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British Airways facing enforcement action by the Competition & Markets Authority over refunds

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The Competition & Markets Authority has launched separate enforcement actions against British Airways and Ryanair over their treatment of passengers requesting flight refunds.

The enforcement action follows an initial investigation into the entire airline sector which the CMA launched in December 2020.

The enforcement action covers a very specific period – those weeks where travel outside the UK was blocked except for ‘essential reasons’ such as taking your family to Dubai to look at an apartment you might want to buy ….

BA facing enforcement action by the Competition & Markets Authority

British Airways has refused to issue refunds to passengers who had booked to travel over this period if their flight was operating. All passengers have been provided with a Future Travel Voucher to the value of their booking.

Andrea Coscelli, Chief Executive of the CMA, said:

While we understand that airlines have had a tough time during the pandemic, people should not be left unfairly out of pocket for following the law.

Customers booked these flights in good faith and were legally unable to take them due to circumstances entirely outside of their control. We believe these people should have been offered their money back.

Contractually, the CMA is likely to focus on ‘frustration’. This is a legal term which allows a contract to be set aside if circumstances arise which mean that it is not possible for one party to fufill its duties. If your contract with BA is declared null and void, you would be due a full cash refund.

Is this fair comment?

You can, of course, see this both ways.

From BA’s point of view:

  • the flight was operating
  • BA was willing to carry the passenger if they chose to travel
  • the passenger should have had travel insurance
  • there are no other circumstances in which an airline is liable to provide a cash refund if a passenger is legally unable to travel, eg arrives at the airport with an incorrect visa, or is on bail
BA facing enforcement action by the Competition & Markets Authority

There is, however, a second issue here. At some point, British Airways has to announce whether it intends to expire unused Future Travel Vouchers in April 2023 or redeem them for cash.

The European Commission has issued guidance recommending that airlines automatically refund any unused vouchers 14 days after they expire. British Airways is no longer covered by this guidance, and in any event it was not legally enforceable.

If British Airways intends to redeem unused Future Travel Vouchers for cash, it would have no case to answer here. It arguably acted legally by not issuing refunds and passengers who are complaining about not being refunded in cash can simply sit it out until April 2023.

British Airways appears intent on fighting the enforcement action, saying:

“During this unprecedented crisis we have issued well over three million refunds and helped millions of our customers change their travel dates or destinations.

“We’re grateful to them for their ongoing support. We continue to offer​ highly flexible booking policies at the same time as operating a vastly reduced schedule due to government-imposed travel restrictions, and we have acted lawfully at all times.

“It is incredible that the government is seeking to punish further an industry that is on its knees, after prohibiting airlines from meaningful flying for well over a year now.

“Any action taken against our industry will only serve to destabilise it, with potential consequences for jobs, business, connectivity and the UK economy.”

This could imply that it is hoping to let unused Future Travel Vouchers expire.

It is important to note that the CMA does not have the power to issues fines. Any action taken against the airline would require the CMA to launch a case in the courts.

You can find out more on the CMA website here.

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Comments (71)

  • J says:

    I can’t help feeling the CMA is focussing on the wrong thing here. Surely a refund for a flight that you cannot take (but which is otherwise operating) is a matter for travel insurance? Not sure why an airline should be penalised for that. Whereas what the CMA could usefully address is BA’s persistent refusal to provide (or even offer) reroute when they cancel a flight. BA’s approach to EU261 seems to be “If we ignore it, it doesn’t exist”.

    • Ls says:

      You were not allowed to take the flight. However British Airways is also not allowed to take you on the flight. It works both ways.

      • J says:

        Still not sure how that becomes BA’s liability? Unless it has its own insurance for this and/or the government will reimburse it for refunding non-refundable tickets? (I assume it’s only really the non-refundable ones we’re talking about – fully-flex / refundable tickets presumably have no problem here.)

      • Robert says:

        Using that logic, if I get denied a visa for my destination, should I expect a refund from BA for the flights?

        • J says:

          To my mind, no, you should not (though I believe some airlines will refund if entry is denied). It’s our own responsibility to make sure we have the necessary visas and paperwork etc in place before we commit to a non-refundable ticket. Or to buy insurance that covers against being denied a visa (if such a thing exists?!). Or buy a refundable ticket 😉

          • Alex Sm says:

            Some good old airlines, such as BMI, offered full refund if a visa was denied by the embassy

      • Rob says:

        That is not true. BA has never been banned from flying you – if you turned up they would take you.

