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Have your say: Government opens consultation on new UK flight compensation rules

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The Government launched a consultation yesterday on ways of improving consumer protection when flying.

EC261, which is still in place post Brexit, has arguably worked well, but is a blunt instrument. It pays out fixed sums of money for long delays – amounts which can be multiples of the ticket price in Economy, but only a fraction of the cost in Business Class. My brother picked up €2,400 when an Economy trip to New York for his extended family was delayed by four hours – was this excessive?

Weakly written rules mean that airlines have had to rely on case law to set guidance around what is and is not covered. These rulings have generally gone against airlines, often (arguably) unreasonably.

If you don’t like the outcome of your claim, challenging EC261 decisions is difficult unless the airline in question is signed up to arbitration (BA has, some have not).

What is going to change?

Here’s the odd thing.

  • The Government proposals will only cover DOMESTIC flights
  • It is hiding behind the excuse of needing to respect the Montreal Convention to avoid launching a new compensation system for international flights. It isn’t clear if the existing EC261 rules will be retained or, in a huge boost for airlines and huge loss to consumers, simply wiped from the statute book. EC261 must be retained for EU-UK flights on all airlines and UK-EU flights on EU airlines.

The Government has asked for views on how the compensation system should be reformed, and the routes available to pursue claims if compensation fails.

What changes are being put up for consultation?

Increase the powers of the Civil Aviation Authority

The CAA, the UK aviation regulator, is responsible for enforcing consumer laws that apply specifically to aviation, including passenger rights during flight disruptions.

The problem is that the CAA has very few powers in law to enforce these rights. It is mainly restricted to “consultation with businesses” and “sending warning letters”, which is not the sort of behaviour that scares many airlines. To quote the consultation paper:

“When enforcement is necessary, the CAA generally utilise less burdensome enforcement powers, as good regulatory practice, and to avoid lengthy and costly processes, such as court action. In addition, currently civil cases have no financial sanctions for breaches of consumer laws, which limits the power to deter noncompliance.”

This is likely to change. The Competition & Markets Authority is likely to get improved enforcement powers soon and these could be extended to the CAA.

Improving the rights of individual passengers

To quote:

“Some airlines are members of an Alternative Dispute Resolution (ADR) scheme in the UK which provide a route to escalate complaints. However, if the airline is not a member of an ADR scheme, an individual has limited options to seek redress; with court action being costly and time consuming.”

British Airways IS a member of such a scheme, along with 21 other airlines. We tend to encourage readers to use the CEDR mediation scheme – our guide is here – before taking the Money Claim Online / Small Claims Court route.

CEDR is an acceptable route for complaints about:

  • denied boarding, delay or cancellation
  • destruction, damage, loss or delayed transportation of baggage
  • destruction, damage, or loss of items worn or carried by the passenger
  • complaints about airlines due to problems faced by disabled passengers or passengers with reduced mobility when using air transport services
  • disputes where consumer alleges the business is not trading fairly

Most regulated business sectors in the UK make membership of an arbitration scheme compulsory. This is not the case with aviation. This position is likely to change, although it would need to be decided how it would apply to non-UK registered carriers.

Compensation for delays and cancellations

The current EC261 rules apply to flights:

  • departing from a UK airport
  • departing from another country arriving in an airport in the UK, if the airline is a
    UK or EU carrier
  • departing from another country arriving in an airport in the EU, if the airline is a
    UK carrier

In the event of cancellation by the airline, you are entitled to a full refund or to be re-routed. For cancellations and for delays resulting in the passenger arriving more than three hours after the original arrival time, you are entitled to compensation for the inconvenience. This is paid at set rates depending on the distance of the flight, regardless of ticket price.

For domestic flights, the Government proposes a full refund for a delay of 3 hours or more, and a sliding scale of payments for shorter delays. This would be similar to the structure put in place for rail passengers.

For international flights, it is unclear what the plan is. The ability for the Government to adjust delay payments for international flights is restricted by the Montreal Convention. This is why, legally, EC261 pays you for ‘inconvenience’ for a delay or cancellation rather than for the delay itself. There is no mention of whether EC261 will be replaced – in which case, why waste time with a different scheme for domestic flights? – or scrapped, in which case the airlines will be laughing.

