The Ombudsman's final decision:
Summary: Transport for London was at fault in wrongly telling Mr X he had no unpaid fares and so it would allow him to use his contactless card for travel. This error was not the substantive cause of the injustice experienced by Mr X, which included him receiving a penalty fare and missing an exam.
- Mr X complained to Transport for London (TfL) about problems he had using his contactless payment card to travel in London. When Mr X raised the problem, TfL said he had no unpaid fares, which could prevent further travel using his contactless card. But TfL had blocked the card, which prevented Mr X from completing another journey. This led to Mr X getting a penalty fare notice from a train operator and missing an exam. TfL then said it had blocked Mr X’s card because he did have unpaid fares. TfL later admitted it gave Mr X wrong information when it first contacted him as his account did show an unpaid fare. TfL paid Mr X’s penalty fare.
- Mr X no longer has problems using his contactless card. Mr X seeks compensation from TfL of £1,155 to cover study costs; £60 for telephone calls; and £500 for stress and inconvenience.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I have:
- considered Mr X’s written complaint and supporting papers;
- talked to Mr X about the complaint; and
- asked for and considered TfL’s comments and supporting information on the complaint;
- shared, where possible, TfL’s comments and information about the complaint with Mr X; and
- given Mr X and TfL an opportunity to comment on a draft of this statement.
What I found
- TfL allow people to use contactless bank cards to pay for journeys on public transport in London. TfL’s terms and conditions for using contactless cards (‘the Conditions’) are available on its website. Paragraph 2.9 of the Conditions says people should use a working ‘card reader’ at the start of their journey. (A card reader is the yellow, sometimes pink, disc on the electronic equipment people pass by/through to access transport services.) Paragraph 2.10 of the Conditions says a green light on the card reader and ‘one beep’ means acceptance of a contactless card for travel. A red light with ‘two beeps’ means rejection of a card and, if this happens, the cardholder:
“must not go further until either your contactless payment card has been accepted for travel or you have paid for your journey by a different means.”
- Paragraph 2.11 of the Conditions says “if you do not touch in and out correctly, you may be charged a maximum fare. You may also be liable to a penalty fare or you may be prosecuted.”
- TfL has a ‘daily fare cap’. This means people may save money if they make several journeys during a day. Section 3 of the Conditions says TfL will charge for journeys after the end of each day. So, for example, if a person used a contactless card for four journeys between 07:00am to 21:00pm on a Thursday, TfL would seek payment for all four journeys the next day, Friday.
- The Conditions say, if TfL seek payment but a card is declined, the cardholder agrees to TfL making repeat requests for payment. Paragraph 3.4 says, where a payment has been declined, TfL will also seek payment when the cardholder next places the card on a card reader. Where a card has been declined, TfL places a ‘block’ on the card. This means if the cardholder tries to use the card for travel, TfL will not accept it as a means of paying for the proposed journey. Paragraph 3.5 of the Conditions covers this saying:
“If you have unpaid fares for previous travel, you will not be permitted to travel using the contactless payment card that has unpaid fares against it until the amount owed has been paid in full.”
- While not in the Conditions, once payment is received on a blocked card, TfL say it normally takes about 30 minutes to ‘unblock’ the card. Once ‘unblocked’, the cardholder can again use that card for travel.
- TfL’s website includes information about use of contactless cards, including ‘why doesn’t my contactless card work?’. The published information explains how TfL’s request for payment of a fare might be declined by the card issuer, which results in an unpaid fare. The information also explains what people can do if that happens as the card cannot be used for travel until payment of the unpaid fare. The published information also says people should wait 30 minutes after paying an unpaid fare before travelling.
- People may create an online account on the TfL website and register the card(s) they use to pay for travel. Accounts are also available for Oyster cards. (An Oyster card is a ‘pay as you go’ card used to travel in London. People must pay a £5 (refundable) deposit for an Oyster card.) The cost of a journey is the same whether a person uses a contactless or an Oyster card. An ‘online account’ allows people to see their last 12 months’ journey and payment history. TfL also offer an ‘app’, which people may download. The app allows people to check their journey and manage their travel payments. If cards are registered and people have downloaded the ‘app’, TfL will send email alerts if something happens that may prevent use of the card for travel.
