CLAIM £200 to £500 FOR FLIGHT DELAYS

UPDATED 5 January 2021

This blog looks at some of the fiddlier details of getting compensation for flight delays. Since the UK left the EU the compensation rules have been written into UK law. They are explained in this new blog. 

All the European court judgements mentioned here still apply as they were all retained in UK law when we left the EU. Any decisions made by European courts from 1 January 2021 will not apply in the UK.

What is extraordinary?

The European Regulation EC 261/2004, which makes the compensation rules, gives airlines a get out clause for what are called ‘extraordinary circumstances’. In other words if the delay is absolutely not the airline's fault then compensation is not due.

A dispute is brewing about delays caused by strike action. In 2018 the European Court of Justice ruled that a wildcat strike by airline staff – one that was not properly balloted or announced – was not an extraordinary circumstance after the airline had made a surprise announcement about restructuring. So compensation was due for the delays it caused. The Civil Aviation Authority has now said that strikes are covered by the compensation rules. In particular the strike by Ryanair crews in July 2018 is covered. Ryanair, BA, and Air France disagree. The dispute may end up in court. Strikes by workers outside the airline such as air traffic control or baggage handlers are not covered by the compensation rules but strikes by workers within the airline are. 

Technical issues

Airlines can no longer use technical issues including mechanical failure as an excuse for not paying compensation. Many airlines have been calling technical issues with their aeroplanes extraordinary circumstances and refusing to pay compensation for the delays they cause.

But in June 2014 in a clear and unanimous judgment the Court of Appeal decided in a case against budget airline Jet2 that technical issues were part and parcel of running an airline and that the delays they caused could in no sense be ‘extraordinary’.

Jet2 tried to get the Supreme Court to look at that decision. But it refused to do so. The judgement releases tens of thousands of claims against many different airlines which have been held pending the court case. And any fresh claims for delay compensation because of technical issues such as mechanical failure should be successful. One law firm estimates more than two million passengers a year are delayed due to technical issues.

Some airlines tried to claim that unexpected or hidden technical defects were extraordinary circumstances. But in its landmark case in September 2015, van der Lans v KLM, the European Court of Justice ruled that such unforeseen defects could only be allowed as exceptional if they were, for example, a defect the manufacturer or a regulatory body discovered and announced. Anything else was just a normal part of running a complex system like an airline.

Back six years

Another important decision by the Court of Appeal was in a case against Thomson Airways. It ruled that cases for compensation for delay could go back six years rather than two. Thomson had been refusing claims which were more than two years old on the grounds that the Montreal Convention only allowed claims for that period. But the Court of Appeal decided unanimously that local law prevails so claims can go back for six years in England and Wales. The six year limit applies in Northern Ireland but it is only five years in Scotland. See section Jurisdiction below.Thomson also tried to get the Supreme Court to revisit that decision. And again the Court refused saying the airline had no arguable case. So all airlines must now allow compensation claims for delays that occurred up to six years ago.

A further case Goel & Trivedi v Ryanair was tried in Manchester in August 2015. Ryanair claims that a provision in its own terms and conditions limits claims to two years which overrides the EU Directive. Ryanair lost the case but is appealing. It is possible that Ryanair and other airlines may try to delay claims for delays between two and six years ago until this case is finally settled. However, in a statement in September 2015 Ryanair said it did allow claims up to six year, though there is a lot of evidence that it does not.

Application

The EU Directive on compensation applies to cancellation. But the courts have interpreted the law so a delay of at least three hours is considered to be the same as a cancellation and give rights to compensation.

The delay must be at least three hours and that is measured at the arrival airport. So a flight that leaves more than three hours late but makes up the time and arrives 2h59m late would not be covered. The arrival time was recently defined by the European Court of Justice as the moment when at least one of the aircraft doors is opened at the arrival airport.

Compensation applies to the whole journey even if the flight involves a change of aircraft at an airport outside the EU as long as if it was booked as one journey and departs from the EU. This was decided by the European Court of Justice on 31 May 2018

Compensation for cancellation is more complex but similar. If your flight has been cancelled within seven days before the original flight time - for example once you are at the airport - compensation will almost always be paid. If you are not offered an alternative flight it will be paid at similar rates to those above. If you are offered an alternative flight but it arrives two hours later - or departs one hour earlier earlier - than the original flight then similar compensation will be paid. The rules are complex but always claim if a flight is cancelled. Compensation for flights cancelled by the airline with more notice than seven days are different.

