## Notice In Accordance With Section 57C Of The Railways Act 1993 14 March 2019

1. This is a notice, given in accordance with section 57C of the Railways Act 1993, 
(the Act), stating that the Office of Rail and Road (ORR) proposes to impose a 
penalty of £5m on Govia Thameslink Railway Limited (GTR) for contravention of condition 4 of its Passenger Statement of National Regulatory Provisions (SNRP).  
2. The contravention is in respect of GTR's provision of appropriate, accurate and 
timely information to passengers following the implementation of the 20 May 2018 timetable and during the subsequent disruption. 
3. The acts and omissions which, in the opinion of ORR, constitute the 
contravention and justify the imposition of the penalty are more fully set out in paragraphs 11 to 35 of this notice.  
4. In accordance with the Act, the penalty should be paid to the Secretary of State. 
ORR will specify the date by which the penalty must be paid in any final penalty notice given under Section 57C(6) of the Act. 
5. Representations or objections with respect to the proposed penalty should be 
made by close of business on 5 April 2019 by post to: 
Stephanie Tobyn Deputy Director, Railway Markets and Economics Office of Rail and Road One Kemble Street London WC2B 4AN Or by e-mail to: stephanie.tobyn@orr.gov.uk 
 

6. ORR will take into consideration any representations or objections made and not 
withdrawn and will make a final decision on whether a penalty is appropriate, and if so how much it should be, as soon as practicable following the end of the consultation period. 
7. ORR will publish any representations or objections made in response to this 
consultation on its website and may quote from them. Anyone making representations or objections should indicate clearly if they wish all, or any part, of their submission to remain confidential to ORR. If such persons make a 
representation or objection in confidence, they should also send a statement, excluding the confidential information, which they are content for ORR to publish. 

## Relevant Legal Provisions

8. Under Section 57A of the Act, ORR may levy a penalty of such amount as is 
reasonable, if it is satisfied that the licence holder is contravening or has, within the last two years, contravened a licence condition. The amount may not exceed 
10 per cent of the licence holder's turnover, defined in accordance with the 
Railways Act 1993 (Determination of Turnover) Order 2005 (SI 2005 No 2185.)  
9. Section 57B(3) of the Act provides that, in deciding whether to impose a penalty, 
and in determining its amount, ORR must have regard to its statement of policy 
published at the time when the contravention occurred. For the purposes of this notice our Economic Enforcement Policy and Penalties Statement, published in November 20171, applies.  
10. 
Under Section 57A(6) of the Act, ORR shall not impose a penalty if it is satisfied that the most appropriate way of proceeding is under the Competition Act 1998. In this case, ORR does not consider that the Competition Act 1998 is applicable.  

## The Contravention

11. 
Condition 4 of GTR's SNRP sets out a purpose and general duty as follows2: 

## Purpose

1. The purpose is to secure the provision of appropriate, accurate and timely information to enable railway passengers and prospective passengers to plan and make their journeys with a reasonable degree of assurance, including when there is disruption.  
General duty  
 
2. The SNRP holder shall achieve the purpose to the greatest extent reasonably practicable having regard to all relevant circumstances, including the funding available.  
 
12. 
To assist licence holders with compliance, ORR published guidance3 to support condition 4 by giving more information about what is expected and how it will be enforced. Our guidance recognises that timetabling services and providing good information is a complex task and states: 
                                                          
 
'The licence obligations are not intended to undermine the primary objective of providing best available service for passengers. Making justified changes to the train plan to meet passengers' needs should not be conditional on providing perfect advance information about these. However, we would expect licence holders to use reasonable endeavours to get such information out as widely as possible and as quickly as possible. We will take circumstances into account during any assessment of compliance' 
 

13. 
ORR considers the provision of passenger information to be a fundamental objective of delivering effective service recovery following disruption and if information is available that could be used by passengers to better plan and make their journeys, this should be shared in a timely manner.  
14. 
This is reflected in the additional principles that ORR set out for train operators in February 2018 where ORR wrote that they 'should be open about the impact on 
all passengers of the challenges they face, and take responsibility for ensuring that their passengers can get the information they need to plan and make their 
journey as that information comes available'4. 
ORR inquiry and the initiation of its investigation into GTR's provision of passenger information  

