Train companies persist in skirting the law on consequential loss

Train companies are continuing to provide misleading advice to passengers about their rights to claim for consequential loss, despite the change to the industry terms and conditions,  a Which? investigation has revealed.

After over a year of pressure from Which?, operators agreed changes to the National Rail Conditions of Travel (NRCoT) in March – removing the term that suggested travellers were not entitled to claim for reasonable costs incurred when services are disrupted and it is the train company’s fault.

Under the Consumer Rights Act (CRA) and common law, passengers are entitled to claim for losses when a service is not delivered with reasonable care and skill – for example, having to pay for a taxi when a train breaks down and is cancelled and there is no other way to get home.

But when Which? scrutinised current practices, it found that some train companies were still thumbing their noses at passengers and the regulator – and potentially breaching consumer law – by responding with blanket refusals to consider consequential loss claims. Passengers could be losing out on significant sums of money when forced to make alternative arrangements, despite their legal rights to claim these back from the train company in appropriate circumstances.

The consumer champion made “mystery shop” phone calls to 26 operators, asking if an elderly friend or relative was eligible for compensation when their train – the last of the night – was cancelled and they were forced to pay for a cab.

Almost half (12 out of 26) provided incorrect or inconsistent advice, with the six worst offenders – Cross Country, Grand Central, Greater Anglia, Heathrow Express, ScotRail and Stansted Express – all wrongly telling our secret shoppers they could not make a claim on every call.

The failures by two of the airport link operators (Heathrow Express and Stansted Express) were concerning – they have different terms and conditions to the NRCoT but these Ts&Cs are subject to consumer law and their advice was in stark contrast with another airport link operator, Gatwick Express, whose Passenger Charter states that they will consider any reasonable claim for additional costs incurred because of a delay to one of their services.

When we put our various findings to these companies ScotRail, Greater Anglia, Stansted Express and Grand Central said that they do cover consequential losses, which suggests that their individual staff members are not articulating company policy correctly. Heathrow Express also confirmed that they intend to retrain their staff. Cross Country did not respond to our request for comment.

There were six companies which were inconsistent – Arriva Wales, Chiltern, Southeastern, Thameslink/Great Northern, Virgin West Coast and West Midlands fared slightly better than the worst offenders, but while the advice was not always inaccurate, it was inconsistent and articulated poorly.

There was some positive news, as Which? found 13 out of 26 train companies were giving good advice over the phone, an improvement on a similar survey carried out before the (NRCoT) changes that found only five giving the correct information.

Which? also analysed 26 train company websites and found 18 out of 26 failing to provide good enough information to customers about their rights to claim for consequential loss, with most simply failing to provide any information about when they would consider a claim.

Only 8 out of 26 train companies were showing elements of good practice on their websites, using phrases like “we will consider any reasonable claim for additional costs” or “we will consider each claim made to us on its merits”.

We found that five of them – East Midlands, Great Western Railway, Heathrow Express, Hull Trains and Stansted Express – were still providing misleading advice about consequential loss to customers on their websites or passenger charters by making blanket statements that they were not liable for consequential loss, or that any consequential losses should be claimed on passengers’ travel insurance . While Merseyrail, Southwestern and Southeastern also demonstrated bad practice by saying that claims would only be considered “under exceptional circumstances”.

Great Western, Heathrow Express and East Midlands have now updated their online information as a result of our investigation and Hull Trains have said they are reviewing their Passengers’ Charter.

Amid the current timetable scandal, the findings are another indictment against train companies failing to act in the best interests of their customers – even after reaching an agreement with the regulator on their terms and conditions to clean up their act.

The rail regulator (the Office of Road and Rail) must now step in and take enforcement action against companies that persist in misleading customers on consequential loss – and train operating companies must start to advise and process passengers’ claims fairly.

Which? is also asking for evidence from passengers who have been let down by their train service – whether by struggling to claim compensation or having their lives turned upside down by chaotic timetable changes and driver shortages. To share a story with Which? please visit www.which.co.uk/trainpain.

Alex Hayman, Which? Managing Director of Public Markets, said:

“This is the latest in a catalogue of examples of train companies treating their passengers with breathtaking disregard. They have been warned time and again about their duties to ensure their passengers are getting the money they are owed when they fail to deliver, yet they fail to act until forced.

