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EU/UK261 clarification help – BA refuse claim after flight cancellations in June

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  • Jenniekg

    Brief summary – CE flights booked. BA 5 night holiday.
    CAT to LGW cancelled 17 days ahead, Sunday moved to Monday – BA covered hotel and breakfast on rearranged travel
    Rearranged CAT to LGW on 13th June 2022
    Checked in 12th June – then in the morning of 13th June flight cancelled. Reason – staff issues.
    After difficult email exchanges with BA customer support we agreed that we would travel on the BA2595 to LHR rather than LGW again in club. We were offered a refund of £179.10 each for the ticket if we did not want the rearranged flight.
    Next CAT to LGW was 15th June.
    Husband had disability assist with his ticket – the changes were particularly difficult for him.
    At gate we were advised that Husband was downgraded to ET.

    I have claimed:-
    Dinner 12th June – modest no alcohol – 90 euros for the 2 of us – as otherwise we would have eaten on the plane.
    Downgrade compensation.
    Taxi LHR to LGW.
    EU/UK261 as we finally arrived back at LGW over 3 hours later than we should have had the original CAT to LGW flown.

    This is BA’s response:
    Flight BA2843 from CTA to LGW.
    Scheduled departure date and time: 13 June 2022 12:00 GMT
    Scheduled arrival date and time: day month year 14:20 GMT
    Flight BA2595
    Actual departure date and time: 13 June 2022 12:57 GMT
    Actual arrival date and time: 13 June 2022 15:14 GMT
    Total disruption: 54 minutes
    Since your departure wasn’t disrupted by 120 minutes or more, and your arrival wasn’t disrupted by 240 minutes or more, your claim for compensation under EU Regulation 261/2004 has been refused.

    No repayment for taxi, no downgrade compensation and no EU261.

    £30 compensation offered plus 10000 avios as a goodwill gesture.

    My question is – what should I expect BA to pay us?

    Thanks in advance

    JDB

    @Jenniekg sorry to hear about your awful return journey. BA should pay you for the taxi from LHR to LGW and the downgrade compensation which is 50% of the fare paid for a flight of that distance. I don’t think you are owed the EC261 delay compensation because the rerouted flight arrived less than an hour later than the original, albeit at the wrong London airport but paying the travel between the different airports is the obligation; the delay doesn’t include the land transit time.

    Lady London

    Are you sure, JDB? otherwise BA could do a Ryanair and land you days away and say their flight wasn’t late. Surely the timing a delay is measured by, has to be time arrived back at the booked airport by whatever means?

    FWIW I think BA’s treatment of this disabled passenger is particulatly shabby quite apart from tbe legal requirement for them to consider any disability – @Chris Heyes would have had a field day with this. And it’s only about a week since there was another harrowing report on here, of BA’s mistreatnent of another disabled passenger.

    AJA

    @LL The thing is they accepted the alternative flight back to LHR rather than LGW. If BA had simply flown them to LHR instead of LGW then the time they actually got back to LGW would count.

    Therefore in accepting the flight back to LHR BA is not on the hook for any delay compensation unless the revised flight arrived at LHR more than 3hours later than it was scheduled.

    BA are on the hook for the taxi ride back to LGW though.

    Lady London

    I disagree.They simply accepted transport back to LGW via LHR as that was the flights available. At no time did they accept LHR as the end of their journey.

    The contract is for transport from booked origin to booked destination airport.

    AJA

    The thing is I think BA should potentially pay compensation for the cancellation not for the delay. The reason for the cancellation seems to be staffing so unless that was unexpected sickness of the flight crew I would say compensation is due.

    If OP had insisted on flying back to LGW on the 15th BA would have had to pay for the hotel and food for the extra 2 nights.

    I think I would take the offer of 10k Avios instead if going for downgrade compensation unless they can work out what the CTA to LGW business class fare actually cost.

    AJA

    @LL the trouble is that LGW and LHR are both considered London airports. BA doesn’t distinguish between them as being in different cities so in accepting a flight back to LHR BA has transported them back to London. But BA should pay for the taxi to get them back to LGW.

    Lady London

    Yes I agree about going for cancellation compo. But that does need the OP to have taken very careful contemporaneous notes as to who said what when as BA will try to say they never mentioned staff issues.

