Features

Compensaton for delays: It’s payback time

30 Apr 2013 by Jenny Southan
An estimated 400,000 people flying in and out of the UK each year are entitled to claim compensation for delays. Are you one of them? Jenny Southan outlines your rights. According to refund.me, last year more than €400 million in compensation for delayed and cancelled flights went unclaimed by air passengers. Given that cases can be filed retrospectively – as far back as six years – there is every chance you are owed money. If not, it’s worth understanding what your rights are under EU regulation 261 so that the next time you have a problem, you will know what you are entitled to and how to get it.

The first thing you need to find out is if your flight is protected under EU law. When faced with a delay or cancellation, consult the European Commission’s free app or ask to see one of the posters that should be displayed at check-in desks. Introduced in 2004, the regulation covers all EU carriers flying anywhere in the world, and all airlines departing European airports. It does not cover non-EU airlines flying into or outside of Europe – so if you are flying with, say, Qatar Airways to London from Doha, or Qantas from Sydney to Singapore, you won’t be covered. [Editor's note: As BA confirmed in July, the regulation will also not cover flights between two non-EU destinations even when they are on an EU airline.]

Regardless of the reason, for flights delayed by more than two hours (three or four on longer flights), you should be given food and drink vouchers and two phone calls, faxes or emails, and if you are delayed overnight, hotel accommodation and transfers for as many days as necessary. In addition, if you arrive at your final destination more than three hours late, you may be entitled to between €250 and €600 depending on the length of delay and distance between destinations.

However, if the airline can prove the reason was because of “extraordinary circumstances” – and consequently out of their control – they will not have to pay up. And that is the clincher. Frustratingly, extraordinary circumstances are a convenient grey area for airlines. Valid reasons would be civil unrest, terrorism, security alerts and air traffic control problems, but common reasons that are usually presented as being out of their control – but may not be – are bad weather and technical problems.

Hendrik J Noorderhaven, founder and chief executive of EU Claim, says: “Sometimes there are extraordinary circumstances, such as if an airport is closed because of snow. But if the airport is still open but can’t deal with the snow, it is not an extraordinary circumstance.” Technical failures are “inherent in running an airline business”, he argues, which is why they should not be considered extraordinary. “An airline should take all measures to prevent them. If an engine fails, a kerosene filter is clogged or a tyre is flat, that is the airline’s problem.”

He adds: “We recently won a case where a plane was coming in to land at Rome Fiumicino and air traffic control asked it to circle for a while before landing. The pilots decided to go to another airport, citing bad weather. But we went to court and proved that there was no bad weather, they were just out of fuel, and that was their responsibility.”

When filing for a claim, your first port of call is the airline itself. If you are dissatisfied with their response, you can lodge a complaint with the European national enforcement body for your country – in the UK, this would be the Civil Aviation Authority (CAA). The CAA will pursue claims on your behalf free of charge, but isn’t necessarily going to work as hard to win the case as a company you are paying.

Since the European Court of Justice ruled last October that passengers on flights delayed by more than three hours were entitled to compensation, the CAA says it has experienced a surge in claims – 3,694 by April 12, compared with 602 from October 2011 to April 2012. A CAA spokesperson adds: “Because of the large increase in claims, we also have around another 2,000 emails or letters that are awaiting review and could also be delay claims – at present around 75 per cent of customers contacting us are requesting compensation, so on that basis there could be another 1,500 claims in the unprocessed batch.”

Third-party companies such as EU Claim, based in the Netherlands, and refund.me, which entered the scene last August, have dedicated legal teams and, consequently, a high success rate. In the case of EU Claim, it is 97 per cent, with the average amount of compensation awarded being €455. The service is “no win, no fee” and although commission is 29 per cent, not only do you have a greater chance of winning but it should also involve less time and stress.

Noorderhaven says: “We track every flight in Europe – that’s 30,000 to 35,000 a day. We know where it is, when it took off and landed, what aircraft it was, and if there were any strikes or bad weather. We collect about six million bits of data a day and publish those flights eligible for compensation on our website. This means we will know if the excuse the airline gives is valid or not.”

How many travellers are pursing compensation? Noorderhaven says: “In some countries, particularly the Netherlands, because we have made a lot of noise about it there, it is about 8-10 per cent of the 3,000 people who are eligible. But in countries like the UK, where passenger rights are not communicated by the government and the airlines keep their mouths shut, it is only about 3-4 per cent.” It is estimated that of the 200 million people flying in and out of the UK every year, about two million experience delays of three hours or more and, of those, about 400,000 would be entitled for compensation.

