corporate-wage-slave

1) Introduction
This thread is intended to help FlyerTalkers who think they may be entitled to EC261 / UK261 compensation when flying on British Airways. This is not about the rights and wrongs of compensation culture, this is merely a set of reference material to help flyers. It is also not exhaustive, so we are focusing on the BA aspects of this. This thread could go on indefinitely, so we merely point to other places for more detailed guidance. At the end of this post is a list of links which you may find useful, and then the following posts give some further information of some key topics. We also need to point out that these hints from an internet bulletin board are no substitute for professional legal advice.
With best wishes and happy trouble-free flying from:
corporate-wage-slave, Dave Noble, dunk, NickB, Prospero, RedVee, Stez, stifle, Tobias-UK, uk1.

2021 Update:
See post 8 below for a brief Brexit update, but the short version is that EC261 lives on in respect of UK flights generally and British Airways in particular. There isn't a big change in respect to the UK's withdrawal from the EU, except that where the Regulation specifies compensation in Euros, there is now a fixed Pounds Sterling equivalent.

Thread Annual Updates:
This thread is renewed annually to keep it manageable, however the previous threads are extremely valuable so it is certainly worth going back to previous threads for insights into the workings of EC261/2004.

Last year's thread (2021/22) is here:
The 2021/22 BA compensation thread: Your guide to Regulation EC261/2004
This covered the transition from Brexit to the UK version, and was a double year's sequence, since the pandemic greatly reduced the number of EC261 cases in line with the substantial reduction in people flying.

The 2020 thread is here:
The 2020 BA compensation thread: Your guide to Regulation EC261/2004

Previous year's thread (2019):
The 2019 BA compensation thread: Your guide to Regulation EC261/2004

Thread for 2019: One significant change happened in 2019, in that the CJEU allowed for the first time non EU sectors on non EU airlines to be potentially in scope for EC261. This scope is fairly narrow, it only applies to codeshared flights booked in particular circumstances, where the start of the trip would have been covered by EC261.

Thread for 2018: The big development this year was the ruling from the CEDR that strikes that take place within a particular airline are not extraordinary circumstances. The case being Helga Krüsemann and Others v TUIfly GmbH, case C-195/17 and others. There were also developments on the CEDR side, where it became clear that CEDR is holding BA responsible for cancellations engendered by the Trent engine issue on 787 aircraft. In terms of Britain exiting the European Union, the relevant aspects of EC261 are already incorporated into UK law via Statutory Instruments and it is highly unlikely we will see any changes in this area certainly in 2019, and possibly for some time thereafter. By all means look at the older threads for background but don't hesitate to reach out for assistance if you can't see an obvious answer.

Thread for 2017: The main development in 2017 was greatly increased use of CEDR, leading to some delays there, and the implementation of the Mennens case which allowed airlines to cover necessary taxes and fees into downgrade reimbursement.

Previous threads can be found here:
The 2017 BA compensation thread: Your guide to Regulation EC261/2004 - the thread for 2018.

The 2017 BA compensation thread: Your guide to Regulation EC261/2004 - the thread for 2017.

The 2016 BA compensation thread: Your guide to Regulation 261/2004 - the thread for 2016 - lots of experience in here.

The 2015 BA compensation thread: Your guide to Regulation 261/2004 - the thread for 2015, some of it now overtaken by more recent events.

The BA Compensation Thread: Your guide to Regulation 261/2004 - this is the 2014 thread, which started before the Huzar case was concluded.

The BA Compensation Thread: Your guide to Regulation 261/2004 [2013 archive] (this was a beta thread, a lot has been overtaken by events).

Important point: if you wish to have a claim for EC261 compensation considered, you need to specifically ask for it. BA are unlikely to volunteer you for compensation unless there is a specific request.

Contents
Post 1 - this posting - a short summary, and a suggested process for claims
Post 2 - Duty of Care
Post 3 - Rights to compensation
Post 4 - Rights to reimbursement or re-routing
Post 5 - Downgrades
Post 6 - Complex ticketing.
Post 7 - Letter before action and other MCOL/CEDR general advice
Post 8 - Developments during 2019.

