Train passengers may now be able to claim a refund for issues other than just delays – such as overcrowding, broken loos and a lack of Wi-Fi on certain journeys – following an extension of the Consumer Rights Act 2015, which could also allow more people to claim for flight delays.
Since Saturday (1 October) the Consumer Rights Act 2015 has applied to the rail, aviation and maritime industries, meaning passengers have another string to their bow when things go wrong.
Train passengers can now ask for a refund if they think the service was poor and the issue was within the company's control. Claims could include delays of less than 30 minutes, lack of seats and facilities – although the exact application of the act in terms of compensation is yet to be fully defined.
The fact the act now applies to flights could mean that airline passengers are able to claim compensation for delays of less than three hours. However, we're not yet sure how the new rules will impact existing rights for passengers travelling by boat.
What does the law say and how will it now apply to passengers?
The services section of the Consumer Rights Act will apply to the transport sector and says:
"Section 49 – Service to be performed with reasonable care and skill. (1) Every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill."
There are a few key words to note here: the first being 'trader', which is widely defined to mean someone working for a firm, either in its name or on its behalf, so it's likely you can only claim for issues within the company's control.
Secondly is that your journey should be provided with "reasonable care and skill", eg, we'd say it's reasonable to expect there to be enough staff available to ensure your train leaves on time, but it wouldn't be reasonable to try to claim a refund for poor service just because the onboard shop didn't have your favourite flavour of crisps.
But the law doesn't give specific definitions of what this means for the transport sector, eg, at what point a delay becomes unreasonable.
Passengers could, therefore, make a broader range of claims than existing transport compensation schemes allow, though there is likely to be a bit more wrangling with companies and possible court test cases to establish what is "reasonable care and skill".
Another interesting part is:
"Section 50 – Information about the trader or service to be binding. (1) Every contract to supply a service is to be treated as including as a term of the contract anything that is said or written to the consumer, by or on behalf of the trader, about the trader or the service, if – (a) it is taken into account by the consumer when deciding to enter into the contract or (b) it is taken into account by the consumer when making any decisions about the service after entering into the contract."
This means that if you're told something about the service, such as you will be guaranteed a seat, and this forms part of your decision to buy the ticket, there are remedies if this doesn't happen.
What are the remedies if my rights are breached?
Under the Consumer Rights Act you can ask for:
- A repeat performance if the service didn't match up to what was said or written (although this may not be possible if your ticket was for a specific time and date)
- A price reduction, including a refund of up to the full price of the ticket
If you have a right to a repeat performance, you won't be entitled to some cash back unless a repeat performance isn't possible, or can't be done without causing you significant inconvenience.
If you're to be given a refund, the company has 14 days from the date of agreeing to pay to refund you via your original payment method (unless you agree otherwise), and it can't charge you any fee or admin charge for this.
How do I claim under the Consumer Rights Act?
Initially you'll need to contact the company directly and explain why you feel your statutory rights – ie, your legal rights – have been breached.
If you're arguing about poor service make sure you state you're making the claim under the Consumer Rights Act 2015 and include the relevant section (likely to be 49 – reasonable care and skill).
Explain which remedy you feel is appropriate and include any evidence or additional information you think is needed, such as pictures or tweets about the issue.
If the company refuses your claim your next avenue is to escalate it to an industry watchdog, such as Transport Focus, or an alternative dispute resolution scheme, if the company directs you to one it is signed up to.
After that your only option would be court, probably the small claims court, so you'll have to weigh up whether you think it's worth it. See our Small Claims Court guide for more information.
What does it mean for existing compensation schemes?
It's important to note that the extension of the Consumer Rights Act is in addition to passengers' existing compensation schemes and so you'll still be able to use these as normal if you prefer.
But the law is not particularly clear on how the extension of the act will work alongside current schemes, as it states you cannot "recover twice for the same loss".
So, while it seems you couldn't claim for a delay using a train compensation scheme and the Consumer Rights Act, it's unclear whether you could use the delay compensation scheme for the actual delay and the Consumer Rights Act to claim for unreasonable care and skill if you were unable to get a seat and spent the journey squashed into a corner.
We've asked the Department for Transport and legal experts for clarification on this and will update this story when we know more.
What does this mean for train passengers?
The majority of train companies are signed up to the 'Delay Repay' scheme, meaning they will pay compensation for a delay of over 30 minutes regardless of what caused it.
