Refund for not travelling - Based on 5 hour departure or arrival delay?

quikkie_2

Last summer I was booked to travel from Ireland to the UK with Ryanair.

The flight's departure was delayed by over 5 hours and I chose not to travel on it, and exercise my right to a refund instead.

I completed Ryanair's "Flight delayed > 5 hours & will not travel" form, but they responded that "the refund request was declined due to less than 5 hours on delay".

As I knew the departure delay had been more than 5 hours, I started a complaint via AviationADR. Ryanair's defence included a copy of their "daily movement sheet" for the day, which showed that the flight departed 5hr10mins late and arrived 4hr56mins late. However AviationADR sided with Ryanair, saying:

The Daily Movement Sheet provided demonstrates that the Claim Flight’s Scheduled Time of Arrival was 18:25, and the Flight landed at 23:21, thus displaying a delay of 4 hours and 56 minutes. I must note that whilst the departure was delayed by 5 hours and 10 minutes, the actual arrival time at the final destination must also be assessed. Airlines may reduce overall delay by making up time during the flight itself, depending on certain factors such as weather conditions, and air traffic control.

In this case, the delay is under 5 hours and therefore I am unable to consider a refund, as the flight delay does not meet the threshold in order for the Passenger to be eligible for a refund of their Flight.

This isn't what I was expecting - the right to a refund is set out in EU261/2004 article 6 clause 1, which is exclusively focused on departure delays, not arrival delays:

When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure:

[...] passengers shall be offered by the operating air carrier:

[...] (iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a). [a refund]

MSE seems to agree it's based on departure delay too, per its article "Been hit by flight delays? Check your rights to refunds or compensation" (which I can't link to):

For departures delayed by five hours or more, if you decide not to travel, you can also get a refund of your ticket, regardless of what caused the delay.

So - who's right? Is the 5 hour refund based on departure or arrival time? Has anyone bumped into this before? If I was motivated enough to take this to small claims court, what would be my chances?

Thanks

Mark_d

On my reading, I agree with you about article 6(1).  Did you mention this clause in your dealing with Aviation ADR?  The fact that Aviation ADR rules against you makes it feel likely a court would do the same.Perhaps you could try no win no fee solicitors like Bott & Co ?

Grumpy_chap

quikkie_2 said:

Last summer I was booked to travel from Ireland to the UK with Ryanair.

The flight's departure was delayed by over 5 hours and I chose not to travel on it, and exercise my right to a refund instead.

I completed Ryanair's "Flight delayed > 5 hours & will not travel" form, but they responded that "the refund request was declined due to less than 5 hours on delay".

As I knew the departure delay had been more than 5 hours, I started a complaint via AviationADR. Ryanair's defence included a copy of their "daily movement sheet" for the day, which showed that the flight departed 5hr10mins late and arrived 4hr56mins late. However AviationADR sided with Ryanair, saying:

The Daily Movement Sheet provided demonstrates that the Claim Flight’s Scheduled Time of Arrival was 18:25, and the Flight landed at 23:21, thus displaying a delay of 4 hours and 56 minutes. I must note that whilst the departure was delayed by 5 hours and 10 minutes, the actual arrival time at the final destination must also be assessed. Airlines may reduce overall delay by making up time during the flight itself, depending on certain factors such as weather conditions, and air traffic control.

In this case, the delay is under 5 hours and therefore I am unable to consider a refund, as the flight delay does not meet the threshold in order for the Passenger to be eligible for a refund of their Flight.

This isn't what I was expecting - the right to a refund is set out in EU261/2004 article 6 clause 1, which is exclusively focused on departure delays, not arrival delays:

When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure:

[...] passengers shall be offered by the operating air carrier:

[...] (iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a). [a refund]

MSE seems to agree it's based on departure delay too, per its article "Been hit by flight delays? Check your rights to refunds or compensation" (which I can't link to):

For departures delayed by five hours or more, if you decide not to travel, you can also get a refund of your ticket, regardless of what caused the delay.

So - who's right? Is the 5 hour refund based on departure or arrival time? Has anyone bumped into this before? If I was motivated enough to take this to small claims court, what would be my chances?

Thanks

Hmm,, this is an odd one.

In most cases, the EU261 triggers are based on the arrival time of the flight versus schedule.
That extract which you have quoted does seem to relate to departure time rather than arrival time (assuming the limited quotes do not omit a significant qualification that changes the context).
Obviously, if you have not flown because of the departure delay, then assessing refund eligibility based on arrival time becomes moot.

