Traveller's Guide: Airline passengers' rights

Cancelled flight? Package holiday not what you expected? Simon Calder lays down the law

Suppose you are in Istanbul when the volcanic ash goes up or the snow comes down. Your flight home is cancelled: will you get board and lodging, or be left to fend for yourself? If you struggle home overland, who picks up the bill? And when your luggage takes a permanent holiday of its own, how do you get what's due to you?

For many people, air travel is as important a purchase as a car – but unlike a motor vehicle, you pay weeks or months before you take delivery of your expensive dream. And your rights when it all goes wrong comprise a tangle of national, European and global rules, with an added dimension of variability deployed by individual airlines.

This Traveller's Guide is devoted to cutting through the muddle – and to empower you to claim what is due to you. It will also show how to book travel so as to get maximum protection – often, at no added cost.

The simplest way to add assurance that you will be looked after when flying away on holiday is to buy a package. These days many people organise "DIY" holidays, thereby relinquishing the remarkable protection offered by the Package Travel, Package Holidays and Package Tours Regulations 1992.

Any holiday bought in a single transaction that includes transport and a second component (usually accommodation, but car rental will do instead) is covered by this legislation, which confers you with a prodigious number of rights.

The rules essentially say to the holiday company: "Deliver what you promised, or sort it out." They require the tour operator to describe accurately what you can expect. If the firm changes significant aspects of a trip, then it must offer you the chance to cancel with a full refund.

Assuming the holiday goes ahead, the operator is responsible for every aspect – and that includes companies working on its behalf, from airlines to hotels. If not everything is as you expected it to be on your holiday, you have to behave reasonably and try to mitigate your unhappiness. So ask the company to put things right while you are abroad.

If the firm does not fix things to your satisfaction, gather supporting evidence (photos, videos, contact details for other holidaymakers) and write to the tour operator. Work out a sensible claim for the proportion of the holiday that was affected. Don't expect a full refund if you merely had to put up with a couple of days' of building work outside your room, but also don't be fobbed off with a £50 voucher off a future holiday if you were moved to a different, unsatisfactory location.

Should you be unable to reach an agreement on compensation with the tour operator, you can go to arbitration if the company is a member of the trade associations Abta or Aito, or take your case to a small claims court (though non-specialist courts can sometimes reach eccentric conclusions). Either way you'll have to put up some cash up front and expect a longish wait.

Should your holiday company follow Goldtrail, Flyglobespan and XL into financial oblivion, relax: anyone with a proper package holiday is covered by the Air Travel Organiser's Licence (Atol) scheme. The Civil Aviation Authority guarantees that those already abroad will complete their holidays and that everyone else will get their money back (though from recent experience this could take months).

The potential hole in this catch-all umbrella is what happens when your homebound flight is cancelled. Following the volcanic-ash debacle last April, some travel firms maintained that delivering you to the departure airport for the trip home was the limit of their liability. Read the "Just the Ticket" panel to learn how booking with a European airline can solve this problem.

Not what you were expecting?

When the on-board entertainment doesn't work, when your promised "lie-flat" business class seat turns out to be the old "cradle" variety, or when your journey ends up at the wrong airport (or even, in my experience twice on Ryanair, the wrong country) or on the wrong day, you have little room for restitution. Every airline reserves the right to change the aircraft type, which could mean tired or hired-in jets instead of the smart new one you were expecting. Inflight entertainment is not a given. And so long as Ryanair provides a bus to take you to your final airport destination, its obligation is ended.

Overbooking. Outrageous, isn't it?

No. For all kinds of reasons, from traffic congestion to rocky relationships, there are usually "no-shows" on flights. Many airlines routinely sell more seats than they have available. This helps more people to fly, and keeps fares down and reduces the environmental impact per passenger.

The point at which overbooking becomes infuriating is when they do not offer sufficient incentives to passengers to get enough volunteers to travel on a later flight, and instead demand some people to give up their seats involuntarily.

Regulation EU261/2004 stipulates your entitlement (in cash, not vouchers) to €250-€600, depending on the length of the flight, but in practice any sensible airline will offer bribes beyond these levels. "A free round-trip anywhere we fly except Sydney" is a standard enticement on Virgin Atlantic.

Care, attention and compensation

The rules that European parliamentarians drew up in Regulation EU261/2004 are full of holes. For example, if the airline "expects" its delay to be less than two hours (for short flights), three hours (medium) or four (long-haul), then it does not need to deliver anything. On several occasions a delay has been forecast at a few minutes less than these limuts, but turned out to be much longer.