There are a small number of train companies still on the old 'passenger charter' scheme, which means they'll generally only give compensation for delays that are within their control, and sometimes only if they're longer than an hour.
The extension of the Consumer Rights Act, however, means passengers could try to claim for a much wider list of issues, such as a lack of seating and delays of less than 30 minutes – particularly season ticket holders, if they experience numerous short delays over a period of time.
The train companies we have spoken to expect the majority of claims to continue to fall under the existing compensation schemes, but said they will comply with the act.
Act extension also sparks more options for paying compensation and refunds
Another benefit the extension of the act brings for rail passengers is that many train companies are now offering more choice in terms of how compensation is paid – such as via credit card, debit card and even PayPal on some routes. Currently passengers claiming compensation are usually given the choice between rail vouchers or a cheque.
The National Rail Conditions of Carriage, which set minimum standards that train companies must abide by, has been updated following the extension of the Consumer Rights Act.
It now says passengers must be offered at least one form of monetary compensation for a delay, such as a bank transfer, cheque, or refund to their card, although companies can still offer rail vouchers as well.
Where the delay was caused by the train company you have the additional right to ask for a refund via your original payment, unless you agree to a different form of compensation.
The Rail Delivery Group, which represents train companies, has told us that all train firms will be able to comply with the act. And many of the train companies we approached said they have already, or will be, increasing the compensation options for claims made under their existing compensation schemes too.
Some are updating their delay repay forms with these options but most suggested contacting their customer service teams if you wanted to make a Consumer Rights Act claim, rather than a delay repay or passenger charter compensation claim (there often aren't comment boxes on these forms).
Train companies' compensation methods
|Train company||Consumer Rights Act claims: Offer compensation via original payment method within 14 days?||Existing compensation schemes: Offer compensation via original payment method?|
|Abellio Greater Anglia||Yes||Yes|
|Arriva Trains Wales||Yet to respond||Yet to respond|
|CrossCountry||Yes||No, options include: cheque, BACS payment, and rail vouchers. Credit card refunds will be available soon.|
|Grand Central||Yes||No, options include: PayPal, cheques, rail vouchers and complimentary tickets|
|Great Western Railway||Yes||Yes|
|Hull Trains||Yet to respond||Yet to respond|
|Merseyrail||Yet to respond||Yet to respond|
|Northern||Yes||Yes. From April 2017 will offer automatic delay repay to some customers.|
|South West Trains||Yes||Yes|
|Transport for London||Yet to respond||Yet to respond|
|Virgin East Coast||Yes||Yes|
To what extent will the extension of the act improve things for train passengers?
The watchdog Transport Focus doesn't see the act bringing about a revolution in rail passenger rights, but says it shines a "welcome light" on compensation schemes and complaints, and provides an incentive to provide what has been promised to passengers.
Chief executive Anthony Smith says: "Passengers will [now] have a right to claim for poor service in areas other than just delay, such as shortened trains or poor information.
"Transport Focus will keep a close watch on how this works in practice – many train companies already go well beyond what they are required to do in individual cases and we would want to see this continue and be enhanced."
What does the extension of the act mean for flights?
Issues with flights are often covered by the EU 261/2004 regulation, which sets compensation payments for delays of more than three hours or cancellations.
However, as with trains, air passengers could attempt to use the Consumer Rights Act to claim for issues the current law does not cover (eg, delays of less than three hours).
Again, the problem would need to have been within the airline's control, but there have already been a number of court cases defining this under the existing European regulation.
Interestingly, the Consumer Rights Act could go further than the existing regulation, which only covers flights departing the EU or flights landing in the EU with an EU airline.
Kevin Clarke, flight-delay lawyer at solicitors Bott and Co, interprets that the act can now be used by all UK passengers regardless of where they are flying to and from, but he expects that to be challenged by the airlines.
Of the Consumer Rights Act remedies of another flight or price reduction, he says: "These would be entirely separate claims to those brought under EC regulation 261/2004, which compensates you for your loss of time when a flight is cancelled or delayed.
"As ever, we can expect airlines to fight these rights in the court system as we look to define what is a service, what defines non-conformity with a contract and what is reasonable care and skill. Ten years of litigation around EC regulation 261/2004 would suggest the aviation industry will fight this hard."