Looking for advice around credit card protection (section 75 of the Consumer Credit Act).

DaveMingCheng

Long story short: went on a package holiday with my family which was a disaster. My child nearly died from a severe allergic reaction to the food on the first night of a seven night stay and we were petrified for the rest of the time we were there.

Child needed medical treatment (IV drip and corticosteriods) and the hotel even gave us a letter telling us they take zero responsibility and that it was our problem! This was after we asked the Head Chef to take us through the foodhall and explain exactly which dishes were safe to eat. 

Holiday has ABTA protection and was paid for using a credit card for the section 75 protection.

Have complained to the tour operator and they've offered around 10% of the cost of the holiday as a refund and even that is in the form of credits so we'd have to book via the same operator again, which I clearly don't want to do given their treatment of us.

Do you recommend starting a transaction dispute/claw-back via the credit card protection or would you recommend asking ABTA to offer their dispute resolution service?

My understanding is that ABTA can't make any decisions/judgements and they purely act as a mediator so I'm inclined not to bother with them as they won't be able to get us a fair resolution.

As a reminder: it was a seven night booking and this happened on the first day and we are as a family were petrified of what our child could eat for the remainder of our stay there, so it completely ruined our holiday which we had been looking forward to as out first family holiday since before the covid pandemic. 

Any advice would be welcomed. Thanks.

eDicky

Was there any contractual obligation included in the terms of the package holiday you purchased guaranteeing the provision/availablity of food containing no allergens that could affect your child?

Were you previously aware of your child's particular allergies, and if so what precautions did you take regarding meals?

Was there any failure by the hotel and its restaurant in flagging possible presence of allergens?

eskbanker

A section 75 claim relies on being able to prove breach of contract by the supplier, so you'd need to ascertain exactly what the supplier did here that would fall into that category.  However, regardless of any merits of a claim, you need to have contracted with and paid the supplier directly, rather than an agent, is that how your arrangements were set up?

In your shoes I think I'd start at ABTA, and if that doesn't work out then you'd still have the option of s75 (plus FOS if needed), or court action, so if your case is strong enough then you have several routes via which to pursue it.

DullGreyGuy

Did you book directly with the tour operator or via a travel agent? As noted above, if there is an agency involved then S75 will fail because you dont have a direct relationship with the supplier, even if it is booked with the tour operator there could still be a question mark given the actual supplier was the hotel. 

Would be interested to know if the allergy was known before the incident? Was the operator made aware at the time of booking? How sever is it? Many restaurants even to UK standards will say a dish doesn't contain peanuts etc but its prepared in an environment that does have peanuts so no cross contamination cannot be guaranteed, ie ok for someone with a mild/trendy allergy but risky for a sever allergy. 

martindow

OP, I hope that your child is fully recovered now.  I think you may have problems trying to get compensation for reasons that others have mentioned.  You mention a food hall in your post which sounds like some sort of buffet.  If so other people in the hotel could be responsible for cross contamination.  It could be very difficult to pin the blame on a hotel or tour operator for what may be a combination of events.

It must have been an awful and frightening experience for you and your family, but it doesn't necessarily mean that you are entitled to compensation.  In your position I think I would go for self catering accommodation in the future as that is the only way you can be sure of what is and is not in food that you are eating.

TELLIT01

The country the holiday was in may make a difference to liability.  Laws will vary regarding notices about cross contamination etc.  If the hotel failed to abide by their local laws there may be a case but I assume that would have to be taken up in that country.

DaveMingCheng

Thanks for the replies, for some reason I didn't receive notifications so apologies for the delayed reply. 

Some more information/context. 

- Booked directly with the supplier, no travel agencies involved. 

- We knew of child's allergy before and have been on many holidays all over the globe, prior to this one without any incidents. We always travel with prescription antihistamines. 

- It was an all-inclusive holiday and the foodhall didn't have any allergen on the dishes, however they had 1 small A4 sized allergen poster on the wall outside the foodhall which is why we asked the Head Chef to accompany us and explain, dish by dish, what was safe to eat. 

