-
Hello
I am looking for some guidance please. Last year I submitted a claim to CEDR as I was unable to get any reimbursement from BA. My claim was for a downgrade from First to club from LHR to Phoenix outbound only (I flew back from LAS in club as planned). The downgrade happened many months before the flight as BA decided to no longer have a first cabin to Phoenix. I booked the flight in Oct 2020 to fly in September 2021. I eventually flew in September 2022 due to Covid cancellations/restriction.
I used a BA Amex voucher and I claimed for 2 people but they’ve ignored the second person. I also claimed 75% of the fees for two people and they’ve ignored all money claims. I also paid 85k avios as was peak and they’ve got that wrong too saying I paid 75k. Wasn’t the downgrade legislation in place in 2020? Why are they talking about “BA policy” at time of booking?
Any advice any how I proceed is greatly appreciated by the experts on here. Their response is below.“Good afternoon, our Executive Club has reviewed your claim and confirmed the following regarding your reimbursement request: ‘Having reviewed the customer’s account and statement, it doesn’t appear any refund was given for this downgrade on booking RPUWHA. The customers paid 75,000 Avios for First. As a result of the downgrade, the customers are entitled to a 75% refund, this being 56,250 Avios. The new Avios for the flown journey would now be 18,750 for outbound and 62,500 for inbound, so the total debit for journey 81,250. The credit of 56,250 Avios has now been processed to Executive Club membership number 4XXXXXXX. It’s worth pointing out that at the time the customers made their booking (16 October 2020), it was BA’s policy to only refund the cabin difference and not 75% unless there was a total cabin closure. If this was the case now, then the customers would only be entitled to a 25,000 Avios refund. We hope you’re happy to accept our offer of the refund provided and our explanation of how we’ve come to this figure. Of course, if you choose not to accept our offer, then a full defence of the claim will be submitted to CEDR. Best regards BA”
@Frankie – I’m afraid this is a fairly standard BA response to claims for downgrade compensation. The law (in this case EC261 Article 10) has been in place since 2004 and obviously BA’s policy can’t override the legal provisions. However the law isn’t quite as clear as it could be particularly on the question of temporality (where nothing is said either way) and there’s no provision at all for the use of companion vouchers. BA is very adept at navigating these grey zones and has been winning a number of cases at CEDR and MCOL as reported here, particularly in respect of not reimbursing/compensating the second ticket.
There’s no right or wrong way to go about resolving this but before giving you some ideas, please could you confirm that your second paragraph is BA’s initial response to a live claim with CEDR, so you are looking to respond to this in anticipation of BA’s full defence referenced in the last sentence. It reads as if it’s addressed to you…
@JDB. Thank you so much for helping. I can confirm the second paragraph is indeed BA’s initial response to a live claim with CEDR, so yes, I am looking to respond to this in anticipation of BA’s full defence referenced in the last sentence.
Your post is a bit difficult to understand. Was the flight move from Sept 2021 to Sept 2022 a voluntary change? IE you chose to move the date, or was the original flight cancelled so UK261 kicked in to reroute flight at your convenience?
@JDB is right: BA will pounce on any misunderstanding or grey areas, so you have to be crystal clear. BA have sensibly recognised that providing no reimbursement is clearly very wrong, so they have tried to provide their most favourable interpretation of reimbursement to close the case down. You need to convince CEDR (±BA) that this is wrong as it doesn’t go far enough.Have a timeline, state exactly what you paid for the booking of two people (?170,000 avios and £XXX cash AND a 241 voucher return). Then try and break this down in to each direction. Make it clear you are claiming for both people (and confirm with CEDR what you have to do to claim for another person. There are good threads on flyertalk on which bit of the charges you should get 75% back on (all non-governmental taxes, likely £hundreds), as well as wording to claim the value of the 75% of the 241 voucher.
I would also emphasise that by BA offering the 75%, they have accepted Article 10 UK261 is enforced for your flight, they have simply got the calculations wrong, and have not included the significant value of the 241 voucher (which as you are going though CEDR, I would claim in Avios).I would also emphasise that BA policy cannot override statute, and Article 15 UK261 specifically states this.
Given you have put all the effort in to getting it to CEDR, I would not stop now.
People have won this kind of case previously; it defies logic that BA can get away with continuing to deny reimbursement in the same circumstances. For example:
https://www.headforpoints.com/2021/02/15/compensation-for-british-airways-downgrade/
There was also the case of reader TripRep who was downgraded on a 241 booking to MLE, but I can’t find that article now.