These rights are separate to any money or vouchers for a hotel, travel, or food paid by the airline. It has to make those payments as well even where there are extraordinary circumstances which prevent compensation being paid.

Exceptions

Airlines can get out of paying if the delay or cancellation was due to 'extraordinary circumstances'. There is no definition in the law but that can include industrial action outside the airline's own personnel, extreme weather, war, terrorism, sabotage, political or civil unrest, hidden manufacturing defects, and bird strikes. But it can no longer include technical issues such as mechanical defects even if they were unforeseeable. Nor can it include computer system failures as large companies should always be available. In rare circumstances computer failure due to a major hacking attack may be argued to be 'extraordinary'. It probably does not include strikes by the airline's own staff, though that is subject to dispute.

Jurisdiction

Although the EU directive applies throughout the 28 member states of the EU, the Supreme Court ruling only binds courts in England and Wales. Lawyers say it would be 'persuasive' in Scotland and Northern Ireland. 

Enforcing your rights
In England and Wales you can use the online service via the Government website.

The court cases to cite are: 

• For strikes Helga Krüsemann and Others v TUIfly GmbH 17 April 2018
• For connecting flights Claudia Wegener v Royal Air Maroc SA 31 May 2018
• For time limits, Dawson v Thomson Airways [2014] EWCA Civ 845. 
• For technical issues, Jet2.com v Ronald Huzar [2014] EWCA Civ 791.
• and the latest case 17 September 2015 on technical issue van der Lans v KLM C-257/14 
• The Supreme Court refusal to hear the further appeals.
• The European Court of Justice on when a plane arrives.
• The Liverpool case Allen v Jet2.com refusing leave to delay claims.
• Six year delays Goel & Trivedi v Ryanair  

Don't let attempts to circumvent the court rulings put you off. The more difficulties airlines put in the way the fewer people will have the determination to pursue the case and get compensation. So make sure you pursue your claim and go to court if need be.

If an airline offers to pay the compensation in vouchers instead of money you are entitled to refuse and demand money.

The CAA has useful information on its website about flight delays and cancellations and makes it clear that strikes among the airline's staff are not an extraordinary circumstance. 

If you are delayed the airline is obliged to explain your rights at the time of the delay. In the past many have not and on 21 March 2015 the Civil Aviation Authority took action against Are Lingus and Wizz Air to force them to obey this part of the Directive.

Write to the airline to make the claim. State that you are claiming for delay or cancellation under Regulation EC 261/2004 which is now part of UK law as amended. Don’t worry if you no longer have boarding passes or ticket details. As long as you can identify which flight you were on the airline will have your details on its manifest. If any airline refuses a claim you may have to go to court to enforce your rights. You can do that in a court in the country where (a) the flight landed or (b) the flight started within the EU or (c) the airline is based.

In Scotland claims have to be made through the Sheriff Court - click here to learn more.

In Northern Ireland use www.nidirect.gov.uk

Be determined

Expect some airlines to be difficult and try to put you off or delay matters. If the airline sends you a document headed Draft list of extraordinary circumstances following the National Enforcement Bodies (NEB) meeting on 12 April 2013 write back to say that list has no legal status, has been overtaken in England and Wales by the Appeal Court and Supreme Court rulings, and that you are relying on the law as set out in Regulation EC 261/2004 as amended in UK law. 

Ryanair has refused to pay claims where the flight originated in Edinburgh as it is outside the jurisdiction of the Supreme Court. Ryanair also resists claims in some other circumstances. On 18 September 2015 the Civil Aviation Authority began enforcement action against Ryanair.

Get help

A new online claiming tool has been launched by Resolver. It makes no charge for its service. Never use a claim management company. It will take 40% of your compensation and may or may not be good at the job.

The consumer organisation Which? also has a useful guide to claiming compensation yourself.

You can get some advice free from the Civil Aviation Authority at www.caa.co.uk. If an airline has refused your claim the CAA offers an arbitration service. Its decision is not binding on the airline - though they usually follow it - and there have been long delays in the past as the CAA had inadequate staff numbers to handle the volume of cases. 

