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BA's compensation policy: in breach of Regulation 261/2004?

BA's compensation policy: in breach of Regulation 261/2004?

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Old Jan 6, 08, 6:30 am
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BA's compensation policy: in breach of Regulation 261/2004?

Hi all

For about the fifth time in three weeks, BA has cancelled my flight. This time it's BA164 from TLV-LHR on Monday 7 January. It has since booked me on the same flight the next day. A bit annoying, as I now need to reschedule lots of meetings on Tuesday and take an extra day's holiday (which is the most annoying bit). And I need to stay in a hotel in Israel on Monday evening. Unfortunately, George W Bush is going to be in town with an entourage of over 1,000 people, so easier said than done, and pretty expensive with it...

As I've been messed about by BA quite a lot recently, I decided to analyse all its communications to me on the subject and believe I've found a major defect in the manner in which BA communicates its compensation policy. It is possible that this might put BA in breach of the Regulation. I don't make such statements likely... here's why I think this is the case:

On cancelling a flight, BA sends an email and / or SMS. This is what I received:

THIS IS AN AUTOMATED EMAIL - PLEASE DO NOT REPLY AS WE WILL BE UNABLE TO RESPOND. Please see below for contact details.

Dear Customer,

We regret to inform you that

- Flight BA0164 on 07 January has been cancelled.

It may be possible to view your options and rebook or cancel your flights on ba.com. To check please click the link below:

http://www.ba.com/mmb/4?bookingRef=[deleted]&lastname=[deleted]

Alternatively, please call us on:

- Italy 199 712 266
- Israel 03 606 1 555
- United Kingdom 0870 850 9850
- Executive Club members should call their dedicated contact number.
http://ba.com/travel/custsp
- or click the link below for numbers elsewhere:
http://ba.com/contactus

Please accept our apologies for any inconvenience caused.

Passengers:
MR DYKWIA MILEHIGHLAWYER
Booking Reference: [deleted]

--------------
FLIGHT CHANGES
--------------

***The following flight has been cancelled***
Flight Number: BA0164
From: Tel Aviv (Ben Gurion)
To: Heathrow (London)
Depart: 07 Jan 2008 16:40
Arrive: 07 Jan 2008 20:10

The following requests have been carried
forward to your new flight(s)
seat request
seat request

Yours sincerely,
British Airways Customer Service
Interesting. No mention of the rights under the Regulation. So I follow the link and this comes up:

Your flight BA 0164 Tel Aviv (Ben Gurion) Terminal 3 - Heathrow (London) Terminal 4 on Mon 7 Jan 2008, 16:40 has been cancelled

We apologise for the cancellation of your flight(s).

You may rebook the cancelled flight(s) and other flights in your booking free of charge, subject to availability.
You may obtain a full refund by cancelling your entire booking.
To re-book or refund please call us.
To re-book the cancelled flight(s) to an alternative destination please contact your original booking agent. This may require additional payment.
Hrm. Nothing there either about my rights under the Regulation. There's a link to the FAQ. Nothing on there about it either. How odd...

So I decide to call the BAEC. I spoke to a nice chap but he wasn't terribly on the ball. Let's call him Tim-Nice-But-Dim. The first thing I did was ask TNBD why the flight had been cancelled. He put me on hold and after a few minutes came back and mumbled something about lack of crew. It's strange how they know that three days in advance, but these things do happen.

So I asked him what I do about the flight. He said he would rebook me with no extra charge. My ticket is F/A, so I was entitled to this anyway. But thanks TNBD. I mentioned that I didn't have a room reservation for Monday night, that I would need to book a taxi to the airport, that I would need to reschedule work meetings, that I would need to book an extra day off holiday (). This should have triggered the desired response but TNBD didn't bite. Ok, maybe I need to be more explicit. So I asked TNBD what my rights were. He said that he had no information on this, but there was a seperate department that wasn't open until 9am on Monday morning and that they might be able to help. He didn't have its direct number apparently either... When I tried to engage TNBD in conversation about the substantive topic, he said he wasn't authorised to talk to me about it. But then he offered a gem of information: even if he did know about it and was authorised to talk about it, he catagorically stated that BA couldn't organise a hotel room for me and I'd have to organise it myself and then reclaim the money. I asked him why. He said it was because the flight was more than 24 hours away, which, having finally remembered the existence of the Regulation, he was able to quote from authoritatively...

