Who to claim from?

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JamesT

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I was travelling home to Kirkcaldy from Oxford and got caught up in the disruption on the 21st of December. I'm now unsure whether I should try and claim for the delay from Virgin West Coast or Scotrail.

The relevant ticket was an Advance Single from Birmingham New Street to Kirkcaldy, VTWC&Connections. Arrival was scheduled for 16:16 and it was 7 minutes late, so far, no worries.
Next on the itinerary (though no reservation) was to be the 16:39, arriving into Kirkcaldy at 17:12.
This was cancelled along with many other trains due to someone going under a train near South Gyle. Announcements over the tannoy at Haymarket were that this could be disrupted for hours and passengers should make their own way on.
After a bit of dithering I used the tram to the Airport (which were accepting rail tickets) then got a bus over to Fife where I could be picked up. In the end I was about 2 hours late getting in compared to what I should have been.

Do I claim from Virgin who sold me the ticket? Or Scotrail as the disruption was with their trains? Would I be looking at a complete refund as the trains were cancelled for hours between Edinburgh and Fife?

Thanks for any advice.
 
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najaB

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Do I claim from Virgin who sold me the ticket? Or Scotrail as the disruption was with their trains? Would I be looking at a complete refund as the trains were cancelled for hours between Edinburgh and Fife?
As always, you claim from the TOC with whom you experienced the delay. In this case, Scotrail. Since the delay to your journey was over two hours then yes, you are due a full refund. The only caveat to that is that if it trains started running sooner than expected and your overall delay would have been less had you waited, then Scotrail may choose to reduce the value of your compensation.
 

gray1404

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Did you have a separate rail ticket to cover you for travel between Oxford and Birmingham? If so, you claim delay repay based on the overall combination of tickets used for your entire journey, not just the ticket you were using at the time of the delay.
 

sefton

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The only caveat to that is that if it trains started running sooner than expected and your overall delay would have been less had you waited, then Scotrail may choose to reduce the value of your compensation.

If they did so that should be challenged as they had announced their customers should make their own way.

Therefore the delay is whatever time the customer actually arrived by the method they choose and the time of the next train is irrelevant.
 

bb21

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Therefore the delay is whatever time the customer actually arrived by the method they choose and the time of the next train is irrelevant.
It will not be "whatever time the customer actually arrived by the method they choose", although some leeway will be given and a test of reasonableness will usually be applied to the customer's claim.
 

island

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It will not be "whatever time the customer actually arrived by the method they choose", although some leeway will be given and a test of reasonableness will usually be applied to the customer's claim.
Unfortunately this is correct. Even if a passenger follows rail staff advice to reroute themselves and in the event finds that staying put and waiting would have got them to where they needed to be sooner, they will only be paid for the shorter delay. I had this happen to me with Southern a year ago when seeking to get from Victoria to Eastbourne and advised that owing to trespasser on the line at East Croydon my best bet was to make my way from Charing Cross to Hastings on Southeastern and pick up a connection there. I was two and a half hours late but a train eventually left Victoria which would have had me at Eastbourne 110 minutes late and that was what they paid me for.

As DelayRepay is not a contractual entitlement, your options if you don’t agree with a settlement usually involve liking it or lumping it.
 

ForTheLoveOf

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As DelayRepay is not a contractual entitlement

I disagree (though I may well be wrong). According to the Consumer Rights Act 2015, any statement made by the trader that influences the consumer's buying decision or conduct on an enforceable part of the contract, and any description made of services and recourse is also an enforceable part of the contract.

Whilst the TOCs like to throw around things like 'this does not form part of the contract' on the Passenger's Charter, the reality would seem to me to be that ss. 50 and 54 of the Consumer Rights Act 2015 disagree. If a statement made by a trader is not upheld (e.g. delay repay is promised but not paid), the consumer has the right to a price reduction - i.e. something like delay repay.

And this is without considering the possibility of a claim of promissory estoppel. This might suggest that, even though no consideration was directly received for the Passenger's Charter promise, it is still enforceable.

Finally, I have had TOCs argue to me that statutory remedies under the CRA and other laws are effectively unnecessary, as Delay Repay covers this. So they view it as an alternative to, and/or fulfillment of, the TOCs' statutory duties and the consumer's statutory rights.

Of course, enforcing this would take a lot of time and effort (and a fair amount of upfront money), but I think it would be worth it to get a precedent that no, Delay Repay isn't just discretionary.
 