    Passenger is disabled and BA has tried not to have due regard to that (legally required) at each step of the process – downgrading a designated disabled passenger and trying to deny a taxi. Let alone the multiple stressful flight cancellations and all the delays this saga has involved including a much longer journey and considerably later arrival back at Gatwick. So I’d ask for 25 000 avios, if the 10 000 is for each seat it’s close. But defo not just 10,000 for the one given the disability angle. Remember the companion has had to do a lot of extra assisting of the disabled person. And btw they shouldn’t be split up which presumably the downgrade did – Chris Heyes got decent compo for that – companion needs to be seated with the disabled person.

    AJA

    I agree disregarding disability is terrible. What I don’t quite understand is it looks like only the husband was downgraded. I think I’d have been inclined to let him sit in CE and gone and sat in ET instead.

    That said there is essentially no difference in the seats themselves other than the empty middle seat.

    Not helpful after the event but if downgraded to ET I would just buy food off the menu and recharged that cost to BA. BA should definitely pay for the dinner on the 12th under duty of care. Presumably they paid for the extra night hotel on the 12th?

    Jenniekg

    Thank you for the above – still not sure what to do.
    In the email exchange with the Duty Office on the 13th the reason for the CTA – LGW cancellation was given as operational reasons – staff shortages – I asked at the time.
    Also in the email exchange was an offer from BA to refund £179.01 per ticket so we could buy Wizz air seats which were flying 45 minutes after BA into LGW and that I could see were already enroute to CTA.
    The officer could not rebook – no arrangements for this – Wizz / BA.
    I raised the question of staying an extra 2 nights and the response was – they could change the flights to 15th CTA-LGW but the additional hotel costs would be down to us as BA could transport us back to LHR on the 13th.
    Decisions had to be made in a very short time window and through the emails I expressed my concerns and reluctance to accept a LHR rather than a LGW destination due to all the additional complications with disabled transport. The thing that swayed me was the confirmation that Club seats together would be made available and disability assist would be in place to get us through LHR and back to LGW.
    We have had other flights where LGW was changed for LHR and we cancelled without penalty as this was accepted as a change of airport – so does this apply to our CTA-LGW then LHR?
    On my Husbands seating – BA said it had to be him in ET not me as seat was noted as a disability occupant. Flight understandably was packed.

    SteveR

    You can get a copy of all phone calls / emails /webchat etc under Data Protection. dpo@ba.com

    Timings are based on the Airport you were supposed to have been arriving at. Not one 50 miles away

    They also required to pay for the cost of getting you back to the original airport

    http://publicapps.caa.co.uk/docs/33/Re-routing%20Guidance%20(CAP2155).pdf

    JDB

    You can get a copy of all phone calls / emails /webchat etc under Data Protection. dpo@ba.com Timings are based on the Airport you were supposed to have been arriving at. Not one 50 miles away

    http://publicapps.caa.co.uk/docs/33/Re-routing%20Guidance%20(CAP2155).pdf

    Where a city is served by several airports, Article 8(3) specifically allows for this and it is the aircraft arrival that determines the duration of the delay, not the passenger that has to add a ground transfer, but the airline has to pay for that transfer.

    I’m not sure what the pax would gain by getting the recordings/transcripts. That someone said (ie hearsay) staff issues were the cause of the cancellation, doesn’t constitute evidence. Also, despite the cancellation the pax was rerouted comfortably inside the two hours so no compensation would be due, so the reason for the cancellation is irrelevant.

    SteveR

    To add, from the document I referred to page 12

    It follows that, under the case-law cited in paragraph 23 of the present
    judgment, an air passenger who, having accepted the re-routing flight offered
    by the air carrier following the cancellation of his flight, reaches his final
    destination three hours or more after the arrival time originally scheduled by
    that air carrier for the re-routing flight, is entitled to compensation.

    AJA

    @Jenniekg I have had a read of EC261/2004 and I am afraid I have come to the conclusion that you are not entitled to compensation even for the cancelled flight as BA correctly offered you a reroute back to London on the BA2595 which got you back to London (albeit LHR) less than two hours after the original flight back to LGW.

    Article 5 paragraph (c)(iii) states that passengers “have the right to compensation by the operating air carrier in accordance with Article 7, unless: they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.

