If it's bad now, will it be any better in the future?
Hello there and welcome to my latest Podcast.
I’ve been quiet on the Social Networks recently, taking another short socially-distanced staycation, followed by analysis of my activities and of course completing legal & other training.
But whilst I have been absent, I can still see Consumer angst in The Guardian’s article. It seems that Consumers are experiencing major difficulties in getting their monies back, particularly from Airlines, having being "given" a Credit Refund Note, as COVID19 started to bite! In the article, there were also a number of “shoulds" that have been expressed; very nice but they do nothing!
I've seen all sorts of advices out there, ranging from:
- Go to your Travel Insurer (but they will bounce you back to Rights Travel Companies or Airlines);
- The words within Rights (very good, but what do Consumers have to do next?):
- I’ve even seen one online ‘legally qualified’ professional, offer 4 lines of paid-for-advice, which advised the Consumer to go to the Small Claims Court (wrong IMO, the complexity ahead for Consumers should be recognised - as demonstrated by The Guardian article).
Then there is the latest spat from within the Travel Industry between ABTA and the large online Travel Retailer, On The Beach. On The Beach have apparently resigned their ABTA membership following a decision by ABTA that all Consumers should get their money back if the Foreign Office decree’s that a country or destination should be subject to the advice of ‘all but essential travel’. There are also some in the travel industry who are uncomfortable with the ABTA decision and it appears that ABTA had started an investigation into On The Beach about its alleged breach of the ABTA position on refunds. It appears that On The Beach are applying a logic that despite FCO advisories not to travel, there are still hotels and destinations open, with flights still operating, and that therefore means that the holiday can still be delivered. It appears to suggest further that if Consumers cancel, then this represents a disinclination to travel perhaps, with attendant affects on requests for refunds.
If the reports on this dispute are correct, then it truly represents the simple fact that the Wild West is upon us. With respect to On The Beach, legislation did anticipate serious situations, those of which can be found in Preamble 31 of the Package Travel Directive. In that Preamble, there is an inexhaustive list of what constitutes “unavoidable & extraordinary circumstances”. One of the examples includes the possibility arising of significant risks to human health such as the outbreak of serious disease at a destination. In my view, this same Preamble tends to suggest that the decisions made by National or Local Authorities may also be important an important factor, which may make travel difficult or impossible. So in my opinion, the argument that current laws do not cater for the present situation are wrong. How do I know? Well, I was there when this Law was being discussed and indeed argued in open session to 27 Member States and in private with the European Commission that serious factors that could potentially affect the viability of the holiday should be recognised and catered for.
The result was the 2015 Package Travel Directive, followed by the 2018 Regulations, implementing that Directive.
There is a sweet irony amongst all of this. The arguments I have seen suggest that FCO advices are wrong to prevent Travel and that they are not bound, nor are they enforceable on travel companies. However, whenever a Consumer tries to rely on a difficult situation in a destination as a reason why the holiday should be cancelled or changed, Travel Companies will often cite the FCO advisories that there is no bar to travel to reinforce their Ts&Cs!
The simple questions are:
- In this inter-Travel-Industry dispute, are we witnessing the re-run of the battle as to what constitutes a Package?
- Are we also witnessing the beginning of the battle to recreate legislation in the post-brexit world to come?’.
If you think I am wrong on these questions, then consider the forthcoming ABTA Travel Law Seminar on 23 September, when in the morning session, there is an item on the agenda entitled: ‘Panel discussion: the Package Travel Regulations - are they right for the future of the UK travel industry?’ 3 Lawyers are scheduled to sit on that panel along with a representative from the Competition & Markets Authority and not one single Consumer Representative in sight! Important to note, in this same seminar, at the end of the day, is a panel discussion on what Brexit will bring next for the Travel Industry.
So when I raise the alarm bell for the future of Travel Consumer Rights, you can see the discussions being had already, once you recognise this, then you can begin to determine the potential agenda of the Travel Industry and its future attitude toward Consumers, and all he while your elected government remains silent on Consumer Rights!
But, this all leads me back to what I've said since the beginning of COVID19 relating to Travel & Holidays, where it was obvious that there was a paucity of advices being offered, regurgitated by the Media.
It has also led me to the many Consumers out there, to be discovered by you the listener, by entering simple search terms in Twitter like ‘Holiday Refunds’ or ‘Credit Refund Notes’. These searches will reveal a plethora of Consumer comments and the sometimes disgraceful responses they receive from Travel Companies!