Very odd! So I asked if I could speak to his supervisor. To my amazement, the BAEC duty manager picks up the phone a good five minutes later. For some reason, she reminded me of Edwina Curry (for the avoidance of any doubt, I don't share any fetishes with a former Prime Minister... ).

I asked Edwina specifically about my rights to (i) compensation for a cancelled flight and (ii) getting BA to organise a hotel room in TLV for Monday night. She also told me that she didn't know the contents of the compensation rules. I am sure that if I hadn't in fact mentioned the words "compensation" and "Regulation", then despite the fact she's obviously been given a briefing by TNBD, Edwina wouldn't have referred to those words the entire conversation. (It seemed similar - although not nearly as offensive - to the surreal, stupid and insulting way that George W. Bush once referring to Africans as "African Americans" because his PR team had trained him never to use the word "black" in public). Now being a very helpful lawyer (), I decided to help Edwina familiarise herself with the Regulations. I even told her where on the BA website she would be able to find the compensation levels. You know, the URL which is almost impossible to find on BA's search engine and not mentioned on any of the customer communications I've been sent... I told her the compensation levels (600 in my case), and she actually had the audacity to thank me for sharing the information with her...

We then got on to the issue of the hotel room. Even though a second ago she'd professed ignorance to the entire issue, she told me BA wasn't able to do anything about it except receive the receipts from me after the event and then decide whether or not to compensate me. I told her that this was unsatisfactory and might even be in breach of the 'right to care' part of the Regulation, which states:

Right to care
[...]
In addition, the operating carrier will provide hotel accommodation if necessary and provide transport between the airport and place of accommodation. Passengers will be advised of the arrangements for obtaining refreshments, transport and hotel accommodation, by the carrier.
To me, as a matter of legal construction, the phrase "the operating carrier will provide hotel accomodation" and "[p]assengers will be advised of the arrangements for obtaining [...] hotel accomodation" doesn't really fit very well with telling a passenger that they will need to do everything themselves and reclaim it after the event (at which time, I fully expect BA to argue the toss on hotel costs and probably tell me to claim off my insurance company!).

To me this amounts to a refusal to assist, making my only remedy to claim damages from BA (which they should agree to unless it plays silly buggers). This is very different from what is provided for in the Regulation.

In all, this was a most dissatisfactory experience. To me, it seems pretty obvious that BA has a policy designed to make it as difficult as possible for passengers to seek redress under the Regulation, including an almost total lack of communications of passengers' rights. If it wasn't for this illustrious website, I wouldn't know I was entitled to anything. This compounds the fact that BA has, on the vast majority of the times a flights has been delayed or cancelled, run out of the pieces of paper explaining passengers' statutory rights. This is appalling for a quoted company.

I'm going to take this up with the Air Transport Users Council, which is part of the Civil Aviation Authority. Has anyone got any experience with them?

Regards
/MHL
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Old Jan 6, 08, 7:08 am
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Im afraid i cant help in anyway but i will be very interested how you get along - i've just sent in an email to Customer Relations regarding the C word and what i am entitled to (the eu claim bit of ba.com says flight was cancelled cos of reasons beyond their control - but the flight still flew empty)
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Old Jan 6, 08, 7:48 am
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Originally Posted by MileHighLawyer View Post
I'm going to take this up with the Air Transport Users Council, which is part of the Civil Aviation Authority. Has anyone got any experience with them?
I don't have any experience of them, but surely they have been flooded with complaints about airlines wriggling out of or ignoring their obligations under 261/2004 and I have to wonder why they do nothing... I'm not surprised that airlines try and wriggle out of their obligations, a whole plane load of people demanding their 600 Euros plus hotel and other expenses would work out very costly for them... Doesn't make it right though!

