Delayed flight over 5 hours

[kelliea1]

Hi, I recently asked for advice regarding my son’s delayed flight from IBZ1LGW which was delayed over 5 hours due to crew sickness. The claim was rejected then I went back to them armed with ‘a paragraph of knowledge’ from helpful posters on here and have now received the message below. Is there any further I can take this please? TIA

An update from British Airways

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.

As your flight was delayed due to crew sickness, it means 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. This means you’re not entitled to compensation under the EU Regulation for your delayed flight.
If you would like to know more about compensation, please visit our pages on ba.com.

[JDB]

You will just need to take this to CEDR and BA might cave before any decision. I think that in reality it’s quite harsh on airlines, notably at outstations, but every UK and EU senior court decision says that crew illness is inherent within the activities and operations of an airline and, as such, cannot be considered ‘extraordinary circumstances’. A recent CJEU judgment determined that even the death of a crew member at an outstation didn’t constitute ‘extraordinary circumstances’. From your/your son’s perspective it’s good that BA has stuck to this line as it’s about the weakest in their drawer of lame justifications.

You won’t need to push CEDR too hard on this, but you can say that, notwithstanding BA’s response to your claim, you understand BA’s position that crew sickness constitutes ‘extraordinary circumstances’ thus rendering a claim for delay compensation ineligible, is incorrect in law, as determined by the Court of Appeal in Lipton & Anor v BA City Flyer Ltd [2021] EWCA Civ 454 (30 March 2021) and in various (pre-Brexit) CJEU decisions, and most recent (May 2023) post-Brexit one TAP Portugal v flightright GmbH (C‑156/22) reaffirms the jurisprudence that even extreme cases (in this instance the death of a crew member) cannot be claimed by the airline as ‘extraordinary circumstances’.

[Lady London]

@kelliea1, @JDB is so right here you are very lucky the BA person processing this has put in writing an excuse which pretty much removes any defence they could have. As so far crew sickness is viewed as the airline’s responsibility if it ends up delaying or cancelling a flight.

I’d be very tempted to send BA’s Legal Department at their Stockley Park address a polite Letter Before Action giving them 14 days to pay and given the reasons given by BA and mentioning [the from @JDB] however hoping they will kindly pay the amount owed in hopes everyone’s time can be saved

Please post the outcome.

[kelliea1]

Thank you, this is all new to me so will follow your instructions and let you know how I get on. What amount of compensation should I be claiming for the delay? TIA

[JDB]

kelliea1 wrote:

Thank you, this is all new to me so will follow your instructions and let you know how I get on. What amount of compensation should I be claiming for the delay? TIA

Ibiza is under 1,500km, so it’s the lowest band – £220

[yonasl]

kelliea1 wrote:

Thank you, this is all new to me so will follow your instructions and let you know how I get on. What amount of compensation should I be claiming for the delay? TIA

The amount of the compensation depends on the distance:

https://www.citizensadvice.org.uk/consumer/holiday-cancellations-and-compensation/if-your-flights-delayed-or-cancelled/

[hugo r]

I had the same issue with a flight from LHR – MIA which was delayed taking off and landed into Miami 3hr 4 min late

Flight was late taking off due to crew sickness (pilot was sick and they had to source another one)

Submitted a claim BA rejected , same response as yours pretty much . Sent snail letter to legal got the same response again rejecting and issuing a final letter (without me asking)

Submitted a claim via cedr – was accepted (no need for me to give any further details) got the full amount of comp pp pretty quick

[kelliea1]

Thank you all, awaiting next outcome to my reply!