15. 
In June 2018, ORR was asked by the Secretary of State to set up an independent Inquiry into the disruption that followed the introduction of the new timetable on 20 May 2018. 
16. 
In September 2018, the findings of the Phase 1 Report of the timetable Inquiry found that information provided to passengers was inadequate which meant that passengers were unable to plan and make their journeys with any certainty.  
17. 
Arising from these findings, on 3 October 2018 ORR launched a formal investigation into GTR - whose passengers were particularly impacted - to assess whether GTR is in contravention of, or contravened its obligation under condition 4 of its SNRP in relation to the provision of appropriate, accurate and 
timely information:  
a. to passengers and prospective passengers **prior** to the implementation 
of 20 May 2018 timetable; and 
b. to passengers during the subsequent disruption i.e. **following** the 
implementation of the 20 May 2018 timetable.  
 
18. 
As part of the investigation, ORR considered a range of information, evidence, and direct communication with GTR. ORR has analysed both source evidence provided to the timetable Inquiry and significant volumes of further information 
                                                          
provided by GTR, including internal documents and staff communications. ORR has also undertaken a detailed analysis of the GTR passenger experience pertaining to the timetable change to better understand the nature and impacts of the primary information failures. 

19. 
In assessing these issues, ORR considered whether GTR did, and is doing, everything reasonable practicable to comply with its obligations in condition 4. 
20. 
Full details about the investigation may be found in ORR Investigation Report5, which has been published alongside this notice. 
21. 
A summary of the investigation findings is provided below.  

## Investigation Findings

22. 
In relation to the provision of appropriate, accurate and timely information to 
passengers and prospective passengers **prior** to the implementation of 20 May 
2018 timetable, ORR considers that GTR took reasonably practicable steps to provide appropriate, accurate and timely information to passengers.6  This part of the investigation is therefore not discussed any further in this notice. 
23. 
In relation to its investigation into the provision of appropriate, accurate and 
timely information to passengers **following** the implementation of the 20 May 
2018 timetable, ORR considers that GTR contravened condition 4 of its SNRP by not achieving the purpose in condition 4.1 to the greatest extent reasonably practicable having regard to all relevant circumstances, including the funding available.   
24. 
ORR's investigation is set out in full in its Investigation Report. Our findings from this part of the investigation are set out from paragraph 4.64 and are summarised below. 
25. 
ORR considers that the exceptional circumstances that followed the introduction of the 20 May timetable meant that providing perfect advance information for all 
services was, from the outset, an impossible task. Evidence demonstrates that 
GTR's overriding focus throughout the period that followed 20 May was on 
providing as much capacity as it could to meet customer demand.  
26. 
ORR's guidance to support compliance with condition 4 recognises that 
timetabling services and providing information to passengers are difficult, complex tasks.  There is a balance to be struck between service delivery and the ability to provide appropriate, accurate and timely information for passengers during sustained periods of disruption. The licence condition is not intended to undermine the primary objective of providing the best available services for passengers. 
                                                          
27. 
ORR consider the immediate response to the timetable change on 20 May required a period of reactivity as both the scale and severity of the disruption emerged.  However, ORR consider that better passenger information should be a core element of the service recovery process and as time progressed an 
increasingly improving picture should have emerged. Against this context, ORR considers that GTR failed to appropriately balance service recovery with the need for passenger information to an unacceptable extent and duration throughout the implementation of their service recovery plan.  
28. 
In particular ORR has identified failings in the following areas: 
a. **Aligning service recovery with passenger information obligations.**7 ORR 
considers that too often there was a failure in operational decision-making to give adequate regard to the fact that running a train service (or rail 
replacement bus) is only helpful to passengers if they know when and where the service will arrive, where it is going and how long the journey will take. Further ORR considers that as information failures persisted over such a sustained period of time, without any timely or proportionate response to these issues, there was a fundamental problem at both a strategic and functional level in aligning operation recovery with passenger information obligations. 
b. Provision of 'Alpha list8**' and other journey information**9. ORR considers 
that GTR's failure to clearly communicate known cancellations in a timely 
manner undermined the ability of prospective passengers to plan ahead and make informed journey decisions. The Alpha list information could have been published sooner than 25 June, which would have provided greater certainty to passengers about services which were not planned to run. 
c. **Day to day amendments**10. ORR considers that operational decisions taken 
and implemented to support the recovery process were in many cases to the detriment of providing passengers with appropriate, accurate and timely information to an unacceptable extent and duration. Passengers were therefore left uncertain of what services would run each day as travelling on a 
particular train one day was no guarantee that it would run or be shown on station screens the next day. ORR considers that the cumulative effect of the factors described here manifested in the unacceptable passenger outcomes described in our Investigation Report and in the numerous examples of passenger information failures. 
 
