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Have finally heard back from them after I failed to win my case.
To refresh memories, I complained because my adjudicator completely failed to respond in reference the legislation that mattered.
The complaint has (amazingly) partially been upheld and they’ve awarded me a humongous £50 compensation.
Annoyingly they still say the ticket validity thing is valid as I had reasonable time to rebook. However, I did not as South Africa was closed for almost 8 months of the 12 month validity and I’d been told by 3 BA agents I didn’t have to rebook by anniversary date of booking it by that point so I didn’t.
Here’s a snippet…..In considering this matter, my focus will be on the adjudicator’s consideration of the evidence and information provided. Further, it should be noted that it is not my function to conduct a fresh review of the original adjudication. I also wish to highlight that CEDR’s complaint policy is not an appeals process. In assessing whether an adjudicator has made an irrational interpretation of the law, the question is not whether I agree with the interpretation but whether the interpretation was one that no reasonable adjudicator could have come to.
In the complaint dated 12 April 2022, it is stated that the adjudicator failed to consider EU/UK 261 such that the adjudicator’s decision was procedurally flawed as the relevant legislation was not considered, and that the decision was irrational such that no reasonable adjudicator could have reached it. In particular, the customer highlights that Article 15 prohibits an airline from curtailing a passenger’s rights by its conditions of carriage, which the complaint states that the adjudicator has done. For ease, I will adopt the language used by the customer and refer to EU Regulation 261/2004 and the Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019 together as EU/UK 261.
In turn, I have reviewed the adjudicator’s decision. Firstly, I agree with the passenger that EU/UK 261 was relevant and that the adjudicator did not expressly address it in the decision. In that respect, I uphold this complaint under that ground. In recognition of this service failing, I would like to offer you £50.00 compensation.
Firstly, congratulations on getting them to formally admit an error I’d push them further because from memory CEDR rules allow you to escalate your complaint if unhappy with the complaint determination. I suspect there is a risk you might lose your fifty quid if the next stage finds against you but frankly £50 is neither here nor there compared to your flight costs.
Try:
I do not accept the outcome of the first stage of the appeals process as both the finding and the compensation offered are irrational.
The complaint adjudicator has found that the first adjudicator failed to expressly address EU/UK 261 in its decision. Therefore there is no evidence that the adjudicator in fact considered the crucial regulations and in particular Article 15 in considering my complaint. This is a woeful failing by an organisation that holds itself out to be a specialist arbitrator. Had the arbitrator properly considered my complaint in conjunction with EU/UK 261 and particularly Article 15 then on the balance of probabilities he/she would have found in my favour and therefore awarded me the sums claimed. Therefore, the £50 offered is inadequate even solely in relation to the now admitted failure by the CEDR arbitrator. Secondly, it does not compensate me for the loss that the CEDR arbitrator has caused me namely an award in my favour for the sums sought in my case. The latter is the sum I assert should be paid by CEDR in compensation, due to failures as a specialist arbitrator.Now:
I am not saying that you are going to win, but on the website there are yearly reviews of CEDR by an external reviewer and I have seen within a recent one a decision that CEDR pay the compensation that was sought by the applicant due to a poor adjudication decision. Frankly, if you have had enough of all this don’t bother but in a small organisation, on a particularly point its worth pushing back. It will at least escalate the issue for consideration further up the food chain. I doubt they get much considered complaints pushing for an external review! Thus even if you don’t win, if a few people push back it will put the issue very much on their radar!Others may take an alternative view / have something to add.
Apologies AmyC I just wanted to correct the sense in the Try: section but cannot seem to amend my previous response and so here is the corrected version below:
Try:
I do not accept the outcome of the first stage of the appeals process as both the finding and the compensation offered are irrational.The complaint adjudicator has found that the first adjudicator failed to expressly address EU/UK 261 in its decision. Therefore there is no evidence that the adjudicator in fact considered the crucial regulations and in particular Article 15 in considering my complaint. The failure to consider the crucial regulations and in particularly to consider Article 15 is a woeful failing by an organisation that holds itself out to be a specialist arbitrator.
Had the arbitrator properly considered my complaint in conjunction with EU/UK 261 and particularly Article 15 then on the balance of probabilities he/she would have found in my favour and therefore awarded me the sums claimed. Therefore, the £50 offered is inadequate even solely in relation to the now admitted failure by the CEDR arbitrator. Secondly, it does not compensate me for the loss that I assert the CEDR arbitrator has caused me namely an award in my favour for the sums sought in my case, [specify sum sought here]. The latter is the sum I assert should be paid by CEDR in compensation, due to its failures as a specialist arbitrator.
