Legal rights and coronavirus: FAQs for holiday consumers
Head of our travel law team Clare Campbell answers some of the most frequently asked questions her team has received during the current coronavirus lockdown.
Posted on 20 April 2020
Since our previous blog about consumer rights we have been inundated with queries about the difficulties holidaymakers are experiencing with claiming refunds for holidays or flights or even being able to get in touch with their providers. Although there is sympathy for the unprecedented volume of enquiries these companies are facing, it is important to point out that since the Covid-19 pandemic began the law hasn’t changed and consumer protections remain in place.
Below is some helpful updated guidance on consumer rights regarding flight and holiday refunds based on the many questions we have received.
My flight has been cancelled but the airline is only offering me a vouchers – do I have to accept this?
The Foreign and Commonwealth has advised against all non-essential travel “indefinitely”. Most airlines are either grounded for the foreseeable future or offering severely reduced schedules.
Under EU rules, if your flight is cancelled then you are entitled to either a full cash refund or an alternative flight to your destination. Given that re-routing is not likely any time soon, consumers are well advised to opt for the refund. Some airlines are offering vouchers but you are not obliged to accept. Technically the cash refund is meant to be paid within 7 days of the cancellation notification but given the unprecedented levels of cancellations at present, the process is taking much longer than expected. Persevere though because the law is clear and on your side.
If you are unable to get through to the airline either on the phone or their website, then we recommend that you put your complaint in writing and quote Article 5 1(a) and Article 8 1(a) of EC Regulation 261/2004. If the airline fails to respond or continues to refuse payment then you are entitled to issue court proceedings.
What if my flight has not yet been cancelled (e.g. if you’re travelling in August or later in the year)?
Where your existing flight has not been cancelled it may be better to either reschedule, if this can be done through the same airline without paying a re-booking fee, or wait for the airline to contact you advising you that the flight is cancelled.
What if I have booked a package holiday?
If you have booked a regulated package holiday, then technically your rights should be straightforward given the Package Travel Regulations 2018. Holidaymakers are entitled to a full cash refund within 14 days of the cancellation being known. Given the advice from the Foreign Office, consumers whose package holidays are booked to take place during the current lockdown period should be entitled to their money back as a full refund. Most tour operators, including TUI the largest operator in Europe, have announced cancellations up until mid-May 2020 so technically if you fall into this category, you should be receiving your cash refund. We are however in extraordinary times and most tour operators, including TUI, are refusing refunds and instead offering consumers refund credit notes, sometimes with up to 20% discount “booking incentives”. It is up to individual consumers if they want to accept this offer but the law is clear – you are entitled to a cash refund if this is your preference.
Again, if you are unable to get in touch with your tour operator or are dissatisfied with the response, then put your complaint in writing and quote the Package Travel Regulations 2018. If this doesn’t work then, again, you are entitled to issue court proceedings.
What if my package holiday is after May 2020? Where do I stand? Should I pay my balance?
The situation for holidays booked post May is less clear. Although foreign holidays for the next few months look increasingly unlikely, these holidays have not yet been cancelled by the tour operators and will therefore be subject to the individual booking terms and conditions. Consequently, if the consumer chooses to cancel them, they could be subject to a lost deposit or even a hefty cancellation penalty.
If the balance of your holiday is due soon then technically this needs to be paid in order to avoid losing your deposit. It is understandable though that you would be worried about paying the balance when the holiday might not go ahead or the company might not stay solvent. We would recommend trying to speak to the tour operator to see if the booking can be moved or if the balance payment can be deferred but this is currently easier said than done. If you trust the process however, you should pay the balance and then either enjoy your holiday if it takes places or be entitled to a full cash refund in the event the tour operators cancel it due to an extension of the current restrictions.
Can I claim on my travel insurance?
Insurers and travel companies are most likely to align their policies with FCO advice so if anyone does decide to travel for non-essential reasons, contrary to Government advice, then there is the risk that any existing travel insurance will be automatically invalidated.
In terms of claiming on existing insurance policies for the costs of cancellations that are not refunded by airlines and hotels etc; this is likely to depend on the status of the Government and FCO’s travel advice at the date of cancellation.
The Association of British Insurers (ABI) have advised that travel insurance ‘is not designed to cover disinclination to travel where the FCO advice has not changed to advise against travel’.
This means that from an insurance point of view, if you have bookings towards the end of the year, it may be better to keep those in place for now, and wait for the hotel/airline company to contact you and tell you that the bookings are cancelled, rather than pre-emptively opting to cancel bookings now.
What if the worst happens and the airline or the tour operator goes bust? What are my rights?
The travel industry has already seen the loss of the airline Flybe as a result of the current pandemic. It also still reeling from the collapse of Thomas Cook last year. Sadly, it is not impossible to envisage other companies being unable to continue trading in the future due to the impact of Covid-19. Where then do consumers stand in relation to their flights or package holidays?
Package holidays are covered by the financial protection scheme ATOL (Air Travel Organiser’s License). It makes sure that you don’t lose the money you paid for the holiday if the travel company collapses. Claims are dealt with by the Civil Aviation Authority and are usually processed online but they can take a while.
If your airline goes bust, then you are unlikely to get a refund from them as they will have ceased trading. You will need to see if you are covered by your travel insurance or using section 75 of the Consumer Credit Act 1974 if the purchase was between £100 and £30,000 and booked on a credit card. If you booked on a debit card then you may also be entitled to claim under the Chargeback Scheme from individual banks but this is time consuming and discretionary.
These are unprecedented times with much uncertainty about the future of the travel industry. We firmly believe however that maintaining consumer protection and trust is paramount and airlines and travel companies should uphold their obligations and ensure that the customers who prefer a cash refund are treated fairly and in accordance with the law.
If you are dissatisfied with the response of your airline, tour operator or other holiday provider, then we may be able to assist. Please feel free to get in touch with our specialist travel lawyers at Leigh Day on 020 7650 1200 or email TravelNewEnquiries@leighday.co.uk