@Frankie – so I think that for the benefit of both CEDR and BA, you need to take this back to basics and set out the correct calculation in a comprehensive but clear/simple way. In respect of 75k vs 85k, provide evidence of this.
Start with something along the lines of BA’s offer is rejected as the premise and calculation of such offer is wholly erroneous as it:-
A) fails to reflect the correct fare underlying such offer
B) fails to comply with the law as set out in Article 10 of EC261 and the application thereof in the 2016 CJEU case C-255/15 of Mennens v Emirates
C) seeks irrationally to apply its own alleged (but unpublished) policy in preference to the law, thereby failing to provide the compensatory element in respect of involuntary downgrades as set out at paragraph 3.4.2 of the EC261 Interpretative Guidelines
D) fails to provide the 75% compensation for the cash element/carrier charges paid by the passengers
E) fails to offer any compensation in Avios or cash for the second passengerIt is most concerning that BA should seek not only to dupe the passenger into accepting an offer on this basis with the threat of some “full defence” and also to seek to mislead CEDR when the offer as described in BA’s text is objectively erroneous in multiple respects. I therefore set out below the correct calculations below and to the extent that BA wishes to challenge these or CEDR contemplates accepting BA’s full defence, I must insist that I am given further opportunity to rebut BA’s new information. BA must or should know how to calculate involuntary downgrade compensation correctly, so the comprehensive series of errors in the initial response gives the appearance of deliberateness.
Then set out the calculation of each element step by step on a per passenger basis and total basis. Provide a reference for each aspect – i.e. 85,000 paid (see e-ticket on page 2 etc) carrier charges paid on e-ticket and marked up accordingly. Provide Article 10 and Interpretative Guidelines 3.4.2 and Mennens.
For the companion voucher, repeat that BA has failed to compensate the second passenger at all although it is aware from multiple CEDR and County Court cases that the second passenger is entitled to the same full compensation as the first passenger. Unfortunately those cases offer no precedent so the issue needs to be re-argued each time and people are still losing this adjective of claims. The second or companion passenger did not fly on a ‘free’ ticket as described at Article 3.3 but in fact paid the same as the first passenger.
A companion voucher (“CV”) that was used in this booking is simply a form of payment or consideration used in this booking and is not in any sense ‘free’. It required the passenger to pay £250 for a BA Amex co-branded credit card and to spend £10,000 to obtain said companion voucher which then offered the passenger a matched contribution of Avios. In this case Passenger 1 paid 85,000 Avios + the CV + taxes, fees and charges and Passenger 2 paid with the CV making up an additional 85,000 + taxes, fees and charges. If the companion voucher that has been used here as valuable consideration were removed, the total fare for both passengers would have been 170,000 Avios + TFCs. This should of course be fully reflected in the involuntary downgrade compensation.
BA’s brazen attempt to disapply the law in favour of its alleged policy at that time, attempting to shortchange the passengers by only providing one passenger rather than two with the difference between classes rather than the compensation provided for in EC261 is not only incomprehensible but objectively incorrect as is the offer not being made to include the cash paid.
Send all this to CEDR but I would also send a copy to BA’s legal team inviting them to settle the matter without wasting more of their time, CEDR’s time or yours. The calculations that BA says have been by its Executive Club are so comprehensively, obviously and objectively wrong that it behoves the legal team urgently to analyse the facts correctly. It is completely unacceptable and a breach of the terms of reference for British Airways to provide obviously erroneous information to its arbitration service. You intend to pursue this discrete point with the relevant regulators (CAA and CMA) and professional standards unless BA immediately, within the next seven days, corrects the facts with CEDR.
@NorthernLass – your comment above plays directly into BA’s game -it is COMPENSATION the passenger is seeking not reimbursement which is what BA has offered (for one pax at least) and why it has ignored the cash element in its offer. From a previous comment here by I think @Matt there’s some supposedly credible person on FlyerTalk who must in fact be from BA who says to ask to reimbursement not compensation. This may explain why BA is winning so many involuntary downgrade cases currently.
Unfortunately previous cases at CEDR or County Court count for nothing and it’s treading in very dangerous territory as many cases are being lost on both the CV argument and the difference between classes reimbursement vs the statutory compensation. Arbitrators and judges are just not very familiar with these issues, the law isn’t clear on either point and BA will offer seductively simple arguments to support its case. Thus, each case needs to be individually clearly and well argued on its discrete factual matrix.