                                                          

29. 
ORR wrote a case to answer letter11 to GTR on 29 January 2019 to state that we considered there was evidence that GTR did not do, and is not doing everything reasonably practicable to deliver its passenger information obligations following the 20 May timetable change.  
30. 
GTR requested a meeting with ORR and provided a written response to our letter on 13 February 2019. GTR raised a number of inaccuracies with our Investigation Report and stated that it considered that it did do everything reasonably practicable to deliver its passenger information obligations in light of exceptional circumstances, which were a direct result of industry failings. 
31. 
In response to the representations ORR made some revisions to its Investigation Report.     
32. 
In accordance with ORR's rules of procedure, the decision whether to find GTR 
in contravention of condition 4 and if so what regulatory action to take, was made by ORR's Board.  ORR's Board took into account all relevant material including the Investigation Report and GTR's representations and is satisfied that:  
(i) 
GTR's operational decision making was not supported by passenger information that was sufficiently aligned to the steps that it was taking to recover the service; 
(ii) 
GTR's failure to clearly communicate known cancellations in a timely 
manner undermined the ability of prospective passengers to plan ahead and make informed journey decisions; and 
(iii) 
Operational decisions taken and implemented to support the recovery process did not take account of the need to provide passengers with appropriate, accurate and timely information to an acceptable extent and within an acceptable time period.  
33. 
 ORR is therefore satisfied that, taking account of all evidence, including our findings and GTR's representations, there is evidence that GTR contravened Condition 4 of its SNRP in that it failed to deliver to the greatest extent reasonably practicable, having regard to all relevant circumstances, its obligation to provide appropriate, accurate and timely information to passengers to enable 
them to plan and make their journeys with a reasonable degree of assurance. 
34. 
ORR is not satisfied that there is sufficient evidence that this contravention is a current breach because GTR has taken some steps to ensure that the same situation would not happen again, in particular: 
a. The steps GTR took to provide appropriate, accurate and timely 
passenger information during the implementation of the interim timetable on 15 July 2018, the phasing of additional services through September 2018 and the further timetable change in December 2018; 
b. The information from Transport Focus regarding a Customer Awareness 
Report based on research carried out through October and November 
2018 showing that 88% of passengers overall and 92% of commuters were aware of the planned February blockade on the Brighton Mainline;  

c. The utilisation of a dedicated project website by Network Rail and GTR to 
communicate to passengers about The Brighton Mainline Improvement 
Project; 
d. GTR advise it has service recovery frameworks (SRF) to respond to 
disruptive events across GTR's routes, which are supported by customer 
plans;  
e. Since May 2018, GTR advise it has rolled out new smart phones to its 
entire front line staff pre-loaded with industry information applications to enable staff to have improved access to passenger information. Further, 
as it became apparent during the May Timetable disruption that GTR's 
messaging system "Tyrell" was not able to keep up the level of changes being inputted into the system, GTR has since converted to a cloud based scaleable environment to allow the system to respond to user demand more effectively; and 
f. Improvement in performance and reduction in compensation claims 
following the introduction of the July 2018 timetable. 
35. 
The penalty that ORR proposes to impose on GTR therefore relates to a past breach of condition 4 as specified above. 

