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The 2017 BA compensation thread: Your guide to Regulation EC261/2004

The 2017 BA compensation thread: Your guide to Regulation EC261/2004

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Old Sep 28, 17, 1:32 pm
  #1441  
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Originally Posted by kbjarvis View Post
Am I correct in reading this forum (and the EU regs) in that BA has no responsibility on the delayed final arrival, as AA was the root cause with the operations of the first leg, thus no EU261 compensation is due?
Almost certainly correct, one of the perils of using AA in that direction. The operating carrier that caused the problem is the one at fault. If BA caused the baggage hold up (i.e. it was in London) then that may be different, but usually BA just send you ahead of the bags in that situation.
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Old Sep 28, 17, 1:43 pm
  #1442  
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Originally Posted by kbjarvis View Post
After reading through this thread and the AA version, I wanted to get a quick confirmation on my understanding related to the following trip:

MIA - LHR (BA codeshare, operated by AA)
LHR - OTP (BA operated)

The first leg was delayed due to baggage issues, resulting in a missed connection for LHR-OTP and a final destination delay of 8 hours.

Am I correct in reading this forum (and the EU regs) in that BA has no responsibility on the delayed final arrival, as AA was the root cause with the operations of the first leg, thus no EU261 compensation is due?

Thanks for the help!
Correct.

MIA-LHR was operated by AA and AA is not an EU carrier nor is MIA in the EU. The delay on that flight, whether measured at LHR or OTP does not trigger EC 261/2004.

The LHR-OPT segment, to which the Regulation does apply is irrelevant because you were not a passenger and one presumes that it was not appreciably delayed or you would have the connection.

Note that this isn't true headed in the other direction. E.g., OTP-LHR operated by BA, an EU carrier, is delayed and causes a misconnect at MIA on an AA-operated flight. BA would be liable for Type 3 compensation of EUR 600.
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Old Sep 29, 17, 1:05 am
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My husbands first flight was cancelled this morning from ABZ (12.30) . He has had to take a 9.30am flight. His connecting flight is still on time. He has had to rearrange a business meeting. I have read the information and am assuming he can't get compensation but just checking to make sure.
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Old Sep 29, 17, 1:07 am
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Originally Posted by fiona View Post
My husbands first flight was cancelled this morning from ABZ (12.30) . He has had to take a 9.30am flight. His connecting flight is still on time. He has had to rearrange a business meeting. I have read the information and am assuming he can't get compensation but just checking to make sure.
Don't really follow - what were the original and rearranged times? And why was the flight cancelled? And was he on one ticket or two?

Need a bit more info really.
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Old Sep 29, 17, 1:13 am
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Not sure about why the cancellation happened. Certainly not weather here. He is one ticket. Flight to Heathrow from Aberdeen and then on to Dusseldorf. His Aberdeen flight was 12.30 but is now 9.30. It was only rearranged at 7.40. He had a meeting scheduled with someone travelling from Edinburgh today at 9am.
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Old Sep 29, 17, 1:17 am
  #1446  
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Originally Posted by fiona View Post
My husbands first flight was cancelled this morning from ABZ (12.30) . He has had to take a 9.30am flight. His connecting flight is still on time. He has had to rearrange a business meeting. I have read the information and am assuming he can't get compensation but just checking to make sure.
Depending on the cause and the notice of cancellation, if a passenger is offered rerouting which leaves more than 2 hours earlier than originally scheduled then compensation may be available.
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Old Sep 29, 17, 1:21 am
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Thanks. Its been a stressful morning. Not helped by the Indian call centre where I had to repeat everything several times!
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Old Sep 29, 17, 1:21 am
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I am delighted to announce that BA have finally paid the remaining £7k of my May 27 compensation. It's been a tough challenge, but we're back in the black.

Now, seemingly, Ryan Air pax could be in for a similar challenge.
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Old Sep 29, 17, 1:27 am
  #1449  
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Originally Posted by fiona View Post
My husbands first flight was cancelled this morning from ABZ (12.30) . He has had to take a 9.30am flight. His connecting flight is still on time. He has had to rearrange a business meeting. I have read the information and am assuming he can't get compensation but just checking to make sure.
Article 5 (cancellations) is straitforward when it comes to cancellations at less than seven days notice (I presume this is is the case).

Since your husband was rescheduled to depart more than 1 hour earlier than booked then €250 is payable (assuming 'Extraordinary Circumstances' do not apply).

