“Comparable transport conditions” and cancellation compensation

[anders]

So another one where I’m hoping the HfP crowd can help before I try CEDR arbitration.

I travelled back from Tokyo to London earlier in the year as one leg of a multi-city cash ticket. I was booked on BA in Club / business class. Three days before the flight, I got an email saying the flight was cancelled but that I was put on the next available flight in economy on JAL. This offered alternative flight took off and landed within an hour of the original.

Unhappy with the two class downgrade, I called up, and the customer service team agreed to put me on Finnair with a stop in Helsinki in business as an alternative, which was great, except that it left and arrived in London around 10 hours earlier than the original flight, disrupting my plans in Tokyo.

My read of the EC261 regulation is that I should have received compensation as the alternative I accepted got me into Heathrow significantly earlier than planned, albeit perhaps half of what would have been due if I was >4 hours late.

BA, predictably, is refusing compensation on the grounds that I was offered a flight at more or less the same time as the original. I dispute that this meets the requirements for them to avoid compensation because it is not “comparable transport conditions” to be in economy as be in business class. But am I wrong on this? Is it worth me proceeding to CEDR?

(Apologies if this has been covered elsewhere in the forum – searched but couldn’t see anything).

[memesweeper]

If you’d flown in Economy then the compensation for downgrade would apply. As you flew in business, only the late arrival compensation might apply. I’d be inclined to push harder for that component, have BA given you a final answer with which you can start an appeal?

[JDB]

You can take the case to CEDR but you won’t necessarily win on the facts you describe. As you have identified, refusal of the offered rerouting at the same time weakens your position and while you note that it was not under “comparable transport conditions” per Article which sounds mandatory, the Interpretative Guidelines simply say downgrading should be avoided where possible. Clearly, moving to the flight you actually travelled on was your choice, so it is subjective as to whether you would get any compensation in those circumstances. If you get any compensation it should be at the full rate, not 50%, an invention of BA’s for early departures.

[AJA]

You are claiming compensation for the wrong thing. You are not entitled to delay compensation but you are entitled to compensation for the cancelled flight, per Article 5, that caused you to be re-routed.

However,

Per Article 5 paragraph 1 you
(c) have the right to compensation by the operating air carrier in accordance with Article 7, unless:

(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.

You were offered a re-route that met that condition.

The issue is that the relevant paragraph in Article 5 itself makes no mention to the right to comparable transport conditions. This kicks in per Article 8 paragraph 1 (b) re-routing, under comparable transport conditions, to their final destination at the earliest opportunity;

That said Article 5 refers to Article 8 first before mentioning the right to compensation per Article 7. Crucially in Article 5 they use the word “and” immediately after reference to Article 8. It’s not a case of either or but both.

So although you were offered re-routing departing within an hour of the cancelled flight per Article 5 it was not under comparable transport conditions per Article 8 hence your request to be re-routed on Finnair in J. Therefore I believe compensation is due.

[JDB]

@AJA per my earlier post, the “under comparable transport conditions” is not mandatory in respect of class, but “if possible”, so does not automatically trigger the cancellation compensation as you suggest. It has to be decided on a case by case basis per the Interpretative Guidelines.

When passengers are offered the option of continuation or re-routing of a journey, this must be ‘under comparable transport conditions’. Whether transport conditions are comparable can depend on a number of factors and must be decided on a case-by-case basis. Depending on the circumstances, the following good practices are recommended:

— if possible, passengers should not be downgraded to transport facilities of a lower class compared with the one onthe reservation (in the event of downgrading, the compensation provided for in Article 10 applies),

[AJA]

@JDB that’s a fair point however in the paragraphs you quote the key phrase is this:

“When passengers are offered the option of continuation or re-routing of a journey, this must be ‘under comparable transport conditions’

And in particular the use of the words “must be”. That is unambiguous.

Economy class is not the same as business class.

The subsequent sentence about deciding “Whether transport conditions are comparable can depend on a number of factors” is really about whether you can describe Airline A business class with airline B as not being comparable. It is not saying that the airline can get away with downgrading. And it specifically goes on to say that if the airline does downgrade then downgrade reimbursement pwr Article 10 automatically applies.

However the passenger has the right to choose what they do in the case of a cancellation as per Article 8. It is not up to the airline. The airline cannot simply avoid its obligations by offering a downgraded reroute. BA is either on the hook for downgrade reimbursement or it is on the hook for cancellation as the reroute offered is not under comparable conditions.

The only thing the reroute offered was allowing the passenger to depart within an hour of the original scheduled departure. It was clearly not under comparable transport conditions.

I would check how much downgrade reimbursement would have been and then go back to BA saying by volunteering to accept a reroute in J on Finnair that avoided BA paying 75% of the fare TYO-LHR but that does not also allow BA to avoid paying out cancellation compensation that BA tried to avoid by offering the reroute on JAL. If BA chooses to avoid paying cancellation compensation then downgrade reimbursement is due. Eithet amount X or amount Y is due.

[Matt]

You can and should take the case to CEDR, but as per the above answers I don’t think you have a guaranteed win. You have nothing to lose except a bit of time drafting a clear and concise explanation/argument of why they should pay you £520 per person.

Things that might help add weight to your argument:
Do you have any medical conditions that might make 14 hours in economy difficult or impossible (not just something you would rather avoid)?
Were there business class seats available on the JAL flight, or on any other carrier that BA could have put you on within 1 hour before or 2 hours after your booked flight?

[anders]

Amazing, thanks so much all. Yes BA has already got to final offer stage and are suggesting CEDR. Based on the above, I’ll give it a go. Will update here once I hear in case useful for anyone else in the future.

[anders]

So update two months later, now that CEDR has picked this up.

Happily for me, BA has offered the full £520 in compensation “in order to bring this matter to an amicable conclusion and save parties further inconvenience”.

Thanks again all for the advice. Hopefully useful for others in future too even if their wording is very craftily worded to avoid accepting that they were in the wrong.

[zio]

Yes, ungracious weasel words from BA, but the hoped for result. Well done, and thank you for reporting back.

[Lady London]

+1 @AJA all the way on this. However a slightly different view could be …

BA’s weasel words at settling are indeed weasel words that cover the fact that actually they’ve got away with another one.

They’ve not lost, at all. In fact they’ve done very well.

We do see cases on here where actually a passenger has made things worse for themselves by negotiating. Financially you would have been better off by accepting the original downgrade if you could have. As I think 75% of a cash fare for Tokyo-London part of your ticket was most likely closer to £1,000 than £520? So you’d have been better off going with JAL on the downgrade initially offered.

Whether you could have physically done that journey in Economy is a factor of course n that length of flight.

If BA had only been able to offer Economy on some later flight then you might have even been able to claim £520 for cancellation plus the 75% downgrade reimbursement. And as BA has downgraded and cancelled so many people’s flights from Tokyo in recent months and realy not been very good about paying the pasenger costs of the mayhem they’ve caused I really wouldn’t have hesitated to claim and pursue on both counts. Look at @Angela Mc’s disgraceful treatment by BA on here very recently with 2 kids in tow in Tokyo to see some of it.

So actually BA will be pleased they got away with only £520 on this. But if you’re happy too then that’s a good ending.