Passenger rights for flight delays and cancellations

A long form article on Flight Passenger Rights Regulation (EC) 261/2004, delays, cancellations and denied boarding

This article was originally published on 21 August 2019. It was updated on 7 September 2021

Introduction

Flight cancellations and delays impact passengers’ travel plans so it is useful to know what people’s rights are when this happens. They are contained in European law, Regulation 261, and were incorporated into UK law after Brexit.

Scope of the rules

Passenger rights and the circumstances in which they apply remain largely unchanged after Brexit. Passengers don’t need to be a UK or EU citizen to claim against any of the rights. The rules apply to all passengers, regardless of whether they are travelling for business or pleasure.

The combined scope of the original EU Regulation 261 and the UK retained Regulation 261 is that the rules apply to passengers on flights that:

• leave from a UK airport, on any airline
• arrive at a UK airport, regardless of where they take off from, providing the plane is operated by a UK or EU airline
• leave from an EU airport, on any airline
• arrive at an EU airport, from anywhere, if the plane is operated by an EU airline

In this context, the EU includes Iceland, Norway and Switzerland. It also includes Liechtenstein, but at the time of writing, there is no airport there.

Passengers can check the website of the Civil Aviation Authority (CAA), the UK airline regulator, to see if their flight is covered by the rules.

Liability falls on the operator of the plane, not who the passenger booked with. If an airline leases the aircraft to another airline, it will be the one operating the actual flight on the day who is liable for any claim. However, there could be disputes about who is operating the flight if there’s a lease to another airline where the original airline did all the airport contact etc.

The rules must be:

• examined from the perspective of the passenger, rather than the airline
• interpreted strictly.

Regulation 261 has been supplemented by decisions of the Court of Justice of the European Union (CJEU), some of which are contained in this Air passenger Rights — European Case Law document. There are also some non-binding Interpretative Guidelines from the European Parliament and Council produced in June 2016 (EU Guidelines). Both CJEU case law and EU Guidelines will continue to apply if they were decided before 31 December 2020.

Before getting to the airport

The main problem that can arise before getting to the airport is that the airline cancels the passenger’s flight. Whenever the cancellation is made, the airline must provide the same 3 options for the passenger, regardless of the reason for the cancellation. However, whether compensation is payable in addition, and if so how much, will depend on how long before the flight was scheduled to depart, it is cancelled.

Flights cancelled more than 14 days beforehand

In such cases, no compensation will be payable. The airline should however, offer a choice of 3 alternatives:

1. Refund — a full refund, within 7 days, including for unused onward or return flights
2. Re-routing — a similar replacement flight at the earliest opportunity (considered below)
3. Rebooking — a replacement similar flight, at a later date. This should be at the passenger’s convenience, but subject to availability.

Passengers should think carefully about which is the most appropriate option in their circumstances. For example, if a budget airline was used, it may cost much more to book another flight with a different airline, so a replacement flight might be better than a refund. Some airlines may try to persuade passengers to have a refund because it is easier to process and means they avoid the cost and hassle of arranging another flight for the passenger, particularly if they would have to use another airline. If the 3 options are not offered and the airline just refunds the passenger, they could claim for the price difference of any replacement ticket bought, providing it is under comparable transport conditions. For example, it should be the same or similar class of travel, number of connecting flights and travel time. It’s advisable to get written agreement from the original airline before buying another flight, to avoid disputes about whether they were prepared to pay this.

Flights cancelled 14 days or less beforehand

The same 3 choices of a refund, re-route or later replacement flight should be offered and in addition some compensation may be payable, depending on:

• whether the cancellation is less than 7 or between 7 and 14 days beforehand
• how close to the original scheduled flight times the replacement is
• when it actually lands at the destination

Compensation is due, even if the passenger chooses the refund option, as it will be based on the timings of the alternative flight offered.

Details can be found on the Citizens Advice public website page Claim compensation if your flight’s delayed or cancelled. There are 2 tables showing compensation amounts if firstly, the cancellation was less than 7 days ago and, secondly, if it was between 7 and 14 days ago. The Civil Aviation Authority (CAA) website has a useful tool which will indicate if, and then what, compensation is payable if passengers enter their flight details.

Passengers requesting a refund should expect to have air miles re-issued if they paid for their flight using air miles. Any taxes paid as part of the ticket price should be refunded.

Compensation will not be payable if the airline is able to prove that the cancellation was due to extraordinary circumstances (considered below) and beyond their reasonable control.

