with an eye on both the economics and the politics. I suspect that the relationship between GBR and Government will be similar; indeed although the regulatory mechanism is still theoretically in place, in practice TOCs are just awaiting direction from the DfT on when and by how much fares should increase next year.

Directions on Fares Regulation are made under primary legislation, specifically under Section 28 Railways Act 1993.

Those directions, and how they are managed, implemented or withdrawn etc are able to be reviewed judicially.

They may well be enshrined within contract, but it is the primary legislation which puts those clauses there. The DfT is legally mandated to ensure that the fares are "reasonable in all circumstances of the case", which they have specified with certain time restrictions etc for certain fares.

28(3) forces compliance.

 

[tspaul26]

28(3) forces compliance.

This deals with participation in certain fare discount schemes, such as the senior railcard. It is nothing to do with SVR regulation.

Did you intend to refer to some other statutory provision?

 

[Tazi Hupefi]

This deals with participation in certain fare discount schemes, such as the senior railcard. It is nothing to do with SVR regulation.

Did you intend to refer to some other statutory provision?

I suggest you take another look, 28(2) is clearer.

However, "scheme" is defined specifically in (5) to also cover agreements and other arrangements.

The House of Lords also seems to agree with my interpretation.

The franchising authority1 has a duty under section 28 of the Railways
Act 1993, as amended, to ensure that, where it appears necessary, fares
or certain classes of fare are ‘reasonable’:
Subject to the other provisions of this Act, if it appears to the
[appropriate franchising authority] that the interests of persons
who use, or who are likely to use, franchised services so require,
[it] shall ensure that the franchise agreement in question contains
any such provision as [it] may consider necessary for the purpose
of securing that any fares, or any fares of a class or description,
which are to be charged are, in [its] opinion, reasonable in all the
circumstances of the case.

 

[tspaul26]

I suggest you take another look!

To quote the principium and first paragraph of section 28(3):

(3) Every franchise agreement shall include provision requiring the franchise operator—

(a)to participate in every approved discount fare scheme,

…

And the relevant definition from section 28(5):

“discount fare scheme” means any scheme for enabling persons who are young, elderly or disabled to travel by railway at discounted fares, subject to compliance with such conditions (if any) as may be imposed by or under the scheme;

As I said, this relates to railcard discount schemes, not SVR regulation.

Might I suggest that you take another look yourself…

 

[Tazi Hupefi]

To quote the principium and first paragraph of section 28(3):



And the relevant definition from section 28(5):


As I said, this relates to railcard discount schemes, not SVR regulation.

Might I suggest that you take another look yourself…

See the House of Lords briefing. It is clear this Section 28 applies to much more.

https://www.google.co.uk/url?sa=t&source=web&rct=j&url=http://researchbriefings.files.parliament.uk/documents/CBP-8552/CBP-8552.pdf&ved=2ahUKEwizvefEk5T0AhXhDWMBHb3FDjcQFnoECBIQAQ&usg=AOvVaw0hjw67q5uWw2Pt3G_0yb0z

To quote the principium and first paragraph of section 28(3):



And the relevant definition from section 28(5):


As I said, this relates to railcard discount schemes, not SVR regulation.

Might I suggest that you take another look yourself…

You also completely ignore the rest of Section 28. Railcards are a minor point.

 

[tspaul26]

See the House of Lords briefing. It is clear this Section 28 applies to much more.

https://www.google.co.uk/url?sa=t&source=web&rct=j&url=http://researchbriefings.files.parliament.uk/documents/CBP-8552/CBP-8552.pdf&ved=2ahUKEwizvefEk5T0AhXhDWMBHb3FDjcQFnoECBIQAQ&usg=AOvVaw0hjw67q5uWw2Pt3G_0yb0z

You also completely ignore the rest of Section 28. Railcards are a minor point.

With respect, you specifically cited section 28(3) and alleged that it enforced compliance with fare regulation when it plainly does no such thing.

Sections 28(1) and (2) do indeed deal with fare regulation, but the former is discretionary and, whilst the latter imposes an obligation to include certain provisions in franchise agreements, this too is subject to discretion and contains no express enforcement provision.

This means that the only enforcement mechanism for fare regulation (under the statutory provisions that you have cited) is for the franchising authority to enforce the contractual arrangements in the franchise agreement, but that is again discretionary and subject to judicial review on the same grounds that apply to any other public decision.

