BA refusing delay compensation

[RallyMarshal]

Hi

Flew LHR – SEA on 18th December on BA0049. Flight was originally booked/scheduled to depart on 18/12 at 16:30GMT and land at 19/12 00:30GMT

On 16/12 at 14:42GMT, we were informed by email of a schedule change to depart at 18/12 17:15GMT and land at 19/12 03:05GMT (ie a 2hr 35 minute delay)
The Actual arrival time was 19/12 04:01GMT.

BA are refusing compensation on the basis that the flight arrivial was 56 minutes late (using the revised arrival time as the scheduled time of arrival)

I calculate the flight arrival as 3hr 31 minutes late as I am using the original scheduled time of arrival due to the fact it was changed within 48 hours of the departure date/time.

Correspondance is below – Id welcome advice on my next move here.

Initial Response from BA on 19/01

An update from British Airways
We’re sorry it was necessary to delay your flight to Seattle on 18th December 2022 and understand why you needed to get in contact about this. We take all reasonable measures to avoid delaying a flight and we’ll always consider if there are any alternative solutions available before we make a decision.
We’d also like to thank you for your patience while we got back to you about this.

I’ve checked the details of your flight and can confirm your flight, BA0049, at 14:30(local time) had a schedule change, and we notified you in advance on 16th December 2022 at 14:42(local time), after that flight was delayed for 56 minutes. I’ve included the details below for your reference.

Flight BA0049 from London Heathrow to Seattle.
Scheduled departure date and time: 18th December 2022 17:15GMT
Actual departure date and time: 18th December 2022 17:56GMT
Scheduled arrival date and time: 19th December 2022 03:05GMT
Actual arrival date and time: 19th December 2022 04:01GMT
Total delay: 56 minutes

Since your flight wasn’t delayed in arriving by three hours or more, your claim for compensation under The Air Passenger Rights and Air Travel Organisers’ Licencing (Amendment) (EU Exit) Regulations 2019 has been refused.
Thanks again for your email/letter. Please feel free to contact us if we can help you any further and I hope we can welcome you on board again soon.

My Response to BA on 23/01

Thank you for acknowledging the schedule change you made within 48 hours of the flight original departure time.

The flight BA049 departing on 18th December was scheduled to land in Seattle on 19th December 2022 00:30GMT (16:30 local time)

You have stated the arrival time as below

Actual arrival date and time: 19th December 2022 04:01GMT

Therefore the total arrivial delay isnt the 56 minutes you quote but 3 hours and 31 minutes.

Due to the late schedule change and the arrival being greater than 3 hours, I believe we are entitled to delay compensation under the regulations you quote.

BA 2nd response on 23/01

We’re sorry you’re unhappy with the outcome of your claim and we understand why you needed to get back in contact with us about this.

I’ve had another look at your claim for compensation and I’ve taken time to make sure our response is accurate and up-to-date. Based on this, our decision hasn’t changed and the response you’ve received about the eligibility of your compensation claim are correct.

We understand that you’re calculating the 3 hours delay as per the original flight timings, however, you were notified about the schedule change to your flight BA0049 in advance on 16th December 2022 at 14:42(local time).

After the schedule change, your flight was delayed by 56 minutes which is under three hours, hence you’re not eligible for compensation.

Article 5.3 of the EU Regulation 261/2004 and The Air Passenger Rights and Air Travel Organisers’ Licencing (Amendment) (EU Exit) Regulations 2019 states a carrier is not obliged to pay compensation if it can prove the delay or cancellation is caused by extraordinary circumstances, that couldn’t have been avoided even if all reasonable measures had been taken. In Recital 14 and 15 of EU Regulation 261/2004, extraordinary circumstances include weather, strike and the impact of an air traffic management decision which gives rise to a long delay. This means you’re not entitled to compensation under the EU Regulation for your delayed flight.

Where do I go from here? Do I request proof of the delay being caused by extraordinary circumstances..?

Thanks for your help

Paul.

[JDB]

BA will probably keep fighting, but I would go back to them saying that no ‘extraordinary circumstances’ have been cited in their two responses, but if that is what they are now claiming, please can they specify what these were and provide proof thereof as required in the Regulation. Say that any court or arbitrator is unlikely to find that ‘extraordinary circumstances’ applied at two day’s notice.

You are only entitled to 50% of the compensation for three hours on long haul, but that’s still a meaningful sum so might be worth pursuing at CEDR if third response is still no or they don’t respond. They will probably have some cute argument re rescheduling vs delay…

[BA Flyer IHG Stayer]

The issues here is that there was a schedule change 2 days in advance of the flight rather than an on the day delay and so according to the new schedule the 56 minutes isn’t qualifying for compensation.

I do see your point though but I don’t think you’d win either at CEDR or MCOL.

[RallyMarshal]

JDB wrote:

BA will probably keep fighting, but I would go back to them saying that no ‘extraordinary circumstances’ have been cited in their two responses, but if that is what they are now claiming, please can they specify what these were and provide proof thereof as required in the Regulation. Say that any court or arbitrator is unlikely to find that ‘extraordinary circumstances’ applied at two day’s notice.

You are only entitled to 50% of the compensation for three hours on long haul, but that’s still a meaningful sum so might be worth pursuing at CEDR if third response is still no or they don’t respond. They will probably have some cute argument re rescheduling vs delay…

Thanks – much appreciated.. I think I clicked the Report button so apologies for that..

Paul.

[RallyMarshal]

I replied requesting

BA Flyer IHG Stayer wrote:

The issues here is that there was a schedule change 2 days in advance of the flight rather than an on the day delay and so according to the new schedule the 56 minutes isn’t qualifying for compensation.

