Section 75 and consumer rights

mgfvvc

I read somewhere that the Financial Ombudsman had ruled that Section 75 claims could rely on consumer rights, which were legally part of the contract although they were not written into the contract. I can't find this decision anywhere. Can anyone confirm whether this is correct and provide details of the relevant  decision(s)?

NottinghamKnight

Might be worth giving some context, people would normally refer to the ombudsman any reasonable rejected S75 claim after making a complaint with their provider.

eskbanker

Surely the whole nature of consumer rights embodied within the Consumer Rights Act 2015 (and other such legislation) is that they're already deemed to be implied terms within any qualifying contract?  I can't see why the FOS would need to say anything about this and its findings aren't considered to set legal precedent anyway, as it sets out to determine what it believes to be fair rather than necessarily (just) what is legal, but a quick search for references to 'consumer rights act' at https://www.financial-ombudsman.org.uk/decisions-case-studies brings up plenty of cases such as https://www.financial-ombudsman.org.uk/files/214194/DRN9040658.pdf, where the complainant's consumer rights are included in the decision-making process.

Presumably the question isn't entirely academic and there's a real-life story here, what's this all about?

mgfvvc

the back story is I am waiting for a complaint to be heard by the FOS for a section 75 refusal over a cancelled flight. When the complaint is heard, I would like to argue that the provisions of EU261 are implied terms and that is analogous to the inclusion of the Consumer Rights Act as implied terms.

NottinghamKnight

mgfvvc said:

the back story is I am waiting for a complaint to be heard by the FOS for a section 75 refusal over a cancelled flight. When the complaint is heard, I would like to argue that the provisions of EU261 are implied terms and that is analogous to the inclusion of the Consumer Rights Act as implied terms.

You won't be allowed to argue, teh complaint will e reviewed and determined. You can appeal if it turns against you but the ability to submit any non specific evidence will be limited (ie not considered). 

[Deleted User]

Why not give some proper context:
Who cancelled the flight? Did the flight operate but you chose not to travel?
When you asked for a refund, if the operator cancelled it, what did they say?
What did you travel insurance say when you claimed on that?
Did you try a chargeback?

eskbanker

mgfvvc said:

the back story is I am waiting for a complaint to be heard by the FOS for a section 75 refusal over a cancelled flight. When the complaint is heard, I would like to argue that the provisions of EU261 are implied terms and that is analogous to the inclusion of the Consumer Rights Act as implied terms.

Unfortunately, https://www.financial-ombudsman.org.uk/files/28537/DRN0513669.pdf  suggests that this won't be valid, although I haven't continued to search for other similar (or more recent) cases:

Regulation EC 261/2004 prescribes what airlines must provide their passengers in the event that a flight is delayed or cancelled. This service considers that such rights are not implied into the contract between the airline and the consumer so any failure to observe the directive is not a breach of contract but a breach of a statutory duty by the airline. As there has not been a breach of contract by the airline, I consider that Mrs G’s claim against First Trust Bank under section 75 cannot be successful.

born_again

Deleted_User said:

Why not give some proper context:
Who cancelled the flight? Did the flight operate but you chose not to travel?
When you asked for a refund, if the operator cancelled it, what did they say?
What did you travel insurance say when you claimed on that?
Did you try a chargeback?

https://forums.moneysavingexpert.com/discussion/6144916/section-75#latest

Might help if that is what the OP is referring too.

But again it is very short on actual information.

I'm wondering why a chargeback was not done, as it is the quickest to action.

mgfvvc

Deleted_User said:

Why not give some proper context:
Who cancelled the flight? Did the flight operate but you chose not to travel?
When you asked for a refund, if the operator cancelled it, what did they say?
What did you travel insurance say when you claimed on that?
Did you try a chargeback?

The flight was cancelled by the Airline (TAP)

TAP refused a refund and were only prepared to issue a voucher.

Travel insurance said it wasn't covered on my policy.

The Credit Card refused a chargeback (took 6 months) and refused a section 75 claim, hence the ombudsman.

born_again

I think this is one the ombudsman is going to have to rule on.

Take it that chargeback was refused as over time limits.
What was the value of each flight per person? Not the total for outbound & return.

mgfvvc

Chargeback was refused because I had "failed to demonstrate a breach of terms and conditions", s75 refused  for the same reason.
Flights were about £200 each, outbound only. Return flights were on EasyJet who have refunded us.