Passenger rights and cheating airlines

It’s winter in Madeira. And with winter comes wind and rain, much wind also may cause air traffic disruption, delays and cancellations. This article is not going to be a long rant about how bad some airlines treat their passengers, however appealing writing such a story may seem. Instead, let’s have a look at the passenger rights and the obligations the airlines have in case they cancel a flight, or in case of an important delay, even causing you to miss a connecting flight in some cases.

different airlines, different policies

As I have written in an earlier article, the various airline companies have different policies when it comes to looking after their passengers in case of a delayed or even cancelled flight. They should not, as the rules about passenger rights are clear, but they do anyway, or, at least, the way the rules are applied vary enormously from one airline to another. While a couple travelling to Scotland were lounging at the pool of their five star Funchal hotel with a glass of bubbles within two hours of their easyJet flight to Scotland being cancelled, that same day our friends Toos and Leo from the Netherlands, in their mid-seventies, mind, were kept standing in a line with no seating, no food and no drinks by TAP for eleven (!) hours, then eventually taken to Lisbon on a late flight and offered a Burger King dinner. And a simple hotel but no transfer. Today, I read about a group of passengers travelling to Porto who – so the article said – had to pay for their own meals and hotel when their TAP flight was cancelled and they were offered a flight two days later. Too incredible to be true, methinks.

EU regulations about passenger rights apply. In most cases.

Time, I thought, to find out what exactly the rules are, and how much room to wiggle airlines really have. First, let me point out to you that the rules that apply are laid down in European regulation 261-2004. Now, before UK citizens scream murder and tell me the UK has left the European Union, let me add that the UK has adopted the same rule as of December 2020. So where I mention the EU Reg 261-2004 remember that it is now also a rule embedded in UK laws.

But no matter where you fly to, your passenger rights are covered by the EU regulations on your way back from Madeira (as Madeira is Portuguese territory and Portugal is an EU country) to your home country for any disruptions on your departure. The only exception may occur when you do not have a direct flight home, and you have used different bookings for the next leg of your flight. But I will come back to that later on in the article.

Delay, cancellation, missed connecting flights: what are your passenger rights?

Let’s find out about your rights in every one of the three possible disruptions. I will deal with them separately, as there are slight differences.

delay

The European Regulation 261-2004 has laid down the compensation a passenger has a right to in case of a delay. The height of the amount – yes, we are talking money – mainly depends on two things: the distance your flight covers, and the length of time your flight has been delayed.

If your flight has any delay, you can hope the delay is long enough to assure you the right to compensation. Up to two hours does not entitle you to any compensation at all.

• On flights of up to 1500 kilometres, the delay must be more than 2 hours;
• On flights within the EU, of more than 1500 kilometres, the delay must be 3 hours or more;
• On flights outside the EU of 1500 – 3000 kilometres, the delay must be 3 hours or more
• On flights outside the EU of over 3000 kilometres, the delay must be 4 hours or more before you get any compensation.

A pity for our Norwegian or Scottish friends, who need a delay of no less than 4 hours before any compensation applies.

And these are the amounts you could be entitled to:

• €250 for flights of up to 1500 km
• € 400 for all other flights within the EU and for flights to or from an airport outside the EU of 1500-3500 kilometres.
• €600 for all other flights.

cancellations

In case of a cancellation, there are a different set of rules. You can tell the airline to ‘shove the flight up theirs ‘ and demand your money back, but as you are on Madeira and you have to get back home, that is not an option I need to discuss here. They do have to offer you an alternative flight, though, and take care of you if this means a delay. Also, depending on when you have been informed about the cancellation, you are entitled to compensation, not dissimilar from the compensation in case of a delayed flight. Usually, you have no right to compensation if you have been told two weeks or more in advance. If you have been informed between 7 and 14 days beforehand, and your alternative flight leaves at least 2 hours earlier and arrives at least 4 hours later than the original flight, you are entitled to compensation. If you have been informed 7 days or less, you are entitled to compensation if your alternative flight leaves at least 1 hour earlier or arrives at least 2 hours later than the original flight. But if you are stuck in the Airport of Madeira your primary worry is to get home and have a place to sleep until you get on a flight. All this, and dinner, should be taken care of by the airline. I’ll come back to this later.

missed connecting flight because of a delay?

If you have to change planes during your journey, a delay in the first flight may cause you to miss the connecting flight. Now,  there are two possible situations. The first one is simple: you have booked all your flights in one single booking. In such a case, the airline responsible for your delay is also responsible for your missing the connecting flight or flights. The rules apply that I described for cancellations or delays, with the same compensations. The second possible situation would be that you would use a connecting flight that you have booked separately. In this case, the airline that caused you to miss it cannot be held responsible. I’ll come back to this further on in the article.

