Refused Flight Delay Compensation

steve111s

We put in a flight delay claim after our flight with BA from Miami direct to LHR was cancelled.
BA provided us with overnight accommodation and some food that evening of the cancelled flight but nothing more the following day. We had to pay for our own breakfast and lunch that following day, which wasn't cheap even though we kept it basic.
We were rebooked for the following day with American Airlines which involved an indirect and very lengthy transit through Dallas. Which was most irritating since we had deliberately avoided booking an indirect flight route. We arrived at LHR about 24 hours late which caused disruption and additional expense to homeward travel plans.
We made an online claim for compensation which was refused for the following reason:-
"Your claim's been refused because BA**** on 04 *******ber was cancelled because of aircraft damage."
I've responded requesting information about the nature of the damage.
If BA still refuse the claim is there anything more I can do? Is there an ombudsman or other form of escalation? 
TIA
Steve

eskbanker

Compensation isn't due if the cancellation was due to extraordinary circumstances beyond the airline's control - 'aircraft damage' is vague and may or may not be deemed to be within their control, depending on how and by whom/what it was damaged.

However, regardless of the cause, the airline is separately obliged to reimburse reasonable meal costs until the rearranged flight, so as long as you have the relevant receipts then they should stump up for that.  They're unlikely to be required to reimburse additional costs incurred after your delayed arrival at Heathrow, although there's no harm in asking....

If you don't get anywhere with BA, their nominated ADR provider is CEDR, so you can take it up with them.

If you are unhappy with our response to your complaint, you can refer your complaint to the Centre for Effective Dispute Resolution (CEDR),who are approved by the Civil Aviation Authority to provide an independent resolution service for complaints about airlines. You will need to refer your complaint to them within 12 months. CEDR will be able to advise you if your complaint falls within the scope of what they can deal with.

https://www.britishairways.com/en-gb/information/help-and-contacts/complaints-and-claims

steve111s

eskbanker - Thank you for your prompt response.
A coupe of questions.
1. Are BA obliged to reveal the nature of the damage to the aircraft?
2. Would I be right in thinking that if the damaged was caused by a BA employee or agent acting for BA, that BA would have to take responsibility for the claim?
Thanks
Steve

eskbanker

steve111s said:

1. Are BA obliged to reveal the nature of the damage to the aircraft?
2. Would I be right in thinking that if the damaged was caused by a BA employee or agent acting for BA, that BA would have to take responsibility for the claim?

Yes to both, although actually enforcing the former may be easier said than done:

An operating air carrier shall not be obliged to pay compensation in accordance with Article 7, if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

steve111s

BA replied to my question with:-
"I'd like to inform you that we're unable to provide you a copy of the official report related to your flight. These reports contain sensitive business information and so we don't make these available to passengers. The reports would be used in our defence as an evidence during any legal proceedings brought against British Airways."
Sounds like they're using the Post Office defence.

eskbanker

steve111s said:

BA replied to my question with:-
"I'd like to inform you that we're unable to provide you a copy of the official report related to your flight. These reports contain sensitive business information and so we don't make these available to passengers. The reports would be used in our defence as an evidence during any legal proceedings brought against British Airways."
Sounds like they're using the Post Office defence.

They're not obliged to divulge an "official report" as such, but, as above, the regulations do require them to prove that a cancellation was caused by extraordinary circumstances in order to deny compensation, so it's not unreasonable to request some sort of evidence.

However, if they've now given you their final response (have they stated this?), you can escalate to CEDR....

steve111s

The whole email with name and case number removed:-
"An update from British Airways 

Thanks for contacting us.

I'd like to inform you that we're unable to provide you a copy of the official report related to your flight. These reports contain sensitive business information and so we don't make these available to passengers. The reports would be used in our defence as an evidence during any legal proceedings brought against British Airways.

Thanks for getting in touch with us.

Best regards

Fairoza 
British Airways Customer Relations"
Should this email be regarded as a 'final response'?

MattMattMattUK

steve111s said:

The whole email with name and case number removed:-
"An update from British Airways 

Thanks for contacting us.

I'd like to inform you that we're unable to provide you a copy of the official report related to your flight. These reports contain sensitive business information and so we don't make these available to passengers. The reports would be used in our defence as an evidence during any legal proceedings brought against British Airways.

Thanks for getting in touch with us.

Best regards

Fairoza 
British Airways Customer Relations"
Should this email be regarded as a 'final response'?

It is not a "final response" as such, but they have already refused your claim and replied to that effect, so from their perspective there is no further conversation to be had. 

eskbanker

Not sure if that would count as their final response, but would perhaps suggest replying along the lines of:

"I don't need to see any 'official report' as such, or any 'sensitive business information', but am simply seeking proof to support your assertion that the cancellation was caused by extraordinary circumstances, as you are required to provide this when denying liability to pay compensation, under Article 5(3) of the UK261 Regulations.

Should you again refuse to provide such proof, please confirm that this represents your final position so that I can progress my claim to the next stage."

I'm no lawyer but don't think it's particularly good practice for them to refuse to share pertinent information that they'd later seek to rely on - I don't know if this breaches any sort of pre-action protocol though....

steve111s

I did a copy and paste of your (eskbanker) suggested wording into a reply email and got the following back:-
"An update from British Airways

We’re sorry you’re unhappy with the outcome of your claim and we understand why you needed to get back in contact with us about this.

I’ve had another look at your claim for compensation and I’ve taken time to make sure our response is accurate and up-to-date. Based on this, our decision hasn’t changed and the response you’ve received about the eligibility of your compensation claim are correct.

As your flight was cancelled due to aircraft damage, it means you’re not eligible for compensation.

Article 5.3 of the EU Regulation 261/2004 and The Air Passenger Rights and Air Travel Organisers’ Licencing (Amendment) (EU Exit) Regulations 2019 states a carrier is not obliged to pay compensation if it can prove the delay or cancellation is caused by extraordinary circumstances, that couldn’t have been avoided even if all reasonable measures had been taken. In Recital 14 and 15 of EU Regulation 261/2004, extraordinary circumstances include weather, strike and the impact of an air traffic management decision which gives rise to a long delay. This means you’re not entitled to compensation under the EU Regulation for your cancelled flight.

If you would like to know more about compensation, please visit our pages on ba.com.

Thanks again for contacting us.

Best regards

Rahul
British Airways Customer Relations"

It seems to me that they're being so evasive they're trying to hide something.
It looks like the next step is CEDR.

wolvoman

Forget CEDR, a waste of time.

Go straight to Letter Before Action. Give them 7 days to pay you (specify an exact amount).
If no joy, instigate money claim without delay.