        • AJA says:

          In which case BA has no case to answer. It hasn’t broken the law if you can still fly and by extension you are saying that it is only the passenger who is breaking the law. Are BA not facilitating you from breaking the law by carrying you? What about the case where you turn up without a pcr test? Is BA obliged to deny you boarding or are they still able to take you? What’s the difference, it’s only the passenger breaking the law? I thought the CMA was specifically looking at the scenario ‘those weeks where travel outside the UK was blocked except for ‘essential reasons’.

          What do you say about the situation of the two flights to the same destination but one is cancelled in that scenario as per my second comment? Do you think it’s fair that passenger 2 can have a cash refund but passenger 1 is only entitled to a FTV?

        • Jonathan says:

          Not if they knew you’d be turned away at the destination border

        • Ian C says:

          This can get a bit messy. Technically under UK law the concept of common purpose/joint enterprise doctrine could extend the criminal offence culpability if the airline foresaw that the passenger was likely to commit that crime.

          I’ve never seen the concept used in cases such as this but, unless I am incorrect on any case law which has limited the scope, it is technically a possibility.

    • AJA says:

      The point is that customers are left in the position of having purchased a legally unenforceable contract. They cannot fly without breaking the law. Legally BA is also breaking the law by carrying them if they still attempt to fly (which wouldn’t happen as BA would deny boarding, or BA would pay a fine at the other end and be forced to repatriate them). The fact that BA can still operate the flight is because it has other passengers or freight that it can still legally carry. It is a commercial decision by BA to fly the plane that decides whether passengers are entitled to a refund. If BA decides the flight is commercially unviable it cancels the flight and passengers are automatically entitled to a refund. The CMA is trying to put passengers on both flights in the same position and take the decision whether to refund away from BA.

      • AJA says:

        Consider this scenario: BA operates two flights a day LHR to LAX. Passenger 1 chooses flight 1, passenger 2 chooses flight 2. Government bans UK citizens from flying to USA meaning both passengers cannot fly. BA chooses to consolidate and cancel flight 2 but still operate flight 1 for commercial reasons (cargo and carriage of US citizens). Passenger 2 is rebooked on flight 1 but can choose to accept reroute or be refunded due to cancellation of flight 2. Passenger 1 cannot get money back as their flight is not cancelled.

        • Babyg says:

          Not sure what the point is, a cancelled flight always results in options or refunds/rebooking options. This is how it has always been, note i currently have some Faro bookings where other flights on the same have been cancelled, unluckily the flight im on has not (yet hopefully). Also there are/were loads of reasons to legally travel during the height of the pandemic, so you cant say it would be illegal for BA to carry xyz passengers. Personally i think the main thing BA did wrong was REMOVE the refund button from MMB. It would be good to get clarity around what happens to unused vouchers too.

          • AJA says:

            The point is that in my example both passengers are booked on a BA flight to LAX. Both passengers are barred from flying to LAX because of the government ban on travel. Unfortunately for passenger 1 they are booked on a flight that still operates but cannot get their money back unlike passenger 2. I think the CMA is trying to put both passengers in an equal position of being able to get a refund from something that is not under their control.

  • Chris Heyes says:

    J Why would it be a matter for insurance ?
    If a refund is for a flight you “are not allowed” to travel on that is nothing to do with insurance
    The CMA is taking the correct course of action the only problem is they have no real power “to issue large fines”
    Regarding “Insurance” I’ve flown on 100s of flights within Europe without insurance, using health certificate/EMC which covered my needs at the time
    Flights was costing me nothing at the time only Airmiles so insurance wasn’t an issue.
    Last 20 or so years I’ve had free Nationwide insurance with my Flexi-Account I believe no longer issued to new customers but I still get it
    I believe you have to get a paid Flexi-Plus Account to qualify now

    • J says:

      Well, travel insurance would surely (assuming it’s a good policy taken out before the restriction was known about) cover exactly this circumstance? Much as I think BA’s handling of its own flight cancellations has been appalling, I’m not really sure why it should be penalised here – if you buy a non-refundable ticket, that’s the risk you take isn’t it? That’s why you have travel insurance. Granted, in this case, possibly the government should be acting as insurer of last resort? Since they imposed the rule changes. But I struggle to see why it’s the airline’s liability, if they’re still operating the flight.

      I suppose what might be useful to know, and perhaps would make a difference, is whether the airline has insurance for this sort of eventuality – if it does, then I would have thought yes, refund the passengers and claim against its own insurance. But otherwise, it’s hardly the airline’s fault they’re not allowed to carry you, surely?

