S75/Chargeback claim rejected

Worriedandalone

Hi All
Apologies, I know that there is another thread relating to similar but there are key differences on that thread to my situation and I'm desperately after some advice as I really don't know where to turn now and as it currently stands have lost £1600.
We had a holiday booked with TUI to depart mid-June 2021 which was paid for in full. In May 2020 we requested to cancel the holiday on the grounds that the holiday, which TUI even today still intend on fulfilling, has significantly changed from what we originally booked pre-pandemic in January 2019 (we moved it in March 2020 when the pandemic hit and retained the same booking ref and T&Cs). TUI Only refunded 40% of the cost of the holiday in line with their T&Cs which were in place at the time of the booking despite having changed these to better terms since.
We wrote to TUI and requesting a full refund under the Package Holiday regs (since there have been changes that aren't significant) and referring to the CMA guidelines on the government website which state that holiday companies should offer refunds since contracts for holidays are considered frustrated under the circumstances. TUI refused outright and ignored all discussions of the Package Holiday regs and CMA guidelines looking to only refer to the T&Cs.
Instead we have then raised a S75/chargeback claim on our credit card that was used to pay for the whole amount of the holiday over 3 transactions. We have today received a letter refusing our claim because "you agreed to the merchant's terms and conditions at the time of the sale" and recommending that we continue to dispute with TUI (even though we have demonstrated multiple attempts at this). 
My question to you is whether the credit card company can do this under the Section 75 legislation. I've demonstrated to them that that I believe the T&Cs which TUI are holding us to do not meet the Package Holiday regs or the CMA Guidelines but they've acted the same as TUI and only referred to the T&Cs as if they supersede the law. 

Alternatively, does anyone have any suggestions on how I might overcome this? The credit card company has only given us 5 days to ask them to review the decision. Please help!

Worriedandalone

Apologies, I mean't "aren't INSIGNIFICANT" in the above

JamoLew

You booked Jan 2019
You moved it Mar 2020
You cancelled it May 2020
Holiday was for June 2021

Is this correct ??

What is the significant change that led to you cancelling ?

Browntoa

You cancelled , you pay the charges you agreed to on signing up , these are completely transparent during purchase.

If you hadn't cancelled then there's a good chance that you would have had a full refund by now as tui do not plan to resume most holidays until the end of June.

You have no chance of getting any further withthis

eskbanker

Ts & Cs can't supersede the law so if you can demonstrate a conflict then you should have a case.  However, I imagine this will come down to the interpretation of 'significant' - under the PTRs changes are generally regarded as significant if they adjust any of the characteristics outlined in schedule 1:

1.  The main characteristics of the travel services specified in paragraphs 2 to 10.

2.  The travel destination, the itinerary and periods of stay, with dates and, where accommodation is included, the number of nights included.

3.  The means, characteristics and categories of transport, the points, dates and time of departure and return, the duration and places of intermediate stops and transport connections.

4.  Where the exact time of departure and return is not yet determined, the organiser and, where applicable, the retailer, must inform the traveller of the approximate time of departure and return.

5.  The location, main features and, where applicable, tourist category of the accommodation under the rules of the country of destination.

6.  The meals which are included in the package.

7.  The visits, excursions or other services included in the total price agreed for the package.

8.  Where it is not apparent from the context, whether any of the travel services are to be provided to the traveller as part of a group and, if so, where possible, the approximate size of the group.

9.  Where the traveller’s benefit from other tourist services depends on effective oral communication, the language in which those services are to be carried out.

10.  Whether the trip or holiday is generally suitable for persons with reduced mobility and, upon the traveller’s request, the precise information on the suitability of the trip or holiday taking into account the traveller’s needs.

CMA guidance is just that, guidance, and they emphasise that it's not legally binding, so you should concentrate on the legal aspect of your argument....

Worriedandalone

JamoLew said:

You booked Jan 2019
You moved it Mar 2020
You cancelled it May 2020
Holiday was for June 2021

Is this correct ??

What is the significant change that led to you cancelling ?

That is correct. At the time of booking (and when it was moved) there were not costs of £600 for testing required or mandatory requirement for self isolation/quarantine on return. In addition elements of the holiday had significantly changed including requirements for mask, bookings for meals and pool times, removal of a number of activities and entertainment (including kids clubs) and reduced service/options for the all inclusive. 
Many of these may seem quite minor but added up result in "a change that is not insignificant". This is the wording that is used in the Package Holiday Regs which state that a person should then be entitled to a full refund. In addition the CMA Guidelines (I can't post the link sorry as my rating isn't high enough on here) state that due to the uncertainties package holidays should be considered frustrated contracts and a full refund provided. 