Hello,
Thanks everyone for the guidance and assistance. To answer points_warrior’s question. The flight didnt happen in 2021 due to covid and the USA being closed and flights not going to the USA.
This was the details of my claim.Details of how this figure has been reached, according to UK261 legislation, are below:
I booked First class on this outbound sector and on 16 July 2021 I received notification that I was downgraded to Club World. I am now claiming my downgrade reimbursement.
I made it clear during my conversation with BA that this was an involuntary downgrade and made a point of asking them to note on the booking that it was involuntary.
AVIOS REFUND
I paid 85,000 Avios for the outbound sector and am claiming 75% refund per person for the downgrade, as per my UK261 rights relating to downgrades. This equates to 63,750 Avios per person. Total Avios amount payable is 63,750 X 2 = 127,500 total Avios refund.CASH REFUND
I paid a grand total of £1356.92 total taxes, fees and surcharges for both passengers. This worked out as £678.46 total taxes, fees and surcharges per person.
£249.46 of this amount was total government, authority and airport charges per person.
£429 of this amount was total British Airways fees and surcharges per person.As I am claiming my reimbursement for only the outbound journey for which I was downgraded on, I am therefore resubmitting my reimbursement claim for the cash element per person of 75% of £214.50 per person for the outbound journey (£214.50 is half of the £429 per person total fees and surcharges).
This works out at £160.875 per person for the outbound journey downgraded leg. (75% of £214.50)
This makes a total of £321.75 for the two passengers (160.875 X 2 = 321.75)
TOTAL CLAIM
My total claim for downgrade reimbursement for this flight for the two passengers (myself and Mr Peter HXXX) = 127,500 Avios, plus £321.75@JDB, I’m sure you’ve said several times on this forum that people should ask for downgrade reimbursement, not compensation! Though of course there might be a difference in what one should ask for in different circumstances which has passed me by.
I know these things don’t hinge on case law, which is also a struggle for me to get my head around after 3 decades of this being so integral to charging decisions. So much for the scales of justice!
@Frankie – it’s not totally clear from your further post, but I take it you did actually fly in the downgraded cabin!? Of course you need actually to have flown to be compensated for the ‘inconvenience’ (the CJEU’s term not mine).
@Frankie – it’s not totally clear from your further post, but I take it you did actually fly in the downgraded cabin!? Of course you need actually to have flown to be compensated for the ‘inconvenience’ (the CJEU’s term not mine).
@JDB, I’m sure you’ve said several times on this forum that people should ask for downgrade reimbursement, not compensation! Though of course there might be a difference in what one should ask for in different circumstances which has passed me by.
I know these things don’t hinge on case law, which is also a struggle for me to get my head around after 3 decades of this being so integral to charging decisions. So much for the scales of justice!
I haven’t said that a for a very long time, in fact I have been shouting about using the compensation word in claims since becoming aware of BA using the semantics to reimburse people (ie pay the difference between classes and not reimburse any taxes saying they are the same in both classes) rather than compensate people which, on long haul, offers a substantial compensatory element.
Obviously it suits BA to play on this, as well as the temporal issue and one of the pax on a 241 being free. BA has had considerable recent success defending these cases so has grown bolder in arguing all three points at arbitration and in court. In using all three strands they hope that some mud sticks, the passenger’s arguments are discredited and that the overall effect bamboozles the decision maker. It’s quite an effective strategy unless one cogently demolishes their case while keeping it quite simple. If one resorts to lengthy or complicated arguments it unfortunately gives some credence to BA’s defence.
Hello all,
Thanks so much for your great help and guidance. Sorry for inconvenience. I DID fly in the downgraded cabin.
@Frankie – good luck and I hope BA might concede if they see you mean business. CEDR is a bit wet and gullible so need a serious approach from the passenger to help them come to the right answer. Please let us know how you get on.
@NorthernLass – going back to the reimbursement vs compensation issue, it’s best to ask for both but currently definitely at least to use the word compensation. I’m not a fan of templates or focussing too much on previous cases as BA will spot these (and deduce a lack of direct knowledge) these things are very fact specific and BA changes its tactics from time to time so one has to keep up with their latest manoeuvres.@jdb I want to say a very big thank you to you for all your generous help. I have noticed you are ever so helpful on this community and spend a lot of time helping people. I was hoping you might come along to my aid and you did. Thank you. And also a big thank you to @NorthernLass for her advice and she also spends a lot of time helping folk. And a big thanks to you too @points_worrier.
