Which? Legal Hour: Coronavirus and the consumer

Comments

13 May 2020

Virgin Atlantic are refusing a claim under EU Regulation 261/2004 EC, due to “extraordinary circumstances”. VIR cancelled flight VS66 MBJ-LGW on 20/03/20. VIR have refused to pay compensation under EU Regulation 261/2004 EC, due to “extraordinary circumstances” of WHO declaration of pandemic on 30/01/20…but they nevertheless flew us out to MBJ on 10/03/20. That can’t be right can it?

James Shelton says:

13 May 2020

Hi AlanButtifant,

Thank you for your message. I think it’s important to clarify whether you are looking for compensation for your flight being cancelled/delayed for your inconvenience or whether you are seeking a refund for your flight?

It’s important to review the regulation and seperate the differences between your ‘choices’ as per regulation 8 (discussed in question 1 by Tom and I) and your right to entitlement as per regulation 7.

The phrase “extraordinary circumstances” is primarily used as the airlines defence for compensation rather than dealing with a rebooking/refund.

The distinction is incredibly important. I’ve provided some helpful links below:
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32004R0261

and

http://www.which.co.uk/consumer-rights/regulation/denied-boarding-regulation

I hope this helps,

AlanButtifant says:

13 May 2020

Hello James, and thanks for getting back to me.

Is this an “either” “or” situation?

By this I mean: Can I “either” claim compensation under EU Regulation 261/2004, “or” reimbursements of the expenses I incurred as a result of VIR cancelling the flight (extra hotel accommodation etc, plus having to purchase a return flight on British Airways as I receive NO help from VIR in getting me on one of their own flights back to the UK?

What I want to be able to do is claim not only my expenses, (as detailed above), but also compensation under EU Regulation 261/2004 for the disruption caused; is that not possible?

I hope you can help with this further question?

Thanks in advance.

Kind regards, Alan.

Alan Buttifant.

13ton says:

13 May 2020

Hi,
I have been refused a refund of rearrangement fees for a BA flight due to a misleading message on their recorded phone message (impossible then to get any answer on the phone). This was at the cusp of COVID-19 formal announcements. Which is the most effective method to escalate a claim? CEDR or Small Claims court procedures; or is there another alternative?

Jon Stricklin-Coutinho says:

13 May 2020

Hey 13ton,
I’ve removed the second comment from you as it appears to be the same comment as this one. We’ll get on to an answer to this one as soon as we can.

James Shelton says:

13 May 2020

Hi 13ton,

I would strongly consider raising the complaint with BA in the first instance. I would hope that BA may be able to resolve this with you directly. Failing this, I would consider CEDR as an escalation point if they can assist or alternatively approach your credit card company.

As always, County Court action should be a last resort as usually there is risk/cost associated with this.

I hope this helps,

13ton says:

13 May 2020

Hi,
Thanks – my error!

13ton says:

13 May 2020

Thanks. Yes it does; BA refused a refund as I said (in an email exchange) but have not referred me or mentioned their complaints procedure.

DrSteveWhite says:

13 May 2020

People with certain medical conditions must be shielded from the virus. Cottage letting companies are saying the advice to these people is only advisory not legally required so customers are making a choice to cancel so monies paid are forfeited and/or outstanding balances due. Is this fair or legal?

DrSteveWhite says:

13 May 2020

If a cottage let is unable to go ahead because of Lockdown legislation, can owners/ lerring agencies still demand payment for any oustanding balances?

Lauren Stacey says:

13 May 2020

Hi @DrSteveWhite

My colleague Thomas has answered this query a little earlier on in the Which? Legal LIVE hour. Please scroll up the first page and you will find the information that you are looking for.

DrSteveWhite says:

13 May 2020

The one about frustrated contracts?

Jamie says:

13 May 2020

I don’t think this Legal LIVE hour has been thought through. I think the 7 Ps principle applies!

-1

Jon Stricklin-Coutinho says:

13 May 2020

Fourth question from the suggestions: Does ATOL cover vouchers and credit notes?
Am I entitled to a refund instead?

Lauren Stacey says:

13 May 2020

This question was submitted by Pablo – thank you, for your query. I’m sure that many others are wondering this.

We have been told by some of our members that tour operators and travel agents are offering credit notes and vouchers instead of a refund when a holiday/flight has been cancelled. This is not something that you are obligated to accept if you do not wish to do so. ABTA guidance has suggested that refund credit notes are ATOL protected if your package travel contract/flight benefited from ATOL protection. However, there is no comment on this on the ATOL website. As such, we cannot confirm this position and there is a risk to accepting a refund credit note in this respect. Please ensure that you check the terms and conditions of any refund credit note and ATOL certificate that is presented to you. It is worth noting that generally a voucher or credit note would not offer protection if for example, the company that it related to ceased trading. In these circumstances a claim would need to be made against a credit card company if payment was made towards the holiday using a credit card or a travel insurance policy and would be considered on an individual basis.