In many ways, the compensation system chosen is less important than the structure put in place for apportioning blame. If the Government does not learn from all of the case law built up around EC261, the new system will be starting from scratch. We will spend the next decade waiting for the courts to decide if a lack of spare parts, crew sickness, bad weather, freak weather, pandemics etc etc etc are grounds for paying up.

Virgin Atlantic A350

It is also worth noting that the proposed compensation system is based on a percentage of the cash ticket price. This is likely to lead to no payment to holders of Avios tickets and potentially the prioritising of frequent flyer miles tickets for downgrades or off-loading, since no compensation would be due.

(There was a period pre-covid when BA appeared to prioritise 2-4-1 ticket holders for downgrading or offloading. Whilst never officially confirmed – obviously – the fact that BA would often initially offer zero EC261 compensation to the companion ticket holder, on the grounds that their ticket was free, meant that we could never discount the fact that this was not a coincidence.)

Accessibility

The Montreal Convention means that airlines can make fixed, low, compensation payments if a wheelchair or other mobility equipment is damaged. This is, apparently, well below the replacement value of the equipment in many cases..

The Government is proposing to improve the law for domestic flights but has no power to change it for international flights.

Conclusion

On the face of it, this is a confusing consultation document. The focus on only changing the rules for domestic flights means that 90% of UK airline passengers will see no benefit.

When it comes to international travel, it is not clear why the Montreal Convention is being invoked. If the Government is quietly proposing to scrap EC261 for flights outside the EU – but not replace it with anything beyond the Montreal Convention rules – this will represent a substantial degredation of the protections currently offered to passengers.

It would also lead to three compensation regimes:

  • the railway-style system for domestic flights – which, given BA has base fares as low as £2 on many domestic flights, is likely to pay you next to nothing (and what happens if you are connecting to an overseas flight – how do you calculate the domestic portion?)
  • EC261 for EU-UK flights on all airlines and UK-EU flights on EU airlines
  • no legal compensation rights, beyond those set in the Montreal Convention, for all other flights, albeit you can use your improved arbitration rights to try to negotiate a settlement with your airline

Is this really a sensible way to move forward?

The full document is here. You have until 27th March to submit a response.

Comments (107)

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  • Martin says:

    One problem is the definition of “late”.

    On time landing followed by a long wait for a gate or air bridge/steps is late in my book. Waiting on a plane for the bus to take inbound passengers to a gate is also late in my book.

    Even worse is everything on time followed by a long wait for bags at luggage reclaim.

    I am not sure that this consultation will address the disappointing service standards at certain airports.

    • Lady London says:

      Martin the above is not a landing.

      You have not officially landed until the aircraft is on stand, the door of the cabin is open, AND passengers (practically speaking the first passenger) are able to exit the aircraft.

      If stairs or ramp is not connected and passengers allowed to step onto it (so safety cleared and any rope etc taken away so passenger can step onto it, your aircraft has not landed. Look at your watch carefully at that precise time.

      Ignore any previous announcements about “Welcome to x we have now landed”. Ignore Ryanair trumpets. You have not landed until the first passenger is allowed to step outside the aircraft.

      On departure, sadly your departure time is when the aircraft is pushed back or first moves from stand. Even if you then sit on the tarmac for 2 hours and the wheels leave the ground 2 hrs 5 min later, you departed 2 hrs 5min earlier.

      • Lady London says:

        PS Don’t get me started on buses to and from planes. I hate them too.

      • Bagoly says:

        There is an important point here – stairs/ramps etc are operationally the responsibility of the airport rather than the airlines, but the airline has the power to talk to the airport (and put Service Levels in contracts). Currently, the airline is incentivized to apply pressure to airports causing extra delays.
        Without EU261, the airlines won’t bother, and passengers are all individually too weak.

      • Martin says:

        Lady London – thank you for the definitions. I was thinking more about BA apologies for no gate available at LHR T5 etc, rather Ryanair who I find tend not to have gate availability problems.

        I still feel long waits for baggage need addressing by regulation. It might then encourage some passengers to check in bags rather than taking a liberal definition about cabin bag sizes.

      • Bagoly says:

        True about departure, although unless the airline can make up time, taking off 2.5 hours late usually means Landing is 2 hours late. So there is some protection there.
        Remove that, and you will end up like the USA with tarmac waits of >3 hours.

        • Lady London says:

          The US made tarmac delays over a certain length illegal. Airlines have imcurred serious fines from the DoT when they exceeded.