I will report back on how I get on in this processHello HFPs,
I promised I would return when I received the outcome of my case. I received this yesterday so am posting the CEDR reply in full in case of interest or of help for anyone. I had great advice on this set and set out my case and also wrote to BA’s legal team – however they never replied. CEDR rejected my claim for the BA surcharges which is unfortunate. They did award me avios for two people – my companion and me. It seems the fact I mentioned Mennens v Emirates led to the adjudicator not making a difference between government taxes and BA charges. I started my defence with the following bullet points and then went into more detail. (reply copied into one or more posts following this one as it probably will exceed word allowance for one post. I have reduced spacing in the post to save space. hopefully it is still easy enough to read)I am rejecting British Airway’s offer as the premise and calculation of such offer is wholly erroneous as it: –
A)Fails to reflect the correct fare under such offer. A first class one way off peak fare to Phoenix has always been 85,000 avios plus taxes and charges.
B) Fails to comply with the law as set out in Article 10 of EC261 and the application thereof in the 2016 CJEU case C-255/15 of Mennens v Emirates
C) Seeks irrationally to apply its own alleged (but unpublished) policy in preference to the law, thereby failing to provide the compensatory element in respect of involuntary downgrades as set out at paragraph 3.4.2 of the EC261 Interpretative Guidelines
D) Fails to provide the 75% compensation for the cash element/carrier charges paid by the passengers
E) Fails to offer any compensation in Avios or cash for the second passengerCOMPLAINT: The customer says that the passengers were downgraded on the Flight. The customer has requested: 127,500 Avios and £321.75.
RESPONSE: The company has chosen not to submit a Defence.
FINDINGS: The passengers were downgraded on the Flight.
OUTCOME: The claim succeeds in part. The company is directed to: Pay the customer 127,500 Avios, as well as any difference in taxes, fees and charges between the customer’s original and downgraded classes.
The Parties: Customer: MR Frankie XXXXXXX and 1 additional passenger
Company: British Airway
Flight: BA289 from London Heathrow Airport (LHR) to Phoenix Sky Harbor International
Airport (PHX) on 10 June 2022 (“the Flight”)
Case Outline
The customer’s complaint is that:
Both passengers were downgraded on the Flight.
The customer has claimed the following remedies: 127,500 Avios and £321.75.
The company’s response is that:
The company has chosen not to submit a Defence.
How is a decision reached?
In order for the customer’s claim to succeed, the evidence must show on the balance of probabilities (i.e. more likely than not) that the company has failed to comply with its legal obligations towards the customer and that, as a result of this failure, the customer has suffered some loss or detriment. If no such failure or loss is shown, the company will not be directed to take any action.
The customer and the company know the details of this case. I have not set out all the details in the same way that they have, except where necessary. I have carefully considered all of the evidence provided. If I have not referred specifically to something, or have not mentioned a particular document, this does not mean that I have not considered it in reaching my decision.
How was this decision reached?
1. Under Rule 4.1.5 of the CEDR Aviation Adjudication Scheme Rules, once the company has been notified of a case by CEDR, it has 15 working days in which to submit its Defence.
2. Although the company offered the customer a settlement, it has chosen not to submit a Defence.
3. Under Rule 4.4.3 of the CEDR Aviation Adjudication Scheme Rules, “If the subscribing company does not submit a defence to CEDR within the time allowed, the adjudicator will have the discretion to proceed to make a decision considering only the information provided by the customer.”
4. Nonetheless, the customer must still demonstrate his entitlement to any compensation claimed.
5. Under Article 10 of Regulation 261, “If an operating air carrier places a passenger in a class lower than that for which the ticket was purchased”, the passenger is entitled to specified compensation based on the price of the ticket.
6. While the company has not submitted a Defence, it has indicated in its settlement offer that as the customer’s companion travelled on a free companion ticket, he is not entitled to compensation for being downgraded. I find that such an interpretation of Article 10 cannot be aligned with the goal of Regulation 261 of “ensuring a high level of protection for passengers”, as it would leave any passenger on a free companion ticket unprotected from downgrading.
7. I find, therefore, that the “price” of the customer’s companion’s ticket under Article 10 was equivalent to the cost of the customer’s ticket. Although the company based its settlement offer to the customer on a statement that the customer had paid 75,000 Avios for his ticket, it provided no evidence for that statement, and as the company has chosen not to submit a Defence, it has not directly challenged the customer’s statement that each he paid 85,000 Avios for his ticket on the Flight.