I would therefore recommend that you continue to push for a refund rather than accepting an alternative remedy.

Catherine Allen says:

13 May 2020

My travel co says the coach tour vouchers are fully bonded with the Bonded Coach Holiday group – what is this and what protection does this provide?

I.Conte says:

13 May 2020

Hi Lauren,

Thanks for your answer. I Secret Escapes T&C it says the following:
47.1 Your refund credit note (“RCN”) acts as an amendment to an existing booking, allowing you to amend your destination and travel dates. You will see a credit for the full value of your original booking in the “Account” section of the website.

47.2 The RCN credit can be applied to any sales listed on the website, although please note that if you choose to book a sale that is not a Secret Escapes package (such as a hotel only booking), you will lose the ATOL protection on the RCN. All booking amendments are subject to current availability which you can view on the website.

47.3 Your RCN is valid for the period of time stated on the document. To the extent that you have not used the credit by the end of the validity period, you will be refunded the balance in cash. We will contact you at the time to arrange the best payment method to do so.

47.4 Your original package booking, and any subsequent amendment to another Secret Escapes package, remains financially protected under the ATOL scheme. Please keep a copy of your RCN and your original ATOL certificate as evidence of your entitlement to ATOL protection. Please refer to paragraph 40 of these terms and conditions for more information about ATOL protection.

For what you said, this may not be true and we need to push for a refund, is that right?

Lauren Stacey says:

13 May 2020

Hi @I.Conte

I appreciate that this information has been provided to you by Secret Escapes, however as mentioned previously, there has been no formal confirmation from the Civil Aviation Authority or the government that refund credit notes will be ATOL protected. Therefore, please proceed with caution.

My advice would be to continue to push for a refund.

Thomas Holloway says:

13 May 2020

Hi Catherine, I have just had look at the Bonded Coach Holiday’s website ( http://www.bch-uk.org/ ) and it states that:

“BCH safeguards your money in the unlikely event that your BCH tour operator ceases trading. You are guaranteed repayment of monies paid. It also ensures the completion of your holiday if it has already started.”

It explains the basis of this protection:

“Each BCH member is required to provide a bond from a bank or major insurance company to BCH. This bond is used to refund your money or to allow you to complete your holiday if already started. BCH also has an insurance policy available to cover unlikely situations where a members bond does not cover all the refunds.”

This appears to be a similar scheme to ‘ATOL’, which should cover you if your travel company becomes insolvent in the interim. I would still encourage you to read the terms and conditions of the voucher so you are fully aware of the extent and application of the protection.

Chris says:

13 May 2020

Hello, your previous comments about holiday packages may cover this question. However, an experience day company was due to provide my son and his friends with an experience in May. Due to the lockdown the day was not able to go ahead. The experience company has advised that their deposit is non-refundable, and has moved the booking to July, which is not convenient for all the participants so they would like to cancel and get a refund. Where do they stand please? Thank you for your help this morning.

James Shelton says:

13 May 2020

Hi Chris,

Thank you for your message. If this is an experience day event in isolation it likely wouldn’t be a package holiday and therefore you wouldn’t have those rights.

This eventuality is more akin to a holiday cottage booking based in the UK. I would suggest reviewing the answers to this instead. As with other questions I would suggest reviewing the terms and conditions of the contract and understanding what the starting point is. There may be a relevant force majeure clause that could be applicable or a rearrangement clause.

Beyond this, you could look to approach them directly requesting a refund to see what their stance is or consider your credit card company if you believe the contract has been breached.

I hope this provides a starting point.

HenryHound says:

13 May 2020

I have flights booked with Ryanair in June. The company has stated that scheduled flights will not resume until July. Even so they deny that flights have been cancelled. So no cancellation no refund is due. Ryanair are denying the reality of the situation. When will it become clear that the flight is cancelled? Do I have to wait until the date of departure?

Thomas Holloway says:

13 May 2020

Hi Henry, unfortunately Ryanair are technically within their rights to effectively wait and see what happens. I suspect they are doing so to try and stagger out refunds to protect their cash flow. This means you would have to wait for the flight to be formally cancelled. At that point you would then be entitled to reimbursement within 7 days.

