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Author Topic: Rail Ombudsman launched - 26th November 2018  (Read 25983 times)
Robin Summerhill
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« Reply #15 on: December 01, 2018, 08:48:39 pm »

I shall put my Complaints Officer's hat back on temporarily on to look at Graham's query Smiley

Before producing their report an Ombudsman, and indeed a competent Complaints Officer, will be looking for the answers to two basic questions: (1) did the organisation correctly follow its contract with the complainant and its policies and procedure before reaching its initial conclusions on the case, and (2) even if it did, was the outcome fair, just and reasonable given the circumstances? The contract with the complainant is a very important point - any contract will exist between the TOC (Train Operating Company) and the passenger (in my previous role it was the tenancy agreement the tenant signed with the landlord). At that seminar I mentioned in the earlier post the Ombudsman pointed out one of the commonest initial mistakes landlords make - when he takes on a case he was often sent a blank copy of the current tenancy agreement, but that would not be good enough. He wanted a copy of the agreement the tenant signed at the time the tenancy commenced, and that may have been as long as 50 years ago where the conditions of tenancy might not have been the same as they are now. A similar problem could arise with a railway-related complaint if the terms and conditions of carriage had changed since the original incident, because a TOC could not rely on complying with current T&Cs if they were different at the time the incident occurred.

The first question that springs to mind about Graham's scenario is whether a contract between an individual and a TOC actually exists before a ticket is purchased? If not I don't think a complaint would be upheld but (a big but and here is where the "fair just and reasonable" test comes in) were the off peak ticket to be purchased and it then came to light that the customer could have completed their journey with a cheaper ticket had they realised that one was available, I would say that a case could be made for the refund of the difference between the two. I do not think that an Ombudsman would agree that simply having the cheaper option available on the machine (that the intending passenger may not have spotted) would be a justifiable defence that would stand up to scrutiny. "He should have opened his eyes Guv" wouldn't hold water, in my view at least, if for no other reason that a partially sighted individual may be using this unmanned machine, or someone in a hurry when the train is in the platform and staff are blowing whistles for all they are worth.

The TOC should start from the premise that the intending passenger knows absolutely nothing about the various ticketing options and should be doing all it could to help them. I have to admit that even I, with not inconsiderable experience of railway ticketing, have managed to buy myself a period off peak return to WSM when I meant to buy a off peak day return, and an anytime return to Bristol when I wanted an off peak one. If I can do it, can we really expect the ordinary travelling public to get it right every time?

Whilst I would be tempted to agree with the suggestion that the machine could be programmed to stop showing the off peak fare when it is not necessary, I would first need to know whether it is unnecessary in all circumstances. Does the off peak return convey different rights? I specifically wonder whether it is an off peak period return allowing return travel within the next 7 days, for example, whilst the super off peak offering does not? Or perhaps the super off peak is only valid via Lacock/Chippenham whilst the off peak may give the options of travel via Bath and/or the Berks & Hants?
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grahame
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« Reply #16 on: December 02, 2018, 02:23:25 pm »

I shall put my Complaints Officer's hat back on temporarily on to look at Graham's query Smiley

Much appreciated

Quote
Before producing their report an Ombudsman, and indeed a competent Complaints Officer, will be looking for the answers to two basic questions: (1) did the organisation correctly follow its contract with the complainant and its policies and procedure before reaching its initial conclusions on the case, and (2) even if it did, was the outcome fair, just and reasonable given the circumstances? The contract with the complainant is a very important point - any contract will exist between the TOC (Train Operating Company) and the passenger (in my previous role it was the tenancy agreement the tenant signed with the landlord). At that seminar I mentioned in the earlier post the Ombudsman pointed out one of the commonest initial mistakes landlords make - when he takes on a case he was often sent a blank copy of the current tenancy agreement, but that would not be good enough. He wanted a copy of the agreement the tenant signed at the time the tenancy commenced, and that may have been as long as 50 years ago where the conditions of tenancy might not have been the same as they are now. A similar problem could arise with a railway-related complaint if the terms and conditions of carriage had changed since the original incident, because a TOC could not rely on complying with current T&Cs if they were different at the time the incident occurred.

To answere (1) My understanding is that the franchise contract requires the TOC to sell the lowest price tickets for the journeys being made at the ticket office, but may offer a reduced set at machines. So it would actually be within the rules for the machine not to offer the super off peak, even on a subsidiary menu that customers had to know to select.

