Sidestepping the rules?
Have you experienced a major delay to a flight? If so, have you had trouble claiming compensation for it?
Published 8 May 2013:
In a bid to protect passengers experiencing significant delays whilst travelling by air, the European Union introduced EU regulation 261/2004. Under this regulation if your flight’s been delayed by more than three hours - and it’s the airline’s fault – you could be eligible for compensation of up to £480 per person.
And here’s the best news for passengers – the rule can be applied retrospectively, meaning that under the right circumstances, you can claim for delays stretching back over the last six years.
However despite the new regulation coming into force, some of you have experienced an uphill battle in actually receiving the compensation, even if it appears you should be entitled to it.
How do you qualify for compensation?
Passengers will need to have flown in or out of an airport in an EU member state, been delayed for more than three hours and lastly the airline needs to have been at fault.
The airline’s liability is the divisive factor because if the airline can show it wasn’t to blame then the likelihood of compensation is slim.
From the complaints that have come into Watchdog the most common way for airlines to wriggle out of payment seems to be by blaming the delay on 'extraordinary circumstance'.
Travel lawyer Alan Bowen explains that an extraordinary circumstance 'is an event outside the control of the airline'. So if the aircraft gets hit by a bird on maybe the windscreen or at the engine and has to make an emergency landing, this would be classified as an ‘extraordinary circumstance’; similarly, a freak natural disaster such as the 2010 volcanic ash cloud would also qualify.
Importantly, if an ‘extraordinary circumstance’ has occurred airlines don't have to compensate passengers. Yet we’ve heard of multiple cases where they are using this clause to deny people compensation when the causes of their delays sound anything but extraordinary…'
Andy Edge was delayed for 12 hours on a flight out to Tunisia with Thomas Cook last year. He explains 'Once we were over the English Channel the pilot came over the radio to tell us we'd been diverted back to Gatwick and had to land. We were due to get in on the evening but actually got in the following lunchtime. We got back to the UK and I got in touch with Thomas Cook. They then wrote me a letter explaining it was a chiller unit on a galley cart that had a technical fault, which had then started smoking on the plane. They then said that they felt it was extraordinary circumstances and because of that they were not prepared to pay out.'
Clearly Thomas Cook were right to ground the flight but does a smoking galley cart count as an ‘extraordinary circumstance’, ‘something beyond their control’?
Travel lawyer Alan Bowen explains that extraordinary circumstances does not include normal technical faults. 'The courts have made it clear that technical faults are things airlines should expect, and prepare for. They should have adequate maintenance and they should if necessary have standby aircraft if unexpected technical faults occur.'
Our verdict then? No extraordinary circumstance.
Anthony Durrant and his wife experienced a similar lack of liability from their airline when trying to claim. In their case it was blamed on ‘exceptional circumstance’ from their prior flight. Their Monarch flight back from Portugal was delayed for nine hours back in October. He explains, 'The Airbus we were due to get back on developed a technical fault. Something to do with a nose cone on the front landing gear, therefore there was no Airbus available. They had to stick us on to two planes. They put us on the second plane and eventually that didn't go untill 7.30 in the evening. We contacted Monarch and they told us it was extraordinary circumstance so we couldn't claim.'
But as the delay on their final flight did not experience the ‘exceptional circumstance’ there was no reason for the delay in that flight; surely then, compensation should have been paid by Monarch?
Unhappy with the answer from Monarch Anthony Durrant contacted the CAA - who urged passengers after our previous report that they would take action – but the CAA’s influence failed to have an effect on Monarch’s decision.
Even though the CAA may have good intentions they can't force airlines to pay out.
Nonetheless there may be light at the end of the tunnel for passengers soon. Six weeks ago the EU promised to strengthen passengers’ rights with new legislation tightening the definition of ‘extraordinary circumstances’.
By 2015 only delays caused by natural disasters and air traffic control strikes can be so defined. Those caused by technical problems identified during routine aircraft maintenance cannot.
Yet despite the rules becoming significantly clearer, some airlines are still trying to twist them.
Karen Strahan's Thomson flight from the Dominican Republic was delayed for 14 hours back in 2008. As the compensation rule covers delays going back six years she decided to make a claim.
'When they did reply they emailed me and basically said that I should have applied for compensation within two years and therefore they weren't prepared to do anything and that I didn't have a claim.'
So surely Thompson do have a case to answer.
With Thomas Cook, Monarch and Thompson airlines seemingly doing their best to side-step the legislation and the CAA unable to force them, where does that leave you and me?
Travel lawyer Alan Bowen’s recommendation:
'My advice is to write direct to the airline. If you don’t like their response you put them on notice that you’re going to issue proceedings and go ahead and do so.'
Thomson Airways is aware of Ms Strahan’s claim relating to a flight delay.