PeteSmith says:

13 May 2020

I am a self-employed sole trader working as a chiropractor in Wales, but I haven’t been allowed to work at all since 19/03/2020 because of the CoviD-19 situation.
(1) I havn’t applied for any financial suppport for this as I am rather formophobic. I was hoping this would all blow over, but it has not, so now I need to apply for help. How do I find out exactly what financial support might be available to me, including what has been announced today. Does that apply to Wales? What about HMRC?
(2) How do I find out what the government standards are for PPE as I do not wish to end up with a lorry load of substandard equipment, not fit for purpose, as did the government.
(3) How do I find out what are the legal requirements for disposal of such PPE equipment when used, being in full compliance with all legislation as is my professional duty,
Thanx, Pete Smith.

Jon Stricklin-Coutinho says:

13 May 2020

Hey Pete,

Unfortunately we won’t be able to address your second and third points as that’s outside of our area, and the legal service doesn’t advise on self-employment. I’ll see if we’re able to offer help through a different means.

Jon Stricklin-Coutinho says:

13 May 2020

Hey again Pete,

I’ve had a chat with @simon-dicey from Which? Money Helpline. He’s offered the following advice:

[You] may be able to get help using the SEISS which is available as from today for the self employed who have traded during the 2018/19 tax year. You will need to have completed a tax return during the 2018-18 tax year which included self employed profits.

We have some guidance on our website: https://www.which.co.uk/news/2020/05/government-announces-grants-for-self-employed-workers-during-coronavirus-outbreak/

And here is also the Gov.uk link which explains how this works: https://www.gov.uk/government/news/applications-for-self-employment-income-support-scheme-open-early

BrianLander says:

13 May 2020

I assume that just because companies are unable to answers phones/respond due to volume of calls at present, there is no time limit after which they can claim I’m “too late” for a refund.

Thomas Holloway says:

13 May 2020

Hi Brian, if the company has failed to refund you (e.g. due to a cancelled flight or cancelled package holiday) then they would be in breach of contract. In England & Wales you would have 6 years (5 years in Scotland) to issue proceedings in court against the company from the date of the breach of contract (i.e. the day they should have refunded you).

To put it simply, I would say there is no ‘rush’ to demand a refund, but I would still encourage you to try and get through to them to make your request for a refund as clear and obvious as possible. We hope that as life returns to ‘normal’, companies will begin to get through the back-log of requests.

Sharon L says:

13 May 2020

Really struggling to decide whether to pay balance in full (due today £5,000) for a James villa holiday… this is linked to an already paid for week with Tui in Greece in July. We already know we definitely do not want to go…
Help. Cant speak to anyone at James villas or Tui…

Lauren Stacey says:

13 May 2020

Hi Sharon

If you scroll down the page a little, my colleague James Attew has provided some information that may assist you in understanding your position.

If you would like to discuss your query in more detail, please take a look at our affordable membership options and contact us on 0117 405 4854 for tailored advice.

Lewis Rooke says:

13 May 2020

Hi guys, had an issue with Ryanair and lastminute – was due to fly out the 16th March, but FCO advised against all but essential travel on the 15th. I spent all day trying to contact Ryanair and lastminute to uncheck in and reschedule as they offered to do, however I received no reply and was unable to reschedule. I missed the flight out of safety, is there anything I can do about this? Thanks

James Shelton says:

13 May 2020

Hi Lewis,

I’m sorry to hear of the flights and the problems you had. I’d love to provide some assistance. However, as you can imagine there are a lot of questions that I have and that would need to be explored before providing a substantive response.

I’ve provided our contact information below if you’d like get tailored affordable advice on the matter. Please do consider giving us a call on 0117 405 4854, or joining the service online.

Jon Stricklin-Coutinho says:

13 May 2020

Final question from the suggestions: What to do about upcoming holidays?

What if I have a holiday coming up, but it’s not clear from the current restrictions whether I’ll be able to go?
What if I’m required to quarantine on arrival or on return to the UK?
Should I cancel if I’m uncertain about whether or not I can, or should, travel?

James Attew says:

13 May 2020

If you have an upcoming holiday and are due to make payments, but you are uncertain whether the holiday will go ahead or, for instance, whether it could practicably go ahead due to quarantine restrictions, then the first stage is to consider the terms and conditions of the booking to establish what, if any, options may be available to you.

James Attew says:

13 May 2020

If you have a two-week package holiday, due to depart in the near future and, for instance, the destination is subject to quarantine for a period of 2 weeks, then the package company should be cancelling the holiday and providing you with a full refund of the package price.

James Attew says:

13 May 2020

Generally, if there is the possibility of the holiday going ahead as normal then normally we would recommend making payments in accordance with the contract (e.g. balancing payments); if you do not, then the business may have the ability to terminate the contract, retain any sums paid and, potentially and depending on the terms and conditions, pursue them for any further payments due under the contract.