However, to answer (2). No,  don't think it's fair / justified / reasonable.

No change of TOC between ticket sale or use (thank goodness, we haven't got that complexity!

Quote
The first question that springs to mind about Graham's scenario is whether a contract between an individual and a TOC actually exists before a ticket is purchased? If not I don't think a complaint would be upheld but (a big but and here is where the "fair just and reasonable" test comes in) were the off peak ticket to be purchased and it then came to light that the customer could have completed their journey with a cheaper ticket had they realised that one was available, I would say that a case could be made for the refund of the difference between the two. I do not think that an Ombudsman would agree that simply having the cheaper option available on the machine (that the intending passenger may not have spotted) would be a justifiable defence that would stand up to scrutiny. "He should have opened his eyes Guv" wouldn't hold water, in my view at least, if for no other reason that a partially sighted individual may be using this unmanned machine, or someone in a hurry when the train is in the platform and staff are blowing whistles for all they are worth.

Interesting question about when the contract exists.

Agreed the case could strongly be made for the refund of the difference by a person caught out and paying an extra £18 - but I suspect that would only catch the tip of the iceberg of what is (in my view) an unjutified regime of overcharging that has gone on for years with the excuse of it being "technically not possbile to sort it out due to the limited capabilities of the ticket machines"

Quote
The TOC should start from the premise that the intending passenger knows absolutely nothing about the various ticketing options and should be doing all it could to help them. I have to admit that even I, with not inconsiderable experience of railway ticketing, have managed to buy myself a period off peak return to WSM when I meant to buy a off peak day return, and an anytime return to Bristol when I wanted an off peak one. If I can do it, can we really expect the ordinary travelling public to get it right every time?

I totally agree - the whole system is so complex that it defies even the brightest of us!

Quote
Whilst I would be tempted to agree with the suggestion that the machine could be programmed to stop showing the off peak fare when it is not necessary, I would first need to know whether it is unnecessary in all circumstances. Does the off peak return convey different rights? I specifically wonder whether it is an off peak period return allowing return travel within the next 7 days, for example, whilst the super off peak offering does not? Or perhaps the super off peak is only valid via Lacock/Chippenham whilst the off peak may give the options of travel via Bath and/or the Berks & Hants

The only difference I am aware of on Off Peak v Super Off Peak is the time the passenger may leave London on a Monday to Friday on his return journey. Length of validity, routing is the same.   There are (of couse ;-) ) other tickets available for other routes ...

The chance of someone buying a ticket on a Saturday to return on the two specific trains that are off peak but not super off peak on the following Monday is ... slim.    And do note that if you buy a super off peak and change your mind and want to come back on an off peak train, you can "excess" your ticket - upgrade it.   A particularly amusing thing to ask the chap and  chapesses on the bridge at Paddington to do for you as you make for the 19:00 - indications are that it's not exactly straightforward for the to work out either, but that's another story.

Really appreciate your expert thoughts on this one, Robin Summerhill - as I may have said, it was just about the only case  that I'm currently aware of where a reference through might help.    We have had a number of other interesting cases but usually managed to get them resolved if they're clearly unfair or wrong.
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Robin Summerhill
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« Reply #17 on: December 02, 2018, 04:01:01 pm »

Thanks Graham. Your reply has brought up a few additional points that may be worth examining.

I suspect that the legal situation in contract law will apply as the person arrives at the machine, unless there are special rules for railways that I am not aware of. At this stage no contract exists, and the range of options available on the machine would be, in contract law, an "invitation to treat." Once the ticket has been purchased the contract has been entered into ie. after you pay the fare the TOC (Train Operating Company) undertakes to transport you on the journey chosen.

I doubt that a "tip of the iceberg" argument would hold water in a complaint because it cannot be proven one way or the other. You could say "there's thousands of 'em" the TOC could say "We aren't aware of any other cases" and neither of you could provide evidence to support your respective arguments. The refund idea would probably stand up to greater scrutiny because the TOCs are quick enough to pick up on a passenger who hasn't paid enough for their journey! The old proverb about sauce for geese and ganders ought to apply.