I do see your point though but I don’t think you’d win either at CEDR or MCOL.

Thanks for the reply. I understand there was a schedule change, and if that was a few weeks prior then I wouldnt have thought about putting in a claim. However, a schedule change within 48 hours of travel isnt reasonable. Luckily we didnt have any onwards flights booked that evening as we wouldnt have made them but it did mean we had to change other plans to suit at short notice.

Whats to stop a schedule change being implemented at later stages to avoid the delay compensation being paid if there are no consequences for doing that.

I will post BAs latest reply in the next post as they are firm on their stance..

[RallyMarshal]

I requested them supply proof of the extraordinaery circumstances and received the following reply..

>>>
We’re sorry you remain unhappy with the outcome of your claim and we understand why you needed to get back in contact with us about this.

I’ve had another look at your claim for compensation and I’ve taken time to make sure our response is accurate and up-to-date. Based on this, our decision hasn’t changed and the responses you’ve received about the eligibility of your compensation claim are correct. This means you won’t receive any further responses from us about this claim.

As your flight was delayed by 56 minutes, which is under three hours, it means you’re not eligible for compensation.
You can refer your complaint to the Centre for Effective Dispute Resolution (CEDR) for an independent decision to be made. CEDR is an independent dispute resolution provider, certified by the Civil Aviation Authority, to adjudicate disputes between airlines and their passengers which haven’t been resolved through the airline’s own complaints procedure.

You can find out how to refer your complaint to CEDR by visiting their website: CEDR

Please note that the scope of the adjudication scheme is limited and it could be that your complaint falls outside of it. If you choose to contact CEDR, they’ll be able to advise you if they’re able to deal with your complaint.

If your claim falls within the scope of the CEDR Scheme Rules and your application to CEDR is accepted, any previous offer of settlement made by British Airways will be withdrawn. If the application is taken to adjudication, the adjudicator’s decision will be final.
>>>

Am I correct in thinking that CEDR is £25, paid if the claim is unsuccessful..?

Any further advice..?

Paul..

[points_worrier]

@RallyMarshal – correct, supposedly £25 if you lose. I haven’t actually heard of someone being charged this though. You could also argue that BA have been unreasonable in not providing proof of extraordinary circumstances, and that should it have been provided you would not have continued the action.
You can also discontinue once BA have provided their response, before any ‘judgement’ – this is unlikely to result in a charge, even if they were enforcing charges for losing.

[Matt]

I think it’s more £25 if you’re taking the piss, ie vexatious/frivolous claims. You don’t get charged normally win or lose.

[Lady London]

I’d MCOL them rather than waste time rolling the dice with their pet arbitration service.

You’d have to do the same work pretty much anyway, so why not file where it might work.

The cost will be trivial as the amount is relatively low and assuming you win BA has to pay that as well.

I can’t believe BA is adopting a tactic when they know there’s going to be a compensatable delay, of sending out a schedule change 48 hours before admitting only part of the delay, but then trying to use the delayed flight time as a base to avoid the compensation payable for the full delay. But I’d put nothing past British Airways in terms of their sleazy tricks.

You’ve had their final answer, as they’ve written they won’t deal with it any more, so slap them with your MCOL claim. They’re probably hoping you’ll just go away but legal costs defending it will exceed the value of your claim.

[JDB]

Based on the info you provided, the departure was only rescheduled to be 45 minutes later, yet the arrival was 2h35 later as you state

18/12 16:30GMT and land at 19/12 00:30GMT
18/12 17:15GMT and land at 19/12 03:05GMT

It would therefore appear that a planned rerouting probably caused the schedule change, perhaps planning for the severe weather that was anticipated in the ensuing days? There must be some reason and quite possibly one that could constitute ‘extraordinary circumstances’. Anyway, before rushing to MCOL for £260 and the work that involves, I would try to gather more information. You really don’t want to follow the shoot first ask questions later advice only to be blown out of the water with something simple and be down £35.

In any event, the position re schedule changes is a little grey. In an ECJ decision that post dates Brexit so theoretically does not apply in the UK, a schedule change bringing forward a flight by one hour constitutes a cancellation, but rescheduling two hours later does not.

[RallyMarshal]

JDB wrote:

Based on the info you provided, the departure was only rescheduled to be 45 minutes later, yet the arrival was 2h35 later as you state

18/12 16:30GMT and land at 19/12 00:30GMT
18/12 17:15GMT and land at 19/12 03:05GMT

It would therefore appear that a planned rerouting probably caused the schedule change, perhaps planning for the severe weather that was anticipated in the ensuing days? There must be some reason and quite possibly one that could constitute ‘extraordinary circumstances’. Anyway, before rushing to MCOL for £260 and the work that involves, I would try to gather more information. You really don’t want to follow the shoot first ask questions later advice only to be blown out of the water with something simple and be down £35.

In any event, the position re schedule changes is a little grey. In an ECJ decision that post dates Brexit so theoretically does not apply in the UK, a schedule change bringing forward a flight by one hour constitutes a cancellation, but rescheduling two hours later does not.

Apologies – It was originally due for departure at 14:30, not 16:30 and they shifted the departure time back by 2hr 45 mins with the schedule change. Albeit, I know the departure time is irrelevant for a delay claim.

Appreciate all the advice.. Its not even the money as such, its the principle that they did a short notice schedule change in what appears to be a ploy to avoid paying out delay compensation.. which as LL says, feels wrong to me..

Paul.