Section 75

eskbanker

Life__Goes__On said:

So for your viewpoint to be correct, I need to be wrong, the Ombudsman need to be wrong and the The Package Travel and Linked Travel Arrangements Regulations 2018 need to be wrong.

I can't see the point of further discussion.

Suit yourself, but it seems to me that there's scope for sensible debate here, which is why I politely pointed out why I don't see the FOS case you cited as being relevant and explained my reasoning for reaching this conclusion.

It's obviously your prerogative not to address the issues that I raised with that case and to ignore the other one I introduced that reaches a different conclusion in circumstances clearly closer to OP's.

I'm not seeing it as FOS being right or wrong in either of the quoted cases, and don't see them as contradictory, but it's more about applicability to different scenarios.

Likewise, I'm not claiming that the 2018 regulations are wrong - they improved consumer protection in various ways but didn't suddenly bring all packages into s75 scope, as explained at https://www.moneysavingexpert.com/travel/holiday-rights/#protect-3

eskbanker

harsh_but_fair said:

What is interesting (if you don't mind an intrusion into this from a newbie) is the fact that we are in months into the biggest number of cancelled holiday events since the Great Flood and this forum (and indeed the whole internet) is awash with people asking 'am I covered by my credit card if I've booked holiday x via agency y' and there is still no definitive answer...

The proof being that two very respected people on this forum are disagreeing

somebody needs to get a stake in the ground

MSE have published their guidance in the generic piece linked above, and have amplified on it in their coronavirus article at https://www.moneysavingexpert.com/news/2020/02/coronavirus-travel-help-and-your-rights/

The issue as I see it is that it's a very simple question but a very complicated answer, given all the multiple factors that come into play, as mentioned in an earlier post, i.e. travel company obligations under the package regulations, ATOL, travel insurance, chargeback, s75, etc, etc, so condensing all that down to a short one-size-fits-all answer is something of a challenge to say the least!

Life__Goes__On

harsh_but_fair said:

What is interesting (if you don't mind an intrusion into this from a newbie) is the fact that we are in months into the biggest number of cancelled holiday events since the Great Flood and this forum (and indeed the whole internet) is awash with people asking 'am I covered by my credit card if I've booked holiday x via agency y' and there is still no definitive answer...

The proof being that two very respected people on this forum are disagreeing

somebody needs to get a stake in the ground

The issue is the Package Travel and Linked Travel Arrangements Regulations 2018 and how it relates to Section 75 in The Consumer Credit Act 1974

This is a new law for holidays booked after July 2018  and some mostly  holiday companies haven't adapted to this.

Under the PTLTAR 2018, it makes it clear that if you buy say any airline ticket and any hotel for at the same time for the same trip ,  it is a package holiday, before it wasn't so black and white.

Say you buy a BA flight from a travel agent ,  your product is the flight from BA.  With a section 75 there needs to be a direct link between who you paid  and who provided the service.  In this case (paid the TA service by BA) there isn't so a Section 75 would fail

But with the  PTLTAR 2018 if you bought a flight and a hotel from a travel agent (with the above proviso),  your product isn't classed as a flight & hotel  it's legally classed as a "package"
So the travel agent is the one that you paid,  and also the one that provided the service "the package"  so a S75 will succeed.

eskbanker

Life__Goes__On said:

But with the  PTLTAR 2018 if you bought a flight and a hotel from a travel agent,  your product isn't classed as a flight & hotel  it's legally classed as a "package"
So the travel agent is the one that you paid,  and also the one that provided the service "the package"  so a S75 will succeed.

For the record, I absolutely agree with this as stated!

My issue is that if you go to your travel agent (online or high street) and buy a pre-packaged holiday from, say, TUI, then the fact that it's packaged by TUI (rather than the travel agent) means that in this scenario it's TUI who are the supplier providing the service for s75 purposes.

Life__Goes__On

eskbanker said:

Life__Goes__On said:

But with the  PTLTAR 2018 if you bought a flight and a hotel from a travel agent,  your product isn't classed as a flight & hotel  it's legally classed as a "package"
So the travel agent is the one that you paid,  and also the one that provided the service "the package"  so a S75 will succeed.

For the record, I absolutely agree with this as stated!

My issue is that if you go to your travel agent (online or high street) and buy a pre-packaged holiday from, say, TUI, then the fact that it's packaged by TUI (rather than the travel agent) means that in this scenario it's TUI who are the supplier providing the service for s75 purposes.

The PTLTAR 2018 there is no distinction between the two, it was one of the reasons  for the Act.
It brought an off the shelf one in line with the traditional one (TUI) they are both treated the same legally

With your example they  would be treated differently as a person might not be sure who is the provider of the "package" is, either the TA or TUI.  The Act wanted to make it clear it's always the one that sold you the "package" that is also the supplier of the package

Under PTLTAR 2018  you can not re-sell a package holiday, no matter what any T&Cs are, the seller of the package is always the provider of the package.

EDIT
With your example LH didn't sell a TUI package holiday
It sold a package holiday, that is also a TUI package holiday if bought from TUI


EDIT 2
Just to make it clear  not talking if holiday is purchased via a finance company.

eskbanker

Life__Goes__On said:

eskbanker said:

Life__Goes__On said:

But with the  PTLTAR 2018 if you bought a flight and a hotel from a travel agent,  your product isn't classed as a flight & hotel  it's legally classed as a "package"
So the travel agent is the one that you paid,  and also the one that provided the service "the package"  so a S75 will succeed.

For the record, I absolutely agree with this as stated!