- We followed the Head Chefs instructions to the 'T' and still my child had the reaction.

- We spoke to a different chef the following day and we showed them a photo we had taken of the dessert we strongly suspected has caused the reaction, and the second chef confirmed it was definately made with peanuts and so absolutely must be avoided. This confirms the Head Chef from the opening night was culpable for the error. 

- Because of this we're dumbfounded as to why we were then told the Hotel take zero responsibility. 

- Child is ok now, thanks to those who asked. 

- Child needed IV antihistamines and corticosteroid as our prescription medicine we travel with wasn't effective. 

Hope the above helps. 

eDicky

So the cause of your child's allergic reaction, and the essence of any complaint/claim, appears to be the failure to indicate that the desert dish contained peanuts, even with your efforts to make sure about any possible allergen presence.

DaveMingCheng said:

- Booked directly with the supplier, no travel agencies involved.

'Supplier' meaning the hotel, booked direct, there can presumably be no ABTA involvement.

An S75 claim may be worth trying if the failure by the hotel, in the form of the first head chef's advice, can be demonstrated sufficiently.

DaveMingCheng said:

- Because of this we're dumbfounded as to why we were then told the Hotel take zero responsibility.

Such a lack of responsibility would probably need to be written into the terms of service provided by the hotel, not just a letter issued after the incident, and could be overridden by laws or regulations of the particular country (which I don't see mentioned).

Good to hear of your child's full recovery.

DaveMingCheng

eDicky said:

So the cause of your child's allergic reaction, and the essence of any complaint/claim, appears to be the failure to indicate that the desert dish contained peanuts, even with your efforts to make sure about any possible allergen presence.

DaveMingCheng said:

- Booked directly with the supplier, no travel agencies involved.

'Supplier' meaning the hotel, booked direct, there can presumably be no ABTA involvement.

An S75 claim may be worth trying if the failure by the hotel, in the form of the first head chef's advice, can be demonstrated sufficiently.

DaveMingCheng said:

- Because of this we're dumbfounded as to why we were then told the Hotel take zero responsibility.

Such a lack of responsibility would probably need to be written into the terms of service provided by the hotel, not just a letter issued after the incident, and could be overridden by laws or regulations of the particular country (which I don't see mentioned).

Good to hear of your child's full recovery.

Thank you for your reply. 

Correction on the supplier point: I booked via a tour operator, not direct with the hotel (supplier) and I have an ATOL, not ABTA certificate in the confirmation email. I realise now that this is ATOL and not ABTA so presumably I have no means of escalation with ATOL as I would've with ABTA? 

In terms of S75: I have the name of the second Chef who confirmed the information given by the first Chef was incorrect but I don't have written confirmation of the first Chef's error in writing as such. 

I have scoured the hotel's website, all email correspondence from the tour operator and no where does it state they take zero responsibility for dietary needs. If indeed it had stated this at any point prior to departure I would've cancelled the booking or changed the hotel part of the package holiday. For this reason I feel they are culpable.

Thank you for your kind words re: childs recovery. Since returning home we've had a medication review with the local hospital and have been told we'll be issued Epi-pens as a life-saving measure. It would've been great to have these before this holiday of course but at that time we were in the waiting list and the silver lining has been that having this reaction on holiday has meant the NHS escalated my child's case. 

Westin

DaveMingCheng said:

eDicky said:

So the cause of your child's allergic reaction, and the essence of any complaint/claim, appears to be the failure to indicate that the desert dish contained peanuts, even with your efforts to make sure about any possible allergen presence.

DaveMingCheng said:

- Booked directly with the supplier, no travel agencies involved.

'Supplier' meaning the hotel, booked direct, there can presumably be no ABTA involvement.

An S75 claim may be worth trying if the failure by the hotel, in the form of the first head chef's advice, can be demonstrated sufficiently.

DaveMingCheng said:

- Because of this we're dumbfounded as to why we were then told the Hotel take zero responsibility.

Such a lack of responsibility would probably need to be written into the terms of service provided by the hotel, not just a letter issued after the incident, and could be overridden by laws or regulations of the particular country (which I don't see mentioned).