2) Insurance
Please don’t forget to get good quality insurance. These regulations does not cover every situation, notably consequential losses (see below), and it is important to either get insurance or be in a position to self insure. Remember to programme your insurance details into your mobile telephone. For those based in the UK, the following travel insurance policies have been recommended by FlyerTalkers: American Express (though check to see if you are covered if you did not use your Amex card to buy the journey), Aviva, the Co-Op, Hiscox, John Lewis, Marks and Spencer, the Post Office. Note that some insurance policies have a legal advice component, which maybe useful in these situations.

3) Summary
On 17 February 2005, the European Union implemented Regulation 261/2004 (hereafter known as EC/261), designed to give protection to air pasengers for delays, cancellations, downgrades and cases of denied boarding throughout the European Union, and also to flights operated by European Union airlines, which includes British Airways. So all flights, from all airlines leaving the European Union, Norway and Switzerland are covered, as well as flights to the EU+Switzerland+Norway if provided by British Airways and European airlines. Airlines are obliged to inform passengers about their rights at check-in, and to provide more detailed information upon request. The burden of proof for most of the regulations lies with the airline, so it is up to them to prove they informed you of cancelled services or that the cause of the delay was "extraordinary circumstances".

4) Scope of EC/261
EC/261 covers the following areas
-Denied boarding (you turn up at the airport on time but are not allowed on to your booked service)
-Downgrades (flying at a lower class than booked)
-Delays (when you arrive late at your destination)
-Cancellations (when BA cancel your service altogether)
For the purposes of the regulations, you need to have a confirmed reservation, accepted and registered by the airline, and presented yourself for check-in before the deadline mentioned in Manage My Booking. Note that this is not the full scope of customer protection - you may be covered by other aspects of contract law, for example. The Warsaw Convention covers air disasters, the Montreal Convention covers damaged baggage and related areas. These are beyond the scope of this thread.

5) Categories of flights
First thing to understand is: which category does your flight fall under? This determines the level of compensation payable.

Category 1 - under 1501 km - LHR to FCO (Rome) is 1446 km
Category 2 - 1501 km to under 3500 km - LHR to BEY (Beirut) is 3486 km
Category 3 - 3501 km and higher

[Not applicable for BA's current routings, but journeys within the EU greater than 3500 km fall into Category 2]
You can Google distances to find out distances, but travelmath.com is one of several websites in this area;

6) Denied boarding
This rarely happens on BA, but if the flight is overbooked, BA is supposed to ask for volunteers – passenger who are prepared to travel on another flight in return for compensation. This level of compensation is open to BA to define. If there are involuntary denied boarding is necessary then the compensation is as outlined below in section 11. This provision also applies for those wrongly denied boarding for reasons other than overbooking. For example if an airline refuses travel because they had wrongly assumed the passenger did not possess the correct travel document or entry clearance. Note that just because some other website suggests that the flight looks overbooked does not mean that BA will be denying boarding or downgrading. It happens, but it's quite rare, and if it is going to happen it will become apparent only in the last 2 hours or so before departure.

7) Downgrades
If BA downgrades your flight of travel you are entitled to a refund on your ticket. This is 30% for Category 1 flights (see section 5), 50% of Category 2, 75% of Category 3. Now it is not entirely clear in the Regulations as to whether that is the whole ticket, including unaffected sections of that ticket. Therefore the range of options varies from 75% of the whole ticket (out and back) as purchased, down to 30% of the implied cost of the sector affected (which could be a relatively small amount of money if that sector is a small add-on to a long haul journey). However the CAA has advised us that their interpretation is that the whole ticket is used to calculate downgrades, not just the affected leg; equally we know of situations where BA only compensated the effected leg. Also note that you may be entitled to further consumer protection: for example if the Regulation's compensation was less than the amount paid the upgrade (such as an airport upgrade) then there may be scope for a challenge under contract law.

8) Delays and cancellations
Cancellations and delays against your final arrival time entitle you to a duty of care, and in many cases compensation. This area has recently been clarified in appeal judgements. To simplify a complex area, delays greater than 2 to 4 hours can result in compensation of between €125 and €600 per person (depending on flight category), if BA were responsible for that delay. See sections 11 and 12, and Post 3 and 4 for more details about compensation and reimbursement/re-routing respectively.