My issue is that if you go to your travel agent (online or high street) and buy a pre-packaged holiday from, say, TUI, then the fact that it's packaged by TUI (rather than the travel agent) means that in this scenario it's TUI who are the supplier providing the service for s75 purposes.

The PTLTAR 2018 there is no distinction between the two, it was one of the reasons  for the Act.
It brought an off the shelf one in line with the traditional one (TUI) they are both treated the same legally

With your example they  would be treated differently as a person might not be sure who is the provider of the "package" is, either the TA or TUI.  The Act wanted to make it clear it's always the one that sold you the "package" that is also the supplier of the package

Under PTLTAR 2018  you can not re-sell a package holiday, no matter what any T&Cs are, the seller of the package is always the provider of the package.

EDIT
With your example LH didn't sell a TUI package holiday
It sold a package holiday, that is also a TUI package holiday if bought from TUI

I do get that the purpose of the act was to harmonise consumer protection between bespoke and off-the-shelf packages (by including both within ATOL, etc), but it's still not clear to me that its provisions extend as far as actually redefining service supplier for s75 purposes, where the role of intermediaries has always had legal significance, not just in the context of travel but in other scenarios too.

The FOS case I cited earlier makes a clear distinction between the roles of organiser and supplier in agreeing that s75 didn't apply, so where these are two separate organisations it doesn't seem as straightforward as you're suggesting - are you able to highlight the specific provisions that support your statements above, or do you have a view why that FOS case went the way it did?

Life__Goes__On

eskbanker said:

I do get that the purpose of the act was to harmonise consumer protection between bespoke and off-the-shelf packages (by including both within ATOL, etc), but it's still not clear to me that its provisions extend as far as actually redefining service supplier for s75 purposes, where the role of intermediaries has always had legal significance, not just in the context of travel but in other scenarios too.

The FOS case I cited earlier makes a clear distinction between the roles of organiser and supplier in agreeing that s75 didn't apply, so where these are two separate organisations it doesn't seem as straightforward as you're suggesting - are you able to highlight the specific provisions that support your statements above, or do you have a view why that FOS case went the way it did?

The PTLTAR 2018 only applies to holidays booked after July 2018

There is no dates in the FOS except the decision 11th Aug 2019

The person would have a had to book a  holiday,  go on that holiday, return for holiday, complain to the tour operator,  get a reply from the tour operator, file a Section 75,  get a response from the bank, and then file a complaint to the Ombudsman, and get the decision from the Ombudsman in just over a year,  for it to be under PTLTAR 2018

I don't think that is very likely on the rulings I have read,  but impossible to prove on way or another unless more info.

So I don't want to comment on that case as,  as if under the old law for package holidays, I wouldn't have an opinion one way or another, I don't know the old rules.

I have looked at PTLTAR 2018 and my view, is the  organiser  (Travel Agent) is responsible  not the operator  (TUI)
 https://www.legislation.gov.uk/ukdsi/2018/9780111168479/regulation/15

2) The organiser is liable to the traveller for the performance of the travel services included in the package travel contract, irrespective of whether those services are to be performed by the organiser or by other travel service providers.


To me it clearly states the "organiser" (TA) is responsible under the contract, not the other service provider (TUI)
So any failure in that contract results in a breach by the TA, and that is covered by Section 75
 

born_again

harsh_but_fair said:

What is interesting (if you don't mind an intrusion into this from a newbie) is the fact that we are in months into the biggest number of cancelled holiday events since the Great Flood and this forum (and indeed the whole internet) is awash with people asking 'am I covered by my credit card if I've booked holiday x via agency y' and there is still no definitive answer...

The proof being that two very respected people on this forum are disagreeing

somebody needs to get a stake in the ground

The problem with S75, especially in the situation as now. Is given the number of possible claims. It is going higher & higher up the chain. Seriously well paid legals are now involved checking over every word. They will make a decision, and it can be different between providers. Cases will then go to FOS and a ruling made. Sometime later this year... If you are lucky.
At the moment our stance is NO S75 where it has been cancelled by Co and a refund (voucher) has been offered. As vouchers are valid for a year and then you can claim a refund if not used. So we have been advised.
So as far as some are concerned NO breech of contract or misrepresentation. Has taken place.
The CMA is looking into the fact that refunds are not being provided straight away, but that is up to them. Consumer regs timescales for refunds is never going to happen, due to sheer number and the number of staff not available to do them.
Even if you took all the staff that worked on the planes, it could not be done as. They would have to be trained, as well as there would be no where near enough computers to cover them.

Even if a S75 case is taken on, I would not expect a result for several months while everything is thrashed out between parties. Card providers will not want to fund the travel companies shirking of their responsibility. As in the vast majority of cases S75 is funded by the card co. Eg other card holders by charges & interest rates.

Life__Goes__On

I totally understand card companies not wanting to payout, but they should follow the CCA 1974
A  person can file a Secton75 without even going to the  retailer or travel agent,
 " credit card company is jointly and severally liable for any breach of contract "
The only reason credit card companies  aren't obeying the Act, is they have never liked it and it costs them.

There will  be fines issued out at the end of all this, and expect card companies who have refused to follow the Act will be some of them.

Life__Goes__On

born_again said:

At the moment our stance is NO S75 where it has been cancelled by Co and a refund (voucher) has been offered. As vouchers are valid for a year and then you can claim a refund if not used. So we have been advised.

So as far as some are concerned NO breech of contract or misrepresentation.

Think I will print off a voucher (it's just an IOU) and pay my statement with it  and say a it can turned into cash next year.
I wonder if they will have a different opinion of a voucher then