Good luck with your fight for compensation, are you going to go for anything extra because they failed in their duty of care or are you just going to try and get them to pay what they owe you?
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Old Jan 6, 08, 8:10 am
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Very interesting post. Please share your follow up experiences as I think there will be a number of FTers who sympathise with your observations. Being left in the lurch away from home and then given the run around thereafter leaves a very bitter taste with most people.

It can't come soon enough when airlines (particlarly BA IME) aren't able hide behind tenious excuses and contentious clauses.
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Old Jan 6, 08, 8:24 am
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Its this very attitude of BA and the increasing frequency (or at least the apparent increase) and their crappy attitude to cancelling flights (and mine) that has convinced me that BA is no longer the airline to fly with and I will not be flying with BA this year at all where the choice is mine, and for all my TA travel I will be flying with Virgin where it might cost more but at least they seem to give a damn about their customers (or least make an effort to appear they do).

In the real world even if they give someone more than 24 hours notice in cancelling a flight it is highly unlikely you are going to be able to find a suitable replacement flight for the same price flying at the same time on a popular route. When I was informed my flight to ORL was cancelled I immediately purchased a ticket on VA, but the next day the price had almost doubled so I was lucky, but I am sure other people in the same sitiuation who were unable to get their new flights booked (or couldn't move to the next day on BA) would then have to pay more for those flights, and I think BA should be responsible for paying the difference between their fare and the replacement fare on another carrier for the same class no matter what that difference is.
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Old Jan 6, 08, 9:37 am
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EC261/2004 is quite clear about "delayed flights", less so about "cancelled flights".

http://eur-lex.europa.eu/LexUriServ/...4R0261:EN:HTML

In all cases the airline should take "care" of the pax and that section is very detailed (article 9). Notwistanding the issue of compensation, the story told by the op suggests that BA did not fulfil all its "right of care" obligations of EC261/2004 (see article 5.1.a & b) because the flight was cancelled less than 7 days before its scheduled date. The tricky question is that of compensation according to article 7, because "An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken" (article 5.3).
In case of cancellation the airline can invoke "extraordinary circumstances".

They often claim that a "technical probelm" is such. The non-availabiity of a replacement aircraft is also a major issue. There is an interesting discussion of the issue of "technical problem" in:
http://www.flightmole.com/extraordin...cellation.html
The interpreation of 261/2004 in case of cancellation has not yet been tested in EC courts. So airlines have currently a lot of leeway in interpreting the regulation. But there is a case pending in the EC court (some scandinvian cour asked for an opinion of teh EC court). The Atorney General of the EC court issued an opinion on Sept 27, 2007. But the ruling of the court is still pending (should come out very soon). This is a first judicial advice provided by the EC court three months ago:
http://www.flightmole.com/id73.html

The main conclusion of the Advocate General is:
"

In order for an air carrier to rely on Article 5(3) of Regulation No 261/2004 so as to avoid paying compensation following the withdrawal of an aircraft from operation because of technical problems, both that withdrawal and the unavailability of a replacement aircraft must be caused by circumstances which:

– could not have been avoided even if all reasonable measures had been taken; such measures comprise, as regards the withdrawal from operation, proper and timely compliance with the schedule of maintenance and checks on the aircraft and, once signs of the technical problem appear, every reasonable step in the circumstances to resolve it without withdrawing the aircraft from operation; as regards the unavailability of a replacement aircraft, they comprise adequate provision for replacements in the light of past experience;

– are extraordinary in the normal sense of the word; as regards the withdrawal from operation, such circumstances may include technical problems which are neither of a kind typically occurring from time to time on all aircraft and/or a particular aircraft type nor of a kind known to have affected the aircraft in question before; as regards the unavailability of a replacement aircraft, they comprise circumstances unforeseeable by a carrier making adequate provision for replacements in the light of past experience. "

So the opinion is quite favorable to passengers. If the court confirm thie opinion of their Attorney General, it will force airlines to pay compensation in most cases where they now claim they are not liable.
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Old Jan 6, 08, 10:03 am
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On the best information available to BA when MileHighLawyer called, the reason for the cancellation was inadequate crew. As this does not meet the target excuse of

3. An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
.... due to the amount of time BA has to find the crew, BA clearly cannot use Article 3.5 to avoid and therefore he must be entitled to Full Assistance as it is less than two weeks warning. They have provided an excuse that is inconsistant with their claim not to be liable.

MileHighLawyer seems to have a perfect case and I feel we should all be appreciative of the trouble he has taken to report it here and take it forward.

I urge him not to take an ex-gratia which will of course be offered, and certainly not accept any gagging. The offer must be in recognition of their responsibilities. They must be made to take their responsibilities seriously.
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Old Jan 6, 08, 10:59 am
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Originally Posted by MileHighLawyer View Post
To me, it seems pretty obvious that BA has a policy designed to make it as difficult as possible for passengers to seek redress under the Regulation, including an almost total lack of communications of passengers' rights.
You would be correct. Ever since the compensation regulation came in there has been a pretty strong culture of enforcing this mindset on all CR staff as a matter of course.

I don't think we're ever going to get to the stage where BA are voluntarily handing out hotel rooms and compensation. To get anything out of them you really have to work hard sadly.
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Old Jan 6, 08, 11:07 am
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Originally Posted by spanishflea View Post
You would be correct. Ever since the compensation regulation came in there has been a pretty strong culture of enforcing this mindset on all CR staff as a matter of course.

I don't think we're ever going to get to the stage where BA are voluntarily handing out hotel rooms and compensation. To get anything out of them you really have to work hard sadly.
Despite all its faults, AF tends to hand out hotel rooms routinely.
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Old Jan 6, 08, 11:25 am
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Originally Posted by uk1 View Post
MileHighLawyer seems to have a perfect case and I feel we should all be appreciative of the trouble he has taken to report it here and take it forward.
Thanks! Writing the email was quite theraputic... I'm not nearly as furious with BA as I was a couple of hours ago.!

Originally Posted by uk1 View Post
I urge him not to take an ex-gratia which will of course be offered, and certainly not accept any gagging. The offer must be in recognition of their responsibilities. They must be made to take their responsibilities seriously.
This is the fourth of fifth time (I can't remember which!) that BA has cancelled my flight in the past couple of weeks. On previous occasions, they could have argued technical problems or weather conditions beyond its control.

However my main gripe isn't whether the BA compensation policy is or isn't substantively in breach of the Regulation. Rather it is what is in my opinion the unethical way in which BA fails to communicate this policy to its passengers. How else can you explain a customer services duty manager feigning ignorance of a compensation policy that is quoted on BA's own website and then misquoting that very regulation back to me (the one she didn't know existed).

I wonder if this policy and the way in which it is communicated has been signed off by BA's legal department. I really ought to ask Robert Webb QC next time I bump into him at a Chief Legal Officer programme meeting...

Unless I hear good reasons to the contrary (and I am very interested in the views of you FTers), I'm going to take this all the way.

/MHL
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Old Jan 6, 08, 11:27 am
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Originally Posted by spanishflea View Post
You would be correct. Ever since the compensation regulation came in there has been a pretty strong culture of enforcing this mindset on all CR staff as a matter of course.

I don't think we're ever going to get to the stage where BA are voluntarily handing out hotel rooms and compensation. To get anything out of them you really have to work hard sadly.
BA obviously has an obligation to ensure that all staff are sufficiently trained to ensure that they keep BA within the law. It's quite acceptable for a member of staff to say "I do not have the training and therefor do not handle that aspect" with respect to the arrangements that MileHighLawyer was seeking. However it does seem that both members of staff then went on to accept responsibility on behalf of the company for rejecting MileHighLawyer's claim and their obligations. It also gives the appearance that BA staff are encouraged to mislead customers out of their entitlements.

