Consumer Rights; have you been unable to fly due to the pandemic?
On 31st October 2020 the government announced an England wide lockdown, which banned travel abroad unless it was essential, for example for work.
On 5th November 2020 the Health Protection (Coronavirus Restrictions) (England) (No. 4) Regulations 2020 were enacted. These prevent people leaving their home without ‘reasonable excuse’. In case you were wondering, a holiday is not a reasonable excuse.
The Regulations also make it a criminal offence punishable on summary conviction by a fine if you are found to be outside your home without reasonable excuse. The Regulations are not simply guidance but a matter of law which the public are required to follow.
The guidance from the Competition & Markets Authority (CMA) considers that such restrictions on travel will frustrate the contract. Frustration is where one or both parties cannot perform the obligations under the contract due to events outside their control.
Where a contract is frustrated, its as if it was never formed. As such any payments made under the contract should be returned. The guidance states:
In particular, for most consumer contracts, the CMA would expect a consumer to be offered a full refund where:
- a business has cancelled a contract without providing any of the promised goods or services
- no goods or services are provided by a business because this is prevented by the lockdown laws
- a consumer is prevented from receiving any goods or services, because, for example, lockdown laws in the UK or abroad have made it illegal to receive or use the goods or services
Consumer law requires businesses to treat consumers fairly. This is re-iterated in the CMA’s guidance:
It is important for businesses and consumers to follow government guidance to help stop the spread of the coronavirus, and for businesses to treat consumers, including those following government guidance, fairly and responsibly.
Businesses that mislead consumers about the effects of lockdown laws or guidance, or put pressure on consumers not to comply with them, may infringe consumer protection law.
The airline may state that there was a clause in the contract that confirms any payments are non-refundable. They will not be able to rely on such a clause if the contract is frustrated, because its as if the contract never existed.
How to ask for your refund
You should first contact the airline and ask for a refund. If you are happy for with vouchers or a flight change without fees, let the airline know. If this is rejected ask for the airline’s complaints procedure and follow that.
If that is not successful, then you can either:
- Undertake ADR if the airline is a member of an ADR scheme;
- Make a complaint to the Civil Aviation Authority:
- Issue a claim at court. Before issuing a claim you should send a letter before action. We have prepared a template letter for you to send. You will need to pay a fee to issue at court but this will be paid by the airline if your claim is successful.
Laura Pearce, Senior Solicitor