Getting access to LHR operational requests – BA refusing compensation
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Hi all,
Trying to claim for a cancelled flight from NCE to LHR. BA claiming that Heathrow required them to reduce arrivals due to forecast thunderstorms; however, looking at the forecast on the day of cancellation, there were only storms due around lunchtime ~8h before our arrival. I believe that the outbound flight from LHR>NCE was the one that actually required a cancellation due to storms, and therefore my claim would still be valid as it would be a result of not having sufficient aircraft in Nice, rather than being unable to operate said aircraft.
Is there any way of seeing the LHR/HAL requests to airlines to reduce departures/arrivals, and do these apply in specific time slots? For what it’s worth, Air France operated a flight at nearly the exact same time, from NCE to LHR.
Further, is this a lost cause and should I just give up, or worth attempting MCOL?
Cheers
Ed
Put your point to BA and see what they say.
Trying to argue that there were insufficient aircraft at NCE and that was BAs fault isn’t going to get you anywhere.
It is well recognised that if an outbound flight is cancelled for a valid reason then the return will be as well and this is an exemption compensation being paid. Airlines have broad discretion to decide which flights get cancelled when flow control is required and those are covered by the ATC exemption.
What flights AF (or anyone else for that matter) operated is neither here nor there.
Were you offered re-routing on the Air France Flight? Did you request they put you on that flight which was your right, provided Air France was still selling seats for the flight? I would go for compensation for the delay in returning to the UK on the basis of BA failing to avoid delaying you by using all reasonable measures, rather than going for direct compensation for the cancellation itself.
Per Article 5 of EC261
2. When passengers are informed of the cancellation, an explanation shall be given concerning possible alternative transport.Per paragraph
3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.Trying to argue that there were insufficient aircraft at NCE and that was BAs fault isn’t going to get you anywhere.
It is well recognised that if an outbound flight is cancelled for a valid reason then the return will be as well and this is an exemption compensation being paid. Airlines have broad discretion to decide which flights get cancelled when flow control is required and those are covered by the ATC exemption.
What flights AF (or anyone else for that matter) operated is neither here nor there.
Is that true? If my memory serves correctly, and based on some recent googling, extraordinary circumstances must apply to the flight in question. Frederique Jager v easyJet 2013 said knock on’s do not constitute extraordinary circumstances (although Dunbar v easyJet 2015 does say this assertion is overly general).
@AJA – didn’t explore the AF flight at the time as didn’t want to spend time on the phone to BA whilst away; so accepted a flight earlier on in the day which I think would make the delay claim challenging. Thanks though!@ed – you are relying on the wrong cases. It’s not an operational decision, it’s an ATC decision (so in fact one by NATS, not HAL) and there will be no specific communication from NATS to BA about your flight, but simply an instruction to reduce flights and BA is allowed to chose the ones that suit them. Recital 15 of EC261 provides the statutory exception for the airline in the event of ATC issues.
There is also the April 2021 CJEU decision in WZ v Austrian airlines that confirms ‘extraordinary circumstances’ can be applied three rotations back.
Although you say it is not directly relevant to your situation, the ‘all reasonable measures’ is not interpreted as meaning you have the right to be put on exactly the alternative flight you want and in this case it would be unfair as all the cancelled BA pax couldn’t be put on the AF flight.
There is no penalty for an airline failing to advise you of alternative transportation options, so that provision doesn’t assist.
I’m not sure what case you would be putting forward at MCOL.
@ed I would stop pursuing BA for compensation as you won’t get anywhere. You got home earlier than you intended to by choosing to accept what BA offered. That is BA complying with EC261 and it working as it should. Unfortunately for you the original flight cancellation isn’t eligible for compensation.
It stinks and the remotest requests by various ATC to cut the odd flight far away in time or place are being abused by airlines so far as I can tell, to cover up consolidations and shortages of crew or aircraft that would have meant the airlines themselves would have been cancelling flights anyway.
Unfortunately BA can just about get away with this one. Although AJA’s way if carefully executed would have given you a chance. You don’t have to be concerned about whether the AF flight that did leave at practically the same time as your cancelled flight, had any more seats than you personally needed. If seats were available on that significantly earlier
flight, then as AJA said you have a right and you could have cleverly pursued it and the costs of a seat on that AF flight if you’d asked BA and they’d refused. You are not responsible for BA’s problem of rebooking a whole planeload of other passengers, just your own rerouting you have a right to if correctly done.Personally scale has to come into question – if an airline is of the scale of BA generally, or, say, Easyjet or Ryanair where they operate at enormous scale shorthaul, I believe airlines claiming they are still unable to operate flights 3 links later due to an ATC or weather issue that long ago, are simply not carrying enough contingency resource of their own. Or they are not provisioning to obey the law and be ready to reroute affected pasengers when needed ie call on other suppliers for temporary difficulties, as would be reasonable in other industries. So their operations are inadequate anyway. And the pain of those giant airlines not resourcing for their operations and reasonably expected contingency, is just getting loaded onto customers without compensation.