Neither does there seem to be any penalty when airlines fail in the duty of care and leave passengers to sort it out for themselves. If this happens to you, keep the receipts for everything from the airport-hotel taxi to meal bills – some airlines decline claims on the grounds that you cannot verify your expenditure. Don't be unreasonable; make it clear that you have chosen modest accommodation, and don't get any alcohol on the bills (in either sense).

Next, you have to try to prise the money out of the airline, which is much easier said than done. Five years ago Air Berlin cancelled at no notice the last flight of the night from Belfast to Stansted, failed to provide me with any meals or accommodation, and have not even refunded the fare. So how do you get them to comply? By contacting the national enforcement body for the country from which you were intending to fly. So, even if a British airline causes you problems on a flight from Spain to the UK, you have to contact the Agencia Estatal de Seguridad Aérea in Madrid. A full list of the responsible bodies can be found at www.bit.ly/icBcoz

Be warned that the passengers' rights rules are a charter for indolence: people who sit by the pool, order another meal and wait for the airline to sort them out are in a stronger position than those who use their initiative and make their own way home. So anyone stuck in Turkey who decides to use their initiative to return to Britain on trains, boats and buses surrenders all their rights – except the entitlement to a refund of the fare paid.

When people hear "cancellation", they often think "compensation", but the number of offloaded passengers who successfully claim the €250-€600 in cash from airlines who cancel flights is small. If the carrier can demonstrate "extraordinary circumstances", from strikes to poor weather earlier in the day at some distant airport, then it can avoid responsibility.

Just the ticket

Three easy steps allow you to minimise your risk when booking a plane ticket – starting with the means of payment. If you pay cash direct to a scheduled airline and it goes bust, you have no rights at all beyond joining the (very long) queue of unsecured creditors. Buy with a credit card or a Visa debit card and you can claim your money back if the airline goes bust. Note, though, that most of the carriers you or I are likely to book with are financially very robust. The list of airlines to whom I would happily entrust my cash includes British Airways, BMI, easyJet, Flybe, Jet2, Monarch, Ryanair, Virgin Atlantic and dozens more.

Next, never put together a complex itinerary using separate tickets. If you are travelling on two separate tickets, on different airlines, then you are in trouble if the first flight goes awry. There is no liability on the part of the second airline to look after you. If, though, your whole trip is covered with a single ticket, then any airline that messes up along the way is obliged to get you to your destination.

Third: make sure you are covered by Regulation EU261/2004, the controversial European legislation that stipulates a passenger's rights wherever you are in the world – so long as you are travelling on an EU-based airline – and throughout Europe on an airline of any nationality.

The rules contain loopholes which have been exploited by airlines in terms of their obligations for cancelled flights. But there is no ambiguity about the duty of care to which you are entitled if your flight is delayed or cancelled: meals and accommodation in reasonable proportion to the delay until they can get you to your destination.

If your itinerary is entirely within the EU, then it matters not a jot which airline is carrying you; book from Heathrow to Rome on Air Mauritius, and the "261" rules apply. Elsewhere in the world, EU-based airlines are still obliged to care for you.

Tens of thousands of travellers discovered this during the snow-related disruption last month. Anyone booked to fly New York-London with British Airways or Virgin Atlantic was looked after (or was at least entitled to recover expenses), while those on American Airlines, Continental and other airlines had to fend for themselves. So you may feel it worth using only EU airlines for any long-haul itinerary.

Make sure your flights are booked on the actual airline and not a "code-share" partner, because it's the "metal" you fly on that counts. Example: KLM appears to sell Heathrow-New York tickets, but these are on its alliance partner, Delta, a US carrier, so EU rules do not apply.

Lost luggage

Mostly, it isn't lost – bags are misrouted, or "short-shipped" (left behind at the departure airport). So long as you have properly labelled the case, inside and out, you will almost certainly get it back. If not, then claim your entitlement under the Montreal Convention: up to £1,100, but only when you demonstrate the value of your belongings.

If you long to track down a priceless heirloom lost in transit, try the Unclaimed Baggage Center at 509 West Willow Street in Scottsboro, Alabama (001 256 259 1525; unclaimedbaggage.com); or Greasby's Auctioneers at 211 Longley Road in Tooting, south London (020-8672 2972; greasbys.co.uk), where the contents of unclaimed suitcases are sold off each Tuesday.