          I think after 3 hours passengers have the right to insist on leaving the plane

          Someone here from the US will probably know more than me.

  • Lady London says:

    An important feature of EU261 is it’s the passenger that gets to choose between refund, reroute on any available flight (even on another airline) as reasonably close as possible to the timing of the original flight, or reroute (rebook) on any later date convenient to the passenger. The airline does not get to choose which of these options the passenger can have. The passenger chooses and the airline is responsible for providing the rerouting. Ideally the airline should reticket the replacement flights, but if they fail then they are still responsible for the costs. Which can be considerable if the airline just dumps a flight at short notice. As we are then looking at potentially much higher close-in ticketing costs for the late action this requires. Fair enough as the passenger is having other arrangements disrupted for which so far as I am aware, no law exists to let the passenger recover costs or compensation for these other losses caused by cancellation or long delay of a flight. Such as car hire, hotel costs.

    Like @memesweeper and @meta even a 3 hour delay on short haul can be catastrophic to the purpose of someone’s trip. Such as missing the meetings you were flying out for, or arriving so late on a weekend break that.a whole day of a 2 day break is completely lost. (But you still have full 2 nights’ hotel costs.) So compensation as well as reroute or refund choice for the passenger is needed. EU261 works for this why fix something that’s not broken?

    On long haul the issues are different and include many more worries about personal security such as the ability to actually get home from far away if an airline is allowed to abandon you. BA did this to one or two passengers who reported here last year – simply abandoned them in The Seychelles or Mauritius. BA suspended the route and completely abandoned them refusing to book them on another flight. And that was with EU261 applying. How much worse will airlines’ behaviour get if compensation is removed?

    It looks to me like the only parties the government wants to bring into this consultation are the airlines. Yes Ryanair you can refund me the £9.99 fare you were.willing to sell me if I choose but for the disruption and possible other costs you’ve caused me you owe me compensation and duty of care as well.

    Bringing the CMA in might mean someone more neutral to the airlines than the CAA will actually take action to stop things like BA’s routine denial of EU261 rights till sued.

    • JW says:

      That’s a really useful summary – thank you.

      Just a quick question, if I may…

      Regarding booking you on another airline – is that only if they deny boarding due to overbooking etc.. on the day of the flight? And what if they refuse to book you on another airline – can you just pay yourself and then claim after?

      • blenz101 says:

        Rerouting applies to delays, flight changes/cancellations or a valid denied boarding. The airline is required to rerouting under similar conditions to the intended final destination at the earliest opportunity.

        Airline will generally book you on internal industry tickets with partner airlines. If you go it alone and book your own tickets you may end up needing to go to court / arbitration to claim back the costs.

        Will then be a case of what determined as reasonable and comparable conditions in the specific circumstances.

      • Lady London says:

        Rerouting rights come under duty of care. So they come into force as soon as you’ve booked your ticket.

        Important is that.statute always outranks contract and so the rights in statutes such as UK261 / EU261 outrank anything less in airline terms and conditions, airline incapacities, airline system says no, etc. That’s too bad, as EU261 supersedes all of these. The only fly in the ointment is that most airlines will deny and delay far too much of the time and force people to MCOL them to get their rights. Even in very egregious, or perfectly simple cases.

        • Lady London says:

          PS it’s only compensation part of EU/UK261 that airline can avoid by giving notice of cancellation a minimum of 14 days ahead. Airline is liable for rerouting/duty of care if cancelling any time ahead a flight you’ve booked.

          There is also no exemption possible for duty of care/rerouting. Whereas for compensation the airline can avoid compensation by claiming exceptional circumstances. Noting that most airlines’ favourite exceptional circumstances have been identified by case law as not exceptional at all such as mechanical failure, crew could not reach flight due to traffic, crew gone sick…. I think weather (but check other airlines’ flights same time same route) and Act of God remain as exceptions. But these exempt from compensation part only not from duty of care rights.

    • blenz101 says:

      There is nothing in the consultation to suggest that rights relating rerouting / refund are being considered by the consultation. The industry are pushing to rebalance the compensation element payable.

      For no other mode of transport are arbitrary levels of compensation paid out which may or may not cover consequential loss based on distance travelled. Travel insurance is available to cover this.

      I do agree though it would seem a pretty obviously move to test and implement this on domestic flights and then extend to international flights as has already been suggested. It’s a loss for UK consumers but a potential boost for UK based airlines.