This summer and last, it’s almost as though airlines sold as many seats as they could and later, decided which of the flights they’d sold, they would actually run. Meanwhile being dog in the manger about not using other suppliers (other airlines) to deliver the travel booked by their passengers where they couldn’t, as the law provides.
@ed – you are relying on the wrong cases. It’s not an operational decision, it’s an ATC decision (so in fact one by NATS, not HAL) and there will be no specific communication from NATS to BA about your flight, but simply an instruction to reduce flights and BA is allowed to chose the ones that suit them. Recital 15 of EC261 provides the statutory exception for the airline in the event of ATC issues.
There is also the April 2021 CJEU decision in WZ v Austrian airlines that confirms ‘extraordinary circumstances’ can be applied three rotations back…
What is the maximum length in nm of the longest sector in those three rotations? Can the three rotations include risky destinations such as Funchal, Florence, Gibralter, Innsbruck, Chambery, LCY?
@Richie – there is is no limitation in the judgment which, as is normal, says that it is for local courts to reach decisions based on the specific circumstances, guided by the binding CJEU decision.
“Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that, in order to be released from its obligation to pay compensation to passengers in the event of long delay of flights in arrival, an operating air carrier may rely on an extraordinary circumstance which affected not that delayed flight but a previous flight operated by that carrier using the same aircraft at aircraft turnaround three flights back in the rotation sequence of that aircraft, provided that there is a direct causal link between the occurrence of that circumstance and the long delay of a subsequent flight in arrival, which is for the national court to determine, taking into account, inter alia, the way in which the aircraft at issue is operated by the operating air carrier concerned.”
@Lady London – you are of course entitled to your opinion, but I trust you actually read the WZ v Austrian Airlines judgment before pronouncing that five CJEU judges who had all the facts before them nevertheless got it wrong. Rebekah Vardy told Mrs Justice Steyn she had got it all wrong and look where that got her!
There are more than seventy CJEU judgments (and a few UK Court of Appeal ones) governing the interpretation of EC261 and they are overwhelmingly in favour of the passenger. Most of these judgments in the preamble emphasise the purpose/intent of the legislation being to offer a high level of protection to passengers and cite with approval early judgments reaffirming this. However, the court has to take a balanced view and airlines are allowed a certain amount of latitude; it’s an operationally complex industry.
You have also again alleged a conspiracy by airlines “to cover up consolidations”. When you last made this allegation, many posters gave considerable detail as to why it is complete nonsense. What evidence can you proffer in support? Airlines do consolidate flights at short notice when weather or ATC oblige them to make cancellations which is why they generally choose shorter flights with multiple daily service. It causes considerable cost and chaos, so is not something done in the manner or for the dubious reasons you suggest.
Also, in this thread the issue of scale isn’t remotely relevant when the issue is that landings were being curtailed (usually halved at LHR) owing to weather so that is inevitably going to cause a lot of cancellations for the largest user of the airport. These pre-tactical cancellations (as the CAA refers to them) have actually proved to be very effective in minimising disruption for passengers such that the three rotations defence isn’t required so much.
Thanks for the thorough feedback and answers all (esp @JDB for the case law). Found the CAA page which has the flight on it as one of the “requested to be cancelled” so comfortable I have no claim here.
Customer relations now kindly passing me back to customer service to get the downgrade refund – I don’t mind not getting the comp (as I’m not entitled), but surely they could pass the case internally to sort the refund out rather than making me do the work. I wonder if the person responsible for overall customer experience at BA ever goes to bed thinking they’ve done a good job.
I think the head of BA customer experience’s role (which probably has zero budget) seems to be to advise on the lowest level of service that can be provided without too much complaint, rather akin to the adage by Colbert, Louis XIV’s finance minister – the art of taxation consists of plucking the goose so as to obtain the most feathers with the least hissing.
They probably sleep very will.
Remember multiple tens of thousands of people fly BA every day with absolutely no problems whatsoever ever.
Don’t make the mistake of assumingthat the posts on here and flyer talk and other sites are reflective of the experiences of the vast majority of flyers. Because they aren’t.
Sorry folks, someone here is getting it wrong.
ATC have no power to cancel, or force airlines to cancel, any flights.
ATC will work with the airport to determine the predicted landing rate when bad weather is expected, based on the forecast.
The airport will then decide whether to ‘request’ airlines to reduce their schedules by x%, or use the HADACAB process to force airlines to reduce their schedules. The airline gets to pick which flights.
When the term ‘ATC restriction’ is used, it refers to a reduced landing rate or a reduced flow rate through an airspace sector, which all results in increased delays.
No ATC organisation that I’m aware of, and certainly none in the UK, can cancel, or force an airline to cancel, flights.
But I suppose that the logic of BA is not flawed.
If BA has 10 flights, and ATC asks for a 10% reduction in traffic. It is on BA’s hands of course to select which flight to cancel.
But they can they say that was an exceptional circumstance and they had no choice in the matter.
As I said, ATC do not ask for any schedule reduction. See my post above.
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