UK261 / EU262 delayed flight compensation questions

[AshDunn]

Hi all.

So I took a flight with a European airline last year, UK to EU, and back.

They failed to notify me that they had cancelled the flight back, and so had moved me to a flight departing eight hours earlier.

Anyway, having missed that flight, I put in a claim. They refused to pay, so I started legal proceedings.

Their argument against my claim is that 1) I used a flight voucher which means I am not entitled to claim as per the UK261 legislation, and 2) the UK261 legislation only applies to delayed flights, not flights that depart many hours earlier

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I am therefore looking for proof or case law etc that shows that is does not matter if I a customer uses miles, vouchers etc to book, this does not exampt the airline from their responsibilities

and

Flights that end up leaving more than four hours earlier are classed the same as flights that leave more than four hours later.

Can anyone help?

Also trying to get hold of actual PDF's for the official UK261 legislation, and EU261 for completeness.

Thanks!

[R0b]

Hi,

Given that you booked a flight last year, EU261 does not apply, and your claim should be under UK261. The government chose to retain EU261 but then amended it to reflect UK law through The Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2019. Therefore all references to EU definitions and flights etc. are amended to reflect flights from UK airports. These changes you will find in Part 4 of the legislation.

The updated UK261 is available here with the references now referring to UK instead of EU, provided you select the "latest available" version on the left side of the content menu: UK261 Legislation. You can also print that version under the print options and download as HTML or PDF the whole Regulation of specific Articles.

That aside, I'm not specifically aware of case law directly on this point but this is what Article 3 of UK261 says:

This Regulation shall apply:

(a) to passengers departing from an airport located in the United Kingdom

Paragraph 1 shall apply on the condition that passengers:

(a)have a confirmed reservation on the flight concerned and, except in the case of cancellation referred to in Article 5, present themselves for check-in,

• as stipulated and at the time indicated in advance and in writing (including by electronic means) by the air carrier, the tour operator or an authorised travel agent,

or, if no time is indicated,

• not later than 45 minutes before the published departure time; or

(b)have been transferred by an air carrier or tour operator from the flight for which they held a reservation to another flight, irrespective of the reason.

3. This Regulation shall not apply to passengers travelling free of charge or at a reduced fare not available directly or indirectly to the public. However, it shall apply to passengers having tickets issued under a frequent flyer programme or other commercial programme by an air carrier or tour operator.

Based on the above, I would summarise that it does not matter whether you booked flights using vouchers and provided you complied with the conditions of presenting yourself for check-in, UK261 does not restrict or prohibit compensation from being claimed for that reason.

It does say the Regulations don't apply to free or reduced fares which are not available to the public so unless you booked you the flight using a voucher that wasn't a voucher available to the general public, then you should be entitled to compensation. My understanding of free or reduced fares not available to the public is likely to cover discounts or benefits through airline employees.

It's not clear to me if the vouchers you used were based on previous compensation under UK/EU261 but even if they were, there's nothing I can find that suggests vouchers given as compensation for a previous claim cannot be used to claim further compensation based on another flight booking. The only reference of vouchers I can find is. Article 7(3)that says vouchers may be awarded as compensation in lieu of cash.

I'm therefore curious when they say compensation cannot be recovered in accordance with UK261 but I suspect they may argue something along the above lines. If so, then again, the legislation doesn't actually say that but in any event, using the vouchers to book a new flight creates a new and entirely separate contract to the previous one, thus creating a new right of compensation in accordance with Article 3.

As for the second argument, UK261 applies to cancelled and delayed flights or denied boarding, so I don't understand why they are suggesting it only applies to delayed flights. You are well within your rights to treat the flight as cancelled if you haven't been informed. Even if they claim to have notified you, compensation may be available depending on when you were informed.

Maybe I am reading this wrong but, Article 5(1)(c) says:

In case of cancellation of a flight, the passengers concerned shall:

....

(c) have the right to compensation by the operating air carrier in accordance with Article 7, unless:

(i)they are informed of the cancellation at least two weeks before the scheduled time of departure; or

(ii)they are informed of the cancellation between two weeks and seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled time of arrival; or

(iii) they are informed of the cancellation less than seven days before the scheduled time of departure and are offered re-routing, allowing them to depart no more than one hour before the scheduled time of departure and to reach their final destination less than two hours after the scheduled time of arrival.

Assuming Art. 5(1)(c) does not apply, you are entitled to compensation for cancelled flight unless you are offered something that departs no later than 1 hour before schedule time. If the rescheduled flight is 8 hours earlier, you are still entitled to compensation as far as I can see, again assuming this applies.

Also point out that Article 5(4) says the burden of proof for cancellation rests with the airline, not you. Tactically, you may not want to mention that until the day of the hearing if they supplied no evidence. Mentioning it before in correspondence might give them time to find evidence.

[AshDunn]

R0b you're an angel many thanks.