This is under articles 5 & 7.

http://eur-lex.europa.eu/resource.ht...C_1&format=PDF
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Last edited by serfty; Sep 29, 17 at 9:09 pm
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Old Sep 29, 17, 1:41 am
  #1450  
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Originally Posted by fiona View Post
Thanks. Its been a stressful morning. Not helped by the Indian call centre where I had to repeat everything several times!
You best get your husband to find out the precise reason at ABZ when he goes through, if it was due to extraordinary circumstances he won't be entitled to compensation. The reason for asking at ABZ is that if BA declines compensation and you haven't found out anything different then you haven't got much of an argument. As always in these cases, it's very important to get screen shots captured of all relevant information for BA.com and ABZ's website, also from your husband as he passes through the airport (e.g. any letters handed out to passengers).

If it was not extraordinary circumstances, and working on 900 kms for ABZ-DUS, then you're looking at potentially at 125€. [250€ divided in half, due to Article 7.2, assuming it's one ticket to DUS].

ExpertFlyer says it's "operational", which covers a lot of things but generally not extraordinary:

Code:
 DOBA1310/29SEP
* OPERATIONAL FLIGHT INFO * BA1310 0 FR 29SEP17 
CITY INFO HOUR (LOCAL) 

 FLIGHT CANCELLED 2316 
 OPER 
*1A PLANNED FLIGHT INFO* BA1310 0 FR 29SEP17 
APT ARR DY DEP DY CLASS/MEAL EQP GRND EFT TTL 
LHR 1010 FR JCDRI/M YB/G 320 1:40 
 HKMLVNQOSG/G 
ABZ 1150 FR 1:40
COMMENTS-
 1.LHR ABZ - MEMBER OF ONEWORLD 
 2.LHR ABZ - DEPARTS TERMINAL 5 
 3.LHR ABZ - 9/ NON-SMOKING 
 4.LHR ABZ - ET/ ELECTRONIC TKT CANDIDATE 
 5.LHR ABZ - DIGITAL PHOTOGRAPH TAKEN BY SECURITY ON DEPARTURE
 6.LHR ABZ - CO2/PAX* 86.63 KG ECO, 86.63 KG PRE 
 (*):SOURCE:ICAO CARBON EMISSIONS CALCULATOR 
CONFIGURATION-
 320 C 12 M 150
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Old Sep 29, 17, 5:47 am
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Thanks everyone for your advice. Unfortunately it is weather related. Just heard from husband.He says he was told it was one of the flights selected due to weather above 30 000ft. There was a restriction in place for flights and the 1230 to Heathrow was selected to be cancelled.
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Old Sep 29, 17, 5:53 am
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Originally Posted by fiona View Post
Thanks everyone for your advice. Unfortunately it is weather related. Just heard from husband.He says he was told it was one of the flights selected due to weather above 30 000ft. There was a restriction in place for flights and the 1230 to Heathrow was selected to be cancelled.
I can see two other cancellations today, TXL and BHD, in the middle of the day and these 3 routes are often chosen for cancellations in this situation along with other domestic, DUB and high frequency European mainland locations. So yes, I don't think you're able to take this any further in terms of EC261.
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Old Sep 29, 17, 5:58 am
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thanks for confirming cws.
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Old Sep 29, 17, 6:02 am
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Talking CEDR have ruled in favour of companion pax downgraded

Originally Posted by corporate-wage-slave View Post
EC261 and downgrades with Amex 2-4-1 vouchers

This post is an attempt to give information on what to do if you have are downgraded when using an Amex 2-4-1 voucher, a facility available to UK residents with an American Express Premium Plus card. There are similar companion vouchers available elsewhere, notably the Chase equivalent in the USA, and one can presume a similar logic will prevail. Note that this post may well be revised in the light of some customer relation issues currently passing through the system. Date of this update: 3 March 2017.

1) Background
There is some anecdotal evidence that 2-4-1 flyers are in the front line for any downgrades. Downgrading is rare, indeed you are more likely to be upgraded, but there is a specific problem with this area: though EC261 provides an across the board reimbursement mechanism for downgrades, for which "extraordinary circumstances" such as weather doesn't apply, as a matter of apparent policy, BA doesn't reimburse any value against the 2-4-1 voucher itself. Their argument appears to be that the voucher was still used, and therefore its value was delivered, albeit against a downgraded sector. They also seem reluctant to refund the cash component used with 2-4-1, which is also a mistake in my view. In very round terms, BA only pays out about half what I believe they should do in this circumstance, thereby effectively nullifying the benefit that the 2-4-1 voucher gives to the second passenger. This cannot fulfill the intent of the Regulation, and I can't see it fulfilling the letter of it either.