I have been very clear throughout, there is a mechanism or route on how to deal with and resolve Holiday Complaints. I know that my suggested routes work because Consumers tell me that they have gotten their money back.
Equally, I can understand those Consumers who decided to "bank" their monies through these refund notes or vouchers, either because they agreed to do so or because they were lost, time-consumed and simply accepted the fait-accompli decision by the Tour Operator or Airline; they cannot be criticised.
But now it seems, those same companies appear to be using devices which could be considered to be unfair, perhaps even unfair in Law? Whilst unfairness is a major factor in Travel Consumer minds, core Rights still sit at the heart of this dispute between Consumers & the Travel Industry.
Those rights remain unsatisfied.
I've provided much detail and Free Letters for Consumers, setting out how they can argue their positions (some clearly follow the guidance, others do not). As with any Travel Complaint, there's nothing easy about confronting a large company or corporation and believe me, I really understand the reluctance to challenge these monoliths.
Because of this continuing misery for Holidaymakers, I’ve also looked at the enforcing authorities or other options that may be open to them.
The Competition & Markets Authority simply provides an "opinion" but no apparent enforcement for the wide range of complaints
The UK’s own European Consumer Centre provides generic advices, including limitations on help, but they could assist via European Commission.
Then there is the UK’s Civil Aviation Authority, which whilst carrying out a review, appears to be behind the curve on the Consumer experience, as detailed in The Guardian’s article, when clearly Consumers are crying out for help.
I have even seen one commentator suggest that #passengers should use the Dispute Resolution service offered by the The Civil Aviation Authority.
In my opinion, this has the same elemental problems as those advices I have seen given to Consumers to take their complaints to the Small Claims Court or Money Claims Online.
Well it’s the complexity of arguments, the changing landscape of how rights are being reinterpreted & as I have seen, a Travel Industry who will usually produce legally drafted documentation to support their defence; this creates inequality of arms, after all, lawyers are costly for Consumers.
My next comment will no doubt come across to some as “anti-brexit”, if that is what floats your boat, then please knock yourselves out!
But as you do, you should remember that my job is to talk, argue for change and to empower Consumers and bring their story and their experiences into the heart of boardrooms and at the feet of ineffectual UK politicians. I am not going to be influenced by the polarised artificiality of beliefs, I shall continue to call out the deficit to Citizen/Consumers.
So, in Transition Period of Brexit, the Withdrawal Agreement makes it very clear, that Rights & Obligations contained within EU Law continues until 31/12/20. Articles 126 & 127 refer.
This must mean that Consumers should enjoy enforcement of Rights. So the obvious questions that should be asked are these:
- ‘Why aren't our enforcement bodies or key organisations 'enforcing' or pointing to the European mechanisms for Complaints & Enforcement?
- Why isn’t the Consumer Minister more vocal about the plight of ordinary people?
- Why isn't the Media highlighting this?’
We shouldn’t hang around waiting for those answers because in the white noise of COVID and Brexit, we are not going to get any!
I've said it before & clearly need to say it again, I've every sympathy with the Travel Industry and I have presented a very clear strategy to ABTA & others on how to manage Consumers & Refunds (they should refresh their collective memories by visiting my blog), but they have remained aloof throughout, which suggests a developing agenda, or maybe I’m wrong?
I also believe that the Travel Industry should be provided with a very substantial assistance, because we are not dealing here with months of recovery, we are dealing with years. But whilst I support help for Travel, it comes at a cost for help for Consumers; it is not a one-way street!
For Consumers out there (and indeed the Media), you simply need to visit my blog & podcasts to read/hear how you can manage these Travel Complaints. There are plenty of Free Letters; use them all, including escalating your complaints right up to the European Commission, while you still can!
One final point. There are ten's of thousands of affected Consumers out there. There are Group Actions for other consumable 'technical' issues. But what of Travel Consumers? Are there no Solicitors out there, willing, ready & able to roll their sleeves up for this very large group? It appears not!
I really fear that if Consumers do not themselves become more organised, or lawyers motivated to help them, or that our political class become more engaged about the plight of the many, we will be left with a very Industry driven Consumer Rights landscape after 31 December 2020!
(This is the script for Frank's CreatingRipples™ Podcast - The Perils that await Travel Consumer Rights. You can listen to Frank's Podcast here. Please note that the content is the copyright of Frank Brehany © 2020)