Why do so few people pursue it? For the British, it seems to be a combination of a lack of awareness of our rights, and our forgiving natures. Noorderhaven says: “We constantly analyse how many people search ‘flight delayed compensation’ [on Google] and see that in the Netherlands twice as many people look for the words than in the UK, where it should be four times as many as in Holland.”

What he has noticed is an increase in companies filing complaints on behalf of staff. “In the beginning, travel managers were hesitant to claim because they didn’t want to risk damaging their relationship with the airlines, but corporations are now starting to ask us for help,” he says.

Noorderhaven is emphatic that passengers should always claim what they are entitled to. “Flights are a product, but you can’t replace them in the same way as, say, a TV. And if you miss a wedding, a funeral, a cruise ship or an important meeting, it cannot be repaired, which is why the EU government is saying we have to protect people.”

To build its business in the UK, EU Claim has joined forces with law firm Bott and Co. Managing partner Paul Hinchliffe says: “We have about 5,000 claims on our books at the moment and are moving very quickly through the historic cases that EU Claim has not been able to process in the UK.” While this may sound a lot, it isn’t when you consider that, according to Bott and Co, there are about 10,800 UK qualifying flights a year, which equates to about 30 a day, with every passenger on board entitled to file a claim.

The downside is that some airlines are reacting by increasing fees. In February, Ryanair said it would be upping its existing €2 “EU261 levy”, introduced in 2011, to €2.50 “to fund an expected increase in EU261 costs in force majeure cases where the airlines are clearly not responsible for delays or cancellations”. (This was in response to the ruling in favour of passenger Denise McDonagh – see panel above.)

And just when you think you have got to grips with the legislation, changes are afoot. In March, the European Commission (EC) put forward a proposal that would “ensure passengers have new rights to information, care and re-routing when they are stranded”, plus “better complaint procedures and enforcement measures”.

Some of the amendments would be positive. Airlines would have to provide food, drink, communication, a hotel and transfers following delays of two hours regardless of the length of flight. After an hour’s delay on the tarmac, people would be entitled to free water, toilet access and medical assistance and, after five hours, the right to cancel and get off the plane.

Airlines would also have to re-route passengers on another carrier if they were unable to find an alternate route on their own services within 12 hours of the original departure time. Most significantly, the legislation would extend the scope of “extraordinary circumstances” to include “most technical defaults”.

However, some changes would be bad news, such as increasing the time threshold for which the passenger has a right to compensation in case of delays from the current three hours to at least five on flights shorter than 3,500km, and from nine up to 6,000km and 12 on longer journeys. It would also set a limit of three days for hotel and food costs.

The EC hopes to introduce the amended version of EU261 next year – though Noorderhaven is critical of the proposal, and adds that it could take 2.5 years for anything to be decided. “The regulation right now is perfect – balanced and pro-consumer,” he says. “The European Parliament will never agree [to the changes].”

Hinchliffe agrees: “I can’t see these proposals as anything other than degrading passenger rights. How can putting the delay period up to five or 12 hours give better protection? My son went to Mexico and was delayed ten hours going out. Under the proposed regulation he would not be entitled to compensation. The legislation has to push airlines to perform better, not worse.”

CASE STUDIES

Jeff and Joyce Halsall: The couple were reported to have taken Thomas Cook to court in 2009 after their flight from Tenerife to East Midlands was delayed 22 hours. The claim was initially rejected because the company said it was down to “extraordinary circumstances” but after an appeal, they won €800 plus expenses incurred from legal fees in January this year. This proved to be a landmark ruling.

Denise McDonagh: In February, the European Court of Justice ruled McDonagh was entitled to £1,130 from Ryanair after she was stranded for seven days in Faro during the 2010 ash cloud crisis and had to pay for hotels, food and transport. The airline had argued that the volcanic eruption was “extraordinary circumstances”, but the ruling stated this did not mean it was exempt from its duty of care.

Businesstraveller.com poster nathinfor: “Last year, I was due to fly from London to Sao Paulo with British Airways and then on a separate ticket with a local airline from Sao Paulo to Rio. The BA flight was delayed by 12 hours because of a technical problem. Since I missed my connection to Rio, and despite the fact both flights were on separate tickets, BA re-routed me on a direct flight to Rio.” In addition, nathinfor says BA offered him 15,000 miles but he decided to also apply for compensation in January. In March, he received a letter from BA and a cheque for €600.

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