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Is BA trying to make you think you’ve given up your EU261 compensation rights?

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Regular readers will know that we have given much coverage in recent months to British Airways and its approach to EU261 compensation.  This has primarily been around a perception that the airline is deliberately targeting Avios redemptions, and specifically British Airways American Express 2-4-1 redemptions, for downgrades because they are due less – or indeed no – compensation.

It seems that the airline has a few more tricks up its sleeve, however.

British Airways BA A380 flying

When you are downgraded, it is standard British Airways policy to give you a £200 gift card on the spot.  Historically this has been ex-gratia compensation and is, basically, shutting you up.  All of the other compensation you are due – EU261 (75% of the one-way ticket price) and the difference in cost between the ticket you bought and the ticket you flew – does not arrive until much later.  This no longer seems to be the case.

Here is a copy of the gift card covering letter.  This one is for £400 because it covered two people (click to enlarge):

BA EU261

The text at the top says:

You agree to accept this Card as the method of payment of your compensation under …. EU261.

Now …. it is true that, under Article 7.3 of EU261, British Airways can – with your written agreement – pay you compensation in vouchers, gift cards, Avios or whatever it likes.  However, this is ONLY with your written agreement which you do not have to give.  You are entitled to demand cash.

However, we then move on. This is what the EU regulations state:

Article 15

Exclusion of waiver

1. Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by a derogation or restrictive clause in the contract of carriage.

2. If, nevertheless, such a derogation or restrictive clause is applied in respect of a passenger, or if the passenger is not correctly informed of his rights and for that reason has accepted compensation which is inferior to that provided for in this Regulation, the passenger shall still be entitled to take the necessary proceedings before the competent courts or bodies in order to obtain additional compensation.

British Airways is simply not allowed to ‘call it quits’ under EU261 by giving you a £200 gift card as your full settlement.

The wording on the voucher – “You agree to accept this Card as the method of payment of your compensation under …. EU261″ – is quite clever, I think.  It does not – legally speaking – mean that you are giving up your rights to EU261 compensation but, because of how it is worded, I think 99% of the population would assume that is what it meant.

I went to the man who literally wrote the book on EU261 compensation (you can buy it on Amazon here), Professor Jeremias Prassl of Oxford University.  He told me in a statement (the bolding is mine):

Article 15 of the Regulation clearly stipulates that airlines cannot contractually limit or waive their obligations under the Passenger Rights Regulation. There is some leeway for compensation payments to be made through vouchers etc – but the amount due to the passenger cannot be varied, and there needs to be assigned agreement to pay in travel vouchers and/or other services.

My personal view is that you should never sign anything you are given by an airline.  I certainly don’t think that you should sign this waiver, given that the gift card only has a three month life.  I would also insist that the £200 be given as ex-gratia credit and not as part of an EU261 settlement, which is what it has historically been in the past.


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Comments (109)

  • Joe says:

    Simply Disgusting!

  • TripRep says:

    That’s the same form I signed after crossing out another 2 or 3 lines in a section referring to it being offered under EU261/2004.

    On seeing me cross out that the BA rep took it back of me and refused to give me the payment.

    I did however accept a cheque as goodwill (I made it clear that was not as part of EU261)

    But over 4 months since my downgrade, no EU261 settlement, even CEDR are not responding to recent messages and emails.

    It’ll soon be time to inform the CAA of non-compliance and then follow up with a letter before legal action to BA.

    • the realharry1 says:

      My route to get the F&B compo (which had been refused by BA Customer Services) was:
      notice before action email to Cruz with my demands and evidence of BA’s offer when I bought my ticket —> Cruz’s office instructed CS to deal with it —> CS paid me what I requested a couple of days later.

      I guess CEDR could have been worth a try but in my case I just assumed a slower turnaround – I know it doesn’t preclude you from legal action but thought that an unsatisfactory result (from CEDR) might have influenced the decision-maker at that second stage.