      • meta says:

        In case of international flights, definitely not a boost if people decide to stop flying UK airlines based on the new regulations and turn to EU based airlines instead. Probably a small proportion of people who currently claim, but these are arguably the most loyal ones to the likes of BA/Virgin/LCC anyway.

        • Blenz101 says:

          Yeah and in the main frequent fliers will be flying for work on corporate tickets.

          Whenever I’ve been delayed in that situation I’ve been delighted to be paid a £520 tax free bonus. What hardship is another night in a nice hotel with my meals paid for? Or a few extra hours in the lounge eating and drinking.

          • meta says:

            I’ll influence then my employer not to use non-UK airlines, but also some corporate contracts are going away anyway post-pandemic, so airlines should think twice before lobbying for changes to the legislation.

    • TimM says:

      Wonderful summary Lady L, thank you.

      It appears to me that duty of care should be paramount and that we should not have to go through a complaints procedure or the courts to get it. Consequential issues such as missing a meeting or a cruise must the the customer’s responsibility (e.g. FaceTime or travel insurance).

      Paying a proportion of the fare as compensation does not address the issue and in some ways appears to allow the operator off the hook. They must fulfil their contract – regardless of the cost of their duty of care, i.e. alternative airlines, hotels, meals transport etc. These not not have to be claimed for retrospectively.

      I don’t want 50% of my £9.99 fare to be refunded as compensation after a three hour delay. I want the airline to be so appalled at the cost of paying for tickets on an alternative airline and wining and dining us while we wait, that there is no delay in the first place.

      • Blenz101 says:

        Duty of care is not under consultation. Nor is there anything to stop airlines paying out compensation as a gesture to their customers at any level. Travel insurance is intended to cover consequential losses from delays.

        Forcing private companies to hand out arbitrary amounts of cash dictated by law for “inconvenience” is being questioned.

    • yorkieflyer says:

      Yes, BA were adamant that as ours was an Avios flight we had to be rebooked on a BA flight back from Cape Town in January 2021. We would have been waiting a while…… Two very hard long and expensive phone calls, no Wi-Fi, got us on Qatar home and likely only because it was a first class Avios booking, hence these were calls to YouFirst

      • Lady London says:

        Yorkieflyer I think BA may owe you all those phone call costs . Comns cost is definitely on the duty of care list in EU261. You have 6 years to claim but best to do it once you become aware of it.

        You are another case that BA tried just to abandon and leave stranded far away fron the UK I suppose? BA did this when EU261 clearly told them they had to get you home on any other airline as soon as reasonably possible. What else will airlines do once the threat of compensation is xompletely removed? Getting away with not having to pay compensation due to exceptional circumstances during Covid is a drug the airlines would like to keep mainlining cos it feels good

  • Peter says:

    Thanks to everyone who voted for Brexit! First mobile roaming gone, now this.

    • Paul Pogba says:

      Virgin O2, Sky Mobile, Tesco, Giffgaff, Plusnet, ID Mobile, TalkTalk, Smarty all still offer free EU roaming.

      • Entitled says:

        Sky, Tesco, and GiffGaff use the 02 network. It is only really 02 as a provider of any size who are holding out as a point of marketing difference. If they relent the rest will fall like dominoes.

        • Jerry says:

          Plusnet is owned by BT who also own the ee network and BT Mobile. Plusnet and BT mobile both offer free inclusive EU roaming. I switched from EE to Plusnet for this reason and halved my monthly bill. If sufficient customers migrate from ee BT will change their mind.

          • Mark says:

            Personally I refuse to pay ridiculous roaming rates anyway. If it’s cheaper to use a travel or local sim then that’s what I’ll do, particularly for data, or just use wifi.

    • Mike says:

      I think you will agree losing mobile roaming was a small price to pay for freedom

    • Andy says:

      But you can avoid this by not taking out a new contract. Just let the contract you are on run out, keep paying the same and there is nothing the phone companies can do

  • Thomas says:

    It’s worth remembering that EC261 as drafted never contemplated compensation for delays. Only by an outrageous piece of judicial overreach in Sturgeon v Condor and Bock v Air France did delay compensation come into being. This change will rectify that and make delay compensation more proportionate to the value of the inconvenience suffered by delayed passengers.