 

[Tazi Hupefi]

With respect, you specifically cited section 28(3) and alleged that it enforced compliance with fare regulation when it plainly does no such thing.

Sections 28(1) and (2) do indeed deal with fare regulation, but the former is discretionary and, whilst the latter imposes an obligation to include certain provisions in franchise agreements, this too is subject to discretion and contains no express enforcement provision.

This means that the only enforcement mechanism for fare regulation (under the statutory provisions that you have cited) is for the franchising authority to enforce the contractual arrangements in the franchise agreement, but that is again discretionary and subject to judicial review on the same grounds that apply to any other public decision.

With respect, discretion, is no longer absolute discretion. How the government uses or does not use that discretion, and indeed whether any still exists, is subject to judicial review. It is open to be challenged if the DfT chooses not to enforce contracts etc.

In any event, this is wholly irrelevant at this stage, as the fares are seemingly in breach of the regulations, and the DfT may well agree.

 

[tspaul26]

However, "scheme" is defined specifically in (5) to also cover agreements and other arrangements.

It does not say that. It merely states that the word “scheme”:

includes any agreement or arrangements

This must then be read in the context of the definition of a “discount fare scheme” which means:

any [agreement or arrangements] for enabling persons who are young, elderly or disabled to travel by railway at discounted fares, subject to compliance with such conditions (if any) as may be imposed by or under the [agreement or arrangements];

Your interpretation of the legislation is simply wrong.

In any event, this is wholly irrelevant at this stage, as the fares are seemingly in breach of the regulations, and the DfT may well agree.

To which regulations are you referring?

See the House of Lords briefing. It is clear this Section 28 applies to much more.

This is a briefing paper from the library, but no more than that. It provides no support for your contentions as to the legal framework and principles governing these matters.

 

[Tazi Hupefi]

In the case of Savers, these are required to be valid for no less than a month, and to be valid all day Saturday and Sunday and from no later than 10:30 on any other day. They need not be valid for any journey beginning between 15:00 and 19:00 on Mondays to Fridays from
London area stations or (when travelling away from London) stations between London and
Reading, Watford, Luton or Stevenage, inclusive.



Whilst I appreciate your input, it's wholly irrelevant to the matters at hand.

 

[tspaul26]

With respect, discretion, is no longer absolute discretion. How the government uses or does not use that discretion, and indeed whether any still exists, is subject to judicial review. It is open to be challenged if the DfT chooses not to enforce contracts etc.

This may well be true, but you have not articulated any putative grounds upon which to found a judicial review should the franchising authority elect not to enforce a contractual provision in a franchise agreement. It is simply not sufficient to say ‘these tickets don’t comply with fare regulation’.

 

[Tazi Hupefi]

This may well be true, but you have not articulated any putative grounds upon which to found a judicial review should the franchising authority elect not to enforce a contractual provision in a franchise agreement. It is simply not sufficient to say ‘these tickets don’t comply with fare regulation’.

The DfT has published what the restrictions on these tickets can and must be. They've subsequently bound the TOCs in their franchise agreements to these restrictions using the powers under Section 28. There is evidence they've enforced this previously.

I have posted above what those restrictions are.

The government cannot lawfully amend those restrictions on a whim, without due process and compliance with other legislation. They cannot refuse to enforce them without good, lawful reason. To amend them lawfully would require detailed analysis, impact assessments, consultation with stakeholders, some of whom are statutory.

So, in essence, the regulated fares are enforceable by the DfT, and if the DfT refuses to enforce them without good reason, that is open to be challenged in a court.

However, I am sure the DfT will be keen to fix these fares.

 

[tspaul26]

The DfT has published what the restrictions on these tickets can and must be. They've subsequently bound the TOCs in their franchise agreements to these restrictions using the powers under Section 28. There is evidence they've enforced this previously.

I have posted above what those restrictions are.

The government cannot lawfully amend those restrictions on a whim, without due process and compliance with other legislation. They cannot refuse to enforce them without good, lawful reason. To amend them lawfully would require detailed analysis, impact assessments, consultation with stakeholders, some of whom are statutory.

So, in essence, the regulated fares are enforceable by the DfT, and if the DfT refuses to enforce them without good reason, that is open to be challenged in a court.

However, I am sure the DfT will be keen to fix these fares.

If you can cite specific authority for each (or any) of these assertions then I’m sure that would be of interest.