## Factors That Justify The Imposition Of A Penalty

 
36. 
ORR's penalties statement states that, in deciding whether to impose a penalty, we will take full account of the particular facts and circumstances of the contravention, including any representations and objections made to us. ORR will also act in accordance with our Section 4 duties under the Act, and take into account the six penalty principles set out in the Macrory report12 and the related 
five principles of good regulation (proportionality, targeting, consistency, transparency and accountability).  
37. 
ORR's primary objective in setting a penalty is to change the future behaviour of 
a licence holder and to incentivise it and others to comply with their obligations both specifically and in general.  
38. 
ORR considers that a penalty is appropriate in relation to GTR's failure to provide appropriate, accurate and timely information to passengers because: 
a. a penalty would incentivise GTR to ensure that the provision of information 
to passengers is managed more effectively in the future; and 
b. a penalty could also act as a future deterrent to other licence holders. 
39. 
In deciding whether or not a penalty is appropriate, ORR also considered the following factors to be relevant:  
a. The reputational damage GTR have already suffered and additional costs 
incurred due to their wider failings in relation to the 20 May timetable change; 
b. GTR have taken some steps to compensate passengers through delay 
compensation schemes and have paid a passenger benefits fund to the 
Department for Transport. However, these sums were paid in response to its wider failings in relation to the 20 May timetable change and do not address the harm caused by its additional failings to provide adequate information to passengers; 
c. GTR have learnt some lessons from the 20 May timetable change and 
made some changes prior to the December timetable change. However, there is a lack of evidence that GTR undertook a significant lessons learnt exercise relating to passenger information and have focused instead on the wider industry failings; 
d. GTR have not acknowledged responsibility for its failure to provide 
adequate information to passengers. 

## Factors That Justify The Amount Of The Penalty

 
40. 
In line with our penalties statement ORR has considered factors falling into two categories:  
a. Proportionality; and 
b. Mitigating and aggravating factors. 

## Proportionality

41. 
The penalty should be proportionate to the seriousness of the contravention, and this is our starting point in calculating the amount. In considering the seriousness, in line with paragraph 129 of ORR's economic enforcement policy and penalties statement, ORR has looked at:  
a. the actual and potential harm caused to third parties including passengers 
and other railway users and to the public interest purpose of the obligation (including the effectiveness of the regulatory regime);  
b. the culpability of the licence holder, including whether it has acted 
negligently, recklessly, knowingly or intentionally; and 
c. the extent to which the licence holder has co-operated with ORR during 
the investigation. 
42. 
ORR sets out in its penalties statement, five levels of seriousness ranging from a technical or de minimis contravention to a very serious contravention, with 
corresponding financial ranges. Our policy states that these levels of seriousness are based on previous actions taken by us and judgements of seriousness and recognises that when we consider the particular facts and circumstances of each individual case, we may consider it appropriate to deviate from the scales. Actual and potential harm: 
43. 
To assist in determining the starting point for the penalty, ORR have assessed the level of harm/potential harm, particularly the harm caused to passengers of 
GTR's Thameslink and Great Northern services caused by the failure to provide 
appropriate, accurate and timely information.  
44. 
In relation to passenger information, it is difficult to quantify the actual and potential harm caused, although we have some evidence relating to key industry data, GTR social media engagement and passenger research carried out at the time of the issues.  
45. 
In this particular case, issues with the provision of information, while serious, do not appear to be 'systemic' nature and affected passengers relying on GTR services primarily during an 8-week disruption period.   
46. 
ORR further recognises that ineffective passenger information was not the only cause of harm as passengers were already suffering disruption to services because of the timetabling problems. In effect, even if passenger information had been 'perfect' passengers would still have suffered harm due to the wider disruption to services. ORR considers that GTR's passenger information failings exacerbated the level of harm felt by passengers during this period as inaccurate or late changes to timetables further undermined their ability to plan and make journeys.  
47. 
The impact of the passenger information issues predominantly affected GTR's 
Thameslink and Great Northern service routes and GTR stated in its letter of 13 February 2019 to ORR that:  
a) at the time of the May 2018 timetable implementation, it carried on 
average 1.06m passengers per weekday including in excess of 474,000 passengers per weekday on its Thameslink and Great Northern services and there were 982 front line staff on the Thameslink and Great Northern services;  
b) Southern and Gatwick Express services did not suffer to the same extent 
from the late validation of the timetable issues and the operational and passenger information systems were therefore fully uploaded and correct for the implementation of the May 2018 timetable. As a result, passengers travelling on those services, which at the time made up over 63% of the GTR operation, were not as significantly affected as the passenger 
information was held and displayed correctly within the industry information systems.  

