Holidaymakers face waiting MONTHS longer for flight refunds and compensation after rule change
HOLIDAYMAKERS may now face a longer wait for flight refunds and compensation after a change to complaint rules.
A new process quietly introduced for "complex" cases could add months to the dispute resolution process making it more difficult for travellers to get the cash they are owed.
Consumer experts believe the new rules from the regulator, which were designed to better protect consumers, could actually make the already "messy" claims process more difficult.
Rory Boland, travel expert at consumer group Which? said: "This new rulegives airlines more room to argue that their claim is complex and novel, and that gives them further grounds to delay and dilute what is already a pretty messy claims procedure."
How the rules have changed
If a flight is delayed or cancelled, travellers first need to try and sort out refunds and compensation with the airline directly.
If this doesn't work, the next step for flyers is to go to an Alternative Dispute Resolution (ADR) service such as AviationADR or the CEDR.
How to complain about an airline
ANY issue with a flight should be raised with the airline directly in the first instance.
Should you still have trouble getting your money back, or it has been longer than eight weeks since you filed a complaint, you can contact the relevant alternative dispute resolution (ADR) body that your airline is signed up to.
The UK's Civil Aviation Authority (CAA) has a full list of ADR bodies and their associated airlines on its website – and we've outlined some in the box below.
Not all airlines are signed up to an ADR body. If your airline isn't, you can complain to the CAA.
As a last resort, and if the airline is not part of an ADR, you can ask the CAA to intervene – it has a full breakdown of how to send a complaint.
These services are designed to resolve rows, and customers can escalate complaints to the ADR if they are unhappy with an airline's initial response, or if they don't get a reply within eight weeks.
The process is supposed to take 90 days but ADRs take 126 days on average, and that doesn't include a further wait for the airline to make compensation payments.
Now, the new rules around complex cases could mean that the process takes even longer – meaning customers are stuck without their cash for months on end.
The change, which was introduced by the UK Civil Aviation Authority (CAA) gives every airline that's part of an ADR scheme the opportunity to flag a case as "complex and novel".
Complex and novel cases according to CAA consultation documents, are those which "might involve circumstances that have not previously occurred, and/or where there is no established case law or clear principles for determining the outcome of the case".
There are a list of examples of situations which do not count as complex, which include political instability, travel documents and visas, and airport system failures. We have outlined the full list in the box below.
Any claims that meet the criteria for "complex and novel" end up in a separate dispute system, which could add months to the process.
Similar complaints around the issue will also have to wait until the original complex case is resolved.
Mr Boland said: "It is going to make things slower, it's going to make things harder, and ultimately fewer people will get the compensation that they are entitled to."
Issues that are NOT complex and novel according to the CAA
The CAA publishes a list of issues which it does not consider to be complex or novel. Compensation claims relating to these issues can be dealt with in the normal way by the relevant CAA-approved ADR body.
- Denied boarding
- Travel documents and visas
- Missed connections
- Wet leases – determining the responsible airline
- Security issues
- Political instability
- Airport or runway closure
- Airport system failure
- Airline system failure
- ATM restrictions/decisions
- Bird strike
- Disruptive passenger
- Foreign object damage to aircraft (e.g. screws, nails on the runway)
- Fuel on the runway
- Ground damage to aircraft (e.g. damage by boarding steps)
- Industrial action [to be defined following the outcome of CAA v Ryanair DAC Claim No.BL-2019001288]
- Lightning strike
- Technical/manufacturing issues affecting aircraft
- Medical emergency affecting passengers on board the aircraft
- Crew shortage
- Crew sickness
How long will the new rules delay compensation by
The new "complex and novel" case process involves several steps all of which have lengthy deadlines, meaning customers could see delays of several months.
First, the airline needs to contact the CAA within seven days to flag a case as "complex and novel" and then there is a 21-day period to reach agreement on whether the issue meets the criteria.
The next step is a further seven day period where the ADR company transfers the complaint file to the CAA – at which point the passenger, airline and ADR will be allowed 35 calendar days to provide written evidence and submissions.
The CAA will then consider whether to have meetings with the parties to discuss their evidence and submissions, and whether to invite replies to evidence and submissions, on a case-by-case basis.
These meetings must be held within 28 calendar days of the expiry of the 35
Even if this process goes smoothly it adds around 100 days to the process – and there could still be further delays.
Once a decision is finally reached, airlines then have 14 more days to comply and actually refund or compensate their customers.
If the airline disagrees with the CAA's verdict, it has 14 days to raise an objection and a further 14 days to confirm whether it will start legal proceedings. Airlines then have a 30 more days to start the court process.
One good thing about the new rules is that it does mean that difficult cases aren't automatically referred to court – whereas under the old system, cases too complex for ADRs to solve had to go down the legal route.
But if the Civil Aviation Authority and the airlines can't agree, then passengers will still have legal proceedings, but months later than they would have under the old system.
Who to complain to about an airline
SOME airlines and airports are members of alternate dispute resolution (ADR) bodies.
If you need to make a complaint about an airline, you'll need to know if it's part of the voluntary scheme and which ADR body to contact. Here are some of the major ones, but you can see the full list here.
- British Airways – CEDR
- EasyJet – AviationADR
- Virgin Atlantic -AviationADR
- Delta – AviationADR
- AirFrance KLM – CEDR
- TUI – AviationADR
You can make a complaint via each dispute service's website.
- AviationADR: www.aviationadr.org.uk
- CEDR (Centre for Effective Dispute Resolution): www.cedr.com/aviation
Wider problems with the ADR system
Many consumer advocates are calling for the ADR system to be entirely overhauled to better serve consumers.
One of the biggest criticisms is that airlines don't have to be part of an ADR as it's not mandatory.
Back in 2018, Ryanair pulled its ADR membership in a high profile move, which left hundreds of thousands of customers out of pocket.
However, the Irish carrier is understood to have re-joined following the rule change – Terms and Conditions for the budget airline now say that unhappy customers can contact the AviationADR.
If an airline isn't part of an ADR, then passengers can complain directly to the Civil Aviation Authority, whose decision is not legally binding, or have to turn to the small claims court.
Mr Boland said: "The existing system for ADR is already complex, it's slow, and sometimes even when you get a resolution, the airline ignores it anyway.
There are also fears that the complexity of the system and the new rules could put passengers off making a claim altogether, or lead them to turn to claims management firms which take a cut of the cash.
He added: "Ultimately, the longer it takes, the harder it is, the more people that will give up, or they will turn to expensive claims management companies."
"We've seen a boom in those in recent years. People are turning to them because they find the ADR system too difficult and it takes too long so they go to a claims management company and they lose anywhere from 10% to 40% of their of their claim.
Decisions through ADR schemes are binding, though consumers have complained that airlines are ignoring rulings according to Which?.
More than one million flights and 26 million tickets have been cancelled since March last year when the coronavirus threw travel plans into chaos.
An estimated 2.3 million travellers had still not received their money back in February, despite laws in place to protect consumers.
Despite the problems, only 20,000 people have made a formal complaint about BA, easyJet, Jet2, Ryanair, Tui and Virgin combined.
The Ombudsman Association said that it welcomes the Civil Aviation Authority’s desire to strengthen the current system but the changes proposed to the CAA’s policy do not go far enough to meet the needs of aviation consumers.
A spokesperson said: "A single, mandatory, aviation ombudsman should be established to provide comprehensive and effective redress for all aviation consumers, as exists in other sectors.
"Independent redress should be just that; the airline should not be able to decide how the complaint about them is dealt with.”
Ryanair, along with British Airways, is being investigated by the consumer watchdog over failures to refund holidaymakers during lockdown.
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