    • Anna says:

      I hope you’ve got insurance now Chris! I know two people who needed expensive repatriation while on holiday; one had a brain haemorrhage and one contracted sepsis after cutting his foot, neither would have been covered by EHIC/GHIC for this.

      • Chris Heyes says:

        Mornin Anna Yes Nationwide Flexi-Account insurance and its a good one at that, free as well, noticed I said within Europe, always took out special insurance on long haul flights.
        Crushed Vertebra/Trapped Nerve means I need it now “just in case” lol

  • TimM says:

    Travel insurance is not required by law. If an airline is having a bad time it is not excused from the obeying the law. If it cannot survive, it must be allowed go bust. Competitors better-able to weather the storm will take over.

    • J says:

      True, although travelling without insurance might be considered rather foolish? But your choice, your risk 😉 I’m curious to know what law BA has broken here? (I’m no fan or defender of BA, incidentally, and I think they have systematically breached EU261 in respect of other scenarios, e.g. not notifying flight cancellations, not fully advising customers of their rights, not pro-actively offering re-routes when flights are cancelled – but this strikes me as a very different scenario: if you buy a non-refundable ticket for a flight that goes but you’re not on it, and the airline declines to refund you, you claim on your insurance – how has the airline broken the law?)

      • Czechoslovakia says:

        Concur, if I miss a flight, even through no fault of my own (traffic, illness, work/family…), that’s down to me to take it up with the third party causing the loss, not the service provider. Or claim on any insurance if I had chosen to but it.

      • TimM says:

        As Rob points out, there are provisions in the law for the contract to be set aside if one party is legally obliged not to fulfil their part. Consumer law is even stronger and applies as the contract was not individually negotiated.

        Here, BA’s decision to operate a flight that may only legally carry people exempted by law for special circumstances is purely a commercial one. The opposite side of the coin is that they must refund those who cannot be legally carried.

    • Doug M says:

      “ Competitors better-able to weather the storm will take over.‘
      Airlines that had billions of euros/dollars gifted them by their governments for example?

      • Rob says:

        Yup. Do you really want Lufthansa – recipient of €10bn of Govt money – or Air France (same) taking over purely because they were bailed out by their Governments? Most businesses which are taken over are taken over because the buyer has good grounds to believe it can run them better. This is unlikely to be the case here.

  • sigma421 says:

    It has no direct relation to the case but given one of BA’s first moves when the crisis hit was to disable online refund functionality and claim repeatedly in statements that it had never existed, it’s hard for me to have much sympathy with them here.

    • Czechoslovakia says:

      Was actually sympathising with BA for a moment until you reminded me of that fact. Good point. BA surely lost a lot of goodwill over that. I don’t believe BA should be on the hook for those who chose to gamble without travel insurance, that’s they’re decision/risk – but BA certainly deserve investigation into not correctly adhering to EU261 law in good faith as J points out.

    • Jonathan says:

      Ah yes, BA trying to be clever there !

      It’s weird that the CMA didn’t pick up on this or mention it, BA would’ve been blasted further for appalling behaviour of theirs in this scenario

      • Lady London says:

        If these actions by BA early in Covid were recognised due to the CMA investigation I would be happy. BA deserves to be punished for this. I’m happy to wait till BA turnover reaches £x billion before they have to pay a huge fine for this. Even over several years to keep BA reminded that big BA should not cheat little customers who may have lost their income and need their money back for a flight BA didn’t provide that they had paid for.

        I really can’t support this frustration of contract basis by CMA. At some point customer should be expected to take own risks or purchase insurance.

  • Stuart says:

    If I paid for a supermarket to deliver food to my house and then there was a terrorist scare in London and the government closed all roads for a day, would it be ok for the supermarket to keep my money?

    I think the government need to refund the airlines – it’s not the passengers fault and it’s not the airlines

    • J says:

      Not sure that’s quite the right analogy 😉 Because the delivery (flight) would be cancelled and you ought then to be entitled to either a redelivery or a refund. But here, the flights were not cancelled. So the analogy might better be – the supermarket tried to deliver to your house, but you weren’t at home 😉

      But I do think there is an argument that, if the airlines are to be made to refund passengers here, then as you say, the government should reimburse the airlines. Although there is then equally an argument that this simply pushes the cost onto the taxpayer, when ultimately, people should have had travel insurance…

    • Rob says:

      That is not equivalent. What would be equivalent is the food being delivered, left outside your house as you agreed, but the Govt closing the road and by the time it reopened the food had gone off. Who is liable for that?

