Are air passengers’ rights fit for purpose? Simon Calder on what needs to change

Could air passengers’ rights rules soon be weakened? The “EU261” legislation that was brought in two decades ago are under scrutiny by the European Commission in Brussels.

They are considering whether the current rules, which specify large payouts for delays in flights, are fit for purpose.

The airlines loathe the detailed legislation, saying it is thoroughly disproportionate: passengers who pay £35 for a ticket could earn 10 times as much if their flight is three hours late.

Consumer groups – and the no-win, no-fee lawyers who make a tidy living pursuing claims from airlines – oppose any easing of the current obligations. But the whole messy legislation is in desperate need of overhaul.

Read more: What rights do you have to compensation if your plane is late?

It was poorly drafted in the first place – with no proper definition of “extraordinary circumstances” that let airlines off the compensation hook.

A series of frankly bizarre court judgments have made the rules absurdly generous in some cases. Yet enforcement is so haphazard that many people fail to get the care and compensation they deserve.

After Brexit, the UK government could have reformed the rules, at least for domestic flights. But instead ministers simply copied and pasted the lot – pausing only to convert the compensation amounts from those dodgy foreign euros to proper British pounds.

I have been covering the rules since their inception. This is what’s wrong with them, and what should be put right.

In the early 2000s, the European Parliament decided to introduce some rules to protect airline passengers in the event of disruption. They came into force in 2005.

The law had two basic parts: a duty of care in the event of delays or cancellations, and cash compensation for a short-notice cancellation that is the airline’s responsibility, or when passengers are denied boarding – usually in the case of overbooking.

A series of increasingly absurd court judgments have transformed the rules by equating a three-hour delay to a cancellation, and insisting that airlines should really deploy spare pilots and cabin crew at every airport they serve on the off-chance that someone goes sick.

Ridiculously, a four-hour delay on a London-Sydney flight earns the passenger £520, even though the lateness is neither here nor there given the length of the flight. On a business trip from Manchester to Frankfurt, four hours represents much more significant disruption – yet the passenger gets £300 less than the Australia payout.

In addition, the rules are lopsided: they apply to EU and UK airlines anywhere in the world, but to other carriers only when flying from Europe or the UK.

If you are flying from a UK/EU airport or on a British/ European airline and are delayed in departing, the airline should provide refreshments as appropriate after a specified length of time. This applies regardless of the cause of the delay.

The time at which the duty of care kicks in depends on the distance you are flying:

If the airline believes providing the care would further delay the flight, it need not deliver anything.

Should the delay extend overnight, the airline is obliged to find and pay for a hotel room. In practice, carriers often say, “too difficult”, and invite the passenger to book their own and reclaim later.

While this practice does not comply fully with the rules, aviation authorities tend to turn a blind eye to it.

These rules also apply to short-notice cancellations.

If you are flying from a UK/EU airport or on a British/ European airline and are delayed in arrival by at least three hours, the presumption is that you are owed hundreds of pounds in compensation.

The payment depends on distance:

The only way the airline can avoid paying out is by demonstrating “extraordinary circumstances” were responsible. The rules provide only a partial answer: “political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes”.

Court cases have gradually refined the concept of “extraordinary circumstances” to exclude technical problems. In other words: if a mechanical failure caused the delay, you are due compensation. A judge ruled such issues are “inherent in the normal exercise of the activity of the air carrier”.

Official strikes by the airline’s own staff are regarded as within the carrier’s control, but oddly “wildcat” walkouts not sanctioned by a trade union are not.

For short-notice flight cancellations, the same rates apply – with the caveat that if the airline can get you to your final destination within two hours, no cash is payable, and for two-to-four hours the amount is halved.

Airlines need no persuasion, but the existence of a “cliff-edge” payout deadline encourages behaviours that are not in passengers’ interests.

For example, a problem with an aircraft could trigger a delay of three hours – but airlines will avoid the risk of paying out by shuffling their fleets, and possibly making a pair of flights two hours late. The overall number of passenger-hours of delay increases by one-third, but the obligation of the airline falls to zero.

In addition, the scale of the potential payout means many airlines make it difficult to claim. Foreign carriers may flout the rules altogether. Even UK carriers also often ignore the first requirement of the air passengers’ rights rules: tell passengers exactly what their entitlements are.

The duty of care – particularly the provision of hotels for passengers stranded overnight – is important, but pathetically policed. Airlines that simply ignore the rules, and leave passengers to their own devices benefit from saving many thousands of pounds.

The Civil Aviation Authority should enforce compliance. Longer term, if airlines were obliged to pay (say) £100 to every passenger for the extreme inconvenience of sleeping on the airport floor, they might up their game.

As an aside, for intercontinental flights to the UK/EU, it is always worth booking on British or European airlines so you are looked after and, if appropriate, compensated for disruption.

The obligation to provide an alternative flight for any cancellation, even if notified well in advance, is also a passenger benefit. The cancelling airline must pay for a ticket on another carrier if it cannot get you to the intended destination on the same day.

Regrettably, some travellers tell me their airline has bluntly refused to rebook them – leaving them in the difficult position of deciding whether to buy a new ticket and claim back from a recalcitrant carrier.

Make compensation commensurate with the amount paid. I didn’t relish a four-hour delay on Ryanair from Hamburg to London Stansted, but neither did I deserve £220 for a ticket that had cost me £15.

Make payouts properly proportionate to lateness, as they do on trains. Say 20 per cent of the fare for a two-hour delay (better that zero, which people get at the moment), rising 10 per cent every subsequent hour. Beyond 10 hours, the valuable duty of care rules – specifically to a hotel room for overnight delay – will provide reasonable extra benefit.

If people want better cover than that, then a shrewd travel insurer will start offering a good policy offering similar benefits to current payouts.

Crucially, the harm caused by delayed baggage needs to be addressed. If your flight is on time, but you end up waiting three hours for your bags to be delivered due to poor resourcing at the arrival airport, the net result is the same as a three-hour delay – but you don’t get compensation or even a cup of tea while you are waiting.

Lost and misrouted baggage is also deserving of a payout. This should be commensurate with the fare – and luggage charge – paid.

Crucially, though, proper enforcement is essential, making sure that airlines comply with the rules – starting with the obligation to tell people their rights, explicitly, rather than concealing them on a link.

And while it might not be popular with Brexiteers, the UK should work closely with the EU to make sure the rules are aligned. Otherwise things could get very messy. Right now I am sitting aboard a delayed flight run by Ryanair of Ireland, using a plane registered in Malta, from Portugal to the UK.

Things are complicated enough already, and two different sets of rules would make things even worse.

The US has extremely good payouts for involuntary denied boarding through overbooking, which are hardly ever made – because the rules incentivise airlines to do the right thing, offering large financial bribes to seek volunteers. But airlines are not obliged to offer meals and accommodation if the delay or cancellation is not their responsibility.

Australian airlines have few obligations to passengers, with negligible care and compensation.

In many other parts of the world, air passengers’ rights are non-existent – with airlines choose what, if any, care to provide. Some nations may even look at the EU/UK rules, see how ridiculous they are, and decide not to bother.

Source: independent.co.uk