- TfL says the rules that apply to financial bodies about contactless card payments allow those seeking payment to make repeat requests until they receive payment. TfL says it cannot stop banks refusing its payment requests. And, where this happens, it is the cardholder’s responsibility to resolve any problem with their bank.
A summary of what happened
- Mr X used his contactless card to pay for journeys in London. He found that, occasionally, his card was not accepted at the start of a journey.
- One day, Mr X used his card to make bus journeys (‘the Journeys’). TfL’s records show it sought £3 from Mr X’s card to pay for the Journeys early the next day. TfL’s records show it did not receive payment and log ‘response code 5’, which means ‘Do not honour’. TfL says the card issuer does not explain why it refuses a payment, which may be because there are not enough funds in the card holder’s account. TfL ‘blocked’ Mr X’s card for travel because it had not been paid for the Journeys. Over the next week, TfL made five further payment requests: each receiving a response code 5.
- TfL then made a seventh payment request for £3, again receiving response code 5. TfL’s records still showed Mr X’s card ‘blocked’ for travel as it had not received payment for the Journeys. That same day, Mr X telephoned TfL about problems using his contactless card (‘the Call’). TfL’s officer told Mr X about how it sought payment for contactless card journeys the day after journeys were made; and that cards were ‘blocked’ for travel if it did not receive payment. The officer confirmed Mr X’s card was currently blocked and so not available for travel. But, the officer said it was not clear why his card was blocked as he had no unpaid fares. The officer agreed to ask that Mr X’s card be unblocked, which would usually take about 30 minutes.
- The officer also passed what was happening with Mr X’s card for investigation by its external technical advisers and gave Mr X £20 as goodwill gesture. (TfL say, where it carries out an investigation, it does not normally consider offering such payments until completion of the investigation.) TfL also recommended Mr X register his contactless card, which would allow it to quickly let him know if there issues with the card in the future.
- Three days later, TfL made another unsuccessful request for payment for the Journeys and again logged a response code 5.
- Three days later, TfL made a ninth unsuccessful request for payment for the Journeys and again logged a response code 5. Later that same day, Mr X needed to travel, by train, to sit an exam (‘the Train Journey’). Mr X, from the Call, believed he could use his card for travel. Mr X used a card reader at a station, which triggered a successful payment request from TfL for the £3 for the Journeys (see paragraph 10). Mr X admits he was wearing headphones and would not have noticed the card reader’s response (green/red light and one/two beeps). Mr X got on a train.
- About 20 minutes later, Mr X got off the train and faced problems trying to leave the station. The train operator said Mr X had not paid his train fare. Mr X said he showed the train operator he had money in his contactless card account; and contacted his bank. However, the train operator issued Mr X with a £20 penalty fare notice. TfL says its records show eight minutes passed between Mr X trying to use the card reader to exit the station and the issue of the penalty fare notice.
- Mr X said he did not have enough money to pay the penalty fare and continue with his journey. Mr X confirmed he did not try to withdraw cash from his account to continue with his journey using cash payments. Mr X said he did not continue with his journey and missed his exam.
- Mr X contacted his bank about the problems with his contactless card. In a letter, the bank told Mr X:
“the issue is the transport company requesting additional payments to those you are attempting to make using your card. You need to contact them directly to resolve the matter so you can use your debit card successfully in future.”
- Mr X telephoned TfL. Mr X said TfL was repeatedly trying to take £3 from his account and it needed to resolve the problem. TfL’s officer told Mr X the problem was not of TfL’s making and it had received only one payment of £3. The officer said TfL had passed the problem to its technical team and, once they had investigated, TfL would update Mr X. TfL also suggested Mr X get an Oyster card while it was investigating.
- Two days later, Mr X telephoned TfL. Mr X said TfL had promised to get in touch, but no one had contacted him. A TfL manager confirmed Mr X’s case was with its technical advisers and a reply due in about three to five working days. The manager suggested Mr X might register his contactless card, which would mean TfL could email him about the card’s status for travel or use another card.
