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We’re on a flight to Malaga on Sunday that BA have rescheduled to leave 5 hrs later (email informing me of this received on Friday so 9 days before). The flight number has stayed the same so this isn’t a cancellation but a reschedule. In those circumstances will any compensation be due?
It’s a bit grey, but technically no. One is oddly, potentially in a better position if the flight is brought forward. By concession, BA will move your flight or refund you with a rescheduling of this magnitude.
It’s a bit grey, but technically no. One is oddly, potentially in a better position if the flight is brought forward. By concession, BA will move your flight or refund you with a rescheduling of this magnitude.
@JDB – could you elaborate on how one may be in a better position if a flight is brought forward? I don’t want to derail jamie’s query but I’ve just created a thread on a reschedule 4 hours earlier 5 days out and am unclear on what my options may be.Many thanks.
If you haven’t accepted already you can double check if BA has a more convenient flight +/- 2 days and asked to be switched to that – this is their standard customer guideline for a schedule change more than 120 minutes. As it’s more than 240 minutes you could also get a refund so it’s worth pricing up your flight/any suitable alternatives in case they’re cheaper.
We’re on a flight to Malaga on Sunday that BA have rescheduled to leave 5 hrs later (email informing me of this received on Friday so 9 days before). The flight number has stayed the same so this isn’t a cancellation but a reschedule. In those circumstances will any compensation be due?
I disagree with @JDB. Within 14 days, and move of >3h for that distance means you are entitled to treat it as a cancellation. This means you are entitled to: compensation if not due to extraordinary circumstance; in addition, regardless of cause: rerouting or rebooking if there is a more conveniently timed flight, or rebooking at the passengers convenience in the future. If you fly on the flight, you are entitled to a duty of care in terms of reasonable food/drink (not alcohol!) and hotel (again reasonably, so if the new flight involves an overnight – you dont mention it tho). Excitingly you are also due the cost of phone calls/internet or a telex. I have been looking for a telex machine for a while, without success… Anyway, this is in the UK261 law and ECJ judgements prior to brexit, so should hold.
If a flight is brought forward, currently there is nothing statutorily that covers you under UK261 – there is a post-Brexit 2021 ECJ judgement that says that bringing a flight forward by 1h only counts as a cancellation. But this is not enforceable and down to the discretion of the judge/adjudicator you bring it to – so they would take it in to account, but are not necessarily bound to follow it. I therefore don’t quite see how you are in a better position in this case as @JDB says (except you might get to the holiday earlier!).
Either way, it doesn’t matter what BA are statutorily required to provide if they give you what you want: it is worth contacting them and asking – they might play nice!
We’re on a flight to Malaga on Sunday that BA have rescheduled to leave 5 hrs later (email informing me of this received on Friday so 9 days before). The flight number has stayed the same so this isn’t a cancellation but a reschedule. In those circumstances will any compensation be due?
I disagree with @JDB. Within 14 days, and move of >3h for that distance means you are entitled to treat it as a cancellation. This means you are entitled to: compensation if not due to extraordinary circumstance;
So BA have rejected my claim for compensation for this flight, next step is CEDR. Anything I should be quoting re within 14 days and more than 3 hrs – appreciate this seems to be a grey area when it comes to compensation
@jamie – what reason has BA given for rejecting your claim? There may be an opportunity to go back to them to get them to reconsider in some circumstances which is a lot quicker than CEDR and will also affect how you should frame your claim if you do end up going to CEDR.
@jamie – what reason has BA given for rejecting your claim? There may be an opportunity to go back to them to get them to reconsider in some circumstances which is a lot quicker than CEDR and will also affect how you should frame your claim if you do end up going to CEDR.
@JDB BA have said the claim is denied as the legislation only covers delayed and cancelled flights and not schedule changes.You may try claiming compensation in Spain under the EU law – perhaps more favourable interpretation of ‘schedule change’.
Just quoting the article below: “UK regulator the Civil Aviation Authority (CAA) confirms where schedule changes are to the time or date (not the flight number), these are only covered by airline T&Cs, not by any law.”You may try claiming compensation in Spain under the EU law – perhaps more favourable interpretation of ‘schedule change’.