9) Duty of care
See Post 2 for a detailed examination of this area. In all situations BA should offer a duty of care to passengers facing travel disruption in all situations where you hold a confirmed reservation. The regulations specifically include: food, drink, hotel accommodation if any overnight delay, and communications. Typically BA hands out vouchers that can be used in airside establishments, or will arrange hotels for you - often BA does a reasonable job in this area compared to other airlines. If you have access to a lounge then it is unlikely to be reasonable to ask for additional food and drink vouchers, unless the lounge facilities have only a restricted range of refreshments.

10) Changes to existing bookings
If you are given more that 14 days notice of a change then you are not entitled to compensation for the delay. You are entitled to a refund or a rebooked service, it's your decision. See Post 3 about the duty of care aspects.

11) How much do I get?
This section applies for delays, cancellations and denied boarding. Below gives the standard amount of compensation payable if you are delayed by more than the number of hours shown. Note that an airline is able to invoke "extraordinary circumstances" as a reason for not paying compensation for delays and cancellations, but not for denied boarding or downgrades.

11.1) For delays (not cancellations)

See post 3, question 2 for the full payment matrix.



To be clear: a flat delay, without rerouting and/or cancellation, needs at least 3 hours late against the advertised arrival time, and doors opened ready for passengers to leave. So probably for most passengers, where they find themselves waiting at an airport, or waiting for take off, for a long period - it's only the arrival time / door open that matters and if must be at least 3 hours for eligibility for any compensation applies. For longer trips - over 3,500 km (basically the distance from London to Beirut) - then you will get full compensation after a 4 hour delay, and a reduced 50% rate for delays between 3 and 4 hours. This is purely for delays, and it is calculated on arrival time, not all the hanging around at departure.

A Reduced Amount (50% reduction) applies if BA re-routes you on another service that gets you to your destination, see the next section on cancellations. If you are NOT rerouted, just delayed, AND your delay is below three hours, you are not eligible for compensation under EC/261. See section 5 on categories and section 7 for the separate arrangements for downgrades and finally Post 3 below has more detailed information on this area. In some cases BA will hand over a pre-paid debit card, holding some or all of this money - you need to check whether acceptance of this card is for goodwill, towards meeting their EC/261 responsibilities or both. Generally BA treats it as a payment under the Regulations, in the case of downgrades it is unlikely to be the full amount.

[There is often confusion in this area and part of the reason for this is that there is nothing written in the Regulations about paying compensation for delays. The law has changed as a result of judicial rulings that have related delays to the Regulation's wording on cancellations].

11.2) For cancellations

For cancellations and / or when you are rerouted on to another service, some shorter delays attract a half rate payment. If the reroute involves departing less than an hour early, AND arriving less than 2 hours late at the original destination airport, there is no compensation, no matter what (Regulation 5.1.c.iii). The following diagrams explain what happens if the delay is longer and/or you need to leave more than an hour early.







12) Which delays not entitled to compensation?
Weather delays, strikes, Airport Traffic Control problems. Basically any item outside British Airways direct control. Plus all delays below 2, 3 or 4 hours, depending on category, unless BA re-routes you (see end of section 11). There is a grey area in respect of Category 1 delays between 2 and 3 hours. The appeal rulings certainly gives protection from 3 hours, but since the original Regulations did not clearly specify delay compensation there is a potential gap here. On the other hand delays from rerouting, cancellations and denied boarding do kick in for category 1 delays under 3 hours. See also Post 3 for more information.

13) When can I abandon my flight and get a refund?
After 5 hours delay. This is in BA’s Terms and Conditions, and applies even if BA is not at fault (e.g. weather).

14) What about technical failures causing delays?
Broadly speaking airlines cannot use technical failure to avoid their responsibilities in this area, and therefore compensation is payable. However it is possible for some technical failure to be considered “extraordinary circumstances”, see Post number 3 below.

15) What about knock-on effects?
This relates to disruption caused by aircraft being in the wrong place, at the wrong time, leading to you being disrupted. For example if you are due to fly from Cape Town to London but your aircraft is still stuck in New York due to a blizzard. In that situation you should be entitled to compensation.

