Abta Travel Law Seminar: Industry lawyers shed light on refund obligations amid non-alignment of the Continued from page 48 It noted: “In general, the
existence of FCDO advice against all but essential travel amounts to compelling evidence of ‘extraordinary and unavoidable circumstances’ . . . [and] reflects its assessment that UK travellers would face a level of risk it deems unacceptable for non-essential travel.” This view “is reinforced
by the fact that most travel insurance policies exclude cover if the policyholder travels to a destination against FCDO advice”. “Accordingly, where
consumers terminate their package because around their departure date there is FCDO advice against travel to their destination or its immediate vicinity . . . they are likely to be entitled to a full refund. The fact that the flight is still operating and accommodation open is not of itself sufficient to deny a full refund.” The CMA has left vague its
view on the timing of a customer’s cancellation, but “around their departure date” suggests it must be close to that date. It also adds a caveat, noting:
“We expect any operator seeking to refuse a full refund, notwithstanding FCDO advice, to explain fully the basis upon which they disagree . . . and to provide detailed information about the evidence on which they have relied. The organiser would need to be ready to defend their stance in a court.” The CMA warns that any
attempts to waive or restrict refund rights are “not binding” and would be “likely to be unfair”, noting this may be relevant “when considering FCDO advice”.
Lawyers say FCDO advice trumps traffic light lists
Leading industry lawyers agree Foreign Office (FCDO) advice takes precedence over government guidance on travel to destinations categorised amber under the traffic light system. Travlaw senior partner Matt
Gatenby said: “It’s the FCDO advice people should be looking at. It has always been the gold standard. FCDO advice equates to whether customers can seek a refund. If the
FCDO advises against travel that is it.” He told the Abta Travel Law
Seminar: “The non-alignment of the traffic light system and FCDO advice is the product of two different ways of looking at it. The Department for Transport is concerned about not bringing Covid-19 into the country. The FCDO is considering ‘is it safe to travel to the destination?’” However, Gatenby noted this is
merely a convention the industry and government have followed for decades, saying: “It’s not written down anywhere.” Farina Azam, partner at Deloitte
Farina Azam
DfT to consult on boosting travel consumers’ rights
The Department for Transport (DfT) plans to consult on enhancing travel consumers’ rights before the end of the year. Sofia Stayte, DfT head of
aviation consumer policy, said the consultation could include new rules as well as new powers of enforcement for the CAA, Competition and Markets Authority (CMA) and Trading Standards.
46 27 MAY 2021
Legal, agreed: “FCDO advice is what is important.” She suggested operators make clear in terms and conditions whether consumers will be entitled to a refund if they cancel a trip to an amber destination when FCDO advice means the holiday could go ahead, saying: “If the customer won’t be entitled to a refund, make it clear.” Alex Padfield, director at Hextalls
She told the Abta Travel Law
Seminar: “We plan to publish a consultation on consumer rights later in the year to ensure these are effective. It might include civil sanctions, not just for the CAA [as the government has already announced] but for other authorities such as the CMA. We’ll probably consider both enforcement and new rights.” Stayte was responsible for the
government’s Covid-19 Passenger Charter published last week. She said: “We wanted to provide clarity and objective information [as] we’re not able to introduce new legislation. “We emphasise people may not
FCDO advice is what is important. If the customer won’t be entitled to a refund, make it clear
Law, pointed out insurance cover for cancellations in light of FCDO advice would depend on the wording. He noted: “Most policies say ‘This policy will be invalid if you travel against FCDO advice’.” But Padfield suggested insurers’ policies may change. “Let’s say you go to France. Insurers will have to decide what to do about that.” Abta senior solicitor Paula
Macfarlane told the seminar: “The traffic light system is about whether you have to quarantine when you come back to the UK. Abta will abide by FCDO advice. If a country is on the amber list there is nothing to prevent a holiday going ahead.”
have a right to a refund but providers should be offering flexibility. There is need for both the provider and consumer to keep an open mind about changes. The charter is in- tended to be shared with customers.” Abta senior solicitor Paula
Macfarlane noted: “The charter doesn’t bring in any new rights, but says to customers ‘You have responsibilities too’.”
travelweekly.co.uk
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