Just quoting the article below: “UK regulator the Civil Aviation Authority (CAA) confirms where schedule changes are to the time or date (not the flight number), these are only covered by airline T&Cs, not by any law.”261 is currently, for all practical purposes, the same in the UK as in the EU and Spain is a very unfriendly place to bring a case.
@jamie – thank you for providing BA’s response which is essentially in line with my initial answer to you but as it’s a grey area and clearly @points_worrier has a different view, I’m suggesting a possible way forward putting your case at its best. I hope @points_worrier or someone else may offer additional thoughts. I’m sorry that it will seem a bit long winded and that I may be saying stuff you already know, but the background to why your case isn’t clear cut should help you frame your case.
The existing UK261 legislation does not provide for compensation in respect of delays but the 2009 CJEU decision in Sturgeon determined (broadly, sorry for any bad paraphrasing) that because a delay over three hours was just as inconvenient as a cancellation and therefore tantamount to a cancellation, such delays should be compensated in the same way.
Thus, since that time passengers delayed over three hours are entitled to compensation in line with Article 7. The judgment doesn’t refer to schedule changes that are made in advance but Sturgeon is generally understood to refer to on the day delays you actually experience. Also, while the judgment draws parallels between cancellations and delays, it’s clear they aren’t the same – for instance you can get cancellation compensation for a flight without travelling, but to collect delay compensation you need to have travelled on the delayed flight.
Also, if your flight is cancelled, that immediately entitles you to a refund whereas if your flight is delayed by three hours you aren’t entitled to a refund if you opt not to travel; that only comes at five hours. So, they are the same and not the same! I initially advised that the position was clearer/better if a flight is brought forward and that is because there is a 2021 CJEU decision that says a flight brought forward by over one hour is the same as a cancellation and should be compensated accordingly and more generously than the provisions of Article 5.1(c). It is sort of implicit that a flight brought forward in this way happens in advance (ie a schedule change) rather than on the day but the judgment is silent on schedule changes making a later departure. There is also nothing along the lines of Article 5 with a graduated approach depending on the notice period given for cancellations that would regulate schedule changes. To be continued!
@jamie – I would reply to BA in the hopes that they might change their mind as going to CEDR will require some careful drafting and there are currently significant delays.
I would say something along the lines – thank you for your message of x Dec, but you believe the rejection of your claim to be erroneous and inconsistent with various CJEU decisions. What BA calls a ‘schedule change’ (in this case at just nine days notice) is a euphemism for a delay that, per the decision in Sturgeon, is tantamount to a cancellation, a fact not altered by referring to the five hour delay by another name. The position is reinforced by the CJEU’s decision of 21 December 2021 in Joined Cases C-146/20, C-188/20 and others which implicitly references the inconvenience of schedule changes entitling a passenger to compensation.
Whatever nomenclature BA may choose to attach to the delay of my flight BAxxxx on y date, I arrived xx hours late at my destination vs my booking and such delay was notified at less than 14 days notice, in line with the Article 5 compensable cancellation schedule. Accordingly, I am asking BA to correct its erroneous decision now rather than forcing the matter to MCOL or CEDR, gratuitously wasting cost and time for all parties, particularly in a situation where a judge or adjudicator will quickly recognise that this ‘schedule change’ does entitle me to be compensated in the sum of £xxx per person = £xxx total. I would be grateful therefore for this sum to be paid within 14 days failing which a claim will be issued at CEDR or via MCOL seeking the compensation plus all court costs and interest.
If that doesn’t elicit a positive response (and it’s maybe a 35% chance) post again for next steps. Good luck!
Thank you @JDB, really appreciate you taking the time to give such a detailed reply.
EU/UK261: Article 5.1.c.ii
(ii) they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or
In my reading, BA can’t just change the time of the flight and expect you to suck it up (as @JDB also agrees). It’s a cancellation. Otherwise I would be able to turn up for my flight 5 hours late and just say “Oh yes, I changed the time I wanted to fly”. So you would be entitled to cancellation compensation.