Great news they’ve accepted the mistake and offered compensation.
This was an error that could have materially affected the case, and may well have altered the outcome. They have failed in their duty, and because of this you:
– Have been denied a fair hearing of your case
– will be required to go to small claims circuit of county court to get a fair hearing, something which CEDR should have offered.To resolve the complaint you should say they should:
– rehear the case taking in to account to ignored and relevant information (which they wont, as the scheme rules prevent it), or
– pay you the costs to restore you to having a fair hearing, ie the costs of putting it through the county court (MCOL) with all costs and time paid for. Given the value of the case I imagine this will be £1000 or so.NB: from my point of view I would not claim for the amount of your CEDR claim – although the addressing of EC261/2004 may well affect the outcome, you cant be sure. What you CAN be sure of is you have been denied a fair hearing.
- This reply was modified 55 years, 4 months ago by .
AmyC no reason why you don’t seek both.
Seek the sums claimed as I have set out and then assert points_worriers suggestion:
Alternatively and in addition I assert that in any event I have been denied a fair hearing and therefore if the complaint arbitrator will not award the full sums claimed in my original complaint I seek as an alternative:
i) re-hearing before a different arbitrator;
ii) costs of having a fair hearing in the small claims court (set out court fees etc)…Small claims issue fees here:
https://www.gov.uk/make-court-claim-for-money/court-feesThere is also a hearing fee usually around £250 which I cannot immediately find
- This reply was modified 55 years, 4 months ago by .
Does the CAA or the Dept for Transport not have a role in regulating these arbitration companies?
I think there is some confusion here. What the complaints person is offering £50 for must be the fact that EC261 wasn’t mentioned in the decision, rather than it not being considered. That is the only mistake accepted.
The complaints handler will have had access to the arbitrator’s working papers and if he hadn’t found reference to EC261 that both applied and had been raised by Amy C, then he would have had to say the decision was irrational.
The advice being given above is trying to use the complaints procedure as an appeals process which it cannot be as there is no appeal of CEDR decisions. The only recourse now is MCOL and CEDR won’t be paying for that.
- This reply was modified 55 years, 4 months ago by .
Creating a new thread to update on an old one kinda defeats the purpose of a forum.
Totally disagree with you @JDB
The complaint adjudicator has found a failure to mention the Regs but has not even dealt with the primary allegation of failure to properly consider the Regs. If the complaint adjudicator’s review of the papers indicate that due consideration was given to the Regs this should have been stated in the complaint adjudication decision. The complaint adjudicator has failed to give adequate reasons and therefore the complaint has been mishandled.
There are no appeals of CEDR decisions but I have seen an external review ordering payment of the claim. There are rules and there is persuasion. Black letter lawyers fixate on rules, other lawyers such as Lord Denning concentrated wider justice – you’re client is a little old lady about to lose her house to the bank you say…
Push to second tier you have nothing to lose except £50, why not?
Totally disagree with you @JDB
The complaint adjudicator has found a failure to mention the Regs but has not even dealt with the primary allegation of failure to properly consider the Regs. If the complaint adjudicator’s review of the papers indicate that due consideration was given to the Regs this should have been stated in the complaint adjudication decision. The complaint adjudicator has failed to give adequate reasons and therefore the complaint has been mishandled.
There are no appeals of CEDR decisions but I have seen an external review ordering payment of the claim. There are rules and there is persuasion. Black letter lawyers fixate on rules, other lawyers such as Lord Denning concentrated wider justice – you’re client is a little old lady about to lose her house to the bank you say…
Push to second tier you have nothing to lose except £50, why not?
I think you are making assumptions (i.e. that the original decision and complaint review are both wrong) without having seen the whole decision, complaint decision or indeed the original case. The sum awarded of only £50 makes it quite clear what the mistake being acknowledged is. It was certainly foolish of the arbitrator not to mention EC261 in the decision, but realistically it is inconceivable that it wasn’t considered.
There are also two parties to an arbitration; CEDR can’t just fudge the rules and I’m not sure where you can possibly derive the idea that CEDR might pay someone’s MCOL fees…
There is indeed nothing to lose, but I hate all this false hope. I remember the original complaint here was made very hastily when it needed very careful structuring, so I fear the end of the road has been reached with CEDR.
I am very familiar with the decisions of Lord Denning – he gave judgment in the Court of Appeal in the 1960s in favour of my father for a considerable sum and it remains the leading case in that area.