      • J says:

        Good point. But in that scenario, surely the supermarket has fulfilled its contract, so while it may be the government that has liability for the loss of your food, or perhaps your home insurer, or perhaps you yourself, it presumably would not be the supermarket… I suppose this scenario is still not quite analogous though, as in BA/Ryanair’s case the contract has not been fulfilled (albeit through no fault of the airline).

        • Rob says:

          BA has fulfilled its contract too – it operated the flight you were booked on.

          • J says:

            Not quite, surely – the contract is to fly you from A to B. If you couldn’t fly, contract not fulfilled surely, but not BA’s fault or yours in this scenario. Dunno, I might be splitting hairs 😉 But if the definition of fulfilling the contract is operating the flight, then what of the situation where an airline leaves you behind, let’s say you get to the gate only a few minutes before it’s due to close, but they’ve decide to depart early – they can hardly argue they’ve fulfilled their contract with you just because the flight operated 😉

          • Rob says:

            No, not the case. If I pay WeWork for an office but don’t bother showing up, I have no legal grounds for a refund.

            Importantly, as IWG / Regus proved during lockdown and was reported in many newspaper stories, you have no legal grounds for a refund on your office rental contract even if the Government says that you cannot leave your home. WeWork and IWG / Regus deliberately kept all of their sites open (ie the doors were unlocked each morning) so that no-one could request refunds.

      • Mr(s) Entitled says:

        Based on the article an individual “should” have insurance to cover the food. No?

        • J says:

          Possibly household insurance would indeed cover it? Not sure.

          But sounds like an opportunity there for the supermarket to sell insurance as an optional extra! 😉

      • steopia says:

        I agree that this analogy is somewhat helpful. It is neither the customer or the company that is at fault, but instead it is the government who are the party prohibiting fulfilment of the contract.

        What I’ve been amazed at throughout the lockdowns is that businesses who have been deliberately denied the ability to operate lawfully have not been compensated, and the vast majority of businesses surviving have just accepted losses without asking for or receiving compensation. Obviously, the government would not want to compensate loss of earnings due to the large amount of money it would cost the Treasury. Which is exactly the point… if the government was forced to compensate loss of earnings, maybe it would consider measures less ruinous to economic activity.

        If the government wants to build a railway through my house, I receive compensation. But if the government wants to close down a pub I own for the best part of a year, then somehow that’s okay?

  • Gavin says:

    I wish BA would face some consequences for deliberately making it hard to get a refund for cancelled flights (and any other flights including redemptions etc) by disabling online refund functionality at a time when the call centre was completely overwhelmed. It’s still not back to normal, over a year later! Although you can request a refund online in some circumstances now, it still seems to be processed manually rather than automatically as before, and you’re still directed to the FTV page first.

    • Anna says:

      +1, I can’t believe BA staff are happy about it either!

    • 1ATL says:

      I’m not a BA apologist by any means but to give them credit, this does appear to have been fixed now. Our July holiday flights were cancelled last week, I was anticipating having to call up and endure a long holding pattern before being answered as in the past you had little choice in the matter online as it always directed you to a voucher. As I was waiting I checked the cancellation options in manage my booking and you now have 2 options: cash refund or a future travel voucher. I clicked cash refund and received notification and a follow up email that the refund processed in 5-7 days. I’ve checked by credit card app this morning and the full amount has been returned. I’d say that’s a definite service improvement over what it was like even 6 months ago.

      • Gavin says:

        It’s improved but it’s not the same as before March 2020. Back then, you’d get a refund calculation shown to you online and it would be processed automatically, usually back on your card within a couple of days (any Avios were back instantly). You still need to phone up in some circumstances which were not required before, such as cancelling Avios bookings – in this case, you’re still directed to the FTV page with no further info provided. The whole thing is so dishonest.

  • SammyJ says:

    I agree that they’re chasing the wrong dog here.

    There are still thousands of people who have received no refund for flights that were cancelled, or had charges deducted from those flights. The airlines who refused refunds for that, and the agencies like TravelUp who refused to refund their customers are the ones they should be chasing.

    I think BA have been quite generous with their voucher policy. Ryanair, not so much.

  • Phillip says:

    I’m not defending BA but I feel it would be unfair not to point out that amongst global airlines, BA, for me, is the only one that has made it easy to book with flexibility over the past year. The only other flexible airline is QR. Yes, they still play tricks, such as not showing full availability online if your flight is cancelled and should therefore be able rebook to alternative dates and so on…
    But given how abysmal many other airlines were and continue to be – yes I’m pointing at you Air Canada, TAP and most of Star Alliance – BA has earned the odd brownie point from me.
    I do feel that insurance companies in general have been allowed to get away with murder over the pandemic – much more than airlines!

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