 

[30907]

I would be very surprised if either your second or third examples were in breach, as I cannot think there are permitted routes from PAD either via Three Bridges or to Dover.
So it would be helpful to quote an example where the Paddington restriction is applied to a regulated Offpeak ticket. Only your first seems plausible.

 

[Tazi Hupefi]

I would be very surprised if either your second or third examples were in breach, as I cannot think there are permitted routes from PAD either via Three Bridges or to Dover.
So it would be helpful to quote an example where the Paddington restriction is applied to a regulated Offpeak ticket. Only your first seems plausible.

Just because a ticket may not be currently useable via a specific route does not mean that they can attach a restriction beyond 18:59. Yes, the net outcome is still the same, but I suspect this is because routes can change over time, and it's important not to inadvertently introduce restrictions which shouldn't be there. The ticket is not permitted to be restricted beyond 19:00, regardless.

 

[alistairlees]

Just because a ticket may not be currently useable via a specific route does not mean that they can attach a restriction beyond 18:59. Yes, the net outcome is still the same, but I suspect this is because routes can change over time, and it's important not to inadvertently introduce restrictions which shouldn't be there. The ticket is not permitted to be restricted beyond 19:00, regardless.

The latest time restriction I can see for the third example is 1908 (at Reading). Am I missing something?

Clearly this time restriction is intended to work together with the restrictions from Paddington, for journeys such as (I assume, without checking) Paddington to Oxford.

The link you have provided is for a ticket from London to Dover, which is not, and never will be, valid from Paddington. The restriction 4A is obviously used for many flows.

I can't see any case here at all.

 

[Tazi Hupefi]

The latest time restriction I can see for the third example is 1908 (at Reading). Am I missing something?

Clearly this time restriction is intended to work together with the restrictions from Paddington, for journeys such as (I assume, without checking) Paddington to Oxford.

The link you have provided is for a ticket from London to Dover, which is not, and never will be, valid from Paddington. The restriction 4A is obviously used for many flows.

I can't see any case here at all.

19:08 is later than 18:59, so the restriction is not permitted.

As above, the fact the route is not currently permitted is irrelevant. A protected fare (not a journey) cannot have a restriction beyond 18:59, even if the restriction is moot.

4A bans all of these (because it encompasses 5K).

19:00 to Bristol Temple Meads
19:02 (19:27) to Bristol Temple Meads
19:04 (19:30) to Plymouth
19:15 to Weston Super Mare
19:18 (19:42) to Swansea


There will be a series of fares using 4A as you say, some of which are valid via Paddington and or Reading.

 

[alistairlees]

19:08 is later than 18:59, so the restriction is not permitted.

As above, the fact the route is not currently permitted is irrelevant. A protected fare (not a journey) cannot have a restriction beyond 18:59, even if the restriction is moot.

4A bans all of these (because it encompasses 5K).

19:00 to Bristol Temple Meads
19:02 (19:27) to Bristol Temple Meads
19:04 (19:30) to Plymouth
19:15 to Weston Super Mare
19:18 (19:42) to Swansea


There will be a series of fares using 4A as you say, some of which are valid via Paddington and or Reading.

A restriction code by itself is not a "fare". A fare comprises a ticket type valid on a route (as in a route code) from an origin to a destination, with a restriction code (if applicable).

 

[tspaul26]

As above, the fact the route is not currently permitted is irrelevant. A protected fare (not a journey) cannot have a restriction beyond 18:59, even if the restriction is moot.

This is not correct either because fares regulation applies to the “Flow”, which by definition incorporates the permitted routes. If the route is not permitted then - notwithstanding the wording of the restriction code - there is no breach of the Protected Fare provisions i.e. the time restriction is irrelevant because it does not restrict travel on the relevant Flow.

 

[mmh]

For the first of them, it doesn't. There is an evening peak restriction on a London to Portsmouth SVR, there is none on a Reading to Portsmouth SVR.

Quite why the restriction lists all those Reading departure times is something I don't understand. Seems like utter nonsense to me.

Just because a ticket may not be currently useable via a specific route does not mean that they can attach a restriction beyond 18:59. Yes, the net outcome is still the same, but I suspect this is because routes can change over time, and it's important not to inadvertently introduce restrictions which shouldn't be there. The ticket is not permitted to be restricted beyond 19:00, regardless.

You've managed to contradict yourself there in a single paragraph, I'm afraid. On exactly the point you're arguing about. Good luck with your grand intentions, but I fear you'll need to be a bit more focused on detail and less on presumed legal minutiae to be successful.