8. In Steef Mennens v Emirates Direktion für Deutschland (Case 255/15), the Court of Justice of the European Union (“CJEU”) held that reimbursement for downgrading is owed only on the price of the ticket itself, and not on taxes and charges. Therefore, for the purposes of Article 10, amounts paid in taxes, fees and charges must be disregarded.
9. In his claim, the customer draws a distinction between “government, authority and airport charges” and “British Airways fees and surcharges”. However, this is not a distinction made in Steef Mennens, which refers only to “taxes and charges indicated on that ticket, as long as neither the requirement to pay those taxes and charges nor their amount depends on the class for which that ticket has been purchased”. As a result, the customer is not entitled to downgrading compensation on “British Airways fees and surcharges”, but is entitled to a refund of any difference in taxes, fees and charges between the customer’s original and downgraded classes.
10. The great circle distance from NAP to LHR is 8,483 km.
11. Therefore, the compensation required by Article 10 is “75% of the price of the ticket”, or 127,500 Avios, as well as any difference in taxes, fees and charges between the customer’s original and downgraded classes.
12. Article 7(3) states that reimbursement “shall be paid in cash, by electronic bank transfer, bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers and/or other services”. The customer has agreed to receive the 127,500 Avios in the form of Avios.
OUTCOME
The claim succeeds in part.
The company is directed to:
Pay the customer 127,500 Avios, as well as any difference in taxes, fees and charges between the customer’s original and downgraded classes.
What happens next?
This adjudication decision is final and cannot be appealed or amended.
The customer must reply by 24 April 2025 to accept or reject this decision.
If you choose to accept this decision, the company will have to do what I have directed within 20 working days of the date on which CEDR notifies the company that you have accepted my decision. If the company does not do what I have directed within this time limit, you should let CEDR know.
If you choose to reject this decision, CEDR will close the case and the company will not have to do what I have directed.
If you do not tell CEDR that you accept or reject the decision, this will be taken to be a rejection of the decision. CEDR will therefore close the case and the company will not have to do what I have directed.Wrt “….the customer is not entitled to downgrading compensation on “British Airways fees and surcharges”, but is entitled to a refund of any difference in taxes, fees and charges between the customer’s original and downgraded classes…” it seems it’s not a total rejection.
@Frankie – I’m very pleased you succeeded on the major part, but CEDR’s analysis of the cash element is disappointing but not entirely unusual.
Wrt “….the customer is not entitled to downgrading compensation on “British Airways fees and surcharges”, but is entitled to a refund of any difference in taxes, fees and charges between the customer’s original and downgraded classes…” it seems it’s not a total rejection.
The judgment cited by CEDR only envisages taxes and charges but not surcharges, so a literal reading means that you would only be compensated for the cash element if that were lower for the lower cabin. The judgment does however, specify that it is for the lower courts to assess which parts of the total paid constitute the fare, so CEDR does have a discretion.
The whole issue of TFCs is further confused by RFS particularly ex LHR when the long haul RFS is often less than the actual disbursements.
Hi.
I’m looking for some help/guidance with regards to a cancelled flight.
Booked a BA holiday including car and everything had gone swimmingly until we got to Tulsa airport to start our journey back home. We were due to fly TUL to ORD but unfortunately the American Airlines flight was cancelled which meant that we could not then get our connecting flight with BA to LHR. I believe that AA will say that it was due to the weather.
After speaking to a very helpful agent at BA holidays she managed to re-route us to Newcastle via TUl-ATL-LHR-NCL but we wouldn’t be able to fly until tomorrow. This means that we are now staying in an airport hotel overnight.
I booked the holiday using my BA PP Amex and was wondering if I can claim any expenses ie hotel and food etc.
Look forward to any advice!
@DeanW – the reason for the AA flight cancellation doesn’t particularly matter as 261 doesn’t apply, but in the ordinary course of events, I would have expected AA to pay your overnight costs but as the rebooking has been done via BAH rather than AA they may be a bit funnier about it. The BAPP travel inconvenience section may cover this (assuming you paid on the card), but they will expect you to claim from AA first.
Morning @JDB.
Thanks for your reply. As you can imagine last night was all about getting to a hotel and trying to get some much needed sleep.
We’re hopefully travelling back today so I’ll contact AA upon my return and see what I can glean from them. I’ll also speak to BAH. First time in nearly 40 years of travelling that this has happened so appreciate your input.
- You must be logged in to reply to this topic.
Popular articles this week:
