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A HfP reader sues BA when it refuses downgrade compensation on a 241 voucher

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A question that often gets asked when the conversation moves to EC261 compensation (2019 No.278 now that we have left the EU) is what value the British Airways American Express companion voucher has in the case of downgraded or cancelled flights.

British Airways continues to insist that the companion voucher has no value, since it is simply a ‘plus one’ for an Avios booking.

Common sense suggests otherwise, and indeed we know that British Airways has lost numerous CEDR and MCOL arbitration cases with HfP readers over the years on this point.

British Airways BA Amex cards float 2

For clarity, we do not know of ANY case where British Airways has actually won in court or arbitration on this issue. You may wonder why it continues to force readers to take this route to get the compensation they are legally due.

We were recently contacted by a reader who had just successfully won a dispute in Court. As the case had progressed to Court with BA unwilling to settle, there was no confidentiality undertaking signed. For once, we are free to discuss it.

Over to our reader:

“I was due to travel on a long-haul flight with my wife and infant. We had booked a reward flight in Club World using a Companion Voucher. We were downgraded without notice at the gate and had a second set of boarding passes issued with seats in World Traveller Plus. This was after a two hour delay waiting at the gate.

The BA staff tried to offer cash compensation of £200 each when we expressed our frustration. We rejected this and refused to travel on another day as we had another flight to catch at the destination. We were informed that BA would contact us within seven days of the flight to discuss the refund due, but no contact was made.

Over the next six months, 16 emails were exchanged between myself and British Airways’ customer relations team as I tried to seek the correct compensation.

I had calculated the correct compensation due under EC261 for downgrades. Based on my understanding that I was entitled to 75% of the price of the ticket and bearing in mind it was an Avios purchase, I was seeking:

Outbound leg was 90,000 avios (peak pricing)
75% of 90,000  = 67,500 Avios per adult
75% of 9,000  = 6,750 Avios per infant (infants pay 10%)
Total due:  141,750 Avios downgrade compensation

The total refund in Avios would be 141,750 for the three of us.

Unfortunately, British Airways rejected my calculation. As I wasn’t making progress, I decided I had no option but to take British Airways to court.

I wrote a detailed letter to BA before starting my action and subsequently issued a claim in the Small Claims Court using MCOL, the Money Claims Online Service. This was relatively straightforward and the online portal is quite user-friendly. You can do this yourself and do not need to appoint a lawyer.

BA 787

At this point, British Airways offered me compensation I was legally due of 67,500 Avios for my ticket and 6,750 for our child.

However, it disputed my wife’s refund since it was a Companion Voucher, i.e. the companion ticket holder ‘did not pay a fare,’ and therefore not entitled to compensation. They were essentially arguing that the voucher had no value.

We argued that under Article 10.2(c) of EU Regulation 261, we were both entitled to compensation of 75% of the price of our tickets for the downgrade.

Article 10 of the Regulation relates to upgrading and downgrading. It states:

2. If an operating air carrier places a passenger in a class lower than that for which the ticket was purchased, it shall within seven days, by the means provided for in Article 7(3), reimburse:

(a) 30% of the price of the ticket for all flights of 1500 kilometres or less, or

(b) 50% of the price of the ticket for all intra-Community flights of more than 1500 kilometres, except flights between the European territory of the Member States and the French overseas departments, and for all other flights between 1500 and 3500 kilometres, or

(c) 75% of the price of the ticket for all flights not falling under (a) or (b), including flights between the European territory of the Member States and the French overseas departments

We also referred specifically to Article 3.3 of the Regulation which sets out very clearly that:

‘This Regulation shall not apply to passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public. However, it shall apply to passengers having tickets issued under a frequent flyer programme or other commercial programme by an air carrier or tour operator.’

Clearly, EU261 applied to companion vouchers. Given that you can only get a companion voucher after a £10,000 credit card spend and the associated £195 fee for the card itself, we were adamant that British Airways was wrong in giving it a nil value.

British Airways BA 777X 777 9X

It is worth noting that within BA’s court documents they referred to the “Steef Mennens v Emirates Direktion für Deutschland” case.

This was an attempt to demonstrate that a passenger who did not “pay a fare” was not entitled to any compensation. We asserted the facts of this case were completely different and could not be compared to our case, on the basis a Companion Voucher (with intrinsic value) was used to purchase a ticket. This view was accepted by the court.

We were successful at trial and were somewhat surprised that BA had not offered to settle prior to the hearing.

In addition to compensation for my wife’s downgraded ticket, we were also granted costs to cover the claim fee and hearing fee. The cash value of Avios was based on the cost of buying Avios directly from British Airways – so 1.6p per Avios.

We were therefore awarded £1,080 and 74,250 Avios, as well as our costs.

The judge agreed that it was acceptable for compensation on my ticket and my child’s ticket (but not my wife’s companion ticket) to be in Avios since this was the means of payment.

The £1,080 comes from multiplying 67,500 Avios x BA’s selling price of 1.6p per Avios.

[HfP edit: it is very rare for CEDR or MCOL to make a non-monetary award against British Airways. In every previous case we have seen, all of the compensation was paid in cash based on 1.6p per Avios]

It was crucial that we laid out the calculation to value the Companion Voucher, and therefore the compensation in monetary terms since we were using Money Claim Online.

My advice would be that you can most certainly pursue compensation for a downgrade on a companion voucher but it is imperative to set out your claim very clearly.

We put a lot of time and effort into researching the regulations, reading various terms and conditions and drafting the court documents. In the end it took 14 months from the date of the flight until the court hearing came around, but our perseverance and hard work paid off.”


British Airways BA Amex American Express

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There are two official British Airways American Express cards. Both have increased sign-up bonuses until 2nd November 2021:

British Airways BA Amex American Express card

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British Airways BA Premium Plus American Express Amex credit card

British Airways American Express Premium Plus

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Comments (193)

  • r* says:

    Why does the CAA constantly allow them to not comply with their legal obligations?

  • Anna says:

    CEDR is a less formal mediation service which doesn’t require serving papers on BA, you just upload any supporting documentation to the website and they do the rest of the work from there. BA refused to pay us delay compensation in 2019 when the air conditioning broke on our plane and we landed 5 hours late. I submitted the claim through CEDR and BA caved in immediately and we got our £1072 within 4 weeks.

  • Lady London says:

    First and Club not the same for YQ often. The small, actual tax, part of what BA calls taxes would be the same across any classes above Y. Most of the taxes are forced co-pay so should ve claimable

  • Froggitt says:

    Well done. Why wouldn’t BA offer another companion voucher as compo? Would that be acceptable?

    • Rob says:

      Nothing stop BA and the flyer reaching a private agreement on that but the passenger must always have the option of taking the 75%. Personally I would have taken £1000 instead of another 241 anyway since, added back £500 of taxes required to use the 241, I would have £1500 to put towards a cash ticket.

  • Definitas says:

    As this type of claim against BA has been rattling round for years, I remain completely bemused as to why nobody has ever gone up against Amex over this. The card fee constitutes a contract with Amex and the description of the card benefits on the Amex website is clear and unequivocal that the holders of the companion voucher are ENTITLED to a second seat. There is no mention of it being dependent on availability on the day, irrops or anything else. If someone were to be successful at taking Amex to court for false representation in the card terms, they would have a much greater interest in ensuring BA do not flout the terms. Either that or Amex would have to amend the card terms to advise that the voucher may not be honoured. I was advised at check in a few years ago in the US that we were likely to be downgraded at the gate. Fortunately it didn’t happen but I was determined to MCOL Amex on the grounds that there is no mention of the voucher being rejected by BA whenever it feels the need. In my mind, Amex should have to underwrite the voucher and re-issue it if it is not honoured on the day along with sufficient reward points to put the card holder back in the position they were in so a new booking can be made and the original booking written off. Amex takes the card fee and the £10K spend and shirks any responsibility for the terms of the actual voucher being delivered. I seriously doubt that would stand up in court.

    • Chrisasaurus says:

      I’m inclined to agree.

      Nothing is guaranteed per se and have to be reasonable if, say, it is impossible to accommodate but it would open up the matter of the deliberate targeting of 241 tickets for downgrade to scrutiny and if BA are engaged in could play here which anecdotally at least there’s a case to answer for, it would be very interesting to see how Amex would respond

      • meta says:

        Good point. I would actually put both Amex and BA on the MCOL claim.

        • JDB says:

          If you put two defendants, even on the same claim, you have to pay twice. Realistically, I can’t see you would have any prospect of winning vs Amex, as they are not a party to the conditions of carriage or the EU261rights.

          • NFH says:

            No, you do not have to pay twice if there are two defendants. I have twice issued County Court claims against two defendants (an airline and American Express) and there is only one court fee to pay followed by only one hearing fee to pay. The fees are very slightly higher if you issue a County Court claim at the court instead of via MCOL, which is necessary if, for example, there is more than one claimant or more than two defendants.

    • Lady London says:

      Amex claim wont fly because you were able to book a ticket with BA?….any ticket

      • Definitas says:

        Sorry, but that is only partially correct. Booking a ticket is not the same as being “Entitled” (word used in Amex terms”) to a companion seat in same booking class. I am convinced that the Amex terms are indefensible in law as they make no mention of BA being able to cherry pick which parts of the CV they honour and that BA view the companion element of the voucher as having no value. I cannot envisage any scenario whereby Amex could mount a credible defence for omitting those details from the card terms, not least because BA’s stance has been widely documented in both MCOL and CEDR cases. Amex include terms in the card contract which they are unable to deliver (entitled has an unambiguous definition in law). I am genuinely amazed that Amex has been able to get away with advertising undeliverable terms for so long and that card holders even bother trying to deal with BA. I

    • cinereus says:

      This _will_ get tested one day if they keep up with the wording and it will certainly be interesting!

    • ChrisW says:

      Amex could easily add a few words in the Ts and Cs to voucher is subject to availability, and ‘oversold operational requirements’ or something similar which 99% of cardholders would never read. This would give BA an out not to provide any compensation.

      I don’t think this is the answer.

      • JDB says:

        There are quite a few companion voucher T&C’s that already aren’t enforced (for the better) e.g. the requirement to use the card that earned the voucher for payment and still to have that card account open at the time of travel. Be careful what you wish for with the T&Cs…

        • Scallder says:

          That one would no way stack up as a fair regulation though. Saying that having earned one voucher, on the BAPP, would then require you to keep and pay for up to 2 years the fee on that card just to pay – so you’re not paying £195, you’re actually paying somewhere between £195 and £585 to use that one voucher (assuming no future vouchers earned etc etc).

          • meta says:

            What about pursuing a S75 claim with Amex? You paid charges on Amex card, hopefully BAPP so a credit card.

          • Callum says:

            Why do you deem that to be “unfair”, as opposed to just not liking it? As long as that was made clear before signing up, I don’t see how it could possibly be illegal?

    • Charlieface says:

      Not sure whether that argument would work, but S75 definitely would work if the ticket was paid with a credit card

  • Stephen says:

    Hi All. Very interesting to read as always. Just wondering how one might approach this with cash tickets where the prices are constantly moving? Do you need to take a screenshot of all the prices and different taxes (and show what BA’s carrier charge is!) for different classes when booked so that can be referred back to? And assuming this relates to a ticket bought a while back how would I go about doing it? FYI this relates to a WTP to QR Econ because of BA cancelling one of their Doha flights. I know its not going to be a huge amount of money but its the principle really! Thanks

  • MKB says:

    It’s worth noting that, legally, UK Air Passenger Duty is levied on the airline, not the passenger. It is a commercial decision by the airline, not a legal requirement, to itemise this element of their costs in the fare construction and not include it in the base fare.

    I cannot see on what legal basis the 75% compensation for downgrade would not include this element of the total fare. Unless a precedent to the contrary has been established?

    • Lady London says:

      interesting point. other claims do get the VAT element of a purchase back so why not.

    • AJA says:

      It makes no difference on a downgrade from First to Club or Club to WTP as APD is the same in all three classes but I think it should apply to a downgrade from WTP to WT. Note also that APD is only payable on flights departing the UK so if downgraded on a flight inbound to the UK it wouldn’t apply.

    • JDB says:

      I’m not sure that is correct. APD is an excise duty levied on each passenger that the airline collects on behalf of the government and has to pass on to HMRC. It needs to be itemised on the ticket, as with the various other levies so that the status of the monies received by BA is clear. Sums such as the APD are held by BA on (legal) trust and need to be accounted for separately from fare revenue.

    • NFH says:

      That’s not true. Article 23 of Regulation (EC) No 1008/2008 obliges airlines to itemise the amount of:

      (a) air fare or air rate;

      (b) taxes;

      (c) airport charges; and

      (d) other charges, surcharges or fees, such as those related to security or fuel

  • Wollhouse says:

    Having tried, completely unsuccessfully, to get BA to swap my cancelled flights (Avios and 241) onto another airline, I agree that this is endemic within BA. I am prepared to MCOL but, like others, feel we shouldn’t have to. I’m holding off doing this purely because my alternative (Qatar) routes via Dubai which presently is in the red list. The flights to Bangkok aren’t until sep so holding fire in case BA restarts the route. But there’s no way that many agents are giving out the level of incorrect info that’s happening without it being a deliberate policy. But it obviously “works” for BA. Targeting Amex might, as other posters have said, focus the mind!

    • MKB says:

      Targetting Amex could also result in a change of the terms and conditions of the 2-for-1 voucher to explicitly forego any downgrade rights.

      • Chrisasaurus says:

        The downgrade rights exist in legislation not in the T&Cs so they can’t be amended out of existence.

        • memesweeper says:

          … and Amex would have to notify all existing card holders, with sufficient notice of the T&Cs changes, which would need to be ‘fair’. They’d hate to do this.

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