Good to hear of your child's full recovery.

Thank you for your reply. 

Correction on the supplier point: I booked via a tour operator, not direct with the hotel (supplier) and I have an ATOL, not ABTA certificate in the confirmation email. I realise now that this is ATOL and not ABTA so presumably I have no means of escalation with ATOL as I would've with ABTA? 

In terms of S75: I have the name of the second Chef who confirmed the information given by the first Chef was incorrect but I don't have written confirmation of the first Chef's error in writing as such. 

I have scoured the hotel's website, all email correspondence from the tour operator and no where does it state they take zero responsibility for dietary needs. If indeed it had stated this at any point prior to departure I would've cancelled the booking or changed the hotel part of the package holiday. For this reason I feel they are culpable.

Thank you for your kind words re: childs recovery. Since returning home we've had a medication review with the local hospital and have been told we'll be issued Epi-pens as a life-saving measure. It would've been great to have these before this holiday of course but at that time we were in the waiting list and the silver lining has been that having this reaction on holiday has meant the NHS escalated my child's case. 

ATOL is a (good) financial protection scheme when booking an air inclusive holiday.  It covers you should the supplier fail.  In your case, ATOL cover has no barring or can help you.  

When you booked the hotel only with the unnamed tour operator, did you tell them of your child’s dietary issues?  Do you know if this was passed to the hotel? Or was it only when you reached the hotel that you informed them of the issue?

Can you name the hotel and its location?  I think that might also give us an indication of whether any direct action against the hotel will bear fruit.  A well known chain hotel within Europe might possibly yield response.  An Ai hotel in Egypt - unlikely. 

What recompense are you seeking?  An apology, an explanation, financial?

DaveMingCheng

Westin said:

DaveMingCheng said:

eDicky said:

So the cause of your child's allergic reaction, and the essence of any complaint/claim, appears to be the failure to indicate that the desert dish contained peanuts, even with your efforts to make sure about any possible allergen presence.

DaveMingCheng said:

- Booked directly with the supplier, no travel agencies involved.

'Supplier' meaning the hotel, booked direct, there can presumably be no ABTA involvement.

An S75 claim may be worth trying if the failure by the hotel, in the form of the first head chef's advice, can be demonstrated sufficiently.

DaveMingCheng said:

- Because of this we're dumbfounded as to why we were then told the Hotel take zero responsibility.

Such a lack of responsibility would probably need to be written into the terms of service provided by the hotel, not just a letter issued after the incident, and could be overridden by laws or regulations of the particular country (which I don't see mentioned).

Good to hear of your child's full recovery.

Thank you for your reply. 

Correction on the supplier point: I booked via a tour operator, not direct with the hotel (supplier) and I have an ATOL, not ABTA certificate in the confirmation email. I realise now that this is ATOL and not ABTA so presumably I have no means of escalation with ATOL as I would've with ABTA? 

In terms of S75: I have the name of the second Chef who confirmed the information given by the first Chef was incorrect but I don't have written confirmation of the first Chef's error in writing as such. 

I have scoured the hotel's website, all email correspondence from the tour operator and no where does it state they take zero responsibility for dietary needs. If indeed it had stated this at any point prior to departure I would've cancelled the booking or changed the hotel part of the package holiday. For this reason I feel they are culpable.

Thank you for your kind words re: childs recovery. Since returning home we've had a medication review with the local hospital and have been told we'll be issued Epi-pens as a life-saving measure. It would've been great to have these before this holiday of course but at that time we were in the waiting list and the silver lining has been that having this reaction on holiday has meant the NHS escalated my child's case. 

ATOL is a (good) financial protection scheme when booking an air inclusive holiday.  It covers you should the supplier fail.  In your case, ATOL cover has no barring or can help you.  

Thank you for your reply.

Ok so it looks as though I have no protection via ATOL as their primary function is to protect the consumer if the operator goes bust, and they don't get involved in disputes etc. 

Looks like I have no option to proceed with the S75 route in that case.