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najaB

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Of course, enforcing this would take a lot of time and effort (and a fair amount of upfront money), but I think it would be worth it to get a precedent that no, Delay Repay isn't just discretionary.
However, if it did get as far as a court that had power to set precedent I think that the TOC would prevail as long as they were being objectively reasonable in any payment calculations.

Basing Delay Repay payments on how late the trains actually were (even if the passenger abandoned the railway) seems reasonable to me.
 

island

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I disagree (though I may well be wrong). According to the Consumer Rights Act 2015, any statement made by the trader that influences the consumer's buying decision or conduct on an enforceable part of the contract, and any description made of services and recourse is also an enforceable part of the contract.
That major premise is true. I don't think anyone could realistically argue that the existence of DelayRepay influences a consumer's buying decision, however. You buy a train ticket to make a train journey. The existence of a statement that you might receive amount X whereas the contract (the NRCoT) says you might receive lesser amount Y in the 1-2 journeys out of every 100 that are delayed isn't going to change your mind.
Whilst the TOCs like to throw around things like 'this does not form part of the contract' on the Passenger's Charter, the reality would seem to me to be that ss. 50 and 54 of the Consumer Rights Act 2015 disagree. If a statement made by a trader is not upheld (e.g. delay repay is promised but not paid), the consumer has the right to a price reduction - i.e. something like delay repay.
The statement has to have been taken into account by the consumer in entering into the contract, which for the reasons given above means the sections mentioned probably don't catch DelayRepay leaflets. If I am wrong and they do, then s 50 (2) CRA 2015 says that the taking into account must also be subject to anything that qualified the statement and that was said or given to the consumer on the same occasion – a statement that DelayRepay and Passengers' Charters don't form part of the contract would seem to me to be exactly such a qualification. If I am further wrong, then the reduction of price would be "an appropriate amount", which is open to a lot of debate.

I agree that some caselaw on the matter would be useful; however, the chance of it getting to a court capable of setting a precedent without an out of court settlement intervening seems negligible to me.
 

sheff1

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Is not the point that the passenger was advised, by the TOC, to abandon the railway and make their own way to their destination but people are now arguing that the TOC are perfectly entitled to calculate the amount due under Delay Repay based on the time a train (which, in the event, ran after the passenger had left the railway - as they were told to do) reached the destination rather than the later time the passenger actually arrived via alternative means.

I rather get the feeling that, if the passenger had not abandoned the railway but instead waited for a train which never materialised for hours, some people would now be arguing that Delay Repay is only due based on the earlier time the passenger would have arrived if they had followed the advice to make their own way by other means !
 
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island

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Is not the point that the passenger was advised, by the TOC, to abandon the railway and make their own way to their destination but people are now arguing that the TOC are perfectly entitled to calculate the amount due under Delay Repay based on the time a train (which, in the event, ran after the passenger had left the railway - as they were told to do) reached the destination rather than the later time the passenger actually arrived via alternative means.
I think that the passenger should, morally, absolutely be compensated based on actual arrival time if he was advised by staff to abandon the railway. I don't, however, think that the passenger has any more then a moral entitlement.
 

bb21

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Is not the point that the passenger was advised, by the TOC, to abandon the railway and make their own way to their destination but people are now arguing that the TOC are perfectly entitled to calculate the amount due under Delay Repay based on the time a train (which, in the event, ran after the passenger had left the railway - as they were told to do) reached the destination rather than the later time the passenger actually arrived via alternative means.

I rather get the feeling that, if the passenger had not abandoned the railway but instead waited for a train which never materialised for hours, some people would now be arguing that Delay Repay is only due based on the earlier time the passenger would have arrived if they had followed the advice to make their own way by other means !
No.

If the customer stayed put, and waited out the resolution provided by the TOC at no cost to themselves, then Delay Repay entitlement is undoubtedly based on the actual arrival times of the customer at the end of his journey.

When the customer followed TOC instruction to make their own way at their own cost, which the customer does not necessarily have to do depending on the exact situation as the TOC has the absolute duty not to strand any customer without the means to pay extra to complete their journey, the customer is entitled to a refund of any (reasonable) additional cost incurred in completing their journey, and Delay Repay based on the delay to their journey. There is however a reasonableness test that need to be applied to prevent vicious claims for excessive delays where reasonable alternatives exist, eg. a suitable bus service. In the vast majority of cases, there should be no difference between what the customer claims and what is approved as benefit of the doubt is usually given.