16) My flight was outside Europe, am I still covered?
The regulations apply to all flights departing the EU, the European Economic Area (Norway, Iceland. Litchtenstein). plus Switzerland; and to journeys on EU carriers to these parts of Europe. This covers the majority of BA flights, but not Comair flights around South Africa, nor people on journeys such as BAH-DOH, SIN-SYD, and POS-UVF. However if you have been successful in making claims involving these sectors please let us know. See also Post 6.

17) I am on a connecting flight. I am in LHR T5, my next flight is now so late it’s not worth me going. What should I do?
The airlines probably don’t like this feature of the regulation, but if your connecting flight is delayed by more than 5 hours so as to make the purpose of your travel meaningless, you are entitled to be flown back to your starting point AND get a full refund of the entire journey. Note that BA specifically requires evidence as why the trip has to be abandoned. See Post X for more details.

18) Will BA re-route me on to another airline?
Generally BA are reluctant to do this, particularly if the other airline is not a oneworld carrier. However BA recently seem more willing to do this to minimise compensation payments. However note that this seems to be restricted to changes made by airport based staff. BAEC telephone agents and online services do not offer this option, however the GGL phone line sometimes rearranges flights on other airlines.

19) BA flew me to LGW, but I was booked to LHR, can I claim the cost of getting to LHR from BA?
Yes, if BA made that decision for you, so long as the cost is reasonable.

20) BA cannot get me to Edinburgh on time but can get me to Newcastle, and I can take a train from there. Can I claim the cost from BA of going from NCL to EDI?
If your booking is for Edinburgh but you offer to go to NCL instead of EDI to reduce your delay, BA may well accept your offer. However BA are not obliged in that situation to pay for your onwards travel from NCL to EDI, since they may propose to you that you sit out the delay. In any event you are still free to negotiate that point with BA, should the situation arise.

21) Can I make my own arrangements and charge back BA?
In some situations you will have no choice. BA will often arrange duty of care aspects themselves, including hotel accommodation, but in the event of widespread disruption you may well be best to sort out your own accommodation. However you need to do your best to keep the cost down to a reasonable level. You can even negotiate with the hotel for a discounted rate because of this. You should also ring your insurers before making bookings.

22) My plane was not cancelled but delayed for 24 hours, am I entitled to compensation?
This area changed after an appeal case was brought to the European Courts, which ruled that an aircraft that was delayed more than 3 hours was to be treated the same as a cancellation. If you had a delayed flight of this sort from previous years you are now able to claim them from BA, since claims were “stayed” until the appeal was completed on 23 October 2012.

23) Am I covered for consequential losses?
Not from the Regulations, For example if your delayed flight means you miss a night of a pre-paid hotel, then that’s one for your insurance policy. Ditto car parking charges. However Article 12 does indicate that passengers can seek further compensation from the airline, and you may have other consumer protection legislation to consider.

24) Are Avios bookings covered?
Yes. Specifically in Article 3.3

25) Are 2-4-1 voucher bookings covered?
We don’t know for sure and they are not specifically mentioned in the Regulations. However the CAA has advised us that if the 2-4-1 voucher ticket - which cost taxes and surcharges - thereby are not free and therefore are covered by the Regulations to the extent of the money spent on them. Free tickets are not. We welcome any feedback from specific cases.

26) Can I ask for Avios instead of cash?
There are reliable reports of travellers asking BA to credit them with 50,000 Avios instead of €600. This is arguably a fair outcome for both sides.

27) Suggested process
If you think you have a claim, here is a suggested way forward. Note that if you look around the internet there are some companies that apparently handle claims for you, in return for a hefty proportion of the compensation. We are not making a recommendation one way or the other, however if you have legal protection insurance this will increase the options in this area.

a) Contact BA Customer Services, outline your complaint succinctly and focusing on the key points.
This can be done by telephone or webform: login via your BAEC account, at the bottom of the page go to Help and Contacts, then Contact Us / Making A Complaint / "Email us via our webform". With the webform you should be able to get a reference number within a few hours to track your case. However do not threaten legal action at this point since BA may batten down their hatches. It is important you specifically claim for EC/261 compensation.

