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FLIGHT PLUS – BAILING OUT OF THE PACKAGE REGULATIONS …. WITH A HANKY FOR A PARACHUTE ?

The Flight-Plus concept, arising from part III of The Civil Aviation (Air Travel Organisers’ Licensing) Regulations 2012 (“the ATOL Regulations”), is designed to protect consumers who cannot bring what they have been provided within the definition of a “package holiday”, particularly those who make separate arrangements for different components of a holiday in rapid succession which do not satisfy the pre-arranged combination and inclusive price requirements for a package.  Unfortunately, the Regulations manage to provide considerably less protection than the Package Holiday Regulations, without being any more straightforward.


Reg 24(1) of the ATOL Regulations attempts to explain what constitutes a Flight-Plus arrangement:

(1)        Subject to paragraphs (3), (4) and (5), a Flight-Plus exists when paragraphs (a) to (d) are satisfied—

(a)        flight accommodation is made available which includes as a minimum -

(i)         a flight out of the United Kingdom; or

(ii)        a flight into the United Kingdom where the consumer has commenced the journey in

the United Kingdom and departed the United Kingdom using another means of

transport; and

(b)        living accommodation outside the United Kingdom or self-drive car hire outside the United Kingdom or both is requested to be booked and is supplied by any person under or in connection with the contract for such flight accommodation; and

(c)        such living accommodation or self-drive car hire is requested to be booked by or on behalf of the consumer on the same day as the consumer requests to book the flight accommodation, the previous day or the next day;

(d)        the arrangement covers a period of more than twenty-four hours or includes overnight living accommodation.


Only a cynic would seek to suggest that the influence of vested interests could have got in the way of providing a straightforward and comprehensive definition for a Flight-Plus arrangement.  Or perhaps the problem is that the people who draft the legislation are not ordinarily the sort of people who would be going on a Flight-Plus type of holiday.  Either way, it is worth noting that the requirements in sub-paragraphs 1(a) to (d) are cumulative, and must all be satisfied to establish that there has been a Flight-Plus arrangement.

It is also important to note that reg 24(1)(c) refers not to the booking of living accommodation, or self-drive car hire, but to this being “requested to be booked”.  Accordingly, the request, rather than the actual contract for the living accommodation or care hire, must be made within the period beginning 1 day before the day when the flight is booked, and ending 1 day after it.  This has the potentially amusing side-effect that, depending on how well-organised the arranger is, the consumer may create a Flight-Plus situation without the arranger even being aware of it at the time.


Reg 24(2) provides that other services provided as part of a holiday can fall within the Flight-Plus arrangement, but only in certain (very unclear) circumstances.


(2)        Where a Flight-Plus exists, any other tourist services will be included in the Flight-Plus if such services—

(a)        are not ancillary to flight accommodation or living accommodation;

(b)        account for a significant proportion of the Flight-Plus;

(c)        were supplied under or in connection with the contract for the flight accommodation; and

(d)        were requested to be booked by or on behalf of the consumer on the same day as the consumer requested to book the flight accommodation, the previous day or the next day.


It is not immediately easy to understand why reg 24(2) applies only to services which are not ancillary to flight or living accommodation, but still account for a significant proportion of the Flight-Plus arrangements.  This suggests that arrangements which are less obviously connected with the core elements of the Flight-Plus (e.g. an excursion which forms a major part of the holiday, but which does not itself include accommodation) will form part of the arrangement, but things obviously and closely connected with it (e.g. transport between the airport and accommodation) may not.  What amounts to an “ancillary” service, or a “significant proportion” of the Flight-Plus, or something supplied “in connection with” the contract for the flight accommodation, is also unclear from the legislation.


Reg 24(3) deals (after a fashion) with the potential difficulty that a substantial number of package holidays would also satisfy the definition of a Flight-Plus arrangement.  Yet for reasons which are unclear, it still creates a class of holidays which will benefit from both the protection of the Package Holiday Regulations and the (less comprehensive) regime for Flight-Plus arrangements.

(3)        A package is not a Flight-Plus except—

(a)        where a package does not include flight accommodation, flight accommodation (as described in paragraph (1)(a)) is requested to be booked by or on behalf of the consumer on the same day as the consumer requests to book the package, the previous day or the next day; or

(b)        where a package does include flight accommodation, living accommodation or self-drive car hire outside the United Kingdom is requested to be booked by or on behalf of the consumer on the same day as the consumer requests to book the package, the previous day or the next day.

A flight which begins and ends in the United Kingdom does not form part of a Flight-Plus (reg 24(4)).  So one of the major defining elements of the Flight-Plus does not itself attract protection, perhaps to avoid overlap with the Montreal Convention regime.  More obviously, a Flight-Plus arrangement will cease to exist if (a) the consumer withdraws from the contract for any component of the Flight-Plus; and (b) as a consequence of that withdrawal, the requirements in paragraph (1) are no longer satisfied (reg 24(5)) – presumably this applies even if some part of the holiday still proceeds.