If you feel you need professional help you can use the lawyer Bott & Co which specialises in compensation for flight delays. It has an online checker to see if you have a claim or not. If it takes a case then it charges 25% plus VAT (so 30%) of any compensation obtained plus a £25 administration fee (including VAT) per passenger. Altogether that will be more than a third of your compensation. There is no charge if you lose.

Originally made 25 July 2018

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18354

WHY YOUR GAS BILL IS WRONG

Domestic gas users are being overcharged by an average of £46 a year. That is the claim by an energy firm Canetis Technologies.

More than 20 million households use mains piped gas to provide hot water and central heating and often to cook their dinner too.

The way gas is charged for is an approximation. Canetis has calculated that three errors in these approximations leads to us being overcharged by an average of £46 a year.

Origin
Gas comes into the country from the North Sea, from Europe, and by tanker mainly from the middle east. It then passes through 190,000 miles of pipes and ends up flowing into what is usually a rather primitive meter in our home.

That meter measures the volume of gas passing through it. Traditional meters use a pair of bellows to measure the gas flow. The bellows then push a plastic clockwork mechanism to convert that flow into a numerical display which records either cubic metres (cu.m) or, in older and often greyer meters, cubic feet.

Formula
That volume then has to be converted into the kilowatt-hours units which energy firms charge us for. The formula used to make that conversion will be somewhere on your gas bill and should look like this:

Units used x the calorific value of the gas x a volume correction of 1.02264 divided by 3.6.

Definitions
1. Units used is the volume of gas recorded by the gas meter in cubic metres or cubic feet.

2. The calorific value of the gas is the amount of energy stored in the molecules of the gas.

3. The volume correction takes account of the average pressure and temperature of Great Britain which is different from the standard used to work out the calorific value of a cubic metre of gas.

The same amount of gas – the same number of molecules which store the energy which is released when it burns – will not fill a constant volume. As the pressure rises the molecules are squeezed together and the volume falls. As the temperature rises the molecules get more excited and the volume increases. That means the same volume of gas at different temperatures and pressures will give different amounts of energy when burned.

When the energy stored in a volume of gas is calculated the international standard is to use a temperature of 15C and atmospheric pressure at sea level of 1013.25 millibars (mb).

This correction adjusts that calorific value to take account of the temperature and pressure of Great Britain.

Each of these three parts of the formula is subject to error. The final part is not.

4. Divided by 3.6. Calorific value is measured in MegaJoules per cubic metre. A MegaJoule (MJ) is a million Watts per second. So to convert a MegaJoule (MJ) to a kiloWatt-hour (kWh) you multiply by 1000 and then divide by the number of seconds in an hour. So 1000/3600 = divide by 3.6. That is the one accurate number in the formula!

Errors

1. Units used
The energy technology firm Canetis claims that old style meters systematically overstate the volume of the gas passing through them. They are tested over a wide rage of gas flows. Low flows overstate the volume; higher flows underestimate it. But the meters are limited in the flow they are allowed to use and modern gas appliances tend to use lower flows anyway. The result is that the actual flows are always in the lower part of the range where the volume is systematically overstated.

2. Calorific value
The calorific value of natural gas varies depending on its exact composition - different sources have different mixtures of gases. It will be between 37.5 and 43.0 MJ per cubic metre.

Great Britain is divided into seven regions reflecting where the gas arrives. The calorific value of the gas in those regions is measured every day. The value on your bill is the average of those daily amounts in your area over the days the bill covers . It will therefore be approximate but the hope is that the over- and under-estimates will average out to zero.

3. Volume correction
In 1996 the Government decided that the international standard temperature of 15C and pressure of 1013.25mb for measuring the energy in a volume of gas were not correct for Great Britain. The average temperature in GB was lower at 12.2C. So the measured volume at that temperature was lower than it should be. And despite the UK being at an average height of 66m above sea level, when the pressure inside the meter was added it came to 1026mb, which is higher than the standard. So again the measured volume is lower than it should be.

As both errors lower the volume, the measured volume was multiplied by 1.02264 to correct it. This amount is set down in law.

Canetis and other engineers claim the assumptions behind the volume correction are wrong.

