Passengers caught up in this year’s travel chaos have turned to the small claims court for help after trying and failing to get compensation using adjudication scheme AviationADR.
Because of the mass cancellations of spring and early summer, hundreds of thousands of people were entitled to compensation because their flights were cancelled at the last minute or severely delayed.
But passengers have told us they have struggled to get the hundreds of pounds they believe they’re entitled to, even after taking their claim to the official dispute resolution scheme.
And the latest data shows that AviationADR has ruled in favour of passengers just 33% of the time, so far in 2022 – down from 61% before the pandemic.
Flight compensation denied
One easyJet customer was promised £880 after she took her claim to AviationADR. When she still hadn’t received her money over two months after it was due, she went to court.
Another passenger of the same airline complains that AviationADR dismissed evidence he provided and instead chose to believe easyJet.
He also took his case to court and was awarded £1,816 by default, after easyJet failed to contest the claim. However, almost two months later easyJet managed to get that ruling set aside and said it would be fighting the claim.
He is not unusual in failing to win compensation through AviationADR – the scheme used by easyJet, Ryanair, Tui and many others.
In the most recent quarter’s data it ruled in favour of easyJet and against its passengers 61% of the time and in favour of Ryanair 71% of the time.
In the same quarter it ruled in favour of Tui 86% of the time. Just seven Tui passengers were told they were owed compensation.
What is Alternative Dispute Resolution (ADR)?
ADR is supposed to give consumers a quicker, cheaper way to raise disputes with companies, instead of expensive, time-consuming court action.
It was introduced for flights in 2016 to give passengers the chance to escalate compensation claims – particularly for cancelled flights, denied boarding or severe delays – when airlines failed to pay up.
Previously, the only option had been to either complain to the Civil Aviation Authority (CAA) – which had no legal powers to enforce claims – or to use the small claims court.
The Civil Aviation Authority (CAA) authorised two private adjudication schemes in the UK: AviationADR (originally called The Retail Ombudsman) and the Centre for Effective Dispute Resolution (CEDR). Both are primarily funded by the airlines themselves, although CEDR also charges passengers £25 if their claim is not upheld.
Airlines are free to choose which scheme they use, and CEDR now only provides adjudication services for two airlines: British Airways and SAS.
The majority, including easyJet, Ryanair, Tui, Virgin Atlantic, WizzAir and others, are with AviationADR.
Uphold rates for passengers plummet
In 2017 the CAA said that AviationADR was ruling in favour of the consumer 71% of the time and added: ‘We are pleased to see that ADR providers are acting systematically to uphold the claims of aviation consumers where there is justification for doing so.’
However, the uphold rates plummeted during the pandemic. In 2019 AviationADR ruled in favour of the consumer 61% of the time, but in 2020 it fell to 38% and in 2021 just 24%. This is despite widespread outrage at airlines’ failing to refund on time when they cancelled the majority of their flights.
Despite the recent fall, the CAA said that it wasn’t concerned and that this ‘could be due to many different factors’.
Only seven Tui passengers awarded compensation
For some airlines the figures have been even more dramatic, particularly for those that used to be with CEDR but have since switched to AviationADR.
In the first quarter of 2019, 1,490 Tui passengers were awarded compensation by CEDR - 90% of all those who made a claim.
In the most recent quarter for which we have data, only seven Tui passengers - 14% - were awarded compensation by AviationADR.
Ryanair was with AviationADR, then left after it ruled against it over strikes by its own staff, but has since rejoined.
AviationADR believes easyJet - but not passenger
In theory it’s a good thing that AviationADR is finding fewer airlines guilty of failing to pay compensation. But some passengers have complained about the way it makes decisions.
EasyJet customer Andreas Chatzidakis says that when he used the adjudicator, it chose to accept the airline’s evidence but not his.
His flight from Gatwick to Athens was cancelled when he was waiting to board. He wasn’t offered an alternative flight and there were none showing on the easyJet App, so he ended up booking himself on a different carrier from Heathrow, screen-grabbing the flights available as evidence that he had no alternative.