The definition of a Flight-Plus arranger is contained in reg 25:

A Flight-Plus arranger means a person (other than the operator of the relevant aircraft) who –

(a)        as a principal or an agent, makes available flight accommodation in response to a request to book which has been made directly to them by a consumer; and

(b)        has taken or takes any step which is intended to include, facilitate or enable, or has the effect of including, facilitating or enabling the inclusion of, that flight accommodation as

a component of a Flight-Plus.

Again, the ATOL Regulations do not make very clear what is meant by making available “flight accommodation in response to a request to book”, or of taking “any step which is intended to include, facilitate or enable the inclusion of” flight accommodation as a component of a Flight-Plus.  It is not immediately obvious why these are set out as 2 separate requirements, when they seem to cover the same sorts of actions.  The reference again to responding to a request to book raises the question of whether someone advertising etc flights will not be liable, if the fulfilment of the consumer’s booking request is handled by another legal person.

Reg 25 does makes clear the major exception to the cover provided by the ATOL Regulations – airlines.  This is a major constraint to the usefulness of the Flight-Plus concept, when so many of the arrangements which fall under it are likely to be sold by airlines, particularly as they move increasingly into the business of selling complete holidays.  In the absence of coverage of airlines, the most obvious “arrangers” will be holiday companies and travel agents, although much of what they sell will be excluded where it falls within the definition of a package.

It is worth remembering that, thanks to the definition in reg 25 (and the way the remedies are described in reg.s 26 to 29 inclusive), only “consumers” can take advantage of the Flight-Plus concept.  Reg 4(1) defines a consumer as an individual wh makes use of flight accommodation for travel in person or provides it to another person> who uses that flight accommodation for travel in person; intends to make use of flight accommodation for travel in person or intends to provide it to another person to use that flight accommodation for travel in person; or makes use of flight accommodation for travel in person which has been provided to them by a person who is a consumer.  The protections may therefore apply to both the person flying, and anyone who has booked flights on someone else’s behalf.  However, reg 4(1) excludes from the definition of a consumer an agent acting in the course of business on behalf of the person using the flight accommodation (though this is unlikely to make any practical difference, if the end user of the flight is a consumer for the purposes of the ATOL Regulations).

Before considering the specific obligations which arise to consumers who have managed to show that they have been provided with a Flight-Plus arrangement by a Flight-Plus arranger, it is perhaps important to consider the further limitations which arise to the application of the concept under reg 30:

A Flight-Plus arranger is not liable to the consumer under Regulations 26 to 29 for the provision of flight accommodation, living accommodation or self-drive car hire forming part of a Flight-Plus or to provide a refund in relation to any other tourist service forming part of a Flight-Plus except where the reason for the non-availability of the flight accommodation, living accommodation or self-drive car hire or the non-provision of the other tourist service forming part of the Flight-Plus is—

(a)        the insolvency of any person concerned with its provision; or

(b)        the failure of the ATOL holder who made available the flight accommodation.

Reg 4(1) provides that insolvency occurs when bankruptcy or insolvency is adjudicated against this person; the court approves a compromise, composition or similar arrangement of the person’s debts on the basis of a receiving order; the person makes a valid assignment, composition or similar arrangement for the benefit of all its creditors; the court orders the winding-up or liquidation of the person’s affairs; an effective resolution is passed for the voluntary winding-up or liquidation of the person; a compromise, composition or similar arrangement of the person’s debts is made binding> on the person and substantially all of its creditors; a receiver, trustee, liquidator, administrator or similar person is appointed on behalf of the creditors of the person – or an “equivalent step” to any of these is taken.

Reg 23(2) provides that failure of an ATOL holder occurs when the CAA holds an opinion that it has gone into insolvency; cannot or will not be able to meet its obligations to its consumers; or will fail to meet its obligations to its consumers; and the CAA publishes a notice of the failure of that ATOL holder in the Register of Failed ATOL Holders.

Accordingly, Flight-Plus protection only arises in a very narrow set of circumstances – failure to provide the specified services (alone) does not trigger it.  Indeed, this may be even narrower than might first appear from reading reg 30 – the requirement is not just that the person concerned is insolvent, or that the ATOL holder has failed, but also that this insolvency or failure is “the [not “a”] reason for” the non-provision of the service.  This suggests that, where the service would not have been provided anyway, even if the insolvency or failure had not occurred, the Flight-Plus protections will not apply.

The various criteria which must be satisfied in reg 24(1) to establish a Flight-Plus arrangement correspond, to varying degrees, with the obligations which reg.s 26 to 29 (inclusive) impose on the arranger (assuming reg 30 has been satisfied).  Different obligations arise depending on when the arranger becomes aware of any non-provision of services, and on whether the non-provision relates to the core elements of a Flight-Plus arrangement, or tourist services outside these core elements.