So far, it all seems pretty straightforward.  Your rights are clear, they are laid down in an EU-regulation (an now also in UK law) that applies, so it should be easy to get the compensation you are entitled to.  Don’t shout ‘hurray!’ just yet.

where is the catch?

Oh yes, there is a catch, all right. Usually, the airline will try and hide behind ‘extraordinary circumstances’. Alas, adverse weather conditions are indeed considered an extraordinary circumstance, or, as the American aviation authorities would call it piously, ‘an act of God’.  In many cases of delays or cancellations concerning arrival at or departure from our beloved Christiano Ronaldo International Airport, there is no way of getting compensation. Note, however, that any delay caused by reasons that fall under the airline’s responsibility like technical problems with the plane, delay because the plane wasn’t available on time, lack of staff etcetera, are not accepted as extraordinary circumstances as they are all part of an airline’s normal operations. But even if there is a case of extraordinary circumstances, the airline still has the obligations to do all that is reasonably possible to limit the delay as much as possible, or, in case of a cancellation, offer the affected passengers an alternative that limits the inconveniences. This is pretty vague, and airlines are known to try and abuse the vagueness in order to not pay up when they should.

Mike´s story

 An interesting case offers the one described by Mike Prior who lives in Wiltshire, a regular visitor to Madeira. He used the Bristol to Funchal service offered by EasyJet.  

Mike has shared his story with me and has given me permission to use it as an illustration of how an airline tries to cheat the passengers by not doing what they legally should.

Here it is.

On April 18th 2018 we travelled from Bristol to Funchal via EasyJet.  About halfway through the flight, the captain said the weather was wet and windy and he would need to keep us updated about the schedule.  We were then three-quarters of the way through the flight and the captain again reported that the wind was too strong to land and the Porto Santo stalls were full of redirected aircraft and landing in the Canaries or in Portugal was not an option.

He then said that the higher authority had told him to return to Bristol and the shrieks of disbelief and horror from his passengers were loud.

We returned to Bristol and upon landing, the captain came into the cabin to tell us that there were no spare seats on any flights to Funchal until May 2nd (some 13 days later) and even on that flight there were only eight seats available and that flight was from Gatwick (even more shrieks from the passengers).  It was apparent to us all that we were all facing a completely ruined holiday.   There were birthday celebration parties, anniversaries – normal things that people tend to become involved in over the course of their lives.

As we disembarked the plane in Bristol (some four/five hours after we had taken off) to collect our bags, police and security people were at the bottom of the plane steps supporting the easyJet rep as she handed out claims forms.  We were then told that we could fill in the forms if we wished but easyJet would not take any action as the cancelled flight was due to weather conditions.

When we returned home, I wrote to easyJet to confirm that what they had said was correct and whilst waiting for a reply, I wrote to our travel agent for his opinion on the situation.  I also wrote to Simon Calder, who is the travel editor for the Independent newspaper.  They both replied to say that what easyJet had said was worth pursuing.  Responses from easyJet were negative and so I then referred our claim to the Civil Aviation Authority.  They replied and suggested that all the details of our claim should be sent to C.E.D.R., which is the Centre for Effective Dispute Resolution.  I wrote to them and they said they would pursue the case.

They checked the weather conditions in Funchal at that time and the availability of easyJet aircraft on standby in the U.K.  After a considerable amount of time spent investigating, they discovered from easyJet that there were a number of planes not being used at various U.K. airports.  These could have been sent to Bristol and our flight could have taken place later in the day as the weather had improved dramatically and planes had been landing since early in the afternoon.

C.E.D.R. found in our favour and ordered easyJet to reimburse us within thirty-one days, which was mandatory we were advised.  Thirty-one days passed with no sign of any reimbursement and I contacted C.E.D.R. again and they pressurised easyJet to pay.  They told me they had many thousands of claims they were working through.  We waited another ten days or so, and finally, our reimbursement arrived.

This whole situation took many hours of emails, telephone calls, etc. over approximately six months.  We now avoid flying by EasyJet.

Mike Prior

lessons from Mike´s story

One thing Mike’s story teaches us is to not take what the airline says at face value. It pays to check their statements if you need to execute your passenger rights. It will certainly help your case if you keep track of what happens at the Madeira airport at the time your plane was supposed to land. If in the same time slot other planes did land, it will much weaken the Airlines point of adverse weather. Also, if an airline fails to offer a next scheduled flight as an alternative, and you find out there was plenty of space available on that one, the airline is in the wrong. Read my earlier article on this topic and what happened to my friend Julien, travelling to Lisbon. In Mike’s case, they were in the wrong because of the fact they said there were no means available to get the passengers to Madeira that day. It turned out they lied about that, so they lost their case and had to compensate. Serves them right for cheating! Another piece of advice: install the FlightRadar24-app on your mobile. The airlines have a nasty habit of keeping you in the dark about what’s happening. The app shows you exactly where a plane is, if it has trouble landing, if it’s been kept in a waiting pattern and if other planes succeed to land and so on. Make screenshots to support your claim if you suspect you might have to submit one.  