This is fun but potentially not so helpful to AmyC who I suspect cares little for Lord Denning 🙂
My goal is less to assert what is correct, although in this area there are clearly a range of reasonable views but more to provide a quick, easy and stress free template for AmyC to cut and paste and have a go if desired with limited effort. Other than potentially £50 and a little time there is no cost to her. She is not betting her house on this matter.
She may well fail. I don’t personally believe that a Court is likely to award her MCOL costs but points_worrier makes some valid points and these can easily be added to the template and utilised if required. My concern JDB is that you take a conservative (small c), orthodox position that discourages others. It’s not incorrect per se but it is not the only “correct view.” Nothing changes if the boundaries are not tested. Amy just needs to put her case robustly and sensibly.
If litigation is akin to war at times. Attack! Attack! Attack! AmyC only needs to win once, BA/CEDR must win every time.
Anyway, I’m at my office desk and I should work so I need to keep away until lunchtime, hopefully AmyC will let us know if she is sticking or twisting!
Creating a new thread to update on an old one kinda defeats the purpose of a forum.
Apologies but I’m in the middle of Botswana on holiday, to load a page on sketchy and temperamental 3G signal takes about 2 minutes. I have no idea how to quickly find my original post without trawling for hours.
Don’t think I have much fight left in me but I’ll mull it over and thank you all for your thoughts.
- This reply was modified 55 years, 4 months ago by .
Go for it Amy.
You’ve already achieved a lot by forcing CEDR to admit a mistake.
JDR might be right that their confession is not complete, but Stillinthesun is right that however CEDR now try to spin it, you have been denied the opportunity of a fair hearing. And to boot, your time has been wasted. Plus you have undergone considerable stress and depressed as they’ve confirmed that Article 15 of 261, which is in place specifically to protect passengers from airlines that try to use contracts to avoid passengers statutory rights, was not taken into account by the arbitrator.
£50 shows CEDR really has no idea what the h*ll they’re doing on this topic, and is not taking account of the sums involved.
Defo follow @Stillinthesun’s texts and go back to them. Ask for the full compo, yes of course they won’t go for it, then 2nd choice quote costs you now face to get a fair hearing at MCOL since they have failed to provide one. Or, what other suggestion do they have to get you a fair hearing with the relevant parts of 261 (notably, Article 15) fully taken into account.
Here is a link to the most recent report reviewing complaints about CEDR. It is written by someone independent of CEDR.
https://www.cedr.com/wp-content/uploads/2022/04/CAA-FINAL-1-Oct-2021-31-Mar-2022-Apr-22.pdfFrankly, what CEDR own staff make of a complaint will be less interesting as compared with what an independent reviewer makes of it all. A quick scan of linkedin suggests the author of the linked report is experienced in the complaints arena.
Interestingly, his report states that the external reviewer can consider complaints on three grounds:
i) service complaints such as delay and rudeness;
ii) “where a customer believes that in reaching an adjudication outcome relevant information was ignored and/or irrelevant information was taken into account;
iii) “where complainants feel that an adjudicator has made an irrational interpretation of the law”.Amy’s complain involves both ii) and iii). I find it amusing that CEDR and others keep saying that the complaints process is not an appeals process given that grounds ii) and iii) are classic grounds for appeal in an court of law! Frankly, the tomato/tomARto label matters not to me, its the substance that counts.
For my part I don’t think that Amy should go down the MCOL route as she has clearly had enough, frankly in no small part due to the clear mismanagement by CEDR of her claim. Life is too short. However, by asserting her right for an independent review (stage 3 I think) it will be very interesting what someone independent thinks of all of this. I suspect they’ll expect more than £50 to be offered in any event!
I believe stage 2 is a further review by a more senior complaints handler at CEDR. Simply cut and paste the relevant parts above, maintain your previous comments as to your complaint and ask that the complaint move onto the next stage. I’d say now that you want a review by someone external to CEDR. This should be straight forward and quick then forget about it.
Then promise yourself that whatever you recover financially, if anything will be spent on something wonderfully indulgent to you. £50 would buy some lovely chocolates or a lovely smelly candle or a bunch of beautiful flowers. A little more cash and that’s dinner for you and a loved one…
I once won a case for a client that I absolutely should have lost. Had I lost I would not have been paid. I always wanted a Burberry raincoat but balked at the indulgence of it. I bought it and every time I wear it I remind myself that sometimes, just sometimes you roll the die and come up trumps.