James Attew says:

13 May 2020

As an alternative It may be that you would wish to try and discuss the position with the entity you booked with. There may be a possibility of transferring the booking to a later date. However beware that with package holidays, you will need to be certain that ATOL protection would extend to the rearranged booking.

James Attew says:

13 May 2020

We would recommend making any payments for holidays by way of a credit card as, should the business fail to provide you with a refund, for example if the holiday does not go ahead, then in those circumstances the credit card company may be jointly and severally liable under s.75 of the Consumer Credit Act 1974, i.e. you can pursue the credit card company for the whole refund, even if you only paid a proportion of the cost of the holiday on a credit card, as long as the booking was between £100 – £30,000 in total. If you did rearrange the holiday or booking, the credit card company may try and argue that that is a different contract and as such, that protection may not extend to that other booking.

James Attew says:

13 May 2020

Do check the terms and conditions of any travel insurance to see what further assistance you may have from that policy.

DrSteveWhite says:

13 May 2020

What if you are concerned about not getting your money back from a company that may go bust or only wants to give partial refunds.

Lauren says:

13 May 2020

Thanks for answering that question @James-attew, very helpful

James Shelton says:

13 May 2020

Hi DrSteveWhite,

Thank you for your follow up message. If you’ve paid by a credit card and they were to go into administration/liquidation then you could look to hold the credit card company liable i.e hold the credit card company liable for the performance of the contract or provide a refund if appropriate.

If they are only providing a partial refund and should be giving a full refund given the circumstances then you could again look to approach the credit card company.

I hope this helps,

Sheran Edward says:

13 May 2020

My original package holiday with Fleetway Travel was on the basis of a non-refundable, non-cancellable contract. Their terms and conditions for a ‘force majeure’ situation where they had to cancel the holiday referred me to claim from my travel insurance. Fleetway subsequently cancelled my package holiday to Northern Italy in April, advising me to contact my travel insurers. Nationwide travel insurance were initially happy for the claim to proceed but then I received a message from Fleetway offering a refund credit note expiring in December 2021. Now I can’t get a full refund from either the travel insurance or the tour operator.

Lauren Stacey says:

13 May 2020

Hi @sheranedward

If you take a look at the advice provided by myself and my colleagues James Shelton and Thomas on the first page of comments this should help you to understand your position and move forward in obtaining a full refund not a credit note or voucher.

Lauren Stacey says:

13 May 2020

If you continue to receive a negative response from Fleetway Travel, you may wish to consider our affordable membership options and contact us on 0117 405 4854 to discuss further action.

SheranEdward says:

13 May 2020

Hi Lauren, and thanks for your comments and for all the advice earlier in these discussions. Earlier this month, on the basis of advice in recent Which? articles, I held out for a full refund from Fleetway, suggesting a reasonable timescale of a couple of months. Fleetway have just replied ignoring my request and offering the same options. I will be in touch with you for further advice. Many thanks.

Jon Stricklin-Coutinho says:

13 May 2020

Just a reminder as we’re coming to the end of the full legal hour – if you have a question or challenge that wasn’t covered here today, Which? Legal offers affordable legal advice to join and make an appointment by phoning 0117 405 4854, or join the service online

Chris says:

13 May 2020

Thank you for the advice you have provided today.

Richard James says:

13 May 2020

The Brittany Ferries question also referred to them treating each sailing of a return trip booking independently. So if only the outbound sailing is cancelled they imply they wont refund for the return leg if it is not also cancelled, although they will provide a voucher (which may not be acceptable).

Is this ploy legal?

James Attew says:

13 May 2020

Hi Richard

Thank you for your message. The first question is whether they can make specific reference to the contractual basis for which they are permitted to act in this way. If they cannot do so, then my view is that a refund for the return leg should be payable.

Even if there is such a clause, my view is potentially this is an unfair term under the Consumer Rights Act 2015, as potentially they are seeking to unreasonably limit or restrict their own liability (having cancelled the outward crossing), which would make such a clause void and unenforceable.

My advice is to check the terms and conditions and, if you remain unclear, please do seek further advice.

Kind regards

James

lavenderkids15 says:

13 May 2020

Many Thanks for your advice

Jon Stricklin-Coutinho says:

13 May 2020

Thank you again for everyone taking part today! We’ve closed comments now on this discussion to enable the team to get back taking phone calls. Hopefully you’ve found it useful, and a starting point to getting help in your legal challenges. The comments will remain up though for your reference.

If you have a question or challenge that wasn’t covered here today, or a different question about which you’d like to talk to the team, Which? Legal offers affordable legal advice, and you can join and make an appointment by phoning 0117 405 4854.

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