Train overcrowding: how to fight back.

Ever since this article on the BBC a couple of weeks ago thoughts have been running through my head about how the humble commuter, fed up with being treated worse than a sardine can fight back.

Of course we are only in this position because the companies themselves and the government refuse to do anything about it. Mind you, I am guessing if they were all faced with having to travel by train on a daily basis and not in first class they would quickly do something about it. Lord Young and others are probably at least privately thinking that commuters have never had it so good.

As far as I can work out there are only two ways we can attack the problem.

Breach of Contract (Small claims court)

This I envisage working similar to the banking charges saga. The BBC article linked gave me the signpost.

Under their franchise agreements train operators are required to use "reasonable endeavours" to give peak passengers "a reasonable expectation of a seat within 20 minutes of boarding"

Not exactly great legally crisp wording but there is something here we can work with. Essentially if the conditions are not met you could perhaps claim that the train operator has broken their contract with you which was made when you purchased the ticket based on all relevant legislation and contracts including the franchise agreement.

All we have to do is sort out the test of reasonableness to see if you can make a claim. First we need a reference period. The train operator would clearly be able to wriggle out of a claim if it was based on 1 or 2 journeys or the train was late, weather delays, other delays or delays outside of its control. So lets say 5 journeys on the same train or at around the same time would constitute a reasonable reference period. This is a week of commuting or five regular journeys over a different period.

Now the line states that you have a reasonable expectation of finding a seat within 20 minutes. So any journey under 30 minutes (must be scheduled journey time not actual journey time) is not going to be worth claiming for, again you would need to take into account any delays, which would not count towards the 30 minutes.

Next a reasonable expectation of finding a seat, in order to prove this you would have to walk up and down the carriages looking for a seat, so the best thing to do is only claim when you cannot walk up and down the carriages as clearly in this circumstance you do not have a reasonable chance of finding a seat.

Again if you wanted to be really clever and possibly evil you could find a railway employee and ask them if you have a reasonable expectation of finding a seat on the train (use that exact wording). This would be extra juicy evidence against the company as they are a representative of the company giving a professional opinion. You could also consider collecting witness statements from people on the same train. Don't worry too much about witness statements as the onus would be on the company to prove you wrong, plus as long as overcrowding is regular if they contested it you could take a video camera on the next journey. The company cant make the problem go away over night.

You would also need to submit evidence of tickets, at least the photocopies. If it is not a season ticket you may wish to consider submitting the originals or at the very least offering to surrender the ticket if your claim is subject to refund. Obviously with a season ticket you can submit a copy. Also note that any claim should only be for the contested journeys, you cant claim a refund of a season ticket based on five journeys. In this case you must work out the proportion of the ticket that relates to those journeys.

So in summary to make a claim you need to fulfil these pre-requisites:

• Scheduled journey time of over 30 minutes
• 5 journeys on the same train or 5 journeys at roughly the same time over a regular frequency
• a valid ticket
• details of the trains travelled on
• Unable to walk up and down to find a seat

If you have fulfilled all these requirements then you can start a similar two step process to the reclaim of bank charges.

Step 1 is write to the train company, perhaps something like this:

Dear Customer Services,

I am writing to complain about the state of overcrowding on your peak time trains. As a regular user it is clear to me that you are doing nothing to address overcrowding and are therefore in breach of the commitment in your franchise agreement:

"train operators are required to use reasonable endeavours to give peak passengers a reasonable expectation of a seat within 20 minutes of boarding

Here are the details of the trains I travelled on, the journey times and my comments on the availability of seats:

etc etc

I have also enclosed a copy of my ticket/s for your reference.

You have 28 days to reply to this letter detailing the steps you will take to solve the overcrowding issues on these trains. In addition, I am claiming a full refund for the price of the tickets attached as you have clearly and persistently failed to fulfil the terms of agreement under which they were bought.

If you do not provide satisfactory recompense within 28 days then you will leave me with no choice but to pursue the matter through the civil courts.

Yours sincerely etc.

Sit back and wait for a response, the options here are that you get ignored, fobbed off or offered some compensation.

If you get ignored, check their customer service agreement and write one more time quoting their customer service agreement and giving them a final 28 days to reply. You may wish to copy in the Managing Director, chances are the letter will just get forward on the customer services department and match up with your other letter, but you never know. If the ignore you a second time then you have now made every reasonable endeavour to resolve the matter with the company (this will be important in any legal claim) and you can now put in your claim with the courts for full compensation.

If they fob you off, reply re-iterating your position detailing the breach of agreement and detail any more subsequent experiences. Then as above head to the small claims court.

If you get offered some compensation my personal advice would be to take it, even if it is not the full amount. The fact that they have offered you compensation and you have refused to take it would count in the company's favour in any claim. So best to take what's offered and make a new claim in the future if they do not take "reasonable actions" to avoid overcrowding.

Of course the first few claims will be hard but if one ends up at court and the commuter wins then like the bank charges that is a legal precedent which will pave the way for everyone to claim and companies will start paying up at the letter stage. They will also quite quickly start addressing capacity issues as it now hurting their profits.

At the moment this is an idea, but you never know it just might work. If anyone does try the above approach can you keep us up-to-date with any responses etc. I am quite happy to post any rail company responses, good or bad.

Health and Safety

The other approach I have thought about is claiming a fundamental breach of your health and safety if you are required to stand. However, anecdotally there seems to be no research which shows you are at higher risk in an overcrowded train. So this seems to be a non starter unless anyone knows of any research or can commission some.

Finally, I should also mention that I am not a regular commuter on trains, but have on occasion had to commute into London where the train has been totally rammed with people. So despite a good idea I am unable to follow up on it myself.