    However you were entitled to choose the flight on 15 June as Article 8 paragraph 1(b) states that “re-routing, under comparable transport conditions, to their final destination at the earliest opportunity; or (c) re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats.” and Article 9 Right to care states in paragraph 1(b) that “hotel accommodation in cases — where a stay of one or more nights becomes necessary, or — where a stay additional to that intended by the passenger becomes necessary;”

    But you chose instead to accept the flight back to LHR on the 13th.

    That said you are definitely entitled to the taxi fare back to LGW as Article 8 paragraph 3 states “When, in the case where a town, city or region is served by several airports, an operating air carrier offers a passenger a flight to an airport alternative to that for which the booking was made, the operating air carrier shall bear the cost of transferring
    the passenger from that alternative airport either to that for which the booking was made, or to another close-by destination agreed with the passenger.”

    I think you should accept the £30 and 10k Avios saying this is instead of pursuing the downgrade reimbursement but insist that BA pay the extra night hotel on the 12th and the dinner on that night as per article 9 1 “Where reference is made to this Article, passengers shall be offered free of charge:(a) meals and refreshments in a reasonable relation to the waiting time;”

    AJA

    @Jenniekg I have had a read of EC261/2004 and I am afraid I have come to the conclusion that you are not entitled to compensation even for the cancelled flight as BA correctly offered you a reroute back to London on the BA2595 which got you back to London (albeit LHR) less than two hours after the original flight back to LGW.

    Article 5 paragraph (c)(iii) states that passengers “have the right to compensation by the operating air carrier in accordance with Article 7, unless: they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.

    However you were entitled to choose the flight on 15 June as Article 8 paragraph 1(b) states that “re-routing, under comparable transport conditions, to their final destination at the earliest opportunity; or (c) re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats.” and Article 9 Right to care states in paragraph 1(b) that “hotel accommodation in cases — where a stay of one or more nights becomes necessary, or — where a stay additional to that intended by the passenger becomes necessary;”

    But you chose instead to accept the flight back to LHR on the 13th.

    That said you are definitely entitled to the taxi fare back to LGW as Article 8 paragraph 3 states “When, in the case where a town, city or region is served by several airports, an operating air carrier offers a passenger a flight to an airport alternative to that for which the booking was made, the operating air carrier shall bear the cost of transferring the passenger from that alternative airport either to that for which the booking was made, or to another close-by destination agreed with the passenger.”

    JDB

    To add, from the document I referred to page 12

    It follows that, under the case-law cited in paragraph 23 of the present
    judgment, an air passenger who, having accepted the re-routing flight offered
    by the air carrier following the cancellation of his flight, reaches his final
    destination three hours or more after the arrival time originally scheduled by
    that air carrier for the re-routing flight, is entitled to compensation.

    Yes, but the ‘final destination’ per EC261 is London airports, not a specific one. I think the ‘final destination’ wording is used to allow for connecting flights where the arrival time at an intermediate isn’t relevant, it’s just the final arrival time that matters.

    The CAA document is guidance not law, unlike 8(3) but if the CAA wished to steer CEDR/MCOL to suggest that, contrary to the letter of the law, it had a view re different London airports being different destinations for these purposes they would have stated this. It is a bit unfair as say EDI/GLA are not such a dissimilar distance apart to LHR/LGW but they are clearly different destinations.

    AJA

    I think you should accept the £30 and 10k Avios saying this is instead of pursuing the downgrade reimbursement but insist that BA pay in addition:

    1)the the dinner on that night as per article 9 1 “Where reference is made to this Article, passengers shall be offered free of charge:(a) meals and refreshments in a reasonable relation to the waiting time;”

    and

    2)extra night hotel on the 12th as per Article 9 paragraph 1(b) that “hotel accommodation in cases — where a stay of one or more nights becomes necessary, or — where a stay additional to that intended by the passenger becomes necessary;”

    JDB

    I think you should accept the £30 and 10k Avios saying this is instead of pursuing the downgrade reimbursement but insist that BA pay the extra night hotel on the 12th and the dinner on that night as per article 9 1 “Where reference is made to this Article, passengers shall be offered free of charge:(a) meals and refreshments in a reasonable relation to the waiting time;”
    and
    1(b) that “hotel accommodation in cases — where a stay of one or more nights becomes necessary, or — where a stay additional to that intended by the passenger becomes necessary;”

    The OP said that BA had covered the hotel and breakfast, so it’s just the dinner they are quibbling over which is bizarre as these are inextricably linked.