    (It’s worth noting that in 2013 the EC proposed to change the compensation threshold for delays to 5 hours for flights under 3,500km, 9 for 3500-6000, and 12 for over 6000, though this was never enacted.)

    • meta says:

      Please read article 6 and 7 of the original legislation before you conclude. ECJ just clarified what constitues a delay, i.e. when the aircraft leaves the gate, and when the doors open for the passengers on arrival

      Yes, they proposed all sorts of things and propose every day, but there was never a concensus. The problem is that UK is never good at concensus, hence why Brexit happened.

    • His Holyness says:

      It’s not an “outrageous overreach”. The Commission uses the CJEU to expand the competences of EU Law. The CJEU is a tool to undermine the principles of subsidiarity and proportionality.

      • meta says:

        The original legislation had in its initial text the levels of compensation, to suggest that it was ECJ who inserted is not true. And actually the cases quoted above are not about the levels of compensation for delays.

  • Lady London says:

    Yes.
    You must give the airline the chance to reroute you, first. If they refuse or fail, or, say, despite numerous efforts you have made to contact them are simply unable to be contacted, especially for urgent matters such as a night’s sleep where you’re in a queue of 500 off delayed flights that’s not being serviced or serviced by one person, then provided you document how and when you tried you can take matters into your own hands (eg book your own local hotel at local market rate) and claim the allowed costs off them later. Ditto flights.

    So say, BA cancels your direct flight to Bangkok. Thai Airways has one leaving 3 hours later also direct. BA is offering you a flight in 3 days but you need to get home close to as is flying. Qatar has a flight connecting in Doha the following morning which would lose you 1 day of your holiday due to late arrival which is acceptable to you. But BA says they don’t have an agreement with Qatar [..currently running that gets them these fares cheaply] so they/their systems (BA hasn’t heard of the internet) can’t give you this flight.

    In this case, ideally after asking 3 times, getting a final answer “No” or if there’s time, 8 weeks without resolving, as you made efforts to work with them so they have the opportunity to resolve, you would be fully within your rights to buy a ticket on the Thai Airways flight and MCOL BA for the costs however high the going rate for same cabin and type of ticket is on the Thai flight by then. BA would have to pay your MCOL fee and costs of ticket when you win. Could add 8%pa pro rata request for statutory interest to your whole MCOL claim as well.

    If there are flights reasonably close to your original time on Awful Airways, Really Awful Airways, and Thai, then you can ask but BA gets to choose which alternate airline they reroute you on. You can object and say it’s not comparable conditions if the one they want [find cheapest] to put you on has a connection and lands 8 hours later. But, for example, if the Qatar flight left the same day and arrived less later than this, personally I would advise you to accept it in Covid if BA is willing to ticket you as it’s important not to refuse unreasonably.

    If BA refuse to provide you any rerouting that is conformant with their obligations under the statute(s), a replacement flight in 3 days does not have to be accepted if there are 1 or more flights reasonably close to original flight available on other airlines, choose & claim back

  • Jack Hodgson says:

    They are only opening this consultation so that they can say they followed a process nothing will likely change

    • Blenz101 says:

      No, the only meaningful responses will come from the airlines with an argument the compensation levels are disproportionate compared to all other forms of domestic transport and unrelated to the ticket price paid. EU red tape which can be cut.

      Government will agree, a Brexit freedom to remove this burden from UK carriers. Perhaps with some stronger enforcement powers to make sure a new sliding scale refund regime (on base fare) is routinely paid to the consumer without dispute as the counter weight.

      It will be hailed a success, perhaps even with auto payouts, and rolled out to international flights for UK carriers as quickly as possible. A competitive advantage for the airlines at the consumer rights expense. People will continue to book by headline fare and schedule whatever without considering EU rights no matter what is posted here.

  • meta says:

    I wonder whether this is an agreement between the airlines and the government for not giving free covid bailouts. We won’t give you this now because it will look good for us, but once pandemic is over we will weaken passenger rights, so you can benefit indefinitely.

    • Lady London says:

      You are right @meta the speed at which government has moved against passengers here is breathtaking. Britain has only just left the EU not counting Covid, and already the government has got its chisel out to start destroying one of the most resilient pieces of EU legislation that actually gave needed protection to consuners.

  • Max says:

    UK should follow Brasil/Philippines/Hong Kong/Japan in banning/limiting customer-unfriendly fuel surcharges.

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