Go back to BA. They know the rules. They should be happy to agree if you point them to the right part of the regulations.
@lhar – the Article you cite relates exclusively to cancellations but the OP’s flight was not cancelled. There is clarity if a rescheduling brings a flight forward, but not if it is later. Logically, the same should apply, but as yet logic isn’t winning. The CAA link helpfully provided by @Gosia44 above also confirms the regulator’s view that rescheduling is a matter of T&Cs, not law. It remains a grey area which is why I suggested that if this gets escalated, it will require some skilful drafting.
I respectfully disagree. https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-12/cp210226en.pdf states “a flight is not regarded as having been ‘cancelled’ in the case where the operating air carrier postpones the time of departure of that flight by less than three hours, without making any other change to that flight. ”
An airline can’t just change the flight time by 5 hours and claim it’s the “same flight”, so either it is cancelled or delayed. Otherwise claim under the Consumer Rights Act as the contract contains unfair terms, as there is a complete imbalance between how the supplier and consumer can change the contract without penalty. Even BA’s own T&Cs (9a, 9b) define a 5 hour schedule change as a “significant change”.
On a cheerier note, I have found BA always to be very helpful in rescheduling, goodwill re-booking, paying for delays/delayed luggage, etc. YMMV.
@lhar per previous comments, it is by implication but not explicit. The Consumer Rights Act 2015 does not apply to the purchase of air tickets – are specifically excluded.
Hi @JDB – can you point to where the CRA 2015 isn’t applicable. IANAL so don’t know all the details. But T&Cs are subject to contract law, and so would expect unfair terms in a contract to be covered by CRA. Merry Xmas. (Again, always found BA to be very fair)
Hi @JDB – can you point to where the CRA 2015 isn’t applicable. IANAL so don’t know all the details. But T&Cs are subject to contract law, and so would expect unfair terms in a contract to be covered by CRA. Merry Xmas. (Again, always found BA to be very fair)
The CRA is excluded by virtue of the Civil Jurisdiction and Judgments Act 1982 and there is a similar provision in Scottish law. Air tickets bought on their own are not ‘consumer contracts’.
In respect of unfair terms, if you read BA’s Conditions of Carriage, you won’t find a lot of terms that might be deemed unfair as they are mostly drawn from the Montreal Convention. There may be a lot of implied terms if one ever needed to claim vs BA pleading breach of contract rather than 261.
Hi @JDB – can you point to where the CRA 2015 isn’t applicable. IANAL so don’t know all the details. But T&Cs are subject to contract law, and so would expect unfair terms in a contract to be covered by CRA. Merry Xmas. (Again, always found BA to be very fair)
The CRA is excluded by virtue of the Civil Jurisdiction and Judgments Act 1982 and there is a similar provision in Scottish law. Air tickets bought on their own are not ‘consumer contracts’.
In respect of unfair terms, if you read BA’s Conditions of Carriage, you won’t find a lot of terms that might be deemed unfair as they are mostly drawn from the Montreal Convention. There may be a lot of implied terms if one ever needed to claim vs BA pleading breach of contract rather than 261.
Which section of the 1982 Act are you referring to here? Section 15E(1) provides that contracts for transport don’t constitute consumer contracts – but as per the first sentence of that section, this definition only extends to sections 15A to E of the 1982 Act.
The 1982 Act is referenced in the Civil Procedure Rules in determining whether you can serve a claim on a foreign-domiciled company without permission, but I don’t see that it has any relevance as to whether the Consumer Rights Act 2015 applies.
I can’t see any evidence of an aviation-specific exemption in any event – s.15(E)1 references “transport” in general rather than air transport in particular.
The government’s consultation response on applying the Consumer Rights Act to the aviation, rail and maritime sectors also confirms that it decided to do so in relation to aviation.