Reg 26 sets out the obligations when flight or living accommodation, or self-drive car hire, will not be provided:

(1)        It is a term of any ATOL that—

(a)        subject to Regulation 30, where before the intended departure, the Flight-Plus arranger becomes aware that flight accommodation, living accommodation, self-drive car hire or any combination of these forming part of a Flight-Plus will not be provided, the Flight-Plus arranger must make suitable alternative arrangements, at no extra cost to the consumer, for alternative flight accommodation, living accommodation, or self-drive car hire, as appropriate; and

(b)        if it is impossible to make alternative arrangements as described in sub-paragraph (a) or the arrangements offered are not accepted by the consumer for good reasons, the Flight-Plus arranger must refund to the consumer the amount paid by the consumer, on their

own behalf or on another consumer’s behalf, for all of the flight accommodation, living accommodation, self-drive car hire and other tourist services forming part of the Flight-Plus.

(2)        For the purposes of this Part, flight accommodation which forms part of a Flight-Plus will not be provided if either no flight accommodation is provided or if, having regard to the dates, times and points of departure and return, the alternative flight accommodation offered under paragraph (1) or Regulation 27 varies significantly from that contracted for.

Reg 27 provides for the situation when the arranger becomes aware of non-provision after the departure date:

It is a term of any ATOL that—

(a)        subject to Regulation 30, where after departure, the Flight-Plus arranger becomes aware that flight accommodation which forms part of a Flight-Plus will not be provided, the Flight-Plus arranger must provide the consumer, at no extra cost, with suitable alternative transport back to the place of departure, or to another return-point to which the consumer has agreed;

(b)        where after departure, the Flight-Plus arranger becomes aware that living accommodation or car hire which forms part of a Flight-Plus will not be provided, the Flight-Plus arranger

must provide the consumer, at no extra cost, with suitable alternative living accommodation or self-drive car hire, as appropriate; and

(c)        if it is impossible to make arrangements in accordance with paragraph (a) or (b) or the arrangements offered are not accepted by the consumer for good reasons, the Flight-Plus

arranger must refund to the consumer the amount paid by the consumer, on their own behalf or on another consumer’s behalf, for all of the unused flight accommodation,

living accommodation, self-drive car hire and other tourist services forming part of the Flight-Plus.

Reg 26 and 27 contain a myriad more undefined concepts, in particular what constitutes a “suitable alternative”, in what circumstances it will be “impossible” to provide these, and how any refund for the unprovided parts of the holiday will be valued.  The obligation in reg 28 to provide compensation in addition to making alternative arrangements suggests that the arranger will have substantial leeway with the alternatives provided:

It is a term of any ATOL that—

(a)        subject to Regulation 30, where suitable alternative flight accommodation, living accommodation or self-drive car hire is provided under Regulation 26 or 27, the Flight-Plus arranger must, where appropriate, compensate the consumer for the difference between the flight accommodation, living accommodation and self-drive car hire offered as part of the Flight-Plus and the flight accommodation, living accommodation and self drive car hire supplied; and

(b)        the compensation to be provided must include any incidental expenses reasonably incurred by the consumer including but not limited to additional living accommodation expenses.

with the refund provisions, it is unclear how the compensation is supposed to be valued, when it is assessed by the difference between what should have been provided as part of the holiday, and the value of what was in fact provided.  In either case, much of the value is likely to be intangible and tied up with individual preferences, but it is not even clear whether valuation is supposed to be a subjective or objective exercise.  Perhaps the most obvious guidance would come from the price of (for example) an alternative hotel or flight compared to what the consumer should have had.  The provision for incidental expenses is at least likely to be easy enough to define (if a potential source of great evidential dispute in practice).

Reg 29 sets out a straightforward obligation when tourist services outside the core elements of the Flight-Plus are not provided, as the amount to be paid is based on what the consumer has paid, rather than some more escoteric means of valuation:

It is a term of any ATOL that, subject to Regulation 30, in the case of the non-provision of any tourist service forming part of a Flight-Plus other than flight accommodation, living accommodation or self-drive car hire, the Flight-Plus arranger is liable to refund to the consumer the amount paid by the consumer, on their own behalf or on another consumer’s behalf, for that tourist service.

Although the ATOL Regulations have been in force since 2012, they are conspicuous for the lack of reported case law dealing with them.  Given quite how many potentially contentious terms they contain, could this be because the narrow scope of the Flight-Plus provisions has meant few people have availed of their protection yet ?  This is not to say that the Regulations will not be useful in the circumstances when they apply – just that those circumstances are unlikely to arise very often.

Chris Middleton