The European Court of Justice has confirmed that as the Regulation doesn’t say how long passengers have to bring their claims, we need to look to our national law. The Supreme Court in the UK has said that all claims to do with “international carriage by air” are subject to the framework of the Montreal Convention which provides that claims need to be brought within two years. This is a sensible and fair provision because it gives plenty of time for affected passengers to bring a claim while, at the same time, giving the airline a fair chance to investigate the facts before too many years have passed. Whilst we are sorry that Ms Strahan was delayed, we are therefore unable to consider her compensation claim dating back to 2008.
(Statement regarding flight ZB 215 27 October 2013 and subsequent claim under Regulation EU261/2004 (BBC Watchdog))
Monarch Airlines investigated Mr Durran’s claim when it was first made, again when he resubmitted it and subsequently in the light of Watchdog’s enquiry. The airline maintains that this delay was, indeed, caused by extraordinary circumstance.
Safety is paramount. Mr Durran’s aircraft, had encountered a problem on approach to landing at 01.47am on the morning of the scheduled flight. The problem arose on deployment of the undercarriage when the crew noticed that the nose leg took longer than normal to extend. This issue needed to be resolved before the aircraft next operated.
Following extensive examination by Monarch’s licensed engineers, a blocked filter in the hydraulic system for the nose wheel was found. Engineers lubricated the mechanism, cleaned and refitted the filter and carried out retraction and extension tests which were completed satisfactorily. The aircraft was certified serviceable at 2.33pm on 27 October.
Airbus, which manufactured the aircraft, recommend cleaning of the filter be carried out every 30 months. The nose gear mechanism was serviced in April 2012 and September 2011, exceeding the standard set by Airbus.
Current interpretation of the EU regulation means that a fault that occurred on a flight which causes a subsequent delay, can be considered as an extraordinary circumstance on later flights.
In light of the above, Monarch Airlines is satisfied that this was an extraordinary circumstance and therefore does not qualify for compensation payment.
“We know how frustrating flight delays can be and we’d like to reiterate our apology for the delay to the start of Mr Edge’s holiday to Tunisia – following the update to the EU legislation since this delay last summer, we are now reviewing the case as a priority.”
CAA STATEMENT ON PASSENGER RIGHTS IN DELAYS AND CANCELLATIONS:
Under European regulations, airlines must look after any passengers whose flight has been cancelled or delayed for several hours. This means providing food, drinks and telephone calls. If passengers are delayed overnight, airlines must also provide accommodation and travel to and from it. These rights apply whatever the reason for the delay or cancellation. If a flight has been cancelled the airline must also offer a choice of a refund or alternative transport. These passenger rights apply to any flight departing from an EU airport, or any flight on an EU airline arriving back into the EU.
If a flight has been cancelled or arrives at its destination more than three hours late, passengers may also be entitled to compensation. The level of compensation ranges from around £200 to £500 depending on the distance of the flight.
Crucially, airlines only have to pay compensation if the delay or cancellation was within their control. For example, if the delay was the result of a mechanical problem that occurred after the airline failed to carry out routine maintenance, then that may well be within the control of the airline and compensation might be due. If a flight was delayed because of an emergency diversion due to a passenger being taken ill, the airline would not be considered to be at fault and no compensation would be due. Severe weather, such as heavy snowfall that prevents aircraft taking off, would usually also be deemed outside the airline’s control.
Passengers wishing to make a claim for compensation should first contact their airline - providing as much information as possible. The CAA strongly advises making the claim as soon as possible after the delay or cancellation has occurred, as data to assess the claim will be more easily available.
If passengers are unhappy with the response they get from their airline and believe they still have a case for compensation, they should contact the aviation authorities in the country where their delayed or cancelled flight was due to depart from.
Here in the UK the CAA provides a free mediation service for passengers claiming for delayed or cancelled flights from UK airports, or from non-EU destinations into the UK on EU airlines. This service is available to passengers that have first contacted their airline, but have had their claim rejected or are unhappy with the response. If – having considered the relevant information - we feel compensation is due, we will inform the airline, which will then be responsible for paying the passenger the compensation they are entitled to. The CAA does not have legal powers to compel the airline to make such payments in individual cases, and enforcement in these cases would need to be made by the passenger through the courts.
Other EU member states have their own authorities that can help passengers travelling out of airports in their countries, as well as those on flights into their airports from outside the EU when flying on EU airlines.
Passengers can find out more about their rights in the case of delays and cancellations by visiting www.caa.co.uk/passengers. Additional advice on making a claim for compensation, as well as a range of other passenger-related issues, is also available from the site. Passengers can also speak to the CAA’s Passenger Advice and Complaints Team by calling 020 7453 6888.
Published 8 May 2013