Problems at the airport

Once a passenger has checked in and arrived at the airport, a variety of problems could occur, including flight cancellations, denied boarding and delays. The remedies are slightly different for each and depend on numerous factors including, the length of time spent waiting around, the flight distance and whether it is within the EU or not.

Cancellations at the airport

Whether a flight is cancelled or delayed will be decided on a case-by-case basis as some of what passengers may think of as obvious pointers, do not necessarily mean there is a cancelled flight. For example, departure board indications, airline staff announcements, recovering baggage, obtaining new boarding cards or a flight number change, are not necessarily definitive indications of a cancelled flight. See paragraphs 37 and 38 of the Joined cases C-402/07 and C-432/07, Sturgeon v Condor and Bock v Air France (19/11/2009).

Flight options for airport cancellations

The same 3 options, covering a refund, re-routing or a replacement flight, should be offered if a flight is cancelled. However, if passengers choose the refund or later flight options, as soon as they do, the airline won’t have to provide any of the care and assistance elements outlined below. If passengers choose a refund and they are part way through a journey, they are also entitled to a return flight to the first point of departure, at the earliest opportunity (considered below). Taxes not included in the ticket price but paid at the airport are unlikely to be refunded.

Compensation should still be payable though, as less than 14 days notice has been given, providing the cancellation is not due to extraordinary circumstances (considered below). How much, will depend on the flight distance, and also the departure and arrival times of any rescheduled flight taken. See the table on the Citizens Advice public website page Claim compensation if your flight’s delayed or cancelled, under the heading If your flight was cancelled less than 7 days before departure.

If a passenger isn’t able to get to their intermediate stop to make a connection, because the first flight was cancelled, the airline must refund the whole ticket price. If an alternative flight is offered but it’s later because a different connecting flight has to be used, meaning the final arrival time is later, this will be treated as a destination delay rather than a cancellation (discussed later).

The re-routing option should be under similar transport conditions and provided at the “earliest opportunity”. This is not defined and the CAA view is that it should be on the same day, using the same route and could include travelling on a different airline.

From a practical perspective, passengers wanting to get to their destination as soon as possible, should:

• Not just go and book their own alternative flight — it’s advisable for passengers to check with their airline first and it’s their responsibility to sort out a replacement flight. Some may have arrangements with other airlines for such circumstances
• Keep any evidence if they have to do the rebooking themselves — if passengers do end up having to rebook themselves with a different airline, they’ll need to keep evidence of what they paid. It’ll also be useful to keep any email or other communications agreeing to this or screenshots showing they were unable to get through on live chats to get a decision. Any evidence showing a search for a reasonably priced alternative will also be useful. It can all be forwarded to the airline if a claim needs to be made.

Care and assistance

As passengers are now at the airport, some additional rights come into play if a passenger chooses to be re-routed at the earliest opportunity(considered above). These fall under the general heading of care and assistance and include whichever of the following are appropriate for the time spent waiting and the time of day/night:

• food and drink
• 2 free telephone calls, telex, fax or email messages
• hotel accommodation if an overnight stay becomes necessar
• transport between the airport and the hotel (or home if close by) for any necessary overnight stay.

There is a minimum period of delay before they apply, dependent on whether it’s a short, medium or long haul flight — see below. Passengers can check their flight distance on the Web Flyer website:

Short haul (1500 km or less), e.g. London to Paris — 2 hours

Medium haul (between 1500 and 3500 km), e.g. Amsterdam to Moscow — 3 hours

Long haul (over 3500 km), e.g. Birmingham to New York — 4 hours (3 hours if it’s within the EU)

Airlines must pay particular attention to the needs of passengers who have disabilities or reduced mobility and those accompanying them, and also any children who are travelling unaccompanied.

Care and assistance is often provided by the distribution of vouchers and airlines only have to provide what is reasonable in the circumstances. This is not going to include alcohol, gourmet meals or luxury hotels. Passengers could check their airline’s website to see if there is any guidance about what is covered.

Airlines have to provide reasonable care and assistance for re-routed passengers, regardless of the reason for the cancellation and the length of time for which it’s necessary to provide it. The Icelandic volcanic eruption in 2010 led to significant and prolonged airport closures, due to the potential dangers of volcanic ash to planes. The CJEU ruled that airlines were still responsible for providing reasonable care and assistance for passengers until flights could be re-organised.