      • the realharry1 says:

        Incidentally, it was the HfP DEWS system (often down here in the footlings lol) that alerted me to the F&B changes in August last year – which is why I got my screenshot ‘ducks’ in a row. Screenshots showing BA’s complimentary F&B offer was boasted about by BA as a competitive advantage vs the LCCs & included in the fare.

    • mark2 says:

      If this had happened to me I would have claimed from American Express as well as BA.
      You used your BA American Express Companion Voucher (Amex in bold) to buy the ticket so surely it’s worth a try, particularly considering their normally superior Customer Services experience?

  • JamesB says:

    BA is so much bad news nowadays that I dread flying with them. I wonder if they are trying to be clever in another way too. By signing that letter you are agreeing that the card is the “method of payment…” . Does this mean that if they failed to deter you from seeking your full entitlement to EC compensation by misleading you about the card then when they subsequently pay it to you in full then they can insist you already agreed to receive your EC compensation in the form of a BA gift card as opposed to cash? That would be even more sneaky, especially given the limitted validity of the gift card.

    • Olly says:

      James,
      That is exactly how I read the situation and sneaky isn’t a strong enough description. I think the business model BA have implemented over the past year or two is very detrimental to the company. I will only fly BA as a last resort now. I would be scared of not actually getting to where I wanted to go due to staff strikes, computer glitches or something else. The captain at the helm is steering towards an iceberg.

  • Anna says:

    They really need naming and shaming for these practices. As with the re-routing issue, BA seems determined to avoid its legal obligations. The Europa.eu website states:

    “Reimbursement, re-routing or rebooking in the event of denied boarding or cancellation
    The air carrier must offer you, on a one off basis, a choice between:
    the reimbursement of your ticket and, if you have a connecting flight, a return flight to the airport of departure at the earliest opportunity
    ***re-routing to your final destination at the earliest opportunity*** or,
    re-routing at a later date at your convenience under comparable transport conditions, subject to the availability of seats.
    This makes it clear that in the event of a cancellation, BA must get you to the original destination, however they insist that they only have to get you to an airport in the same general area.

    • Alex W says:

      Under that wording, would “similar transport conditions” cover a change of aircraft, e.g. from 787 to A330, so they have to put you back on the aircraft type you originally booked?

      • the realharry1 says:

        it just means same/ similar fare class – so getting downgraded from business to economy means further compo

        tough t!tty if you get moved from a great new plane to an older rubbish one, or lose your window seat/ exit seat etc, though if you had paid for seat allocation you should get this refunded

        • Alex W says:

          Interesting. On that basis, does the EU have certain definitions for what constitutes business class, then? If so, hard to see how Club Europe would meet them! Not that CE would apply to me though, I never fly it as it’s pointless. Have done a couple of tier point runs but that’s it.

  • Anna says:

    Anyway, OT now, apologies! I have spent the 7k needed to trigger the Lloyds upgrade voucher. Am I right in thinking this should be issued on completing the spend and not just at the end of the card year? I’ve sent Lloyds an online form asking them to ensure that the voucher is applied to my avios.com account, because there is still a problem posting avios, however I’ve not even had an email acknowledgement yet. I want to use the voucher to make a booking in September for August 2018 so haven’t got a lot of time for them to mess around sorting it out.

    • Genghis says:

      On completing spend

    • JamesB says:

      Anna, check your online avios account as it may be there already. IMEE it’s usually there sometime before either Lloyds or avios notify you about it.

      • Anna says:

        It’s not there. I am assuming they will be having the same IT issue posting the voucher as they are with the avios. The avios problem was going to take 26 weeks to resolve, I’m not waiting that long for the voucher!

        • Liz says:

          Remember if your pts are not being added automatically the voucher won’t either. You need to get your complaints manager to add it manually – you need to wait 4 weeks after you spend the £7k.

          • Liz says:

            You don’t need to wait 26 weeks for the pts – tell them you need the pts and voucher for an upcoming redemption – they can do it all manually but you have to ask for it.

