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2 Oct 2020

More airline passenger misery as compensation court cases could take years

Which? calls for overhaul of broken complaints system that leaves thousands stuck in county court backlog

Thousands of people are still waiting to have airline complaints from 2019 heard in court, despite the collapse in passenger numbers.

One claims management solicitor, Bott & Co, told us that it would take up to 10 years for all its claims against easyJet and Tui, alone, to be heard at the current rate.

It said that for the past two months around 12 rulings a week have been made on its cases at Luton County Court and it has over 5,000 claims waiting. Even prior to the restrictions caused by the pandemic its cases were estimated to take up to 18 months.

This is despite the fact that the Ministry of Justice gave Luton County Court additional resources to deal with the backlog.

Even when they get a positive ruling passengers are not guaranteed to receive their money.Some have had to resort to using bailiffs to get their money back from reluctant airlines.

Yet, in theory, nobody should need to go to court or use an expensive solicitor to fight for flight delay or cancellation compensation. Complaints can be taken to the Civil Aviation Authority (CAA) or the adjudication schemes AviationADR and CEDR that it has authorised to rule on cases. But Which? has repeatedly heard from passengers who have been let down by the convoluted dispute resolution process.

Find more unbiased advice on travel and coronavirus, award-winning investigations and legal advice on holiday refunds and cancelled flights with Which? Travel

Flight cancellation rights

Passengers have had increased rights when their flight is cancelled or severely delayed since the EU261 rules were introduced in 2004. In some circumstances they can receive up to u20ac600 in compensation and should always have the right to a refund within seven days when flights are cancelled.

Yet rulings by the CAA are not legally binding on the airlines. We reported in 2017 that one airline, Emirates, was ignoring its rulings almost three quarters of the time.

While Emirates did ultimately agree to abide by the regulations other airlines continued to frequently ignore rulings. The new adjudication bodies CEDR and AviationADR, set up in 2016, were supposed to solve this problem, as their rulings are legally binding. But passengers remain confused and are still not guaranteed to get their money.

Airline complaints merry-go-round

Airlines are free to choose which of the dispute resolution schemes they would like to rule on their complaints. When the current system started British Airways, Tui, easyJet and Thomas Cook joined CEDR. Ryanair and many others joined The Retail Ombudsman, which later changed its name to AviationADR. Jet2 and others never joined any scheme.

But now BA is the only airline to remain with CEDR. EasyJet and Tui switched to AviationADR. Meanwhile Ryanair left AviationADR in 2018 after it was told to pay out for delays and cancellations caused by strikes by its own staff.

Prior to this it had been ordered to pay its customers £2.6 million in just six months, as well as fees to the adjudication scheme. Emirates and Norwegian have also both left AviationADR, leaving customers with no option but to complain to the CAA or go to court.

Even when passengers do get a favourable ruling from AviationADR, some airlines still ignore it. Three TAP Portugal passengers contacted us early this year to say that they hadn't been paid months after AviationADR ruled in their favour. Only after Which? Travel and the CAA got involved was the money paid out.

Bailiffs needed to make airlines pay up

Which? member Premini Mahendra went straight to the courts when Tui didn't pay her compensation claim. The case took 12 months and she ended up needing a bailiff. She says: 'I feel that Tui just wanted to frustrate me and string out the process. Lots of people probably just give up.'

Tui admitted earlier this year that it sometimes failed to pay compensation in time. It told us it had made it 'easier for a customer to make a claim directly, get a quick decision and receive the compensation they are due'.

We spoke to a bailiff who told us that his organisation issues hundreds of writs a year to airlines. Bott & Co alone says it called in the bailiffs 771 times in 2018, and 534 of those times were against Tui. On occasion bailiffs have even turned up at the airlines' offices.

The biggest winners are the solicitors. Premini was awarded u20ac400 but her solicitors took u20ac180 - almost half.

Airline complaints soar after Covid-19

As the Coronavirus is an 'extraordinary circumstance', in most cases there is no right to compensation. But passengers have had to fight to even get the refund that they are owed when flights are cancelled.

These claims can also be taken to the Civil Aviation Authority and the adjudication schemes. The CAA has not published data for 2020 complaints yet but it's clear that many consumers are still resorting to using the court or claiming from credit or debit cards.

Which? calls for a mandatory ombudsman

With so many passengers still struggling to get compensation, or even the refunds to which they are entitled, Which? is calling for the introduction of a mandatory aviation ombudsman.

The consumer champion has responded to the Civil Aviation Authority's (CAA) consultation on potential changes to its current Alternative Dispute Resolution (ADR) policy, highlighting how the current rules do not work for consumers and risk further damaging trust in the travel sector.

Rory Boland, Editor of Which? Travel, said: 'Throughout the coronavirus crisis, passengers have seen their consumer rights ripped up by some airlines that have consistently flouted the law - but they have found there is nowhere to turn for support.

This situation has only served to highlight that the current complaints system is broken, and tinkering around the edges will not be enough to reform it and make it work for passengers.

The government must ensure that passengers' needs are front and centre in its aviation recovery plan, starting with the introduction of a mandatory, single ombudsman scheme for airlines, as a first step to restoring trust in the sector.