“The regulator must now start showing some teeth and take immediate enforcement action or the Government has no choice but to step in and stand up for passengers and their rights.”

Notes to editors

To report your experience regarding compensation to Which? Visit: www.which.co.uk/trainpain

You may be entitled to compensation for delays and consequential loss, Which?’s guide to train delay and cancellation rights and how to claim compensation can be found here: which.co.uk/consumer-rights/l/train-delays

Rail operators use the National Rail Conditions of Travel (NRCoT), which train operators use to contract with passengers. This is with the exception of Heathrow Express and Stansted Express – both subject to different terms and conditions to NRCoT.

On 11 March 2018 NRCoT was updated to ensure that train companies’ Ts&Cs do not mislead passengers about their rights under the CRA and the common law to claim for compensation when a rail service hasn’t been delivered with ‘reasonable care and skill’.

Which? researchers made two ‘mystery shop’ phone calls to each of 26 train companies to enquire about rights to consequential loss in April 2018.

Criteria for phone research:

Failed – defined as a company having given the wrong consequential loss advice on every occasion.

Needs improvement – when a company was inconsistent in the advice it gave or it was vague.

Passed – when a company gave correct advice on every occasion.

Not conclusive – see Hull Trains below.    

Failed

Cross Country

Greater Anglia

Grand Central

Heathrow Express

Scotrail

Stansted Express

Inconsistent

Arriva Wales

Chiltern

Southeastern

Thameslink/Greater Northern

Virgin West Coast

West Midlands

Passed

Northern

Southwestern

Southern

Gatwick Express

Transpennine

East Midland

C2C

Virgin East Coast

Great Western Railway

Merseyrail

Heathrow Connect

London North Western

TFL Rail

Not conclusive

Hull Trains – the mystery shopper was told that the company didn’t operate on that

route, despite another member of staff helping a different mystery shopper with this.   

Not included

Caledonian Sleeper – wasn’t included because it doesn’t have the same type of service as the other train companies.   

Website research – Which? researchers did a website and passenger charter audit of 26 train companies to enquire about rights to consequential loss on 6 June 2018.

Criteria:

Failed – defined as a company giving blanket advice that they do not accept claims for consequential loss/passengers should direct claims for consequential loss to their insurer.

Bad practice – will only consider consequential loss in “exceptional circumstances”.

Silent/ neutral – when a company provided no, or neutral, information on consequential loss.

Good practice – when a company gave some advice – using phrases like “we will consider any reasonable offer”.   

Failed

East Midlands

Great Western Railway

Heathrow Express

Hull Trains

Stansted Express

Bad practice

Merseyrail

Southwestern

Southeastern

Silent/ neutral

Northern

Virgin East Coast

Heathrow Connect

Greater Anglia

Scotrail

West Midlands

Arriva Wales

London North Western

TFL Rail

Good practice

C2C

Cross Country

Grand Central

Southern

Gatwick Express

Thameslink/Greater Northern

Transpennine

Virgin West Coast

Not included

Caledonian Sleeper – wasn’t included because it doesn’t have the same type of service as the other train companies.

Right of replies

South Western Railway

A South Western Railway spokesperson said: “We are pleased that our customer service agents gave the Which? mystery shoppers the correct information, which we would expect. We have reviewed the wording on our website in relation to CRA, and have made changes which will be clearer for our customers.”

East Midlands

Thank you for your email, I was pleased to see the positive feedback about our contact centre staff.  Our website FAQ now provides some information on consequential loss – see below:

https://www.eastmidlandstrains.co.uk/frequently-asked-questions/#getting-refund

Great Western Railway

Thanks for this email, and flagging the pages on our website that had not been updated. We’ve now updated them following your email.

Greater Anglia and Stansted Express

As a general rule, we would not cancel a last train. However, if we did, we would organise buses and taxis to make sure that all customers were able to complete their journeys without any further expense to themselves.  We would also recompense any customer who organised their own taxi.

We would like to investigate this matter, so we can ensure that any genuine calls of this nature are dealt with appropriately, but we need the full details including the name of the caller and the date and time they contacted us.