The English language form is currently here (it may move over time):
http://www.britishairways.com/travel...club/_gf/en_gb

And BA's own guidance is in the penultimate paragraph here:
http://www.britishairways.com/en-gb/...n-compensation

Alternatively you can write to them at this address:

British Airways Customer Relations
EU Compensation Claims
PO Box 1126
Uxbridge
UB8 9XS
United Kingdom
Fax: +44 1787 88140

Note that the EC has issued some claim forms here:
http://ec.europa.eu/transport/themes...nt_form_en.pdf

Filling in this form (with a pen!) may be helpful in some circumstances, since the layout asks the right questions. But BA do not require it and in any case they rely on their own records to fulfil the data side. On the other hand it does provide an easy way of sending the form to the enforcement body (the CAA) if there is no reply after 6 weeks, but we are sceptical as to the benefit this gives, it certainly doesn't speed up or enforce payment.

If your flight begins BA82nn then your flight was operated by Sun Air in Denmark, so you need to address your claim to: Sun Air of Scandinavia A/S, Customer Relations, Cumulusvej 10, Billund, DK-7190, Denmark.

b) If you are still not happy?
Write again to Customer Services, referencing EC/261. Ideally be specific as to what you want and why. Again don't threaten legal action, but perhaps use a phrase like "I am unable to let the matter rest at this point".

c) Not getting anywhere?
Write to the Sudbury address as above, detailing precisely what compensation you are looking to receive, give BA 14 days to respond, “or legal remedies will be pursued”. On day 15, assuming no substantial reply, look to using MCOL (see below).

d) Is there anyone else I can contact?
The CAA is known as the National Enforcement Body for these Regulations. They have a team which examines complaints from airlines and can advise passengers with complaints. They do not try to enforce payment of compensation but can influence it. Their address is:
Regulatory Policy Group.
CAA House
45-59 Kingsway
London
WC2B 6TE
Telephone: 020 7453 6213
Full list of CAA contacts: Page not found UK Civil Aviation Authority

28) How long should I wait before hearing a reply from BA?
There are reliable reports of flyers getting compensation within a week of making contact. However it may take upto 6 weeks to get a substantial reply from customer services. However if you don't get an auto-acknowledgement within 24 hours to your email address, the you should follow up immediately. Though one part of the regulations require delays and cancellation compensation to be paid within 7 days, the reality is often very different and the CAA have advised us that they don't regard the Regulations as having a time limit. However bear in mind that if this is going to end up in court there may be time limits involved (6 years in England and Wales), so you should not let matters drift.

29) My ticket is issued by Qantas but British Airways operated the delayed flight, who do I write to?
British Airways. See Post 6 for more information.

30) What about connecting flights on the same booking (same PNR)?
These are covered, and what matters is the final destination timing. So if flight A is slightly late but you miss flight B and arrive very late, the delay at your final destination is what counts. So you would be covered by the regulations in this scenario, and BA would be responsible for getting you to your final destination. However if flight B was cancelled / delayed AND is not operated by BA AND is entirely outside Europe, then you would not be covered by the Regulations for flight B as far as cancel. See Post 6, Q3.

31) What about connecting flights on different bookings (different PNRs)?
Not covered by these regulations, beyond any remedy due from disruption off the first PNR. Even if both bookings are oneworld or even BA, the regulations will not protect you. However there is evidence that BA will rebook you on the next flight, if you are at airside Flight Connections and you allowed plenty of time for the connection. Again you may want to look at insurance, however in many cases the cover in this situation can be restricted.

32) What if I turn up for check-in and my reservation hasn't been ticketed?
This is a grey area but it does occasionally happen. You think you have a confirmed reservation, maybe you have selected seats, you arrive at the airport in good time for the flight and discover that your ticket has not been properly issued. Phone calls are made, maybe you can't get hold of your travel agent or BAEC if an Avios reservation, and you miss your flight. BA have been known to dispute Denied Boarding claims in this situation since they argue that you did not hold a confirmed reservation. Indeed they have argued this when it was an internal error within BA that caused this to happen, but have paid up when challenged further. However it is a good idea to check you are fully ticketed before flying. One easy way is to do Online Check-in 24 hours before flying. If you have not been fully ticketed you will be unable to complete Online Check-in, and you should then call BA to find out why.

