HCR Law Events

20 April 2020

Cancelled holiday? Here’s what you can do

On 17 March 2020, the Foreign and Commonwealth Office (FCO) advised against all non-essential travel, resulting in many cancelled holidays. While some travel providers are cancelling flights and holidays and issuing refunds to consumers, others are issuing credit notes for future travel, or not offering any form of refund at all.  What can be done in these circumstances?

The Package Travel and Linked Travel Arrangements Regulations 2018 put in place some protections for consumers if they have booked a package holiday. A travel provider is permitted to cancel a holiday due to an ‘unavoidable and extraordinary circumstance’, such as coronavirus. Where a holiday is cancelled in these circumstances, the consumer is entitled to a full refund within 14 days of the cancellation – that is clear.

ABTA, a UK travel trade association for UK travel providers, has provided guidance to its members, stating that they can offer a credit note, rebook the holiday or provide a refund much later, possibly even four months away. That advice goes beyond the regulations, but ABTA  says that its guidance merely sets out a series of options for consumers to discuss with their travel operators.

Indeed ABTA are currently lobbying the government to relax the regulations, on the basis that they were not designed for a pandemic of this nature, and travel providers should be given more time to issue refunds to consumers, but no change has yet been made.

My flights were booked and paid for, but due to coronavirus I couldn’t travel.  How do I get a refund?

First, contact the travel provider that you booked your flights with. Some airlines are agreeing to give refunds, so the first port of call is to contact the customer services team to see if they are willing to issue a refund.

If you do not get a clear answer, or if other options are provided such as a credit note, or travelling at a later date, you can insist on a refund.  Bear in mind that customer service teams may be inundated with calls, making it difficult to contact them.  So if you are not in an immediate rush for the refund, try to wait a short while.  You have the right to make a claim for a refund up to 12 months after the departure date of the flight, and provided you have an ATOL certificate, your money is safe and protected.

If you told you are unable to get a refund, then there are a number of options available, depending on how you paid for the flights.

Section 75 Consumer Credit Act claim:

Where you paid at least £100 towards the flights on a credit card, you may be able to claim against your credit card provider, as they are jointly and severally liable; they are just as liable to provide a refund  as the travel provider.  But they will only usually follow this route if you are definitely not able to obtain a refund from the travel provider first, so you should exhaust that possibility first.

To claim under section 75, there must have been a breach of contract, and that will.  largely depend on the terms and conditions of the contract with the travel provider. So it is not a blanket remedy for all consumers.

Chargeback

This is available to those who have paid for their flights via both debit card and credit card.  It is not a legal mechanism, but one that is within the card provider’s scheme rules. It allows you to request that your card provider reverse a transaction, and put the monies back into your debit or credit account.  Similar to section 75 claims, this only applies when the travel provider has breached the contract, and you can provide evidence of this breach.  This method of receiving your money back is time sensitive, however, and you need to check with your card provider as to how long you have to request a chargeback.

The travel agent is not responding to me, what do I do next to get a refund?

Be persistent and continue trying to get in touch with the travel provider. All travel providers are being forced to depart from their normal practice due to the exceptional and unprecedented time. You have up to 12 months from the date of departure to request a refund, so continue trying to get in touch with your travel agent to obtain their position on providing refunds.

Another alternative route could be to make a claim on your travel insurance (see below).

My travel insurance doesn’t cover coronavirus-related cancellations.  What should I do?

Ordinarily, travel insurance companies will only pay out on costs that have not been refunded. So before you claim on your travel insurance, do all you can to obtain a refund from the travel provider direct. Where a refund is not provided, FCO advice is to make a claim on your travel insurance.

However, major travel insurers have responded to the pandemic by changing policies so they no longer cover coronavirus-related incidents. This means that, for example, some insurance policies may include a clause stating that FCO travel advice or warnings are not grounds for cancellation claims, resulting in you not being able to claim back against your insurance provider for money lost on cancelled holidays during the pandemic. However, if you booked your insurance before the FCO restriction on travel or before changes to the insurance, then it is likely you will be covered.

The airline I booked with is only offering to rebook my flights for a later date.  Can I get a refund instead?

Generally, if you do not want to accept a credit note, or for your holiday to be rebooked, then you are entitled to a refund instead.

Many travel providers are offering these options instead of a refund, as it helps to regulate their cash flow. Understandably, those who want a refund want it as soon as possible, but you do have 12 months from your date of departure to claim that refund.

As time progresses and the pressures of the pandemic reduce, travel providers are more likely to be in a better position to offer refunds instead of credit notes.

Depending on the terms of the contract you have with the airline, if they still refuse a refund, despite your contract stating that you are entitled to one, you may be able to use the section 75 and chargeback procedures for breach of contract, as outlined above.

I have paid the deposit on a holiday and the full amount is due soon. Should I pay it?

This is a tough decision, when your holiday might yet be cancelled due to coronavirus.  However, paying the full payment of the holiday by a certain deadline is part of the terms and conditions of the contract. If you therefore choose not to pay, then you could be breaching the contract, giving the travel provider the right to cancel your holiday and not provide you with a refund – you would then lose your deposit.

Before paying anything further, you should contact your travel provider. Travel providers understand the current situation and may be willing to defer the payments, the holiday, or both, if there is a likelihood that the holiday will not go ahead. This could prevent you paying large amounts of money in one lump sum, and could delay the payment until there is more certainty as to whether the holiday will proceed.

If the travel provider is not willing to defer payment, then ideally, wait as long as you can before the deadline for paying in full, in the hope that the travel provider cancels the holiday, which then triggers your entitlement to a refund.  If they do not cancel, you could try to rebook to a future date, sufficiently distant to factor in travel restrictions being lifted.

My holiday has not yet been cancelled. Should I cancel it?

If your holiday is way off and has not yet been cancelled, you may want to consider cancelling any parts of your holiday that are refundable, as this would ordinarily result in you getting your money back immediately. If, however, your accommodation or flights are non-refundable, you should not cancel anything, because you may waive your right to request a refund at a later date.  If you wait until the travel provider cancels your holiday, then you will be entitled to a refund or credit note, depending on the terms of the contract with the travel provider.

If your holiday does not get cancelled by the travel provider, then you could consider rebooking your holiday for a later date, and continue to do so until the holiday is eventually cancelled. As fewer and fewer flights are being scheduled, it is likely that the holiday would be cancelled at a later date, which in turn triggers the right to a refund. You are then able to follow the steps above to obtain a refund from the travel provider.

It is important to note, however, that if you have not yet obtained travel insurance for your holiday, it may now be too late to do so – as above, many travel insurance companies have responded to coronavirus by changing their policies so that they no longer cover coronavirus-related incidents. You would then need to use the other options covered here

Legal action remains possible where refunds are being refused, but do try to exhaust the other avenues noted first.

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About the Author
Fiona Hayles, Partner, Head of Banking Litigation

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