2) BA's approach to downgrades and 2-4-1
2a) We are still waiting for confirmation of BA's logic behind this policy, but it seems to contradict Article 3.3 of the Regulation:


2b) To my way of thinking the 2-4-1 voucher falls into "other commercial programme", just like Avios, and there is no dispute - including with BA - that Avios transactions are covered by EC261. Furthermore to earn a 2-4-1 requires meeting a set of criteria with Amex, and meeting the terms and conditions of the 2-4-1. So if there is a downgrade BA needs, in my view, to make good the voucher, at least equivalent to the 30%, 50% or 75% levels associated with downgrades. BA does not willingly do this through Customer Relations, so if you want to remedy your loss, you need to read on here.

3) If downgraded - can I ask to go on another flight?
Yes, and there are cases of this happening without much problem, for example LHR-JFK/EWR, where there are a lot of service daily. There is no direct reference to "right of care" provisions (e.g. providing a hotel overnight) in terms of the Regulation's direct wording, but you could negotiate this, and my view is that is certainly the intent of the Regulation and could perhaps be pursued if BA denied payment. However there is nothing in the Regulation that prevents BA from downgrading, and no requirement to seek volunteers, there is merely a mechanism for calculating the reimbursement when it happens. More problematic are premium cabins to resort locations: often there is only one flight a day, if that, and flights can be full for some time ahead. You can ask for re-routing on other airlines, but BA are known to be reluctant to rebook Avios passengers on to alternative airlines outside the Joint Business routes. The Regulation doesn't create an explicit right to rebooking for downgrades, there is an argument to be had about whether it is implicit. And irrespective of what happens, airlines do not readily take on "consequential losses", such as car hire, hotel bookings, car parking fees, in any circumstances, so this is best covered by a good quality insurance policy.

4) Can I refuse to travel and claim a refund?
[This section regarded as tentative and undeveloped] Yes, it would appear to be possible, under the Montréal Convention BA are required to refund "proven losses and costs", and though there are various caveats about this, the clause does appear in BA's own Conditions of Carriage. In addition there is a wider scope of consumer protection laws, in terms of breach of contract, though not that the customer needs to be proportionate in his/her response. But unlike with cancellations and time changes, there is not a formal documented right to a refund in this area.

5) What is the general reimbursement for downgrades?
See the top of the thread for details but depending on distance, a refund of 30%, 50% or 75% is payable. Contrary to perhaps old information, the courts have refined this in 2016, full details here:
http://www.flyertalk.com/forum/26864509-post636.html
but in summary the reimbursement is only for the sector affected, and furthermore BA are entitled to the taxes and fees associated with your downgraded sectors. The case in the link above did not resolve the issue of airline surcharges (previously known as fuel surcharges) but my opinion is that these surcharges should be regarded in this context as part of the fare, and thus reimbursable at least in part, not part of the non-reimbursable taxes.

6) How can the 2-4-1 voucher be reimbursed?
There are a number of complexities here:
  • Conceptually it can be difficult to conceive of an enabling voucher having (e.g.) a 75% value
  • The voucher is issued by, and paid for, by Amex
  • Unlike Avios the voucher can't be purchased directly, or easily replaced, it requires a particular spending pattern to get it.
Moreover the nature of the voucher is such that they are best used for long distance trips in premium cabins: though it is possible to use a 2-4-1 to save 4,000 Avios on a domestic EuroTraveller trip, its value is more apparent on say LHR-SYD in First, where at peak times a 2-4-1 could save 400,000 Avios.

7) Valuing a 2-4-1 - a way forward
Given that the 2-4-1 can't be purchased, and BA are seemingly unable to reinstate them, the nearest way is to simply equate it to the number of Avios saved by dint of using the voucher, and then relating that to the cash cost of buying the Avios, currently approximately 1.6 pence per Avios. This is still not very satisfactory in some respects: maybe you would not have used the Amex card to get the voucher in the first place if a downgrade was on the table. Leaving that to one side, the logic can be relatively straightforward to argue, moreover this logic has worked via MCOL in the past. To work this out, and adding both passengers together here:
  1. Calculate the total Avios amount for both of you, if the Voucher was converted to Avios instead. Normally this doubles the Avios you actually used.
  2. Turn that amount into cash by charging the current going rate of 1.6 pence per Avios to buy them via BAEC.
  3. Add in the cash amount to give a total cash sum.
  4. Work out the proportion of this amount that can be attributed to the downgraded sector. If it's just one leg on a simple return then it's 50%. But it could be a bit finicky if you have several flights involved, such as a domestic connection in different cabins, but to keep it simple, just use the mileage of the impacted sector against the total mileage of the whole trip. You can find the mileage via the BA.com Avios earning calculator, using the amounts on the Highlife magazine maps, or using gcmap.com
  5. From the cash amount deduct the taxes and fees that BA had to pay for the class you travelled (not for the cabin you booked), in the direction of travel. Don't deduct the carrier surcharge, you should get a partial reimbursement of this.
  6. Finally apply the 30 / 50 /75% reimbursement level to this sum.