However, the biggest difficulty that I can see is how the overcharged passenger finds out about the overcharging. I don't think it would be reasonable to expect on train staff to be walking Selective Prices manuals, as they would effectively have to be. Melksham may just be one stop amongst many and, when you take into account that there are Cheltenham to Southampton, and Weymouth to Swindon trains stopping at Melksham, it will soon become apparent how many unmanned stations that those trains will be stopping at, all with potentially similar quirks of pricing of their own.

This scenario is less likely to occur at a staffed station where the booking clerk would actually be under an obligation to sell the customer the lowest-priced ticket, and this fact would undermine a TOC trying to argue that it is "technically not possible to sort it out due to the limited capabilities of the ticket machines." An Ombudsman would respond to that "defence" on the lines of "well make it possible with all ticket machines or provide manned booking offices to all stations." If given the choice I wonder which they'd prefer...? Wink

Going back to my role with housing complaints and the housing Ombudsman, this very point is the one that makes many organisations come second in Ombudsman investigations. "We can't do anything about it because we can't afford to" is a card which, if played, will inevitably result in them losing.

By the way, a second or third TOC involved in a single journey would not add to complexity as far as the customer complaint was concerned. Their contract would be with the TOC who sold them the ticket; any others would effectively be subcontractors. In exactly the same way, if the gas boiler in your rented house is serviced and blows up 2 days later, your claim would be against your landlord and not the gas service engineer. Whether your landlord would wish to take the case up with the servicing company would be their concern, not yours.
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grahame
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« Reply #18 on: December 03, 2018, 06:27:38 am »

Thanks Graham. Your reply has brought up a few additional points that may be worth examining.

...


1. I don't think I was arguing that "tip of the iceberg" would change any decision - merely suggesting that in my understanding we are not looking at a one-off situation (so it's more importat go get it righted , perhaps)

2. The point at which is contact is formed is indeed when you buy the ticket - I'm not sure when in that process.  I have (and it doesn;t relate to the current question) understaood that if you have your ticket and turn up for a train cancelled by the train operator they are oblidge to get you there - weather, war and a couple of other things excepted, whereas if you turn up on the day to but your ticket (perhaps can't if the TVM (Ticket Vending Machine) is out of order) there is no contract in place and they are not oblidged to take you.

3. Totally agree that only a very few overcharged passengers will actually find out they could have bought an £18 less ticket.   My undertanding is that the problem applies across multiple (quite a few) unstaffed stations with ticket machines which are far enough from London / Readig to heva the three fare levels. It may also apply at stations with ticket offices which are only staffed for limited hours, during unstaffed hours.

4. In this case we are lookimg at a simgle TOC (Train Operating Company), but thanks for the clarification that it would apply if you change to a train run by another National network operator.
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Robin Summerhill
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« Reply #19 on: December 03, 2018, 11:18:06 am »

Thanks Graham. Your reply has brought up a few additional points that may be worth examining.

...


1. I don't think I was arguing that "tip of the iceberg" would change any decision - merely suggesting that in my understanding we are not looking at a one-off situation (so it's more importat go get it righted , perhaps)

2. The point at which is contact is formed is indeed when you buy the ticket - I'm not sure when in that process.  I have (and it doesn;t relate to the current question) understaood that if you have your ticket and turn up for a train cancelled by the train operator they are oblidge to get you there - weather, war and a couple of other things excepted, whereas if you turn up on the day to but your ticket (perhaps can't if the TVM (Ticket Vending Machine) is out of order) there is no contract in place and they are not oblidged to take you.

3. Totally agree that only a very few overcharged passengers will actually find out they could have bought an £18 less ticket.   My undertanding is that the problem applies across multiple (quite a few) unstaffed stations with ticket machines which are far enough from London / Readig to heva the three fare levels. It may also apply at stations with ticket offices which are only staffed for limited hours, during unstaffed hours.

4. In this case we are lookimg at a simgle TOC (Train Operating Company), but thanks for the clarification that it would apply if you change to a train run by another National network operator.

I have yet to fathom how to split quotes on this forum so I shall answer your bullet points instead! Smiley There will be a bit of overlap anyway!

1 and 3. It crossed my mind that there is a way (or should be a way) to quantify the issue. Even in the days of Edmonson card tickets each booking office knew how many of each ticket they held in stock had been sold on any given day - they had to know that in order to balance the cash at the end of the day. GWR (Great Western Railway) should therefore have records in their systems of how many off peak returns to Paddington were sold on days when a Super Off Peak ticket would suffice. This of course would also apply to any other station under their control. Given that it is possible to buy tickets through other agencies these days it might not pick up all of them, but we started off by talking about the ticket machine at Melksham, and that information should be available.