Pressure: recently analysed postcode data from the Office for National Statistics shows that GB homes are on average slightly higher than 66m above sea level, and the meters are normally above floor level. So the pressure is lower at the meter and the volume of gas greater than the regulations assume.

Temperature: the actual ambient temperature over the year is around 12C but most meters are located indoors in heated rooms so gas enters the meter at a warmer temperature than outside, again raising the volume.

So the volume correction is simply wrong.

Overcharge

The result is that these three errors

• meters which overstate the volume flowing through 
• higher temperature at the meter than allowed for
• lower atmospheric pressure at the meter than allowed for 

all create an over estimate of the volume of the gas passing through the meter for the standard energy contained in it. So charging by volume overcharges us for the energy stored. Canetis claims the average overcharge in England is £46 a year.

Action

Under the rules governing gas nothing can be done about any of these factors. They are all set in various laws and standards. 

All customers can do is try to ensure that their gas meter is as low and cool as possible rather than high up in a heated room. 

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16 May 2018

OXFORD UNIVERSITY TO ABOLISH STUDENT FEES

One of Britain's top universities is to abolish student fees after the Supreme Court allowed it to charge a royalty on every use of English words online.

From 6 April 2018 Oxford University will use a monopoly granted by Henry VIII to demand money from the one billion people who write online in English. They will automatically be billed a ‘nanocharge’ of 0.0001p by Oxford University Press for every word they publish online if it is in the Oxford English Dictionary. Fees from the estimated fifty trillion English words written online each year will allow the university to make education free at all levels.

The Oxford English Dictionary itself only began in 1859 and rapidly became the definitive record of the language. 

But under Letters Patent of 1523 Henry VIII granted the University “our speciall lycence” to collect money “from thoos persons who prynt in the language of Englonde” and use such money “for the supporting and maynteynyng of the vnyuersite of Oxenford” and the order “shulde passe and be sealed vnder our greate Seale as by our said comaundement as ye haue more parfite knaulage of the language of Englonde than any other”.

Henry VIII Letters Patent of 1523 granting Oxford University rights to all English words ‘in perpetuity’. 

The royalty could have been charged at any time since 1523. But early attempts to levy printer’s type led to riots against the so-called “taxes on knowledge”. The situation changed this week when the Supreme Court held unanimously that the words of the Letters Patent could not be clearer” and gave Oxford the right “in perpetuyte” to the copyright on the words in its Dictionary. The court rejected a counter-claim by rival publisher Collins that the Letters Patent were repealed by the Monopolies Act 1624. “No such provision exists in the Statute” said the President of the Court and Oxford graduate Lord Justice Neuberger. Significantly, Justice Lady Hale, the Deputy President who went to Cambridge, did not dissent.

Professor Fiona Nomura, a Proctor of Oxford University Council, told me in an exclusive interview

“For nearly half a millennium Oxford has allowed England, Britain and the world to use the English language free of charge. However, the University is increasingly uncomfortable at Government demands to raise the fees charged to our undergraduates, this year to £9,250. So Congregation decided to use this ancient right to levy a charge on every online use of the words which are the University's copyright and make education at this world beating institution free again.”

She pointed out that Henry VIII himself was a great patron of education and founded several grammar schools and colleges.

Oxford claims the amount “will be too little for an individual to notice but will mean much to our students”.

All words published online will be compared with the online Dictionary and an automatic PayPal debit applied for each word in it. The nanocharge of 0.0001p levied on the estimated 500 trillion online uses of English words each year will raise £500m – more than enough to replace the £110m in fees paid by Oxford’s 12,000 undergraduates. The balance will be used for bursaries and to support its 11,000 postgraduates – who Congregation called “the entrepreneurs of tomorrow” in the so far secret meeting that made this historic decision.

However, Professor Angie Buff of Trinity College Cambridge said the move was a backward step. “It will lead to people misspelling and making up words to try to avoid the nanocharge. They may even start tweeting in foreign languages. It may help a few Oxford students but it will damage literacy and, ultimately, English itself.”

The levy will cover all websites and social media including blogs, Twitter, Facebook, LinkedIn, and even the subtitles on YouTube. Twitter alone publishes 3 trillion English words every year. Oxford is working with GCHQ to extend the nanocharge to encrypted services such as SnapChat.