In the second case, ime a small amount on top of due refund/compensation is normally added as a goodwill gesture for additional inconvenience caused due to the customer making his own way at their own costs.
 

sefton

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I think that the passenger should, morally, absolutely be compensated based on actual arrival time if he was advised by staff to abandon the railway. I don't, however, think that the passenger has any more then a moral entitlement.

Since Delay Repay is based on "if your journey is delayed" and the train company has advised you to complete your journey by a means other than their trains, it is hard to see on what basis they could argue the calculation must be based on a train they didn't know would run when they gave the advice to use other means of transport.

I think it entirely reasonable that if the customer acts on the advice of the train company they are compensated in line with that advice, and it would be entirely unreasonable for the train company to say "ah ha, if you had ignored our advice you would have got to your destination quicker so tough". Equally it would be unreasonable for the customer to ignore the advice if there was a quicker alternative route and wait until the issue was resolved and claim for that longer delay.

At the end of the day, the train company has better information than their customer on the situation, and the customer shouldn't be penalised if the train company gives out incorrect advice or advice that suits them (e.g. telling customers to use alternative routes clears the crowds).
 

najaB

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It would be entirely unreasonable for the train company to say "ah ha, if you had ignored our advice you would have got to your destination quicker so tough".
Yes, it would. However, it would be equally unreasonable for a passenger to (by way of an example), live a 15 minute walk away from the station, but choose to wait 90 minutes for a bus and then claim for a two hour delay rather than walking (and claiming for a 30 minute delay) or getting a taxi and claiming for the delay plus taxi fare.

It's all about being reasonable - on both sides.
 

sefton

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Yes, it would. However, it would be equally unreasonable for a passenger to (by way of an example), live a 15 minute walk away from the station, but choose to wait 90 minutes for a bus and then claim for a two hour delay rather than walking (and claiming for a 30 minute delay) or getting a taxi and claiming for the delay plus taxi fare.

It's all about being reasonable - on both sides.

I agree it is about being reasonable.

However with your example we can rule out the taxi as whenever I have seen people on Twitter ask if they can claim, the answer has been "no" or "write to customer service" so it is reasonable for the customer to choose the option.

A 15 minute walk vs 90 minutes for a bus is quite extreme, but I could see reasons why someone may be forced to wait and if that is the case then that is the customer's journey time.
 

najaB

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A 15 minute walk vs 90 minutes for a bus is quite extreme, but I could see reasons why someone may be forced to wait and if that is the case then that is the customer's journey time.
That's why I said 'chose to wait' - and it's not that extreme an example. There are a few roads in my hometown that are served by bus quite infrequently where the alternative is a 10 to 20 minute walk.
 

ForTheLoveOf

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That major premise is true. I don't think anyone could realistically argue that the existence of DelayRepay influences a consumer's buying decision, however. You buy a train ticket to make a train journey. The existence of a statement that you might receive amount X whereas the contract (the NRCoT) says you might receive lesser amount Y in the 1-2 journeys out of every 100 that are delayed isn't going to change your mind.

The statement has to have been taken into account by the consumer in entering into the contract, which for the reasons given above means the sections mentioned probably don't catch DelayRepay leaflets. If I am wrong and they do, then s 50 (2) CRA 2015 says that the taking into account must also be subject to anything that qualified the statement and that was said or given to the consumer on the same occasion – a statement that DelayRepay and Passengers' Charters don't form part of the contract would seem to me to be exactly such a qualification. If I am further wrong, then the reduction of price would be "an appropriate amount", which is open to a lot of debate.

I agree that some caselaw on the matter would be useful; however, the chance of it getting to a court capable of setting a precedent without an out of court settlement intervening seems negligible to me.
That major premise is true. I don't think anyone could realistically argue that the existence of DelayRepay influences a consumer's buying decision, however. You buy a train ticket to make a train journey. The existence of a statement that you might receive amount X whereas the contract (the NRCoT) says you might receive lesser amount Y in the 1-2 journeys out of every 100 that are delayed isn't going to change your mind.