I wonder how this compares between actually taking the flight and compensation that you would then be eligible for.
How much was the ticket refund (if you received it) for delay of five hours?
If you had flown, you would have been entitled to "care" while delayed plus the compensation for arrival more than three hours late which is 250 EURO.
I assume that the airline cannot deny your refund for late departure and also deny your compensation for late arrival (even though you never arrived by virtue of never departing).
This paradox tends to prove the inappropriateness of the refund for delayed departure being assessed against eventual arrival time.

Are there grounds to appeal / respond to the ADR commentary?

eskbanker

I can't understand why AviationADR have sided with Ryanair here, as the regulations are clear:

1. When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure:

[...]

(iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a).

[...]

3. In case of a delay of three hours or more in reaching the final destination, the passengers concerned have the right to compensation laid down in Article 7.

The reference to 'delay' in 6.1.c.iii obviously relates to the expected delay beyond its scheduled time of departure, whereas that in 6.3 is conversely clearly identified as relating to arrival time, so arrival time has no bearing on eligibility under 6.1.c.iii

Not sure there's any other avenue once AviationADR have made their decision, but I can't imagine a court agreeing with their interpretation!

daveyjp

If an ADR system doesn't have a further review process for the occasions when it is evident the arbitrator has erred in law its not fit for purpose.  Its not only for the passenger benefit, it ensures the decision makers are also well trained and are doing their job correctly.

If a decision is wrong in law the same error could be made dozens of times.

Grumpy_chap

eskbanker said:

I can't understand why AviationADR have sided with Ryanair here, as the regulations are clear:

1. When an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure:

[...]

(iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a).

[...]

3. In case of a delay of three hours or more in reaching the final destination, the passengers concerned have the right to compensation laid down in Article 7.

The reference to 'delay' in 6.1.c.iii obviously relates to the expected delay beyond its scheduled time of departure, whereas that in 6.3 is conversely clearly identified as relating to arrival time, so arrival time has no bearing on eligibility under 6.1.c.iii

Not sure there's any other avenue once AviationADR have made their decision, but I can't imagine a court agreeing with their interpretation!

There appears to be no link between (1) resulting in a remedy for departure delay and (3) resulting in a remedy for arrival delay.

Looking at the times quoted by the OP:

"Scheduled Time of Arrival was 18:25, and the Flight landed at 23:21, thus displaying a delay of 4 hours and 56 minutes. I must note that whilst the departure was delayed by 5 hours and 10 minutes, the actual arrival time at the final destination must also be assessed. Airlines may reduce overall delay by making up time during the flight itself,"

I would expect the scheduled flight duration between Ireland and UK to be in the region of 1 1/2 hours (the OP has not stated exactly which airports from and to).
The flight appears to have made up time amounting to 14 minutes which is in the region of a 15% gain on the overall flight duration.  How much time is the average passenger plausibly going to expect a flight to gain by making up time?

daveyjp

'Flight duration' is start of push back to engine switch off at the gate.  Timings allow for taxiing before and after landing which is far more variable on a flight than time spent in the air, which on an Ireland to UK flight doesn't vary much.

quikkie_2

Thank you all for the input, it's appreciated.

It's reassuring to hear that others interpret article 6(1) the same way, ie. refunds for not travelling are based solely on departure delay rather than arrival delay. I did note this when dealing with AviationADR, as otherwise I wouldn't have had a case - that's why it was so surprising that they sided with Ryanair.

Any discussion on making up time en route seems moot as article 6(1) simply doesn't reference the arrival delay.

AviationADR has no appeal process, so my next step is to see if the CAA will take this up through their claims process. They say they generally only cover airlines which aren't a member of a dispute resolution body, but I'm going to try anyway, because this feels like such an obvious "miss" on the part of the airline and AviationADR.

Failing that - I still wonder about my chances with small claims court - have there been many success stories here?

quikkie_2

Just tried the CAA - there's no way to submit a claim for Ryanair as they're covered by AviationADR.

That just leaves the court route or making my peace with it!

mdann52

One more question, however this is based on a rather literal interpretation of the legislation!

When you chose not to travel, what was the expected departure time of the flight - eg was it showing a 5 hour delay when you declined to travel?