airlines have to take care of you

Whatever the cause of a delay or cancellation, the airline has the obligation to take care of you while you are stranded at the airport. They have, as it is stated in the regulations, to assure the necessary care.  We have already noticed that the exact way they have to do that is only partially laid down in the regulations. They state a right to free beverages and meals in ‘reasonable proportion with the duration of the delay’; two free telephone calls, fax messages or telex messages (in what era do these lawmakers live?), free hotel accommodation if you have to spend the night waiting for a delayed flight, and free hotel accommodation in case you have to extend your stay. Also, free transfer between the hotel and the airport.  If the airline fails to organise your hotel, you can do it yourself – within reason I think. Keep all the invoices to add to your claim afterwards. If you are in any way disabled, they have to give you the extra care this requires, and the regulation even states that advanced age also obliges the airline to give you extra care.  If our before-mentioned elderly friends Toos and Leo would have put a complaint in place with TAP for not properly looking after them, they would have had a strong case. In Madeira, I have been gobsmacked seeing that every time there are delays or cancellations, the responsible bodies (in other words, the airlines and the airport authorities) act as if this is a completely new and unexpected situation. Honestly, if we can look at the weather forecast, so can they.

In spite of Mike’s story where they really made a bad example, EasyJet seems to be the most adequate one where taking care of the passengers is concerned, and they were the first airline ever to charter the Lobo Marinho ferry to Porto Santo to get the passengers from there, where the plane had diverted to, to Funchal.

so what is not covered by the EU regs?

I mentioned it before: If you have booked a non-direct flight to or from Madeira, using separate flights in separate bookings, you may have a problem. If the first one is delayed, and you miss your connecting flight, you can only hope the delay is long enough to entitle you for compensation, and preferably one that covers your expenses for buying a new flight home. Why? Because the airline of the delayed flight will tell you they cannot be held liable for you missing another flight that was not in that same booking. And they are legally correct. If this has happened to you, you have probably coughed up the money for a replacing flight as you weren’t given any choice. If it hasn’t happened to you, avoid it at all cost. How? Easy.  Two possibilities. The first one is booking all of your flights in one single booking. You will find that all national carriers will let you do that, but low-cost carriers like EasyJet will not unless you pay more. And only when all of your flights are EasyJet ones. Carriers like Ryanair are completely stand-alone in this respect, so you will not be able to book a composed flight where one of the carriers is Ryanair. In itself, this does not have to be a problem, as long as you are aware of the risk. That brings me to the second possibility: book separate flights separately, but allow for delays. If you allow enough time between the flights, you can at least make sure that you get compensation in case you miss your connecting flight (but the catch is there: unless, of course, an exceptional situation causes the delay). This means you have to do the maths. How long is your first flight? How much delay do you ‘need’ to get compensated? Then, add that to the minimum check-in time of your connecting flight. Oh yes, and allow for retrieval of your bags at your transfer airport. All in all, this may well mean you need to have at least 4-5 hours between the scheduled arrival of the first flight and scheduled departure of the connecting flight.

All in all, booking two different flights to come to Madeira is usually not very practical, but it may be cheap. If it’s cheap enough, you may be willing to take the risk, but no moaning if you miss your connection.

Usually, also not covered by your passenger rights are the rental car that you have paid for, or your holiday home or hotel. I have checked with my personal insurance agent, to see if travel insurance would cover this. At first glance, ours does not. Our agent told me that none of their insurers covers this. Not a problem for us, as we own our house in Madeira, and we have our own car waiting for us. Having said that, maybe other insurers do cover this and it might be worth it to find out with yours.  Not showing up at the car rental or the house or hotel, however, would probably be seen as a cancellation, and if you have a travel Insurance that covers unvoluntary cancellations, the grounds for this are clearly stated and usually are limited to health problems or deceased family members.

conclusion

All in all, it should be helpful for travellers to know their passenger rights. Airlines must be held responsible for the things they are responsible for. No-one wants delays, not the passengers and certainly not the airlines, but if it happens, they have to take their responsibility. If they don’t, they have to be pressed to do so. So well done Mike, to have shown the tenacity to follow through. It paid off, and it will teach EasyJet not to mess with us.

Having said that, getting your passenger rights executed it is not an easy thing to do, and you may want help. There are numerous companies that will pursue your claim on a no-cure-no-pay basis. Their fees may vary around 25% of your claim, maybe there are cheaper ones around. The best thing to do is to search the internet and find one that suits your purpose. If I name some here, I wrong the others I did not mention, so I don’t.  

Happy Landings!