As a result, to me this isn't about whether I've signed up to the T&Cs but whether TUI are acting within the law and whether their T&Cs are lawful. In the event that they aren't where does S75 kick in.

Worriedandalone

Browntoa said:

You cancelled , you pay the charges you agreed to on signing up , these are completely transparent during purchase.

If you hadn't cancelled then there's a good chance that you would have had a full refund by now as tui do not plan to resume most holidays until the end of June.

You have no chance of getting any further withthis

That feels a little harsh but perhaps I'm just being sensitive. T&Cs do not have the right to supersede the law so saying "you pay the charges you agreed on signing up" isn't true all of the time and particularly in extenuating circumstances like a global pandemic. 
You say that we would have received a refund by now had we not cancelled but that simply isn't true. The hotel we were due to go to has now reopened and TUI aren't cancelling these holidays until the government makes it's next update on 7th June. By which time it would have been too late for us to "take advantage" of their offer to move the holiday since it would be less than 14 days until the holiday.

eskbanker

Worriedandalone said:

At the time of booking (and when it was moved) there were not costs of £600 for testing required or mandatory requirement for self isolation/quarantine on return.

Unfortunate but not the package provider's fault or responsibility.

Worriedandalone said:
In addition elements of the holiday had significantly changed including requirements for mask, bookings for meals and pool times, removal of a number of activities and entertainment (including kids clubs) and reduced service/options for the all inclusive. 

Many of these may seem quite minor but added up result in "a change that is not insignificant". This is the wording that is used in the Package Holiday Regs which state that a person should then be entitled to a full refund.

Regulation 11 allows the customer to terminate with a full refund if "the organiser is constrained by circumstances beyond the control of the organiser to alter significantly any of the main characteristics of the travel services specified in paragraphs 1 to 10 of Schedule 1", so the test is that there needs to be significant change to the main characteristics listed above, rather than an accumulation of minor ones.

Worriedandalone

eskbanker said:

Ts & Cs can't supersede the law so if you can demonstrate a conflict then you should have a case.  However, I imagine this will come down to the interpretation of 'significant' - under the PTRs changes are generally regarded as significant if they adjust any of the characteristics outlined in:

1.  The main characteristics of the travel services specified in paragraphs 2 to 10.

2.  The travel destination, the itinerary and periods of stay, with dates and, where accommodation is included, the number of nights included.

3.  The means, characteristics and categories of transport, the points, dates and time of departure and return, the duration and places of intermediate stops and transport connections.

4.  Where the exact time of departure and return is not yet determined, the organiser and, where applicable, the retailer, must inform the traveller of the approximate time of departure and return.

5.  The location, main features and, where applicable, tourist category of the accommodation under the rules of the country of destination.

6.  The meals which are included in the package.

7.  The visits, excursions or other services included in the total price agreed for the package.

8.  Where it is not apparent from the context, whether any of the travel services are to be provided to the traveller as part of a group and, if so, where possible, the approximate size of the group.

9.  Where the traveller’s benefit from other tourist services depends on effective oral communication, the language in which those services are to be carried out.

10.  Whether the trip or holiday is generally suitable for persons with reduced mobility and, upon the traveller’s request, the precise information on the suitability of the trip or holiday taking into account the traveller’s needs.

CMA guidance is just that, guidance, and they emphasise that it's not legally binding, so you should concentrate on the legal aspect of your argument....

Thank you. How would you recommend we best proceed with this now? Challenge the credit card to push the S75 claim or via legal channels?

eskbanker

Worriedandalone said:

Thank you. How would you recommend we best proceed with this now? Challenge the credit card to push the S75 claim or via legal channels?

I'd posted that before seeing your reasons for cancelling, and, having now seen those, don't think that you have a case.  In order to pin anything onto a card provider under s75, you have to demonstrate breach of contract (the terms of which include implied terms inherited from legislation such as the PTRs and other consumer rights legislation), but there doesn't appear to be a clear breach, based on what you've posted.

superbigal

I'm a little unclear why anyone would cancel having paid in full.   I assume you did that to get "some money" back rather than risk having to go ?
Therefore it seems pretty clear to me you knew what you were doing.
Cancelling over a year before the trip though !!!