In the meantime, we are reviewing how our customer service call staff deal with this category of enquiries.

Merseyrail

“Merseyrail staff were trained on the guidelines for compensation claims from the outset, enabling us to deliver a consistently high standard of information and assistance to passengers who may have experienced disruption. We are pleased to see this reflected in the findings from Which?. Merseyrail also offers comprehensive advice for passengers on our website, using information which has been agreed with industry bodies against the Consumer Rights Act.”

Grand Central

In the event a Grand Central service is cancelled, we have comprehensive provision in place to ensure all customers reach their destination, by arranging alternative rail travel and providing coach or taxi transport where necessary, at Grand Central’s expense. In the most extreme cases, where onward transport is not possible, hotel accommodation will be arranged.

We recognise the inconvenience customers face when a service is cancelled, so we make every effort to ensure no customer is left contemplating the need to purchase additional rail tickets or paying for a taxi. Our on-board, station and operational control teams take pride in ensuring Grand Central customers reach their destination safely, even in the most of difficult of circumstances, such as the snow event of March 2017. The dedication of our people is one of the reasons why we were proud to have been ranked No 1 for customer satisfaction amongst British leisure and commuter travellers by Which? in January 2018.

The comprehensive nature of our alternative travel arrangements is particularly important when considering 70% of Grand Central journeys start or end at London Kings Cross, with the next station being York (on our North East route) or Doncaster (on our West Riding route). With such distances involved, the robust plans we have in place with industry partners and designated coach and taxi providers to ensure customers reach their destination without incurring any additional costs are vital.

We’re always look to improve, so If recordings of the calls are available, I’d be most grateful if these could be shared so that we can work with our Customer Relations team to further improve the information provided to customers.

Scotrail

A ScotRail spokesperson said:  

“We are grateful to Which? for highlighting this potential training issue at our contact centre. Our customers are entitled to claim for consequential losses, and we will consider all claims on a case-by-case basis.

“When things go wrong, we will do everything we can to provide replacement buses or taxis to get customers where they need to be.

“Our Passenger Charter makes it clear our responsibilities to customers, which we take very seriously.”

Thameslink/Greater Northern

A spokeswoman for Govia Thameslink Railway said:

“Govia Thameslink Railway does not accept the validity of this research; the sample size of just two calls is too small to validate any conclusions and we have had no sight of any of the data.

“Our customer service team take 25,000 calls per period on average, dealing with applications for compensation on a case-by-case basis and in full compliance with regulatory requirements.”

Chiltern

Alan Riley, Customer Services Director at Chiltern Railways said:   “We appreciate hearing feedback like this because we aspire to give world-class customer service. Compensation can be very complex and we have tried to make it as simple as possible for customers across our network.  We regularly review and monitor the information we give customers through our own customer research and we have already made changes to improve clarity since this mystery shop took place”

Hull Trains

“At Hull Trains, we welcome any feedback and it was particularly good to hear that our team responded well to the first call made.  We are currently reviewing our Passengers’ Charter and will make amends to this very shortly to confirm that this is in line with existing legislation.

“We employ a dedicated and award-winning customer service team that operates on one route between Hull and London King’s Cross. It is perhaps one of the most straightforward routes and we are one of the smallest and most personable train operators on Britain’s railways.

“Although, like other rail companies, we publish information that outlines our policies on claiming refunds for delays and other matters, including consequential loss, our onboard teams and back office staff will always look at the individual circumstances of every single case to make sure that we do the right thing. There are many examples of us covering the costs of taxis and hotels on the rare occasions that a customer has not been able to complete their journey. We believe that everyone’s journey is personal to them and that is why we regularly go above and beyond the basic transaction.

In 2016, Hull Trains was voted the UK’s best train operator at the UK National Transport Awards. Delivering good and consistent customer service, not rigid and obstructive policies and procedures, is the way we do business. We’d be happy for Which?’s researchers to travel with us to experience our people in action as opposed to undertaking research of this nature which does not give a true reflection of how things work in practice.”

Heathrow Express

“Heathrow Express strives to put the passenger first – that’s why we’re proud to be rated by passengers as one of the best train companies in Britain. As a consumer champion, we value the feedback from Which? and have already updated our terms and will retrain our staff to make our service even better.”

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