I’d actually forgo CEDR option all together if you can afford MCOL fee. Use this CEDR complaint to frame it as they haven’t even considered law, BA can’t then use CEDR outcome as a basis of their defence.
This must have now cost them quite a bit of legal costs defending and simple starting of MCOL claim might yield a result.
However, I do understand that it’s not easy. I also wouldn’t advise purchasing new tickets if you’re confident enough that it will stay the same. MCOL will award cash anyway and once it’s in your account, you can do with it what you want.
Slightly related but I recently won at MCOL following refusal to rebook beyond 12 months of initial booking. I then booked flexibly flights and went to MCOL.
BA defended the case and instructed a barrister.
Thank you to @meta and @StillintheSun for the Guidance, especially still in the sun for the Summary of his argument.
Congratulations on your victory in Court especially given the fact that BA sent in some real opposition to try and duff you up. Definitely worth celebrating on your BA paid for flight with several glasses of fizz. Law is such that we can’t all always win but hopefully your success will spur others on!
- This reply was modified 55 years, 4 months ago by .
Congratulations @MingTheMerciless. Especially for letting us all know you’ve added another win – against BA’s attempts to enforce invalid ticket validity restrictions upon passengers who exercise the right EU/UK261 gives to passengers whose flights have been cancelled – to choose a later date to fly that is [reasonable and] convenient to the passenger themselves rather than BA.
@Stillinthesun you ‘taking one for the team’ by providing core arguments is much appreciated. We (or at least those on HfP) can indeed overcome the Dementors!@MingTheMerciless – congratulations on your MCOL win great news. I fear that I too will have to resort to MCOL if my CEDR claim isn’t approved.
Out of curiosity why does BA seem to consistently fight claims at MCOL for cases of “beyond 12 months ticket validity” when it seems that they end up losing..doesn’t that just incur additional time and effort on their behalf? Unless there are cases where BA have won at MCOL.
@Ming nice one.
@beardysuhz I guess there’s a number of reasons. In the same way that people post complaints and poor experiences in numbers far greater than those that post good experiences, people are more likely to post wins than defeats. I guess from a BA perspective they feel some of these cases genuinely are worth pursuing to court.Their legal department probably also has a budget that they “need” to spend, otherwise it gets cut the next year.
Slightly related but I recently won at MCOL following refusal to rebook beyond 12 months of initial booking. I then booked flexibly flights and went to MCOL.
BA defended the case and instructed a barrister.
Thank you to @meta and @StillintheSun for the Guidance, especially still in the sun for the Summary of his argument.
Well done. Can I ask if your replacement flights were booked on BA itself or another airline? I ask because presumably if you were to rebook on BA itself, I can’t understand why they wouldn’t just settle given the ticket will ultimately be with them anyway.
@MingTheMerciless I was away so missed your post. Congrats and well done! Just goes to show that the law is quite clear in regards to ticket validity despite what some might think and if you present it right then you can win!
Their legal department probably also has a budget that they “need” to spend, otherwise it gets cut the next year.
I think they have too many claims coming in at the moment due to more noise in the media about EU compensation and cancellations. They need to protect their revenue.
Don’t also underestimate the power of HfP community. Many people might come here and not post about their cases, but will be encouraged to put in a claim after reading some advice here.
Afternoon,
Update: I followed advice, copied what StinintheSun had written, adding a couple of relevant specific numbers (thanks again) and have this lunchtime received this….. (see below).
I’ve accepted the money. You win some you lose some. One day I might win!
Thanks again all who helped and advised me. I learned a lot.
Following your request to escalate your complaint to stage 2 of the Aviation Complaints Review Policy and Process, the matter has been assigned to CEDR’s Principal Adjudicator who has provided the following response:
As Principal Adjudicator, I have reviewed the customer’s complaint and request for escalation to Stage Two of CEDR’s Complaints Review Process. The customer’s complaint was made on the basis that the adjudicator did not take into account relevant information when reaching a decision in the dispute, and that the adjudicator made an irrational interpretation of the law. The customer states in her request to escalate the complaint to Stage Two that the finding and compensation offered at Stage One are irrational, and that the adjudicator failed to consider Article 15 of EU/UK 261. The customer has requested a “re-hearing before a different arbitrator” and the “costs of having a fair hearing in the small claims court”.
At the outset, I would like to emphasise that my role in carrying out this review is not to make a determination as to whether or not I personally agree with the adjudicator’s judgment in the case, but rather whether or not the adjudicator reached a finding or outcome that no other reasonable adjudicator could have reached on the basis of the evidence and submissions put forward by the parties at the time, and whether the Stage One response provided was appropriate.