48. 
ORR also considered the following impacts felt by passengers from the overall disruption: financial; stress and inconvenience; employment; social; personal 
safety; trust in the railway (and changing travel behaviour); and the impact of the disruption on disabled passengers13. It is not possible to assess the extent to which these impacts can be directly attributed to the failure to provide adequate information, however it is clear that inadequate information will have exacerbated the impacts of the service issues. Culpability: 
49. 
ORR's policy is to consider culpability including whether GTR acted negligently, 
recklessly, knowingly or intentionally. 
50. 
ORR consider that GTR has some culpability in relation to the provision of passenger information post 20 May timetable until its interim timetable was introduced on 15 July. 
51. 
We do not think that GTR benefited financially from the breach and we have no evidence that it cut corners to save money. In fact, ORR are aware GTR increased its staffing to manage the problems and the cost to GTR could be significant both reputationally, as well as financially.  
52. 
Overall, ORR considers that GTR's behaviour was not knowing or intentional but was instead towards the negligent end of the spectrum. Its focus on capacity of services during disruption was, we consider, made with the best intentions, but we take the view that much of its positive work to stabilise service levels and manage these issues post 20 May 2018 did not flow effectively through to adequate passenger information outcomes.  
53. 
However, as time progressed and the extent of the information failures impacting passengers was repeatedly communicated to senior management, we have no evidence to demonstrate a timely or proportionate level of reaction or enhanced response to recognise and then improve the situation. In this respect, we 
consider that there was initially negligence but then latterly a level of knowing acceptance of the problem until the interim timetable was introduced on 15 July 
(Phase 3 of the Service Recovery Plan). Co-operation with ORR during the investigation: 
54. 
ORR considers that GTR's co-operation with the investigation is what we would expect and therefore it does not alter our perception of the level of seriousness.  

## Level Of Seriousness:

55. 
ORR considered that the relevant levels of seriousness drawn from ORR's 
penalties statement were:  
a. Less serious - this level would be appropriate in circumstances where a 
relatively small amount of harm was caused or was caused only to a small geographical area.  
b. Moderately serious - this level is more appropriate in circumstances 
where there were more serious implications and more serious actual or potential harm to third parties.    
c. Serious - this level is appropriate where there is evidence of systemic 
failings that results in serious harm or potential harm to third parties.  
56. 
ORR does not consider that the contravention should be regarded as less serious because of the wide areas covered by the Thameslink and Great Northern routes, the large number of passengers affected over an 8 week period and the fact that, whilst the provision of information was not the only cause of 
harm, it exacerbated it to a significant degree. ORR also does not consider the contravention should be regarded as serious since ORR does not consider the failings to be systemic in nature. 
57. 
Having considered the factors above, ORR has decided that this contravention therefore falls into the moderately serious level in our penalties statement, which suggests a starting point in the range up to £10m.  
58. 
Taking all potentially relevant factors into account, we have decided that the significant actual (and potential) harm caused to passengers from the failure to provide adequate information, taken together with GTR's culpability, puts the starting point in the middle of this range. ORR has therefore decided that the starting point should be £5m. 
Mitigating and aggravating factors 
59. 
ORR's penalties statement also states that we will adjust the starting penalty up or down to take account of relevant mitigating and aggravating factors, according to the particular facts and circumstances of each case. 
60. 
ORR's penalties statement sets out a number of mitigating and aggravating 
factors which it may consider. From this list, ORR has identified the following mitigating factors that apply to GTR: 
a. *Steps taken to minimise the risk of the breach recurring:-* GTR has taken 
some steps to improve communications and passenger information for future timetable introductions and more generally (see paragraph 34); 
b. *Repeated or continuing infringement of this or other obligations:- n*o 
formal licence action has previously been taken against GTR to date; and 
c. 
Co-operation with ORR's investigation:- we consider that GTR has cooperated with our investigation and have been generally open and forthcoming with their responses. 
61. 