2. You raise an interesting point. As you say, it isn't really to do with the matters under discussion, but I looked at the National Conditions of Carriage to see if there was any guidance there. All I found was under section 28 "What happens when things go wrong" and a rather vaguely-worded paragraph 28.2 which reads:

"Where disruption prevents you from completing the journey for which your ticket is valid and is being used, any Train Company will, where it reasonably can, provide you with alternative means of travel to your destination, or if necessary provide overnight accommodation for you."

I suspect the inclusion of the phrase "and is being used" is intended to limit liability to journeys that are actually in progress at the time of the disruption. This would include, for example, giving passenger assistance to get home if the last train of the day was cancelled when using the return portion of their ticket, but a TOC might argue that it wouldn't necessarily apply to someone starting their journey on that self same train. I think that's a question for someone with a lot more legal expertise than I have Smiley
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grahame
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« Reply #20 on: November 09, 2021, 05:28:51 pm »

Revisiting the Rail Ombusman which has now been with us for a couple of years

Quote
The Rail Ombudsman is an independent, not-for-profit organisation. We offer a free, expert service to help sort out unresolved customer complaints about service providers within the rail industry.

Our vision is to inspire customer confidence and to deliver our service fairly to ensure the right outcome in every case. We also support the rail industry to raise standards.

If you have a complaint regarding a participating service provider which you have not been able to resolve with them, then we may be able to help you.

The Benefits of our Service
* ACCESS TO A FREE, INDEPENDENT AND EXPERT SERVICE
* CONFIDENCE IN A TRUSTED AND IMPARTIAL ASSESSMENT OF YOUR COMPLAINT
* FAIR AND TRANSPARENT OUTCOMES AND PUBLISHED CASE STUDIES
* DECISIONS WHICH ARE BINDING ON SERVICE PROVIDERS
* CUSTOMERS ARE NOT BOUND BY OUR DECISIONS AND REMAIN FREE TO PURSUE COMPLAINTS THROUGH ANOTHER CHANNEL
* FREE USE OF ONLINE RESOURCES INCLUDING HELPFUL GUIDES ON OUR WEBSITE

Now - I have a situation that has arisen since 28th July with South Western Railway - that they have decided to withdraw their through services from a couple of my local stations - services that I use - without any public consultation and they're leaving me with an inferior service. I have raised this with SWR» (South Western Railway - about), and indeed they went as far as sending one of their team to meet us in public last month, but they have not come up with any suitable outcome or suggestions.  A very unsatisfactory situation in which they tell us the decision's already taken, but we had no idea the question was even being asked.

Looks like exactly the sort of thing the Rail Ombudsman says (s)he looks into.   So I wrote up the case, filled in their forms (had to set up an account, so it looks like they optimise for multiple complaints from the same people!!) and put the case in.

Isn't it good to have a passenger's representative now for when things go sour?    Perhaps not:

Quote
CASE TRANSFERRED TO TRANSPORT FOCUS, REF R144050

Dear Mr Ellis,

Thank you for submitting your complaint to the Rail Ombudsman regarding South Western.

On further review into the nature of your complaint, unfortunately this is out of scope for the Rail Ombudsman. However, we have transferred your complaint to Transport Focus who may be able to further assist with this.

What Next?

There is no need to resubmit your complaint to Transport Focus as these have been passed over to them on your behalf by the Rail Ombudsman.

Transport Focus, contact details below, will be in contact regarding the next steps.

More details regarding out of scope complaints can be found in the Rail Ombudsman Consumer Guide by clicking here


Hmmmm ... what a wonderful case of "Smoke and Mirrors" ... let's pass the buck!
* Rail Ombusdman?
* Transport Focus?
* South Western Railway?
* Department for Transport?
At this point I would normally say "a case for my MP (Member of Parliament)" ...
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ChrisB
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« Reply #21 on: November 09, 2021, 05:49:09 pm »

Reading what the ombudsman covers, it is clearly not the body dealing with removal of services
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TaplowGreen
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« Reply #22 on: November 09, 2021, 09:29:52 pm »

Reading what the ombudsman covers, it is clearly not the body dealing with removal of services

Exactly. Way outside of their remit.
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grahame
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« Reply #23 on: November 10, 2021, 06:12:19 am »

Reading what the ombudsman covers, it is clearly not the body dealing with removal of services

Exactly. Way outside of their remit.