I would also like to clarify at this point that this is not an appeals process, as the customer has stated. The customer has made a complaint about the service provided by CEDR, which is not an appeal to the adjudicator’s decision. To be clear, there is no appeal process against an adjudicator’s decision. In the event that a customer is dissatisfied with the outcome reached by the adjudicator, they are free to reject it and it will have no binding effect. This does not affect the customer’s ability to pursue redress against an airline through alternative means, such as the courts. Further, I would like to briefly state that CEDR’s Aviation Adjudication Scheme is not an arbitration process, as the customer has stated. The process is that of adjudication.
Turning to the substance of this complaint, I note that the Stage One reviewer identified that the adjudicator did not expressly address EU/UK 261 in the decision, and that this was a service failing for which £50.00 was offered as a goodwill gesture. I agree with this finding and the goodwill offer, as the adjudicator’s failure to expressly refer to EU/UK 261 in the decision did not meet our standards of comprehensiveness and clarity in the way in which decisions should be written. I consider the Stage One review to have been appropriate in this regard.
It was then concluded at Stage One that the adjudicator’s decision was not irrational in relation to the legal right of a passenger, in the event of a flight cancellation, to “re-routing, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats” (Article 8(1)(c)). The adjudicator’s decision was that the airline was entitled to limit the passenger’s right to re-routing to a period concordant with the duration of the ticket’s validity.
At Stage One, it was noted that the right under Article 8(1)(c) is not an unlimited or unrestricted right, but in fact contains the limitation that the re-routing is “subject to availability of seats”. The Stage One reviewer then went on to find that, in the absence of any definitive court ruling on the subject, it is not an unreasonable or irrational interpretation of the law to find that the “availability of seats” accords with the period within which seats are “available” to be booked under the validity period of the passenger’s ticket. As the Stage One reviewer said, “this approach would be consistent with the limitation of ‘subject to the availability of seats’, as the re-routing is subject to the seats that are available under the ticket purchased”.
I take the view that the adjudicator was entitled to find that the airline met its legal obligations by giving the passenger the option of re-routing at a later date at their convenience within the period of the ticket’s validity, as this was the period within which seats were available to be booked under the passenger’s ticket. This interpretation of the law is not one which no other adjudicator could have reasonably arrived at.
Moreover, I note that the customer has stated that the adjudicator failed to consider Article 15 of EU/UK 261, and if it had been considered then the outcome would have been in the customer’s favour. I note that the customer’s submissions on this point were addressed at paragraph 9 of the Stage One response, which I quote here: “While I acknowledge the customer’s position that this amounts to enabling the company’s Conditions of Carriage to curtail passengers’ rights under EU/UK 261, I do not agree that this is necessarily the case. It is a finding that EU/UK 261 should be read with and interpreted in light of the Conditions of Carriage. That is because the reasoning does not eliminate the airline’s obligation under Article 8(1)(c) to provide re-routing at a later date, but rather this interpretation says that rebooking may only be carried out during the ticket validity period under the airline’s Conditions of Carriage”. I agree with the Stage One reviewer on this point. Article 15 does not require that an airline’s conditions of carriage be disregarded, but only that they may not limit or waive the obligations provided by EU/UK 261. As explained above, the adjudicator’s conclusion was that the ticket validity period is a legitimate means of interpreting the “subject to availability of seats” limitation that is written into Article 8(1)(c), and does not create a new limitation or waiver of the right to re-routing. Therefore, I uphold the Stage One response in this regard.
The customer has requested a “re-hearing before a different arbitrator” and the “costs of having a fair hearing in the small claims court”. Adjudicators’ decisions are final and cannot be re-heard or appealed, and as I have found that the adjudicator’s decision was fair and reasonable, and that I agree with the Stage One review, I do not consider it appropriate to pay any costs to the customer for potential future court action. However, in light of the service failing identified in the Stage One review and above, I would like to offer again the goodwill gesture of £50.00 to the customer for the adjudicator’s failure to expressly address EU/UK 261 in the decision.
Tom Earley, Principal AdjudicatorConclusion
Based on the above information, it appears that the Principal Adjudicator has upheld the stage 1 response and has offered again the
£50 compensation in full and final settlement of your complaint against CEDR. If you would like to accept this, please confirm by way of return along with your bank details.Kind regards
John-Paul Azzi
Head of Consumer Services- This reply was modified 55 years, 4 months ago by .
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