EC261 / Ticket Validity Rule

[hjm12]

Hi, in a similar position to most here:
 
Tickets originally booked in Spring 2021 for travel in Spring 2022 (to Asia), with Avios+Companion Voucher. Flights were subsequently cancelled end of 2021. I didn’t request rebooking for a while, particularly given Asia was completely closed still, but similar dates in 2023 I requested rebooking and was given the ‘ticket validity rule’ several times, I sent LBA and then filed MCOL. BA now responded with defence. Briefly it is based on the following:
 
• Can a companion on a voucher make a claim? In LBA it was made clear that we would be pursuing the claim’s separately and in the claim itself. As the companion I filed the claim first. They seem to state only the lead passenger can make a claim. My partner is going to be filing a claim now in any case since no prospect of settlement.

• They state I should have contacted them after the (automated) cancellation emails to make my request then and they would have rerouted within the validity period. The destination was still shut to tourists during this time.

• Because the dates I want are outside of the validity period, the only option can be a refund. They admit Article 8 1(c) does not specify a time limit, but a court must interpret this and it cannot be open ended. They’ve now (not at my request) unilaterally refunded the booking.

• I was offered seats for the dates travel in Business (where there was redemption availability on the new dates) but not First which I refused as that was the original booking.

• They question whether if ‘at the passenger’s convenience’ means 2 years after the original booking date (but I booked 1 year ahead essentially, so Booked Spring 2021, Travel Spring 2022, request to rebook for Spring 2023). This is a reasonable request, and we are not booking on peak dates.

• They cite conditions of carriage and the voucher conditions which state the 1 year validity, but in theory the companion voucher now expired.

• By booking so far in advance, this leaves a short time of validity in the case of rebooking but this is my choice when I make the booking.

Fundamentally, EC261 imposes no time limits, just seats need to be available. Their conditions of carriage cannot override EC261. Perhaps the 6 year statute of limitations is a time limit. The flights I requested are on BA itself – I seriously don’t know why they don’t just rebook, rather than take this to a hearing and risk losing. The flight dates are slightly later, but even if we went back to the original dates, the ticket validity would have expired in any case.

Any advice would be much appreciated. The only thing I can think of now ahead of the hearing (whenever that will be) is to at least state I reject the refund. I am also going to submit a GDPR request. I’d be interested to know how they initiated a refund not at my request. One of the agents agreed with me on the phone I should be rebooked, but was unable to do so.

Thanks in advance

[memesweeper]

They seem to state only the lead passenger can make a claim.

I won’t comment on most of your case, I’m sure others will. But be absolutely clear that EC261 protects passengers, not bookers/customers. Each passenger is entitled to claim.

[hjm12]

Thanks. Looking at the automated emails, they never actually refer to future rebooking, simply a refund or the next available flight.

My partner is happy to file a claim, but wondering if any real chance of settlement here, given the remedy is fairly straight forward.

Any advice much appreciated.

[points_worrier]

My reading of the situation is Article 8(1) EC261 offers rebooking at your convenience, subject to the availability of seats. This choice of rebooking can be made once. You clearly can’t just delay this choice indefinitely to get an indefinite future booking, even if there is no clear time limit stipulated under this option. However the ‘subject to availability of seats’ does clearly limit things: with all the money in the world, I cannot book a flight for 5 years time, so clearly there is a limit.
The easiest arguable interpretation is the availability of seats when BA tell your cancellation and offer rebooking, so one year after notification of cancellation and you were given the option. It seems you are asking for a flight outside this, so may well struggle. I suspect your best argument is you were never given the choice of rebooking/refund (refunds were never available online). The fact that countries were closed is irrelevant – the CAA have made it clear that where restrictions exist, it may not be practical to get a reroute and may be forced to be offered a refund. They can’t clearly argue that validity is limited to 1 year after booking. This would derogate themselves from EC261 duty for all tickets booked far in advance, and is plainly wrong.
I would strongly consider whether it is worth pursuing. If you really want to I would:
– do a subject access request to BA to get proof that the refund was unilateral. EC261 interpretive guidance makes clear this won’t affect your rights. Also ask for any notes on the ticket – this will prove BA didn’t offer you correct rerouting options.
– emphasise any difficulties there has been in contacting BA, helping to contribute to the delay in rebooking
– emphasise that the three options of Article 8(1) were never offered to you. The ECJ has made it clear there is no ‘obligation whatsoever’ for you to contact BA, and BA should be contacting you with full options. It is under BA’s obligation to provide proof of how they contacted you and that all 3 options (rerouting, compensation, rerouting at convenience were offered).
– in the absence of this, as you were never offered the options, you should be offered the flight available subject to seat availability when you contacted BA (ie at a later timeframe).
– the CAA has produced article 8 guidance that states where BA are not clearly demonstrating the fully comply with article 8 options, the expectation is the customers claim will succeed.
– article 15 EC261 states that BA can’t apply terms and conditions to limit their duty under EC261 (ie trying to apply validity). Where they do try, you are due the financial cost of the duty that should have been offered.
– it also won’t hurt to state that BA’s policy in 2021 was for allowing rebooking one year from date of original travel when it was cancelled.

I would have gone to CEDR, and request the cost of rerouting (on BA). Far less to lose. The same arguments are applicable at MCOL however.