- Eleven days later, Mr X telephoned TfL and said no one had been in touch despite TfL’s five working days for a response having long passed. Mr X said he did not owe TfL any money and it was repeatedly trying to take £3 from his account. Mr X also said it was very annoying that he had to keep repeating himself every time he telephoned. TfL’s officer confirmed Mr X’s case was still under investigation with its technical advisers. The officer also suggested Mr X register his card. Mr X said registering his card had nothing to do with TfL repeatedly trying to take £3 from his account.
- Two days later, TfL wrote to Mr X. TfL apologised for the time it had taken for its technical team to investigate Mr X’s query. TfL explained it had received a ‘Do not honour’ response when it had first asked for payment of £3 for the Journeys. It had made multiple requests for payment of the £3 but, received only one payment of £3, which was on the day of the Train Journey.
- The same day, Mr X telephoned TfL. Mr X said he had missed his exam because his contactless card would not work. TfL emailed Mr X after the telephone call. TfL said it had explained why his card would not work and he needed to contact his card issuer about the problem. TfL repeated that it had had suggested he use an Oyster card as fares for Oyster and contactless card travel were the same. TfL said it would not compensate Mr X for missing his exam. TfL referred Mr X to Travelwatch if he was dissatisfied with its response. (Travelwatch is an independent body that looks into complaints from people using transport services in London.)
- Meanwhile, Mr X did not pay the penalty fare and the date by which he could appeal the penalty notice passed.
- Mr X telephoned TfL. Mr X said TfL had not come back to him and resolved the problems with his contactless card. The TfL officer referred Mr X to TfL’s recent letter and email. The officer said TfL had also resubmitted his case for reinvestigation by its technical advisers. The officer also suggested Mr X register his card so he could see his journey and payment history; and get an Oyster card to use as a backup.
- Five days later, TfL emailed Mr X. TfL said it had now investigated the issue twice and its technical team found the card issuer was responsible for the card not working. TfL said it could not fix the problem as it was not at fault.
- Meanwhile, as allowed by law, the train operator had added debt recovery costs to the penalty fare, which substantially increased the amount to be paid by Mr X.
- Twelve days later, Mr X sent a written complaint to TfL. Mr X said his bank was not responsible for the problems with his contactless card and he had had money in his account to pay for the journeys he had made/tried to make. Mr X said TfL’s failure to take responsibility for the problem had caused him much stress; led him to miss an exam; and resulted in a penalty fare and added charges.
- Nine days later, TfL sent Mr X its written response. TfL again explained that it charged fares the day following a journey(s) so people could benefit from fare capping. TfL explained its requests for payment for some of Mr X’s journeys were declined by his bank. It therefore made repeat requests for payment until his bank did honour the charge. TfL said Mr X’s bank had not honoured its request for payment of £3 for the Journeys when Mr X started the Train Journey. Mr X’s contactless card had not therefore been available for use for travel at the start of the Train Journey. TfL said Mr X needed to contact his bank to find out why it was declining TfL’s payment requests. TfL confirmed the problem was not of its making and it would not compensate Mr X.
- Mr X continued with his complaint over the following six weeks. During this time, TfL wrote to the train operator asking that it hold further debt recovery action against Mr X for the unpaid penalty fare. TfL said it and Mr X’s bank disagreed about which of them was responsible for the occasional problems Mr X had using his contactless card for travel. The train operator was unwilling to hold recovery action. So, “in the interests of customer service”, TfL provided Mr X with funds to meet the debt then payable on the penalty fare.
- Mr X also provided TfL with a further letter from his bank. The bank’s letter said:
“TfL were constantly trying to collect automated payments for unpaid fares from your account on a daily basis every morning. These requests were being declined by the bank as we could see they weren’t being requested by you, using your bank card. However, we had no reason to decline any requested payments made by you using your bank card when funds were available.”
The bank’s letter said, on the day of the Train Journey, it received £20 into Mr X’s account at 12:54pm. This meant it had approved a £3 payment request from TfL at 13:08 that same day.