The statement has to have been taken into account by the consumer in entering into the contract, which for the reasons given above means the sections mentioned probably don't catch DelayRepay leaflets. If I am wrong and they do, then s 50 (2) CRA 2015 says that the taking into account must also be subject to anything that qualified the statement and that was said or given to the consumer on the same occasion – a statement that DelayRepay and Passengers' Charters don't form part of the contract would seem to me to be exactly such a qualification. If I am further wrong, then the reduction of price would be "an appropriate amount", which is open to a lot of debate.

I agree that some caselaw on the matter would be useful; however, the chance of it getting to a court capable of setting a precedent without an out of court settlement intervening seems negligible to me.

I would respectfully disagree. You state that the statement must be taken into account. Sadly, there is no caselaw on this point, however the relevant section says that information becomes an enforceable term if "it is taken into account by the consumer when deciding to enter into the contract", or if "it is taken into account by the consumer when making any decision about the service after entering into the contract". There is again no mention of the burden of proof in this one - but note that it does not say that "it influences", merely that it must be taken into account. Speaking from a personal perspective, I have several options for travelling on my commute, and I choose the train partly because I know that if I am delayed, I can expect to receive compensation. So in my case, Delay Repay certainly is taken into account by me, and so becomes an enforceable part of the contract.

Furthermore, this analysis (about half-way down) of the CRA further states that any terms that purport to restrict liability for S50 statements is blacklisted as unfair and therefore void. This guidance from the Competition and Markets Authority makes this perfectly clear as well (page 61). Hence the statement "this does not form part of the contract" may as well not exist, for all the effectiveness it has.

I would also suggest that the National Rail timetable, and any copy or extract thereof presented to the consumer when buying any ticket(s), definitely forms part of the contract, as the journey times and timings therein are a significant factor - if my commute took twice as long by train, I would simply take the car instead. Hence if the TOC fails to then comply with that timetable, S50 makes clear that I have remedies in accordance with S54 - as repeat performance is not possible in the context of a contract for travel, a S56 price reduction, i.e. Delay Repay of some sort, is the appropriate remedy.

I don't like that the TOCs try to forget that the CRA applies to them. It didn't originally, but it now does, and many of them seem not yet to have woken up to that reality, and refuse to comply.
 

island

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I think your interpretation and mine are both within the bounds of reasonableness and a lot would turn on the facts of a case at hand, and, indeed, the level of skill with which they were presented to a court. It would, for example, be harder to argue that existence of DelayRepay was taken into account by a passenger using the railway as the only viable means of commuting to work as compared to a different passenger making a discretionary leisure journey.

I think we can agree that some caselaw would be helpful.
 

najaB

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I think what is missed is that we aren't taking about a TOC refusing to pay, but rather the basis on which they make the calculation.

It seems reasonable, where a passenger abandons the railway, for a TOC to base the compensation on the shorter of when they could have arrived by rail and the typical journey time from the point where they left the railway to their destination station. Plus, of course, reasonable costs. Otherwise the railway could end up paying out due to traffic jams, or passengers booking chauffeur-driven limos, etc.

The key is reasonableness.
 

ForTheLoveOf

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I think what is missed is that we aren't taking about a TOC refusing to pay, but rather the basis on which they make the calculation.

It seems reasonable, where a passenger abandons the railway, for a TOC to base the compensation on the shorter of when they could have arrived by rail and the typical journey time from the point where they left the railway to their destination station. Plus, of course, reasonable costs. Otherwise the railway could end up paying out due to traffic jams, or passengers booking chauffeur-driven limos, etc.

The key is reasonableness.

Sorry, I have taken it off topic somewhat. I was referring more to other cases where TOCs have refused to pay out for delays, citing the "discretionary" nature of Delay Repay, when in fact it is anything but, in my reading of the law.

I agree that it would be unreasonable to expect a train company to have to go to unreasonable expense to uphold their side of the contract (which is essentially to get you from A to B). However refusing any kind of recompense is, again, unreasonable in my opinion. Perhaps, if costs exceed what is reasonable, only so much as is deemed reasonable should be paid.
 

sefton

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I think what is missed is that we aren't taking about a TOC refusing to pay, but rather the basis on which they make the calculation.

It seems reasonable, where a passenger abandons the railway, for a TOC to base the compensation on the shorter of when they could have arrived by rail and the typical journey time from the point where they left the railway to their destination station. Plus, of course, reasonable costs. Otherwise the railway could end up paying out due to traffic jams, or passengers booking chauffeur-driven limos, etc.

