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.
of the ATOL Regulations attempts to explain what constitutes a Flight-Plus
(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
(ii) a flight into the
(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
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
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
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
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
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.
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
(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
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).
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
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
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.