8) Worked example for calculation
So for this entirely hypothetical example, the figures will vary over time for various reasons. The passengers concerned have booked EDI-LHR-LAX off-peak return, First Class for the longhaul sectors, for 2 people, costing 170,000 Avios x1, £588 cash each, and a 2-4-1 voucher. On the return LAX-LHR sector alone both passengers were downgraded into Club World. BA policy is to refund 85,000 Avios x 0.75 = 63750 Avios, which for comparison below is the equivalent of £1020, and no refund on the cash component (thereby retaining the £385 carrier charge, which is legally dodgy, in my view).

Total Avios needed if no voucher = 340,000 x 1.6 pence = £5440
Cash component for taxes and fees = £588 x 2 = £1176
Total cash equivalent price = £6616
Amount attributed to LAX-LHR sector= 5456 miles out of 11574 miles total = 47.14% = £3118
Deduct taxes for CW on LAX-LHR = £37.50 x 2 = £75 (this is generous towards BA, a more complex calculation reduces this deduction)
Net of tax start point: £3043
Downgrade reimbursement percentage for this distance = 75%
Total claim for 2 people = £2282, the Avios component is £1923 (120207 Avios) and the cash component is £359. If the standard BA offer under their policy was made, the shortfall between what BA offer and the customer should get (in my view) is £1262 (56457 Avios plus £359)

9) How to process a 2-4-1 reimbursement with BA
Firstly you need to be aware that the current BA policy is not to refund 2-4-1 vouchers, and you're unlikely to get them to shift on this point. So fairly early on you need to get to a position of deadlock to enable the case to go to MCOL or CEDR instead. In the case of CEDR you need either a deadlock note from BA, the standard wording for this may involve the phrase "and our position on this will not change". Alternatively you can spend 8 weeks arguing the case and then you can go to CEDR anyway. In the case of MCOL you need to make a formal demand for payment and give BA a reasonable period to pay that sum: 16 days is the minimum for this to look viable. In either case it would be expedient to make at least one, and ideally two, realistic proposals for settlement or compromise. If BA don't accept these compromise ideas you can remove them for MCOL or CEDR purposes, but you can point out to the judge/arbitrator that you made these efforts.

10) MCOL or CEDR?
You can do both if you wish, provided you start with CEDR first. If CEDR doesn't deliver what you want, you can then go on to MCOL, though BA would be able to point out in court that you lost the argument in arbitration. There is at least some evidence that BA are not prepared to see this particular issue tested in court, in fact I am unable to locate a single specific case which has reached a hearing (but if you come across such a case please let me know). CEDR is more consumer friendly, it may take 6 or so weeks to resolve, and there is a potential charge of £25. However CEDR has been known to waive that charge if the case is properly constructed and you respect the various deadlines. MCOL will cost around £50, depending on circumstances, and could involve a court hearing, which won't happen with CEDR. Moreover the rules of procedure on MCOL are strict, but not difficult, and must be carefully followed. MCOL could potentially be faster than CEDR, notably because you can take action two weeks after giving a notice before action, but equally could be slower due to court delays. Note that with MCOL you must claim for a cash based remediation, a judge is only able to order settlement which is in their power to give, and reissuing a voucher isn't in their power. CEDR isn't so constrained, so could order restitution of Avios, or a future upgrade, for example, but it's not clear whether this can extend to reinstating the voucher, since this primarily in the gift of Amex.

11) AMEX
This area is unexplored (unless somone knows better) but Amex issues the 2-4-1 voucher based on your commercial relationship with them. It seems possible to pursue AMEX if the voucher failed to work to your satisfaction. In correspondence to date, Amex have referred operational questions to BA. One line of argument is that you want your voucher replaced since the downgrade meant it did not achieve the purpose you sought for it and which was clearly advertised by Amex. There is an appeal procedure within the finance industry up to the Financial Ombudsman, it would be interesting to see how this would work if processed.

