Your flight is cancelled, overbooked or delayed. What, if anything, does the airline owe you? This Q&A aims to help you understand when you are entitled to care and/or compensation, and when you just have to put a dismal aviation episode down to experience.
Europe’s rules on passenger rights, known as EC261, are designed to oblige airlines to do the right thing for their passengers. They specify the care and compensation you can expect when you are denied boarding despite showing up on time, or when your plane is delayed or cancelled.
The regulations apply to all flights from a European airport, and on EU airlines anywhere in the world. But sometimes carriers fail to stick to the rules, and even mislead passengers about their entitlement.
Q) My flight has just been cancelled while I was waiting at the airport. What are my rights?
Whatever the circumstances of the cancellation, the European rules are clear. It is the airline’s responsibility to sort out your journey, finding another flight – either on its own services or a rival – and providing meals and, if necessary, accommodation until it can get you where you need to be. If the airline does not carry out its duty, forcing you to make your own arrangements, then you can expect reasonable costs to be refunded. By “reasonable”, I mean booking the cheapest alternative ticket possible, staying in a budget hotel if there is one, etc. And you must keep all your receipts, of course.
Q) How quickly must the airline organise another flight for me?
The passenger is entitled to “re-routing, under comparable transport conditions, to their final destination at the earliest opportunity”. While that might seem clear enough, airlines have made some fairly liberal interpretations of what Europe means by “the earliest opportunity”: easyJet insists it has 48 hours to try to get you to your destination on its own services, while Ryanair will try to get you on an alternative flight on the same day or the following day, and will only consider alternative airlines if nothing else is available.
Q) The airline cancelled the flight ahead of time. Can I insist on an alternative?
Yes. Even if an airline gives you months of notice, the rules are clear about what the firm must offer when it cancels a flight you have paid for: the choice of a refund or alternative flight. If the airline that cancelled the flight does not have a reasonable alternative, then you are entitled to ask it to pay for a seat for you on a different carrier.
If a flight is cancelled at short notice (within a week or a fortnight, with slightly different rules on each), unless the airline can plead “extraordinary circumstances,” you may also be entitled to compensation.
Q) How much is the compensation?
The payment varies according to the length of the flight. Under 1,500km, for example London to Nice, the fixed rate is €250 (about £220); 1,500-3,500km, e.g. Manchester-Malaga, €400 (£350); longer trips €600 (£525). But if the airline can get you to your destination within two/three/four hours respectively of the expected time, the compensation is halved .
Q) Define “extraordinary circumstances”
The rules provide only a partial answer: “political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes”. Court cases have gradually refined the concept of “extraordinary circumstances” to exclude technical problems, with a judge saying mechanical failure is “inherent in the normal exercise of the activity of the air carrier”.
Q) I can understand that air-traffic control strikes would be excluded, but what if the airline's own staff are taking industrial action?
You still have no right to cash compensation when flights are grounded by an airline's strikes. As you may observe, that seems an odd judgment since one reasonable measure to avoid flight disruption would be to settle with the trades unions.
If you can demonstrate actual financial loss as a result of an Air France strike cancellation, it may be that you could claim under the Montreal Convention for damages. But that could require the services of a lawyer.
Q) My flight was overbooked. Is the practice legal?
Yes. Many airlines sell more tickets than there are seats available on the plane, knowing there are often a number of “no-shows”. There are good reasons why they are permitted to do this. With a no-show rate of around 5 per cent on a typical flight, overbooking allows the airline to make more money and, they say, keep fares down. Planes fly fuller, which is good for the environment, and passengers who need to travel urgently are able to do so even if a particular departure is theoretically sold out.
Sometimes airlines’ predictions are wrong, and more people show up than there are seats available. The airline is entitled to select anyone it wants to be denied boarding. But there are three basic rules it must observe.
First, staff must offer inducements such as money or travel vouchers to other passengers to travel later.
Next, if there are insufficient volunteers, the airline that offloads them must find seats on the first available departure. They are entitled to “re-routing, under comparable transport conditions, to their final destination at the earliest opportunity”; if the only tickets are in business class on another carrier, the offloading airline has to buy them.
Finally, the airline must immediately compensate the offloaded passengers.
Q) What does the law say about delays?
The rules on the care airlines must provide in a delay are clear. Regardless of the cause, passengers are entitled to meals and, if necessary, accommodation until the flight departs.
The trigger point for care depends on the length of the journey. For short flights (up to 1,500km), it’s two hours; mid-haul journeys (1,500 to 3,500km) three hours; and longer trips, four hours.
Reports received by the travel team at The Independent suggest that some airline staff may misrepresent the rules on care, telling passengers that they apply only if the airline (as opposed to strikes, weather, security alerts, etc) causes the delay or cancellation.
If the airline fails to deliver care as stipulated, you should keep receipts for refreshments (not including alcohol) and accommodation in order to claim it back.
In addition, compensation is due to passengers flying from a European Union airport, or on an EU airline anywhere in the world, whose flight arrives at least three hours late. The levels are the same sliding scale (€250/€400/€600) as for passengers denied boarding or whose flights are cancelled, though for longer flights the rate is only €300 for delays between three and four hours. But if the airline can successfully demonstrate that the delay was due to “extraordinary circumstances,” it need not pay compensation – though it is still obliged to provide the duty of care.
Q) How far back can I claim for a delayed flight?
That depends on the statute of limitations: six years for England and Wales, five years for Scotland. Several airlines have sought to impose a limit of two years, but successive court cases have rejected this limitation.
Q) How does the compensation get paid?
The payment must be made by cheque or bank transfer, except if the airline obtains the prior signed agreement of the passenger to pay with vouchers for future travel. For example, an airline might offer a 20 per cent uplift if you accept vouchers that are valid for a year - so a choice between €250 in cash or €300-worth of flights.
Q) How do I claim?
In principle it’s straightforward: if you have a case, you file a claim online with the airline. In theory they should then send you the money – or, with your written agreement, vouchers. But in practice airlines defend any claim that they feel is unjustified. Airlines are furious about these rules, which they characterise as “free money” for people who may have been held up for a few hours several years ago. They say that many claims are frivolous, costing the airlines a fortune in administration as well as compensation.
You could pursue your claim through Money Claim Online, or in the case of foreign airlines through the European Small Claims Procedure. Or you can go to a no-win, no-fee specialist, who will do the legwork. For example Bott & Co, which has made a speciality out of EC261 claims, will tackle the airline for you in return for 27 per cent of the payout, plus a flat fee of €25 – amounting typically to one-third of the money you are awarded.
Q) My airline is based abroad and won’t respond to my claim. What can I do?
“If passengers are unhappy with the response from their airline,” says the CAA, “they can refer to the relevant aviation body in the country their flight was due to depart.”
Q) I heard that new rules are on the way?
The original EC261 rules were poorly drafted, and subsequent court judgments have made them even more of a muddle. Many in aviation regard the levels of compensation as disproportionate, with the payout for a three-hour delay often higher than the cost of the ticket. They argue that the effect is to push up fares for everyone. Various amendments have been suggested, though none has yet been approved.
With the UK soon to leave the EU, it is unlikely that any changes will be made before Brexit. As with so many aspects of travel after leaving the EU, there is no certainty about how the rules will look.
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