If reasonable care and assistance are not provided, passengers should ask someone who works for the airline for help. If passengers end up having to make their own purchases, they should keep receipts to make a reasonable claim later. It might also be useful to keep evidence of the reason for the cancellation, if there is any, for example, photos of airport board information, text messages or emails from airlines or screenshots of any updates on Twitter, Facebook etc.

Denied boarding

Sometimes airlines find themselves unable to let all passengers onto the plane, for example, for operational reasons. This often happens because airlines overbook their flights. They book in more passengers than there are seats, as it’s unlikely they’ll all turn up. Being turned away at this point is referred to as denied boarding, or “bumping”, and passenger rights are also contained in Regulation 261.

Being refused a seat on a return flight because the airline cancelled the outbound flight and put the passenger on a replacement one, will count as denied boarding. Providing there is a single booking, the rules also apply when there is a connecting flight in a non-EU/UK country.

It’s important to note that there may be legitimate reasons for an airline to refuse to allow someone on a flight, for example, on the grounds of health, safety or security reasons or because the person has inadequate travel documents. Some examples of when it may not amount to denied boarding include, if a passenger has:

• reservations on both an outbound and a return flight, and is not allowed to board the return flight because they didn’t use the outbound flight
• booked consecutive flights, and is not allowed to take the second flight on the grounds that they didn’t use the first flight.

Redress will not be available under the EU rules in such circumstances, although, for the UK, it may be worth considering whether there is any breach of legislation covering unfair terms, under section 63 of the Consumer Rights Act 2015, or unfair practices under the Consumer Protection from Unfair Trading Regulations 2008. These pieces of legislation will only apply in the UK and to passengers who are consumers, whereas Regulation 261 applies to all passengers. Other countries may have similar provisions.

For denied boarding, airlines firstly have to ask for volunteers to surrender their reservations in exchange for appropriate benefits, which they can agree between them. This might be in the form of cash, a hotel stay and a seat on the next day’s flight or even some free return ticket to use at a later date. There aren’t any guidelines to cover what these should be so it’s up to passengers to negotiate with the airline if they’re willing to be “bumped” from their flight. In addition to these benefits, passengers must be offered the same 3 refund, re-routing and replacement flight options that apply when a flight is cancelled.

If there aren’t enough volunteers to allow all the remaining passengers to board, then the airline can deny boarding. Passengers will then be entitled to the following, subject to the relevant considerations for each:

• care and assistance (explained above)
• the right to choose between a refund, re-routing or later a replacement flight, so the same 3 options that apply when a flight is cancelled
• compensation, if a replacement flight is accepted and its departure and arrival times fall within certain timeframes — the amounts will be the same as in the table on the Citizens Advice public website page Claim compensation if your flight’s delayed or cancelled, under the heading If your flight was cancelled less than 7 days before departure.

Compensation is always due in the event of denied boarding. Airlines can’t argue extraordinary circumstances as they can for cancellations.

Downgrading

Passengers who are downgraded, for example from business class to economy, won’t get a full refund of their ticket price because they are still being provided with a flight. They should receive a partial refund of the ticket price, within 7 days, depending on the flight distance:

• 30% for flights of 1500 kilometres or less
• 50% for flights between 1500 and 3500 kilometres
• 75% for flights over 3500 kilometres

If the downgrading was only for part of a journey, the refund will be worked out accordingly.

Delays before take off

It may be that a flight is not actually cancelled but take off is delayed. Passengers are entitled to care and assistance after 2, 3 or 4 hours, depending on the flight distance and destination — see above. Passengers can check their flight distance on the Web Flyer website.

If the delay is over 5 hours then regardless of the cause, passengers should be given the choice of continuing to wait for the delayed flight or having a full refund, payable within 7 days. A refund should include any unused flights if the passenger no longer wishes to travel, for example, a return flight. For a passenger who is already part way through a journey, there is also the right to a flight back to the original departure airport at the earliest opportunity, alongside the refund. The right to care and assistance would continue while waiting for any delayed flight, otherwise it would cease as soon as a refund is agreed.

Whether compensation is payable, and if so how much, will depend on a number of factors, including how delayed the passenger is on reaching their final destination, rather than just any pre-departure delay, so will be discussed under the next heading. It’s unlikely that compensation would be payable if a passenger chooses the refund option after a 5 hour delay. This is because compensation rights for delays are based on arrival times and accepting a refund means the passenger wouldn’t be on the flight and so wouldn’t arrive at the destination.