        • Nick says:

          Same boat as me, logged a claim !

    • Allan says:

      I certainly got mine well before the end of the card year; account year starts July and the voucher came in December. Its was added soon after I paid the statement crossed the 7k spend if I remember correctly.

    • Geoff says:

      Lots of people had problems getting avios from these cards. Get on to customer services as soon as possible and tell them. They will ask if you want to elevate it as a complaint otherwise they say it can take ‘up to 26 weeks’ to sort it out. If you specify that it is urgent it will get sorted much more quickly. We eventually got the monthly avios, and the 7k voucher as soon as we had made the spend. It appeared in the avios account too, and seems to be in the BA account as well. We also got £200 from Lloyds for the trouble – so they are aware of the problem. (A letter congratulating us on the voucher arrived some months later). We have also successfully used Avios live chat for another Lloyds sign up bonus issue.

      • Anna says:

        Thanks, yes I’ve already complained about the avios not posting and collected my £200! I imagine they won’t be aware of the voucher now not posting until I tell them. I’ll call them if I don’t get an email reply by next week, but it always seems to take ages to get through to them.

        • Alex W says:

          Have you tried emailing CustomerServicesRosyth at LloydsBanking.com

        • Alan says:

          Wish my Avios didn’t post so reliably with that card, would like the £200 😛

          • Liz says:

            Also been told I will get all the points again after 26 wks which at the moment is up about 30k ! It’s been a nice wee earner!

          • Alan says:

            Haha nicely done.

            BTW just received my Avios after closing BAPP a couple of weeks ago – given the cost of the card didn’t want to keep it running although they had confirmed by secure message I’d receive them OK, was a bit sceptical after you experience, Liz! (was under 2k so wasn’t a major risk)

          • Liz says:

            You were lucky – I was told I would get them too – then told once the link between the two was broken they couldn’t reconnect it. Ended up sending them to hubbys account in the end – all going to the same pot in th end!

          • Alan says:

            Indeed – I wasn’t overly worried once they’d confirmed in secure messaging I’d receive them, worst case I could have asked them to issue equivalent number of MR points of my Plat!

  • Martin says:

    We also had one of these paid in USD just shy of $1000 for a downgrade from CW to WT, had to call and ask for Avios and tax refunds which was a pittance and then claimed under EU261 which got me nowhere, in the end I dropped the claim under legal advice (i.e. I was told I could be spending good money chasing not a lot in the grand scale).

    • HiDeHi says:

      That does not sound like great legal advice. To claim for EU 261, you just lodge a small claims court claim which costs £30. I did this and BA paid out pretty quick(after initially refusing). You have 6 years to claim, unless you signed something waiving your rights, then you are perfectly entitled to claim. I think downgrades are harder to claim for than cancellations though. I would probably fight this if I was legally in the right, which it sounds like you are.

      • Rob says:

        As per above, even if you sign something waiving your rights it is not valid.

  • Eli Gold says:

    a Little off topic here:
    easy jet once moved me off a flight to Luton and put me on Gatwick flight instaed commiting in email to compensate me 600 EUR. in reality they only gave me 300EUR saying that since I arrived at my destination no later than 3 hours from the original arrival time.

    they also committed to pay my taxi or car hire, whatever is cheaper but then refused.

    What are my rights?

    • the realharry1 says:

      the compensation was correct

      you have an extremely good chance of getting the taxi fare paid if you kept the receipt but you would need to start taking legal action – the threat of this would normally be enough to get it but you have to be prepared to go down the notice before action route

      • Frankie says:

        What is Cruz’s email address?

        • Anon says:

          If it helps in terms of timings to expect, I emailed Alex Cruz last Friday evening, got an email from customer services in the early hours of Tuesday morning saying they’re looking into my comments and look forward to speaking with me soon. I’m now waiting for their more substantive reply.

  • Simon says:

    Good article.

    There is something totally unethical about the whole thing.

    I am sure that BA know very well that certain actions are designed to minimise compensation payments.

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