The key is reasonableness.

In situations where the train company has advised their customers to make alternative arrangements, it is not the customer abandoning the train company but the train company abandoning their customers.

In such circumstances since the train company does not know how the customer completed their journey they should take the customer's word for it (unless absurd). It would be entirely unreasonable for the train company to make their calculation based on a train they know their customer didn't catch because they had advised them not to.

And if the customer does get caught in a traffic jam that is not the customer's fault. They are still delayed in their journey so need to be compensated for the delay they actually experience.

Again you mention customers should be compensated for reasonable costs, but as I pointed out before when customers ask on Twitter before incurring such costs they are inevitably advised these will not be paid.
 

najaB

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Again you mention customers should be compensated for reasonable costs, but as I pointed out before when customers ask on Twitter before incurring such costs they are inevitably advised these will not be paid.
I have had taxi costs reimbursed.
 

sefton

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I have had taxi costs reimbursed.


Did you know before you incurred the cost you would be refunded or did you just hope.

All I can repeat is every time I have seen someone ask a train company on Twitter if they can claim for a taxi when delayed, the response has not been "yes" but "no" or "it is not our decision".
 

najaB

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Did you know before you incurred the cost you would be refunded or did you just hope.
I didn't know, but I was reasonably confident about it.
All I can repeat is every time I have seen someone ask a train company on Twitter if they can claim for a taxi when delayed, the response has not been "yes" but "no" or "it is not our decision".
"It's not our decision" is the correct answer for a Twitter team if a passenger asks before they get the taxi since the TOC would need to know how much the claim is for vs how much is reasonable for the journey to be made.
 

sefton

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I didn't know, but I was reasonably confident about it.
"It's not our decision" is the correct answer for a Twitter team if a passenger asks before they get the taxi since the TOC would need to know how much the claim is for vs how much is reasonable for the journey to be made.

So "no" which is the most frequently given response is incorrect.

No wonder customers don't believe they will get a refund of the taxi fare, hence why it needs to be ruled out as an option when calculating journey times.
 

sefton

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That depends on the exact question that's been asked.

The questions are quite straightforward, as is the replythat taxi fares will not be refunded. For example from a recent Twitter exchange on the @GNRailUK feed -

"Hi, all of the trains home were cancelled last night (staff were very helpful in keeping us updated). We had to get a taxi home, can we reclaim that cost?"

received the response

"sorry to hear this. I'm afraid we do not refund taxi fares."

If there was a possibility of taxi fares being refunded the Twitter team would ask for further details or direct the customer to someone who could answer the question before they incurred the cost.
 

yorkie

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Taxis are a minefield, but if a customer organises one themselves then unless they had authorisation to do so from the TOC there is unlikely to be an entitlement.

I know of a case where East Coast declined to pay for a taxi due to the last bus being missed (after a 3 hour delay), but did give the passengers a much more valuable 1st class scratchcard each, for any walk-up journey of their choice!
 

najaB

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The questions are quite straightforward, as is the replythat taxi fares will not be refunded. For example from a recent Twitter exchange on the @GNRailUK feed -

"Hi, all of the trains home were cancelled last night (staff were very helpful in keeping us updated). We had to get a taxi home, can we reclaim that cost?"
The problem here is that usually when stuck at a staffed station the station staff will arrange taxis on account. This means that (a) there's no need to refund anyone; and (b) they can combine journeys to reduce fares. Claiming ad hoc taxi journeys after the fact is usually going to be a minefield - for one thing, how many people even think to get a taxi receipt?
 

sefton

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The problem here is that usually when stuck at a staffed station the station staff will arrange taxis on account. This means that (a) there's no need to refund anyone; and (b) they can combine journeys to reduce fares. Claiming ad hoc taxi journeys after the fact is usually going to be a minefield - for one thing, how many people even think to get a taxi receipt?

I think that is getting away from the original point of the thread of customers being asked to make their own way, so the train company is specifically not arranging taxis.

The view being expressed was the journey time should be calculated using a taxi if the alternative was waiting 90 minutes for a bus.

Since it has been confirmed by a moderator of the forum that there is not usually an entitlement to the refund of a taxi without prior approval and all the publicly available evidence (from the train companies Twitter accounts) is they will not usually give prior permission, then I think it is reasonable to rule out expecting a customer to travel by taxi when asked to make their own way.
 
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