Destination delays

Regulation 261 doesn’t directly provide for compensation when flights arrive late at their destinations. However, the CJEU decided in 2009 that flights delayed on arrival could also give rise to compensation. Passengers who are delayed, suffer in a similar way to those whose flight is cancelled and treating them differently would infringe the primary principle of equal treatment, the CJEU stated.

An airline won’t have to pay compensation for a delayed arrival if it can show it was due to extraordinary circumstances that were beyond its control (discussed later).

Providing there is a single booking, this also applies when there is a scheduled connecting flight in a non-EU or UK country.

Arrival is not simply landing at the airport but is when at least one door on the plane has been opened, thereby enabling passengers to leave it.

The underlying principle is to compensate each passenger for loss of time and inconvenience, so this will be similar if a flight is delayed, or a passenger is waiting around for another flight after being denied boarding or being given insufficient notice of a cancelled flight. The basic amounts can be found on the Citizens Advice public website page Claim compensation if your flight’s delayed or cancelled.

They can be reduced by 50% if a re-routed flight arrives within a certain timescale of the original flight. The Civil Aviation Authority (CAA) website has a useful tool which will indicate when, and if so what, compensation is payable by inputting certain flight details.

Practical considerations when claiming compensation for delays

Some things passengers should bear in mind when thinking of making a compensation claim for a delay:

• Extraordinary circumstances — compensation will not be payable if the airline can prove the delay was not their fault and they couldn’t have avoided it (considered later)
• Reservations — they’ll need to have a confirmed reservation on the right flight and have presented themselves for check-in at the time requested or at least 45 minutes before the published departure time. Some airlines have tried to insist on an actual boarding pass but in Case C-756/18 LC, MD v easyJet Airline Co.Ltd, the CJEU confirmed that this isn’t necessary
• Cash payments — they don’t have to accept compensation payments in vouchers or airmiles, unless they specifically agree to do so in writing
• Poor service — even if they don’t meet the Regulation 261 requirements, passengers could complain to their airline and ask for a goodwill gesture if they feel they’ve been treated badly and or experienced poor service

Extraordinary circumstances

Compensation will not be payable if the airline can prove that the delay or cancellation was not their fault. The airline would have to show there were extraordinary circumstances AND that the delay or cancellation was beyond the airline’s control. This needs to be decided on a case by case basis, but could be something like:

• extreme weather
• security or safety issues, such as an act of sabotage or terrorism
• strikes by non-airline staff, for example, air traffic controllers, ground handlers or other airport staff
• political problems
• hidden manufacturing defects
• unusual technical problems
• air traffic management decisions, for example, closure of airspace due to volcanic ash

Extraordinary circumstances examples — not the airline’s fault so no compensation

The following cases considered other examples of what airlines argued could amount to extraordinary circumstances. In some instances this was a preliminary ruling so the court in the country referring the issue would’ve then had to consider whether the cancellation or delay “could not have been avoided even if all reasonable measures had been taken”, before deciding that the airline wouldn’t have to pay compensation to affected passengers:

• collision between a bird and a plane [Case C-315/15 Pešková and Jiří Peška v Travel Service a.s.]
• a screw on the runway [Case C-501/17 Pauels v Germanwings]
• petrol on the runway, leading to closure of the airport by Air traffic Control [Case C-159/18 Moens v Ryanair]
• air traffic management decision, following earlier thunderstorms causing rotational delays [Blanche v EasyJet Airline Company Limited [2019] EWCA Civ 69]

Ordinary circumstances — the airline’s fault so compensation payable

The CJEU has suggested that the following would not be extraordinary circumstances, meaning compensation would be payable by the relevant airline to the passengers affected. However, as pointed out above, it is not always as easy as saying a particular event is or is not an extraordinary circumstance. It is also necessary to examine whether the airline could have avoided the delay or cancellation by taking reasonable measures:

• routine aircraft technical problems [Case C-549/07 Wallentin-Herrman and Case C-257/14 Van der Lans v KLM]
• airline employee strikes, whether official or wildcat strikes as in [Case C-195/17 Krusemann (and other joined cases)]
• collision of an aircraft with mobile boarding stairs [Case C-394/14, Siewert]
• pilot illness [Lipton & Anor v BA City Flyer Ltd [2021] EWCA Civ 454]

Making a claim

There are lots of practical points to be taken into account when considering making a claim for a flight delay, cancellation or denied boarding:

• Passenger rights knowledge — airlines must inform passengers of their rights at check-in, using prescribed wording in a clearly displayed legible notice, and also in the event of actual cancellation, delay or denied boarding — these rights can’t be excluded or restricted
• Who to claim against — claims can be made to an airline, even if the flight was booked through a travel agent or online company, or a package holiday operator if the flight was part of a package holiday
• How to contact them — it’s advisable to check the airline’s website for details of how to make a claim, for example, many have online forms for passengers to complete, some won’t accept claims from a third party
• Claims management companies (CMC) — passengers should think carefully before considering using a CMC rather than making a claim themselves. Their fees can be quite high, around 30% of the claim, and passengers may have to pay them even if they lose their case; if one is used it’s advisable to read the terms and conditions carefully and Check if a claims management company is regulated
• Alternative Dispute Resolution (ADR) — passengers who think they have a claim which the airline is denying, should use an approved ADR scheme as the next stage — the CAA website has links to approved ADR schemes and airlines covered. ADR decisions are generally binding on the airline but not the passenger. If the airline isn’t signed up to an ADR body, the regulator may be able to help. The circumstances and issues the CAA can help with are explained on its website
• CAA involvement — passengers could also raise their complaint with the CAA’s Passenger Advice and Complaints Team or another enforcement body if the flight departed from an EU Member State. In the UK, enforcement is carried out by the CAA but this doesn’t include compelling airlines to make compensation payments. Up to date information about certain flights, extraordinary circumstances and other relevant information may be available on the CAA website
• Using payment method redress options — alternatively, or if the airline does not belong to an approved ADR scheme, it may be possible to seek redress through the payment method used by the passenger, see Citizens Advice — Getting your money back if you paid by card or PayPal
• Going to court — if a passenger decides to take their claim to court, they must start it within their country’s time period, or limitation rules. The Montreal Convention doesn’t apply to Regulation 261, so the time limit is not 2 years as many airlines have tried to argue. In England & Wales it is 6 years , and in Scotland it is 5 years. See Deciding whether to make a small claim.

Flights not covered by Regulation 261

For flights not covered by Regulation 261, for example, a Qantas flight from Australia to London, there are some possible avenues a passenger should check:

• Other countries’ rules — does the country where the airline is based or the flight departed from have any similar rules to Regulation 261?
• Airline terms and conditions (T&C) — what do the airline’s T&C say? Many airlines base their T&C on those recommended by the International Air Transport Association so their contracts might say what they’ll offer if there are delays or they cancel flights. Passengers can check on the website for the T&C, they may be called conditions of carriage, and for the complaints procedure.
• ADR schemes — is there an ADR scheme for the airline, approved within their own country by a regulatory body? If so the airline might signpost passengers to any such scheme if they don’t agree with the passenger’s claim.
• Montreal Convention — did they depart from a country signed up to the Montreal Convention? This is mainly used for lost luggage claims but might cover losses caused by delays. Proof of such a loss would be necessary, for example, receipts for additional car parking fees or hotel stays
• Travel insurance — some travel insurance policies provide compensation for delays
• UK International Consumer Centre (UK ICC) — The UK ICC may be able to help passengers who need to contact airlines based in other countries where it has a partner organisation. It covers all the EU countries and some international countries too

Information from Money Saving Expert (MSE)

This live MSE article has useful information on:

• A free online reclaim tool
• Which airlines won’t accept claims using the free online claim tool
• Suggestions for finding out how long a flight was delayed for
• Which airlines charge a fee if a passenger appeal is unsuccessful
• Template letters
• Links for the websites of some of the airline complaint pages
• Who to complain to if the airline is not a member of an ADR scheme
• What to think about if the passenger’s case seems complex and using a solicitor to go to court is being considered
• Which travel insurance policies might cover compensation for delays

Conclusion

Flight passengers have rights under original and retained EU law in the UK, as well as throughout the EU, in relation to denied boarding, delays and cancellations. However, there are lots of practical considerations to bear in mind as well as legal interpretation, how the rules apply and how relevant case law affects matters. The Citizens Advice public website and the CAA website both contain explanations and guidance about whether a flight is covered, what the rights are and when they apply.

Individual rights will depend on the circumstances but are generally influenced by factors such as destination, cause, length of delay and inconvenience experienced. There is quite a lot of case law in this area, suggesting that the airlines are prepared to defend claims brought by passengers, which is something to be borne in mind when considering making one.

Jan Carton is the Legal Lead for Consumer and Debt in the Expert Advice Team at Citizens Advice.

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