Whilst there will be grey situations where what constitutes "exceptional circumstances outside of control" clearly there are circumstances that are black or white and reasonable advanced awareness of crew shortages is clearly one.

Edited to add

I wonder if this policy and the way in which it is communicated has been signed off by BA's legal department. I really ought to ask Robert Webb QC next time I bump into him at a Chief Legal Officer programme meeting...


Exactly. When does this policy constitute criminal activity?

Last edited by uk1; Jan 6, 08 at 11:33 am
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Old Jan 6, 08, 11:31 am
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You have a PM

Also, the BA165 LHR-TLV was cancelled this morning (reason = crew). So which aircraft operated the return leg BA164 which left about 10 mins late, but which is now halfway back to the UK? Really weird....

Last edited by FF; Jan 6, 08 at 11:37 am
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Old Jan 6, 08, 11:40 am
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/MHL

Document everything (names/receipts/costs), copy and paste exactly what you wrote above into a letter to Customer Relations (Fax it / Post it / E-mail it) and with it attach relevant docs which show the 'DYKWIA' worthiness in you. This will include you BAEC details, rough estimate of revenue you given to BA over the last 12 months (irrelevant if it's come from you or your company) and finish off with the distress / dissatisfaction / compensation...Kicker.

This happened to me last year, very similar circumstances, also crew related. I told BA exactly what I was going to do (in relation to compensation for travel / hotel expenses) and made sure that all was documented in my booking as well as making note of the Managing Supervisor to whom I spoke to.

RESULT:
Three weeks after my flight was completed and all documents had be sent off ( x3 ) I received £746.83p for expenses (to the penny) + 50,000 BA Miles and..... £500* voucher towards a BA ticketed flight valid for 12 months.

*I didn't receive this initially (it was either £500 or 50,000 BA Miles) but after I requested the gentlemen on the phone who offered me the Ex-Gratia to look at my flight history...he duly obliged.

I was courteous throughout, from Compensation Letter through to Ex-Gratia offer, which I think is always the best policy. Then again, if I would have been messed around....I would've called in the lawyers (American style) and pushed for around £20k in compensation (potential loss of earnings and the likes).

Last edited by jonnye; Jan 6, 08 at 11:45 am
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Old Jan 6, 08, 11:43 am
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Originally Posted by FF View Post
You have a PM

Also, the BA165 LHR-TLV was cancelled this morning (reason = crew). So which aircraft operated the return leg BA164 which left about 10 mins late, but which is now halfway back to the UK? Really weird....
Crew sleeps over in TLV from previous flights Red-Eye. So basically they were there for 2 nights.
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Old Jan 6, 08, 11:52 am
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There are two issues here. If your flight had been LHR-TLV, BA would unambiguously be in breach of 261/2004. For all cancelled flights from an EU airport, the airline is required to pay for a hotel room if the cancellation causes the passenger to be stuck overnight, and if the reason for the cancellation is lack of crew, then that is not exceptional circumstances and so it should pay compensation (EUR600 for a flight of this length). BA should also be arranging the hotel room themselves rather than leaving the passenger to do it.

However, since the flight is TLV-LHR, the situation is not so clear. The Regulation itself is unclear about how it applies to flights to the EU, as opposed to from it or within it. The problem is with Article 3(1)(b), which states:

1. This Regulation shall apply... (b) to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier.

The problem is this says "unless they received benefits or compensation". It does not state what benefits or compensation you have to receive from the airline for it to be in compliance with the Regulation. Theoretically, BA could give you a cup of tea, claim that this is a benefit under article 3(1)(b), and therefore claim they have no other obligation. It would be up to a court to determine whether that was good enough, and as far as I am aware, no court with the authority to set a precedent has ruled on this to date.

There is a more detailed discussion of this issue in the following report on the Regulation which was done on behalf of the European Commission (see for example page 74):
http://ec.europa.eu/transport/air_po..._report_en.pdf
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