Yes, I agree.  But yet ... their headlines which I quoted above in this thread talk of sorting out unresolved customer complaints (yes, I have one), to inspire customer confidence (that's needed) and support the rail industry to raise standards (and in my view they need to do so with things like proper information and consultation and proper connections).

It was worth an ask. And worth having them made aware of a serious issue with one of their members with whom we are in deadlock. And I need to give them considerable credit by passing the query on promptly, and telling me they had done so.  A lot more responsive and customer-centric than many of the organisations around
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Mark A
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« Reply #24 on: November 10, 2021, 02:40:56 pm »

Agree with both sides. Yes, it's outside their remit, but it's also a terrible look.

*Heads off to Transport Focus*

Their correspondent: "I've been reminded that we don't have any say on timetabling issues" followed by another email "Do you know any lorry drivers?"

With regards to the Bristol to Waterloo direct trains, it's singular that while they can make recommendations, no organisation with the remit to represent passengers appears to have any teeth on this - or if they have teeth, they choose to keep them in the glass over it.
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ChrisB
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« Reply #25 on: November 10, 2021, 04:00:10 pm »

No one has any teeth when it comes to ERMAs and the Treasury.
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grahame
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« Reply #26 on: November 11, 2021, 10:15:58 am »

No one has any teeth when it comes to ERMAs and the Treasury.

And from Transport Focus ...

Quote
Dear Mr Ellis
 
Your complaint has come back to Transport Focus as the Rail Ombudsman consider it to be out of their remit.  I note from your application form to the Rail Ombudsman that you are already aware of Transport Focus position on this subject which has not changed although we are frustratingly unable to help.
 
I believe that you could try writing to the Department for Transport, if you haven’t done so already, although its likely that they will signpost you back to us.
 
I am sorry that we are able to help with this.
 
Yours sincerely
 
Sxxxx

I think she's left a "not" out of the last line.

Confirmation that neither of the passenger bodies that resolve issues with train companies is actually able to help in a case which really matter to a lot of people ...
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Mark A
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« Reply #27 on: November 11, 2021, 05:30:31 pm »

I'll attempt to put those responses into a flowchart. It'll need no additions to make it into a comedy.

Mark
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Robin Summerhill
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« Reply #28 on: November 11, 2021, 08:21:25 pm »

You like playing devil’s advocate from time to time and so do I!  Grin

When I was  Formal Complaints Officer for a housing association (internal Ombudsman if you like) who prided himself in solving complaints well before they got anywhere near the Housing Ombudsman, I used to ask two questions:

1.   Were all policies and procedures correctly followed?
2.   Even if they were, was the outcome fair and reasonable under the circumstances?

In this case I would ask whether any rules have been broken. For example, was the Bristol to Waterloo service included in the original franchise agreement? If so then a contract stipulation has not been adhered to, and you could catch them for that. If not and it is essentially a discretionary service, that argument will fail

Then I would ask what consultation requirements are in the franchise agreement. Have they broken any rules on this? If they have you have “got” them, if they haven’t they haven’t broken a rule there either.

One of the difficulties you will encounter is that there are no proposals to lose stations – each and every one remains open – and the journey(s) can still be made in full by rail, albeit with a change of trains at Salisbury.

So in truth, your complaint boils down to a lack of convenience both in terms of having to change trains and having poor connections (call it poor customer service of you like) but even so the matter leans towards the subjective. If you now have to change trains on what was once a through journey, any connection could be seen by some to be a poor connection. As regards changing trains and poor customer service, if, as I understand it, SWR» (South Western Railway - about) want the stock to augment capacity on the Salisbury to Exeter route, they may argue that your resultant reduced service is more than outweighed by an improvement in service for others between Salisbury and Exeter. And an official body might well agree with them.

In addition of course, SWT (South West Trains) are one class 159 short at the moment as a result of the mishap at Salisbury. Now might not be a very good time to argue for more coaching stock to be in service for that reason alone.
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ChrisB
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« Reply #29 on: November 11, 2021, 08:26:48 pm »

The franchise agreement was superceded by the pandemic’s EMA & ERMA. It no longer exists
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