- In its final written response to Mr X, TfL repeated what had happened to its payment requests for the Journeys (see paragraphs 17, 20, 24, 31 and 34). TfL said the global rules for the contactless card held by Mr X allowed it to make multiple “card not present – merchant initiated” payment requests to recover unpaid fares. TfL said card issuers were bound by the global rules and so had to accept such requests. Mr X’s bank had said it declined TfL’s payments when they did not follow Mr X’s use of the card: this was not in line with the global rules. TfL therefore said it would not make any further compensation payments to Mr X.
- Mr X came to the Ombudsman. In responding to the Ombudsman, TfL point out that information provided by Mr X suggested 13:00pm as the time of Mr X’s missed exam. TfL’s records show that Mr X used the card reader at the start of the Train Journey at 13:08pm. TfL also confirms it has not changed its practice or procedures for recovering fares since Mr X first reported problems using his contactless card for travel.
- Mr X is not now having problems using his contactless card for travel. I have asked Mr X for evidence to show he has had to pay, twice, his £1,155 course fees and spent £60 on telephone calls about the penalty fare. Mr X says TfL’s payment of the penalty fare shows legal causation for negligence that allows him to ask for reparation.
- Mr X is understandably aggrieved by the intermittent problems he faced when using his contactless bank card for travel. Mr X also makes clear he holds TfL responsible for those problems.
- I find no evidence of fault by TfL in waiting, until the following day, to ask for payment, from a contactless card, for journey fares made the previous day. I also find no evidence of fault in TfL making repeat payment requests until it receives payment of fares for journeys taken by people using contactless cards. TfL may, and the Conditions make clear it will, block a contactless card for travel for which there are unpaid fares. That is a financial and operational decision for TfL to make.
- However, for this complaint, Mr X says, after the Call, he did not expect to have a problem using his contactless card on the day of the Train Journey. And, when he did have a problem, Mr X says this had serious and significant results for him, including the penalty fare and missing an exam.
- TfL did give Mr X wrong information during the Call, which is fault, as his contactless card was blocked for travel because he had unpaid fares. During the Call, TfL’s officer told Mr X his card would be unblocked. This did not happen as, despite further payment requests, the fare for the Journeys was unpaid and so Mr X’s card remained blocked when he started the Train Journey.
- The key issue for me is whether TfL’s fault caused the injustice experienced by Mr X on and after the day of the Train Journey. I do not find TfL’s fault was the cause of this injustice. This is because, during the Call, TfL did not tell Mr X he would not have further problems using his contactless card. Rather, it had told him it would investigate the problem reported by Mr X. TfL also suggested that Mr X register his card, which would allow him to check his journey/payment history.
- I have also considered what Mr X says about wearing headphones on the day of the Train Journey. Mr X recognises he would not, therefore, have noticed if TfL’s card reader went ‘red’ and ‘double beeped’ when he used his contactless card. TfL says this would have happened and I have seen no evidence to suggest the card reader was not working correctly. Indeed, its use by Mr X led to his bank accepting TfL’s (tenth) request for £3 to pay for the Journeys. If Mr X had noticed the card reader’s response to his contactless card, he might have acted to avoid the penalty fare and continue his journey using the money in his account.
- I recognise Mr X’s dissatisfaction with TfL’s handling the complaint he made after the Train Journey. I do not find avoidable delay by TfL in its responses to Mr X. TfL was consistent in telling Mr X it did not consider it was responsible for the bank refusing its payment requests, which resulted in it blocking his card for travel. TfL told Mr X it had only received one £3 payment despite its multiple requests for payment from his bank (see paragraph 24). TfL also suggested steps Mr X might take to reduce or avoid future travel problems, including buying an Oyster card as backup. These are steps I would expect TfL to take when dealing with a case like Mr X’s.
- TfL also twice referred Mr X’s case for investigation to its technical advisers and then reviewed its position after Mr X sent it a copy of his bank’s second letter (see paragraph 36). While not accepting responsibility for the problem throughout those investigations, TfL paid Mr X £110 in ‘goodwill gestures’. While, I recognise Mr X expected and wanted TfL to react much more quickly and to compensate him further, I find no fault in how TfL handled his complaint.
- I completed my investigation finding fault by TfL was not the cause of the substantive injustice experienced by Mr X.
Investigator's decision on behalf of the Ombudsman