@baec_newbie – if you don’t believe me, you will find the authorities in Sidhu and Others v British Airways Plc. Abnett (known As Sykes) v Same [1997] as well as in a more recent (2015) Scottish case Caldwell v EasyJet
The rationale is set out in both cases. Your persistence would suggest that you are aware of circumstances where the CRA 2015 might actually assist in an aviation case, but given the nature of such contracts, I’m not sure in what circumstances the CRA might offer greater assistance than any other aviation or consumer rights legislation.
@baec_newbie – if you don’t believe me, you will find the authorities in Sidhu and Others v British Airways Plc. Abnett (known As Sykes) v Same [1997] as well as in a more recent (2015) Scottish case Caldwell v EasyJet
The rationale is set out in both cases. Your persistence would suggest that you are aware of circumstances where the CRA 2015 might actually assist in an aviation case, but given the nature of such contracts, I’m not sure in what circumstances the CRA might offer greater assistance than any other aviation or consumer rights legislation.
The cases you cite do not back up your claim that the CRA doesn’t apply to flight contracts. Indeed they merely serve to reinforce my earlier comment – that flight-only bookings aren’t deemed consumer contracts for the purposes of ss.15A to E of the 1982 Act and thus you don’t benefit from the 1982 Act’s automatic UK jurisdiction, as would be the case for most other consumer contracts.
Of course there are plenty of other jurisdictional gateways – for example the Montréal Convention. In Caldwell it is also explicitly recognised that EU261 claims fall under a separate jurisdictional regime. Therefore, with respect, bringing up the matter of jurisdiction seems somewhat unhelpful as there can be no question as to UK jurisdiction in this case.
The CRA won’t be relevant in every case, but here it could provide a useful second and/or alternative basis for a claim – noting that the Caldwells did not succeed on the perhaps more “obvious” basis of breach of contract, but only because they also brought an EU261 claim. Particularly relevant is the fact that it renders ineffective any “unfair” contractual term or attempt to exclude the terms it implies.
So for example BA’s contention in their conditions of carriage that flight times don’t form part of the contract is unlikely to stand up to scrutiny given s.50 of the CRA – clearly flight timings would have a significant influence on the average person’s purchasing decision (after all, there is a reason why flights at unpopular times tend to be cheaper and vice versa).
Accordingly, the OP may have a remedy for failure to comply with an implied term under s.50. Similarly, changing a flight time to such a degree at such short notice might be regarded as a failure to comply with s.49 (obligation to use reasonable care and skill).
@baec_newbie – it’s wishful thinking I’m afraid. You are free to try and take a case to MCOL based on a breach of contract and in reliance on the CRA. BA will probably apply to have it struck out if that is the only basis of your claim.
@baec_newbie – it’s wishful thinking I’m afraid. You are free to try and take a case to MCOL based on a breach of contract and in reliance on the CRA. BA will probably apply to have it struck out if that is the only basis of your claim.
It would be rather more helpful to all of us if you could state why you are suggesting it is wishful thinking, rather than merely asserting it.
I am not suggesting that the CRA would be the only basis for a claim. A joint claim under the CRA and UK261 (which, I would contend, can be read to apply in this situation) is unlikely to be something BA can get struck out.
In any event the OP would likely be best served by first taking matters to CEDR, given the minimal risk associated with doing so.
On Unfair Contract Terms it always strikes me that it is unreasonable for BA to say they can move a pasenger’s flight time up to as much as 5 hours away from the flight the passenger had booked and BA says no recourse for that.
That actually means in BA’s unfair t’s and c’s, they are claiming the right to move a passenger’s booked flight to any other timing of BA’s choice across a 10 hour period. It’s not a 5 hour period it’s 10 hours.
This cannot be fair as there is no symmetry here for the passenger – the passenger can’t suddenly decide they want to choose a different flight across that same 10 hour period BA has claimed that choice in, not even if BA has another flight which has seats available.
So I think that’s an unfair term and should not be enforceable if a passenger doesn’t wish to accept it – in each case the onus should be on BA to prove it’s reasonable, not on the passenger to try to ptove it’s unreasonable or not reasonably possible due to impact on them of BA’s having this choice over such a wide time period.
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