Last week, it was revealed that the Rail Delivery Group failed to communicate changes to penalty fares legislation to train operating companies, leading to the overcharging of up to 10,000 passengers. The overcharging follows a similar scandal revealed in 2018, when the Rail Delivery Group failed to update changes to the Consumer Rights Act regarding ‘consequential losses’. On that occasion it took an intervention from Which? for the Rail Delivery Group to incorporate consumer rights legislation that had changed eighteen months earlier.
The Rail Delivery Group (Association of Train Operating Companies Ltd.) is now presiding over a major fares and ticketing restructure, and is by far the loudest voice in the Williams Rail review. So, it is up to passengers to get ahead of the game and call for real change, which can only start by addressing the train operating companies’ financial incentives. It is long past time to demand a structure that guarantees honesty and ethics in the railway’s approach to consumer rights – and impossible to see how progress can happen when the current structure incentivises precisely the opposite behaviour
With this in mind, here are the top three consumer rights issues we think every rail passenger needs to know about:
1. Delay Repay: the rail industry’s ‘perverse incentives’
The good news is that the Office of Rail and Road (ORR) is now advocating for a new compensation ‘code of conduct’; to become a train company licensing condition within the next twelve months. Among the ORR’s recommendations in their July submission to the Williams Rail Review is that Williams should consider the issue of ‘perverse incentives’ – a reference to train operating companies retaining the ‘revenue risk’ from claims, meaning they are able to profit from unpaid compensation. Though not mentioned in the ORR’s submission, there is also the matter of Schedule 8 compensation payments made to train operating companies by Network Rail for problems with infrastructure (totalling £328 million last year). According to a recent Telegraph investigation, only 20p in the pound is being passed on to passengers – and where the rest of Network Rail compensation goes is strongly disputed.
Unfortunately, the issue of perverse incentives features only as a ‘long-term’ aspiration in the ORR submission. This is too slow a timescale to address the incentive structure that is quite logically the root cause of the problem. Despite several interventions by the consumer rights charity Which? compensation payout rates have not significantly improved since 2016, and only about a third of passengers are currently claiming the delay repay they’re entitled to. The payout on small value claims is even worse, with only 18% of passengers claiming under Delay Repay 15 schemes, and only 25% claiming when the value of their ticket is less than £5.
All available research shows a huge ‘compensation gap’ when it comes to delay repay. But it’s the cause of this – the ‘technology gap’ – that is even more shocking. A Which? investigation earlier this year showed that train operating companies demand between 10 and 24 pieces of information for claims. And Department for Transport research shows that over 1 in 4 passengers cite the time and complexity as their reason for not claiming. The cause is obvious: train operating companies have been disincentivised over many years to make claiming easier, which could easily be done through the innovative use of technology.
2. Third Party Apps: how the rail industry is standing in the way of twenty-first century technology
Most passengers are unaware that train operating companies can refuse delay repay requests submitted through third party apps – an area which remains entirely unregulated. This issue first came to our attention in April 2018 when we were contacted by a wave of Govia Thameslink Railway passengers who’d been asked to repay 30 – 100% of their compensation, simply because they had been using a third party app to expedite their claims. While there was no public response from GTR or any rail agency at the time, we noticed that a few months later, the Office of Rail and Road quietly began a market review into the use of third party apps.
The results of this review were due in Spring 2019, but have not – even now – been publicly announced by the ORR. After months of waiting, we have now discovered that there is a copy of the report in Annex A of their submission to the Williams Review. The report confirms our story about delay repay, and shows that there are currently at least six train operating companies who refuse to deal with third party compensation claims (page 4):
To the ORR’s credit, they have said in their submission to the Williams Review that they intend to consult immediately on a ‘Third Party Intermediary’ (TPI) code of conduct, which would open up the market for third party apps and online retailers to process compensation claims. However, we believe more urgent action is required. For example, why shouldn’t the ORR and Transport Focus demand that the Rail Delivery Group makes a clear statement committing to the immediate acceptance of third party claims? The tech market would respond promptly and this would provide train operating companies with a much-needed incentive to improve their own technology if they wish to remain competitive. Anything less is to allow a market monopoly to continue to stand in the way of innovation – a technology gap which has already become a national embarrassment.
3. Class Action Lawsuits: will the floodgates open for new consumer rights precedents?
In February this year, a £100 million class action was launched at the Competition Appeal Tribunal on the issue of ‘boundary fares’; alleging that train companies have been making passengers with travelcards pay double when crossing a TfL boundary. The overcharging around ‘boundary fares’ has been an issue of concern to commuters for years. ABC campaigner Martin Abrams brought this to the Rail Delivery Group’s attention as early as 2015, but still nothing has been done to correct the practice; demonstrating the slow rate of change and weakness of regulation in this area.
We have long been arguing that the floodgates will open concerning new consumer rights precedents in rail; and we can expect to see further legal challenges of this kind while the industry’s reactive approach to consumer rights continues. Recent examples of ‘passenger power’ include the successful attempt of one of our members to claim back the value of his season ticket through his Amex credit card, Seth Pochin’s successful small claim against Greater Anglia, and this in-depth guide to small claims against train companies by Simon Tilley. The only remaining question is whether change will come through the government and rail regulator, or whether legal actions from passengers will lead the way.
Write to us at contact@abcommuters if you’d like to share your thoughts.
[This article was edited at 12:30pm on 28th August 2019, to reflect the fact that where schedule 8 Network Rail compensation goes is still strongly disputed.]