33) What if I have a connecting flight on one ticket/PNR, my first flight is 4 hours late, but I have a long connection time. Therefore I make my final destination on the original flight and arrive without a delay?
We don't know for sure. If there was a delay to the first flight then it seems unlikely, since the key issue is the final arrival time. If there's a denied boarding or cancellation, leading to re-routing, then the case is more arguable. See this post for more information. Also it remains unclear if there was a multi-city itinerary. You would have in this situation (and unusually) have more protection with separate PNRs as far as compensation is concerned (but not necessarily the other aspects of the regulation such as the right to care).

34) Flights to and from Israel and Turkey.
Israel has a very similar piece of legislation to EC 261, Israel Aviation Services Law. Though the framework is almost identical, all the details are different to the EU scheme. In broad terms it is more generous to the passenger than the EU scheme for cancellations and denied boarding but does not provide monetary compensation for delays. See the reference section for details. Turkey also has a limited version of EC261 which applies to departures from that country, but with a focus on the Right of Care provisions.

35) Legal process
Hopefully you don’t need to worry about this section. We feel this is beyond the scope of our advice, however in broad terms there is a small claims process in the UK, which can be done in person or online through the MoneyClaim service –see reference material below. The online version can be undertaken even if you are not a UK resident. However be aware that this is a non trivial process. It will take time and effort to pursue.

35a) Alternatives to MCOL / legal processes
BA now participates in an independently run adjudication process run by CEDR. It has advantages and disadvantages over MCOL, but one clear advantage is that it doesn't appear to be restricted to those with a UK address, and there isn't a public hearing involved. This thread has more details and examples of it being used.
Anyone Used CEDR Adjudication With BA? - FlyerTalk Forums

36) Key jargon
CAA: Civil Aviation Authority - the National Enforcement Body (NEB) for EC261 in the United Kingdom. All EU members have to allocate a body in their country as their NEB, but each NEB has their own approach to the Regulations. In the case of the CAA it is arguably more of a guidance organisation rather than enforcement.

Wallentin-Hermann: A case from 2008 involving Alitalia which established that aircraft maintenance issues are not extraordinary circumstances.

Sturgeon: A case from 2009 involving Condor Air, which established that delays over 3 hours give rise to compensation if there are not extraordinary circumstances, and then started the groundwork that suggested delays cannot be used to hide flight cancellations.

37) Delays caused by technical issues
If your flight was delayed due to technical reasons, in almost all cases this is not "extraordinary circumstances" and can therefore be used as the basis for a successful claim. Follow the procedure in section 27 above, then if you had not had sufficient progress, follow the link below to the MoneyClaim online (MCOL) process. See also this thread 832 for a text book example.

38) Third Country Routings - important update October 2023
This thread and posts largely focus on BA and now the UK's version of EC261. We know of several recent cases where purely "Third Country Routings" are not in scope for EC261, that's to say the vanilla version used without reference to the UK. So say a trip from India to Canada via AMS or FRA or CDG would now appear to be out of scope for EC261 protections since the CJEU has ruled that to be a purely Third Country journey. It would be potentially in scope if the stopover in AMS/FRA/CDG is over 24 hours since that is a trip into or out of Europe. UK's version of EC261 is worded slightly differently in terms of geographical scope, plus the concept of Third Country doesn't exist in GB (it does in Northern Ireland). Consequently for BA related trips, such as India to Canada via LHR or LGW, travellers are covered, and up to now both MCOL and CEDR are processing claims on the basis of cover.

39) Reference material

Links to:

Wiki article

Text of the regulations in PDF format

BA’s own section on EC261

BA's PDF section on the Israel Aviation Services Law

CEDR website (see 34a above)

Flightmole website - this has a lot of information on EC261. [link appears down]

Money Claim online website - this is a UK government service
This is an entirely online service, so in theory can be used by anyone anywhere against any company based in England and Wales. However the underlying documentation states that users can be "anywhere in the UK".

Making a court claim for money - a very basic guide from the UK government

There is also an App which you may be able to install on your mobile telephone or other Personal Electronic Device. For iPhones it is known as "Your Passenger Rights".