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

Westin

DaveMingCheng said:

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.

Correct - ATOL is not part of this.

S75 - only if you have a clear contractual breach by the end supplier.   From your previous responses, I don’t see this however.  You have no direct relationship with the hotel and no agreement that nut free meals would be provided.

DaveMingCheng

Westin said:

DaveMingCheng said:

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.

Correct - ATOL is not part of this.

S75 - only if you have a clear contractual breach by the end supplier.   From your previous responses, I don’t see this however.  You have no direct relationship with the hotel and no agreement that nut free meals would be provided.

Yes that does seem to be the case. 

The hotel was in Turkey so without sounding derogatory, possibly one of the lesser legally advanced places in the world. 

Sounds like it might be worth me drawing a line under it and moving on... or perhaps taking their 10% offer and putting it down to bad luck. It's obviously an emotive matter with it involving my child so I might take a few days to mull it over. 

Westin

DaveMingCheng said:

Westin said:

DaveMingCheng said:

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.

Correct - ATOL is not part of this.

S75 - only if you have a clear contractual breach by the end supplier.   From your previous responses, I don’t see this however.  You have no direct relationship with the hotel and no agreement that nut free meals would be provided.

Yes that does seem to be the case. 

The hotel was in Turkey so without sounding derogatory, possibly one of the lesser legally advanced places in the world. 

Sounds like it might be worth me drawing a line under it and moving on... or perhaps taking their 10% offer and putting it down to bad luck. It's obviously an emotive matter with it involving my child so I might take a few days to mull it over. 

I think that is the route I would take.

Glad your child has recovered.

eskbanker

Westin said:

S75 - only if you have a clear contractual breach by the end supplier.   From your previous responses, I don’t see this however.  You have no direct relationship with the hotel and no agreement that nut free meals would be provided.

My understanding is that s75 claims are viable for package bookings, even though the actual end suppliers are typically hotels and airlines - under the Package Travel Regulations the package organiser retains liability for the performance of the package and is therefore on the hook for breaches of contract:

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.

https://www.legislation.gov.uk/uksi/2018/634/regulation/15

bagand96

Must have been a horrible experience OP, especially after you took as many precautions as possible. Glad your child recovered and that onward care/treatment has been positive.

I agree with @eskbanker that if you bought a package holiday, then the package organiser/tour operator are considered the supplier, and as you paid them the creditor/supplier/debtor link is intact for Section 75.

That said I also agree with what @Westin says about finding liability may be difficult. For Section 75 to work a breach of contract has to be proven. You might want to trawl the booking T&C's and the Package Travel Regs linked above to see if there is any clauses or responsibilities that the operator could be challenged on.

In this scenario I do think it might be difficult to make something stick (but may not be impossible - not a legal expert here!). Even if you then do find something, how much would you claim? Trauma, illness, Loss of enjoyment etc are hard to put monetary values on.

Do you have home or travel insurance with any family legal cover? Might be an option for an initial consultation at least? 

DaveMingCheng

bagand96 said:

Must have been a horrible experience OP, especially after you took as many precautions as possible. Glad your child recovered and that onward care/treatment has been positive.

I agree with @eskbanker that if you bought a package holiday, then the package organiser/tour operator are considered the supplier, and as you paid them the creditor/supplier/debtor link is intact for Section 75.

That said I also agree with what @Westin says about finding liability may be difficult. For Section 75 to work a breach of contract has to be proven. You might want to trawl the booking T&C's and the Package Travel Regs linked above to see if there is any clauses or responsibilities that the operator could be challenged on.

In this scenario I do think it might be difficult to make something stick (but may not be impossible - not a legal expert here!). Even if you then do find something, how much would you claim? Trauma, illness, Loss of enjoyment etc are hard to put monetary values on.

Do you have home or travel insurance with any family legal cover? Might be an option for an initial consultation at least? 

Thank you for your reply. 

I haven't actually thought about the monetary side of it until now...I really want them to take allergies seriously and behave in a manner which I feel a hospitality business should. 

Yes we have home and travel insurance and I always take the legal cover option on the former so that might be worth pursuing. 

eskbanker

DaveMingCheng said:
I haven't actually thought about the monetary side of it until now...I really want them to take allergies seriously and behave in a manner which I feel a hospitality business should. 

Section 75 can't assist with that - it grants you the same rights against your card company as you have against the supplier, but a card company obviously has no leverage over a hotel's policies and in all likelihood wouldn't even contact them, so even if they agree that you're due some sort of financial recompense, that wouldn't affect the hotel in any way.