    I think that in the circumstances described, where a same day/time reroute was offered, albeit to the wrong London airport, to expect BA to pay for two more nights of accommodation and food while waiting for the LGW would be considered unreasonable.

    Jenniekg

    @AJA
    BA holidays ahead of travelling agreed to pay for the night of the 12th June and for breakfast – so that was sorted.

    The BA Agent was quite specific as to why the flight was cancelled in his email.
    He was also wrong in his email advice to me then about staying on in CTA until a flight was available on the 15th. We had no time pressures to be home, the weather was nice, but the thought of an additional £450 odd for 2 nights came into the decision to reluctantly accept the CTA -LHR flight.

    There does seem some confusion as to final destination – for us LGW – or LON applies.

    AJA

    @Jenniekg In that case I think at this point you can only pursue BA for Duty of care per Article 9 for (1) the taxi fare from LHR back to LGW and (2) for the cost of dinner on the night of the 12th.

    BA transported you back to London, albeit the wrong airport, and got you back under an hour later than originally scheduled which means no cancellation compensation. London is what counts for compensation, not LGW specifically versus LHR. Particularly as you accepted that flight, initially both of you in Club, which was comparable transport conditions.


    @JDB
    the thing is the choice of re-route per Article 8 is down to the customer. You do not have to take the earliest available flight. I know this because when my flight back from Lisbon in July was cancelled BA initially offered me a flight leaving at 11:30am and I chose instead the departure at 4pm. That it was on the same day is incidental. The offer of the earlier flight allowing you to arrive at your destination no later than 2 hours than originally scheduled absolves BA of paying compensation. It does not absolve BA from paying extra hotel costs per duty of care if you choose a flight 2 days later. It is in any case irrelevant now as @Jenniekg chose to accept the earlier flight.

    AJA

    And @Jenniekg of course accept the £30 and the 10k Avios, as I stated above, saying this is instead of pursuing downgrade reimbursement.

    Jenniekg

    @AJA
    thanks for the additional info.
    We arrived back to LGW some 3.5 later than if the flight had not been cancelled due to the confusion of was there / not disability assist and had a taxi been organised (No and no) so sorted ourselves and then joined the M25 parking lot as it by then rush hour.

    JDB

    @AJA yes, while the pax could have chosen a flight two days later, all these laws are governed by tests of reasonableness and proportionality, so when it is essentially an extension of your holiday, not something born of necessity, I wouldn’t count on a judge giving you Article 9 rights and I think BA would challenge this. The Interpretative Guidelines at 4.3 also don’t help.

    AJA

    @JDB I agree there should be a test of reasonableness but it works both ways. In this case BA had already paid for an extra night’s accommodation due to cancelling the initial flight 17 days previously. They then cancelled the rescheduled flight. They also offered the flight back to LGW 2 days later as that was the first flight back to LGW. But BA wrongly said Jennie should pay the extra nights hotel if she wanted to take that flight. They essentially forced Jennie to take the flight back to LHR by wrongly informing her of her rights. She chose the LHR flight even though it wasn’t the flight she wanted because she thought she was on the hook for the hotel costs. Now they wrongly refuse to pay the dinner bill for the extra night per Article 9 para 1 and also refuse the taxi fare from LHR to LGW even though it is clear they should pay per Article 8 para 3. How is that BA being reasonable?

    Jenniekg

    Thank you for the additional information.
    Before I accept the offer I will go back to BA and ask again for the taxi and evening meal to be repaid if not why they are refusing, and accompany this with an extract from the email exchange with the duty officer whilst we were deciding on what to do.
    I will also ask how the £30 is calculated as I have found a price breakdown of the tickets and cannot work back to £30 even taking out the taxes.
    Finally although I appreciate thats is highly unlikely to be agreed to – I will ask why if our purchase was CTA to LGW why the final arrival time at our destination via CTA-LHR is not the time taken when calculating entitlement to EU261. I will cite other tickets we have had with BA where LGW has been changed to LHR and accepted thats its a change of airport so refunds and / or rearranged times have been permitted.

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