Professor Nomura confirmed that the copyright only extends to the 600,000 words defined in the Oxford English Dictionary. “Neologisms such as ‘selfiecide’, ‘mansplaining’, and ‘nmh’ will still be free to use, should any ignoramus wish to do so.”

She warned however that the fee would be levied on one new word. At an emergency meeting of the Words Admission National Council English Register this week ‘Brexit’ was added to the Dictionary with immediate effect. Such speed is unusual for an organisation which took twenty-four years to admit the word ‘snozzle’. Professor Nomura denies the haste was to cash in on the word’s popularity. "It is simply because the definition is so clear" she said "Brexit means Brexit," Fi Nomura smiled, “end of."

UPDATE: I have learned that the nanocharge will be brought forward five days and will be applied from 0001 on Sunday 1 April.

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1 April 2018

CREDIT CARD FEES BANNED

From 13 January 2018 charging customers more if they pay by personal credit card is banned.

Before the ban people paying for goods or services online were often made to pay an extra fee if they chose to pay by credit card. These surcharges were typically 2% but could be as high as 5% of the price and often were not made clear until the very last moment.

Firms made excessive charges despite a cut in the fees which credit card providers charged them and in defiance of a law passed in 2013 which stated a surcharge could only reflect the actual cost of accepting a credit card payment,

So from Saturday 13 January 2018 such charges are banned completely. And not only for credit cards - the ban extends to any plastic payment and to PayPal, ApplePay and other electronic payment systems.

Enforcement
The law is clear but unfortunately how it will be enforced is not. Enforcement is principally in the hands of the local Trading Standards office. But the Trading Standards Institute has told Radio 4's Money Box programme that it is unlikely to be a priority.

"With no extra funding, budgets cut by over 56% within a decade and 250+ pieces of legislation to enforce and consider – it is unlikely to be a priority for any local TS." 

If a major firm is illegally surcharging people widely over the UK then the Competition & Markets Authority can also intervene.

Self-help

If you are charged extra for using a credit card or any other form of payment then you have the right to demand a refund yourself.

You could email the Chief Executive of the firm something like this

"When I bought XXXX from you on <date> you applied a surcharge of x% to the price because I paid by credit card.

I am writing to you for a refund of that surcharge under Regulation 10 of the Consumer Rights (Payment Surcharges) Regulations 2012.

Since 13 January 2018 such surcharges are illegal under Regulation 6A(1) of the Consumer Rights (Payment Surcharges) Regulations 2012, as amended by paragraph 12 of Schedule 8 to the Payment Services Regulations 2017.

I look forward to hearing from you. Should you not pay the refund within 14 days I shall pursue my case through the Alternative Dispute Resolution process or take action in the courts."

Find the CEO's email here.

Report them
You should also report the matter to trading standards. The way to do that is through the Citizens Advice Consumer Service on 03454 04 05 06. If Trading Standards get enough complaints about a particular firm it may take action. If the trader is based outside the UK but in the EU or Iceland, Norway, or Liechtenstein then the case will be passed to the UK European Consumer Centre. You can call them direct on 01268 88 66 90.

What firms might do
Firms can work round the new law in several ways.

• Refuse all credit card payments - this is the line that HMRC has taken. From 13 January 2018 you cannot pay your tax by credit card. The new law will not prevent a firm from setting a lower or upper limit for accepting credit card payment. 
• Impose one charge for any means of payment - even if you turn up with cash. As long as the charge is the same regardless of how you pay that is lawful.
• Put up prices generally to cover the extra cost. 

Exemptions
The ban applies to any retail payments when both parties are located anywhere in the European Union or in Iceland, Norway, and Liechtenstein. So it would not normally apply if you bought tickets online directly from an American airline.

The ban applies to any charge made from 13 January. But a charge made after that date under a contract entered into before 18 July 2017 is allowed.

It does not apply to goods or services bought using a corporate credit card. But even then the surcharge cannot exceed the actual cost to the company of that means of paying.

Further information
This Government guidance is useful for detail.

The Regulations implementing this law were made as a result of the EU Payment Services Directive 2015/2366.

Paul Lewis
version 1.02
13 January 2018