12) Step by step summary
Best to be dispassionate, efficient and business-like about this: Señor Cruz is unlikely to turn up on your doorstep with a bunch of flowers and a written apology, so there's no point in regarding this as an emotional journey.
  1. Work out your losses (section 7 and 8 above)
  2. Make a clear claim for reimbursement of your losses to Customer Relations, making sure you mention EC261 specifically. Try to keep the initial complaint as short as possible, focusing on key points rather than dwelling on minor hassles along the way or gate dialogues.
  3. If Customer Relations refuses to refund the reimbursement (as would be expected) make one or two compromise offers "in order to reach a quick settlement and to prevent me from taking the matter further". Make it clear you will withdraw these compromise offers if a rapid settlement isn't reached. These proposals need to be viable and realistic, such as asking for a space available upgrade, or a direct refund of the calculated Avios.
  4. When it becomes clear that the policy hasn't changed in this area, ask for a deadlock letter so you can go to CEDR or indeed MCOL.
  5. Follow the links upthread to process under CEDR/MCOL, there are two templates below to assist with this purpose.


13) Template text for Customer Relations 12.2



If you get a rebuff (which would be expected) or no answer, following up with the following:



14) Template for Notice of Particulars of Claim MCOL
This, or something like it, is known to work. In this example we are assuming that the downgrade happened as a result of a cancelled flight, which BA was happy to refund, but the downgrade reimbursement was not offered for one of the passengers on a 2-4-1. The relevant field on the online form N1 is restricted to 1080 characters. Don't be afraid to put a brief summary, then "see attachment A1" and then write a one pager with short bullet points instead, you can post this in within 2 weeks of the online submission, but it's best to do it within a few days ideally. In this example I have abbreviated the text to fit 1080 characters, but the amount calculated in 12.1 above would have been communicated in more detail to BA in 12.2, so BA would already be aware of the details. Note the need for consistency if this approach is taken, if you are bringing a new calculation with the claim you best explain this via an attachment if necessary.



BA's usual process is to file a reply saying that it will be issuing a defence, specifically an Acknowledgement of Service, which is a way to get more time and information, but then may well telephone / email thereafter to indicate that it won't be defending the case. This Acknowledgement gives BA an extra 14 days (so 28 days in all) to respond. BA has also been known to stop a case by telling the court that the full settlement has been reached without contacting the complainant first! However in that case BA will indeed pay off the case: don't forget to collect your court fees in this process, but you probably won't get the court sponsored interest payments. Though this forum's experience of this is limited, if BA did go to a court hearing on this, it would be worth your while to prepare a "skeleton", a bullet pointed guide for the judge, stating (a) the main facts briefly (b) the elements which there is no dispute over, notably that the downgrade happened (c) the points of law you are relying on for your case. This skeleton will also walk the judge through the paperwork associated with the case, by referring to, say, an email in appendix X, as needed.

15) Template for CEDR submission
Awaiting example. However (June 2017 )recent CEDR rulings in this area have backed the airline and I'm not sure CEDR is the best way forward here.

16) Would BA downgrade one or both of us?
From anecdote, usually both passengers are downgraded but there are occasions when there is just one spare seat available on the aircraft. The terms and conditions of the Voucher state that both travellers should travel together in the same cabin. So if BA suggests that only one of you need to be downgraded, and that isn't acceptable, make it clear that as far as you are concerned the downgrade would be applied for both passengers and that you will pursue the downgrade for two passengers in line with the voucher's T&Cs. BA also avoid splitting couples if one of them is a particularly nervous flyer. Whether a part voluntary, part involuntary downgrade, considering the T&Cs, is acceptable to the court is something only a judge can decide so be aware of the risk there.

17) Should I use a no-win-no-fee agency to process this?
My view is that this process is reasonably straightforward, that external agencies or even claims channels like Resolver don't bring anything extra that a bit of organisation and research can't deliver. However you do it, you still have to provide the core information and evidence, so you may as well do it all yourself. Moreover a non UK based agency may be reluctant to take on a 2-4-1 case due to the complexities involved, they will nevertheless want their cut of any reimbursement.

Finally: remember downgrades are rare events, it probably won't happen.
@C-W-S - I know of one instance where CEDR have ruled in favour of downgraded 241 companion pax, cash awarded in leui of 75% of Avios for the sector at a rate of 1.6p/Avios.
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Old Sep 29, 17, 6:08 am
  #1455  
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Originally Posted by ScubaRoo View Post
@C-W-S - I know of one instance where CEDR have ruled in favour of downgraded 241 companion pax, cash awarded in leui of 75% of Avios for the sector at a rate of 1.6p/Avios.
Thanks very much for that confirmation. I know of one case where they have not done so (but BA subsequently folded at MCOL), but my experience is that details here matter enormously. Realistically getting consistency in this area is very difficult.
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