But when he claimed his expenses from easyJet it turned him down. He then escalated the claim to AviationADR, but it refused to accept the screengrabs as evidence, because they weren’t dated. Andreas says that metadata for the screengrabs could have proved when they were taken, but AviationADR did not give him the chance to show this.
Andreas then took his complaint to the small claims court, claiming £1,816.43 (including costs). EasyJet didn't reply to the court case and therefore Andreas was awarded the judgement by default. However, it has since managed to get that ruling ‘set aside’ – meaning it will now fight the claim in court. Andreas now has to wait for a court date.
AviationADR didn’t comment on the specifics of his case, but it told us that when other decisions had been challenged in the past it had referred them to external legal experts who confirmed that they were correct.
No money – even after easyJet agrees to pay
Rachel Cannon also had a flight cancelled as she was due to head home to Bristol from a family holiday in Menorca. EasyJet told her that the reason was the effect of air traffic control restrictions on the crew’s working hours, which, as it was outside the airline’s control, would have meant no compensation was due.
However, Rachel suspected that this was not the case, as other flights had departed on time that day. She and her family ended up spending an extra five days abroad, meaning the children missed school and her husband had to take unpaid leave from work.
They made a claim for compensation to easyJet, which was turned down. They then escalated the claim to AviationADR and, before it could go to adjudication, easyJet agreed to pay £880 (the amount of compensation they'd claimed) as a 'goodwill payment' without admitting liability.
On 11 July, Rachel was told that the payment had been made and that it would be in her account in 14 working days. Over two months later she had still not been paid. EasyJet said that the sort code she’d given was incorrect, but she’s provided us with evidence that this was not the case.
She ultimately felt forced to go to the small claims court to get her money, but, on the day that easyJet was due to respond, it finally paid her.
EasyJet’s response
The airline says that Rachel’s delay was caused by air traffic restrictions, but it has paid her the £880 as a gesture of goodwill.
It says that Andreas could have transferred to a flight within 24 hours of his cancelled departure and for that reason it’s continuing to fight his claim. It also says that it was not aware of the court hearing until it received the default judgement.
A spokesperson said: ‘We will always pay compensation when it is due, and where a passenger submits a claim for compensation, our team review this and respond based on the circumstances of the individual case. Customers can claim for any expenses and compensation via our easy-to-use webform on easyJet.com.
'Like other airlines, easyJet uses a CAA approved Alternative Dispute Resolution provider to offer dispute resolution services. Customers are able to raise their case through this scheme as an alternative to a court process and easyJet abides by its adjudications.’
When should you complain to AviationADR, CEDR or the CAA?
Despite the low success rate for passengers who use AviationADR, it’s still worth doing for many kinds of complaints about airlines.
Its main role is to handle complaints that fall under the EC261 legislation now incorporated in British law: denied boarding, cancelled flights or severe delays. Passengers should complain directly to their airline first and, if their complaint is turned down or they don’t receive a reply, they can escalate it to the ADR scheme.
It is free to make a claim, the rulings are legally binding on the airline and if you don’t succeed there’s nothing to stop you pursuing the claim through the courts instead.
You can also complain about lost or damaged luggage, problems faced by passengers with reduced mobility or other issues. See more about making a complaint.
CEDR provides a similar adjudication service, for British Airways and SAS. It rules in favour of the passenger much more often – 60% of the time for the last quarter. But it does charge £25 if claims are unsuccessful, which means passengers who are less confident in their claim are unlikely to apply.
Some airlines, such as Jet2, Emirates and Norwegian aren’t with any adjudication scheme. Passengers have to complain to the Civil Aviation Authority (CAA), which can issue judgements that the airlines usually accept, although they’re not legally binding.
source https://www.which.co.uk/news/article/flight-chaos-compensation-airline-passengers-resort-to-court-action-agu8C2z7yW1n