ORR has also identified the following aggravating factors that apply to GTR: 
 

a. Steps taken to rectify the breach, including whether these were initiated 
proactively by the licence holder or in response to ORR's actions & the extent of involvement of directors of senior management in the action or 
inaction which caused the breach or their lack of appropriate involvement 
in action to remedy the breach:– during the 8 weeks of disruption, the scale of information failures became more apparent to senior management. However, despite this awareness we have not seen sufficient evidence that GTR took subsequent steps to address the level of inadequate information to passengers; 
 
62. 
ORR has noted that to date we have also not received any separate offers of reparations for consideration under our economic enforcement policy.  
63. 
ORR considers that the mitigating and aggravating factors balance each other out and therefore proposes that the penalty should be set at £5m. 

## Conclusion

 

64. 
Having had regard to ORR's duties in Section 4 of the Act, the factors listed in 
ORR's penalties statement and for the reasons set out above, ORR has decided 
that it should propose a penalty of £5m in respect of GTR's contravention of condition 4 as described in this notice. 


John Larkinson Chief Executive Office of Rail and Road 
 

## Condition 4: Information For Passengers Purpose

1. The purpose is to secure the provision of appropriate, accurate and timely information to enable railway passengers and prospective passengers to plan and make their journeys with a reasonable degree of assurance, including when there is disruption.  

## General Duty

2. The SNRP holder shall achieve the purpose to the greatest extent reasonably practicable having regard to all relevant circumstances, including the funding available.  

## Specific Obligations

3. The following obligations in this condition are without prejudice to the generality of the general duty in paragraph 2 and compliance with these obligations shall not be regarded as exhausting that general duty. In fulfilling these obligations the SNRP holder shall at all times comply with the general duty in paragraph 2.  

## Planning Services

4. The SNRP holder shall cooperate, as necessary, with Network Rail and other train operators to enable Network Rail to undertake appropriate planning of train services and to establish or change appropriate timetables, including when there is disruption.  
5. In particular, the SNRP holder shall:  

(a) provide Network Rail with such information about the SNRP holder's 
licensed activities as may be reasonably necessary for Network Rail to fulfil its obligations relating to timetabling in its network licence; (b) participate constructively in any timetabling consultation carried out by Network Rail; (c) use reasonable endeavours to resolve promptly any timetabling disputes; and  
(d) respond expeditiously to any timetabling matter which Network Rail reasonably considers to be urgent.  

## Code(S) Of Practice And Improvement Plan(S)

6. The SNRP holder shall, unless ORR otherwise consents, publish one or more code(s) of practice or other documents setting out the principles and processes by which it will comply with the general duty in paragraph 2. 7. Where the SNRP holder considers, or is directed by ORR, that improvements to its arrangements for the provision of information to railway passengers and prospective passengers are necessary or desirable to enable it better to fulfil the general duty in paragraph 2, it shall develop, publish and deliver a plan, which sets out the improvements it intends to make and the dates by which such improvements will be made. 8. The SNRP holder shall, from time to time and when so directed by ORR, review and, if necessary, revise, following consultation, anything published under paragraph 6 and any plan under paragraph 7 so that they may better fulfil the general duty in paragraph 2. 9. ORR shall not make any direction under paragraphs 7 or 8 without first consulting the SNRP holder.  

## Provision Of Information To Intermediaries

10. The SNRP holder shall as soon as reasonably practicable:  
(a) provide to the holders of passenger and station licences; and (b) provide to all timetable information providers on request reasonable access to appropriate, accurate and timely information to enable each on request to provide passengers with all relevant information to plan their journeys including, so far as reasonably practicable, the fare or fares and any restrictions applicable.  
11. In this condition:  
"Network Rail" means Network Rail Infrastructure Limited (a company registered in England and Wales under number 02904587), and its successors and assigns.