Flight delays hit their peak: understand when you can claim compensation

Tips on when to challenge ‘extraordinary circumstances’ after airlines hit by recent court ruling over flight delay compensation

Summer travel hits its peak in July and so do flight delays. But understanding when you can – and can’t – claim compensation isn’t as easy as you think. And, in my experience, on-the-ground airline staff aren’t always available to give you the advice you need. 

You could be eligible for compensation of between £110 and £520 if your flight if delayed. But this depends on a number of factors: how late your flight arrived at your destination, how far you were flying and whether the delay was the airline’s fault.

Airline’s are let off the hook when it comes to paying compensation for a flight delay or cancellation that is due to ‘extraordinary circumstances’ – and airlines will fight hard to claim the extraordinary.

The Supreme Court last month ruled that British Airways cannot claim extraordinary circumstances, as it had done, when flight cancellations are caused by pilots falling ill while off duty. This was after two courts upheld the company’s position.

In this article I attempt the extraordinary to get to the bottom of when it’s worth fighting back against an airline’s claim that delays or cancellations are not their fault.

You can also read more about your rights if your holiday is hampered by a delayed or cancelled flight with our guide to claiming compensation. And use our free template for help when making a claim.

Flight delays worse than before the pandemic

Just 64% of flights departed or arrived on time in 2023, according to Civil Aviation Authority (CAA) data. Although this is slightly better than the previous year, it remains significantly below pre-pandemic levels of 75% in 2019. 

Eurocontrol data for the past three years shows that flight delays typically reach their peak in July. Last July, the average delay per flight on arrival was 22.5 minutes, compared to 11.4 minutes in the best performing month of 2023. 

Poor flight delay performance is already on course to be as poor as last year this year. The average delay per flight last month was 19.4 minutes, which is broadly comparable to last year’s performance. And this is just average delays experienced by passengers.  

Flight delays leaving passengers eligible for compensation

There is no publicly available data to tell you how many flight delays could have left passengers eligible for compensation. But every month the CAA publishes punctuality data for airlines operating at 25 major UK airports. 

Consumer Voice analysis of CAA punctuality data of the 353,420 flights flying in and out of these airports last July has found:

This leaves holidaymakers on more than 17,000 flights all experiencing cancellations and delays that have the potential to leave them eligible to claim compensation.

So, this leaves hundreds of thousands of passengers potentially eligible for compensation once you account for the number of passengers that could be travelling on these flights. And that’s likely to be at the conservative end of the scale.

When you can claim flight delay compensation

Under UK law, airlines are required to pay you compensation when your flight is delayed or cancelled by a prescribed amount of time and for a specific set of circumstances.

You could be owed between £220 and £520 in compensation for flight delays of more than three hours. Or between £110 and £520 if your flight was cancelled with less than 14 days’ notice. 

But the cause of the delay will also impact your right to compensation. You will not be entitled to compensation if the delay or cancellation was caused by what is known as an extraordinary circumstance.

What is an extraordinary circumstance?

The law doesn’t define what constitutes an extraordinary circumstance. But there have been a number of cases in the European and English courts challenging what the term should reasonably cover.

This has provided clarity for  a number of issues. For example, technical faults (unless caused by a hidden manufacturing defect or damage to an aircraft caused by sabotage or terrorism) and industrial action by airline employees do not constitute extraordinary circumstances. 

Although the CAA doesn’t routinely collect data on the causes of flight delays, it will intervene if an airline is unreasonable with its rules around extraordinary circumstances. 

Speaking to Consumer Voice, a CAA spokesperson said: ‘Our enforcement role relates to suspected breaches that harm the collective interests of consumers.’ 

They said this means the regulator ’would generally only intervene if we had evidence that suggested that an airline was incorrectly applying the extraordinary circumstances defence as a matter of policy.’

An example they gave me would be the action it took against Ryanair when the company argued that industrial action by their pilots was an extraordinary circumstance. 

This affected a large number of consumers and ended up being considered by the Court of Appeal.  

Examples listed by the CAA as likely to be a genuine extraordinary circumstance include:

• Weather conditions that impact the safety of the flight
• Strikes that are unrelated to the airline – such as, air traffic control, airport staff, ground handlers or border force
• Security risks and acts of terrorism or sabotage
• Political or civil unrest
• Aircraft defects due to hidden manufacturing faults
• A bird strike
• Runway closure due to oil spillages
• A foreign object hitting tyres on take-off
• A diversion due to an unruly passenger

The CAA spokesperson added there is no ‘one-size-fits-all answer’ to working out whether your delay was caused by an extraordinary circumstance. This will ‘depend on the facts and needs to be considered on a case-by-case basis.’ 

In the first instance, your airline should explain to you the reason for the disruption. If they think it is due to an ‘extraordinary circumstance’ it will need to clearly set out why. 

If it rejects a claim you make for compensation due to this it might be worth considering whether you should challenge it.

When to challenge an airline’s claim of an extraordinary circumstance?

The CAA told me that disputes concerning definitions of extraordinary circumstances account for the bulk of consumer complaints considered by airline alternative dispute resolution (ADR) bodies or its own Passenger Advice and Complaints Team.

The Consumer Dispute Resolution Limited (CDRL) operates the most popular ADR schemes for airlines – with members including easyJet, Ryanair and Wizz Air. 

The CDRL didn’t respond to my questions about how many complaints have been raised about extraordinary circumstances – and, of those, how many were upheld – but it’s worth considering escalating your complaint if you don’t agree with your airline’s position. 

Our guide to claiming flight delay compensation provides advice on how to complain if your claim for compensation is rejected.

In certain cases it might be worth thinking about whether you want to take legal action.

Case study: Supreme Court ruling on pilot illness

Airlines now face having to pay compensation for flight cancellations caused by pilots who fall ill while off duty, after the Supreme Court ruled earlier this month it does not amount to an extraordinary circumstance.

Kenneth and Linda Lipton took BA Cityflyer, an arm of British Airways (BA), to court after they arrived in London from Milan in January 2018 more than two hours late, following the cancellation of their original flight because of a pilot falling ill at home while off duty.

The airline refused to pay around £220 in compensation for the delay, arguing that the pilot’s illness was an ‘extraordinary circumstance’ which could not have been avoided and was out of its control.

After two courts upheld the company’s position, the Court of Appeal ruled in the couple’s favour, with the airline then taking the case to the Supreme Court.

But earlier this month, five Supreme Court justices unanimously dismissed the company’s appeal.

The judgement said that extraordinary circumstances ‘means something out of the ordinary’. 

‘Staff illness, and the need to accommodate such illness on a daily basis, is commonplace for any business.’ 

It said that ‘a carrier’s operation depends on two principal resources: its people and its aircraft. 

‘Wear and tear of the aircraft and its component parts is not extraordinary. The wear and tear on people, manifesting itself in illness, should not be regarded as any different’.  

If the Captain ‘for whatever reason… are unable to attend for work as a result of something going awry’ during rest periods ‘that failure to attend is not an extraordinary circumstance’.  

In a statement issued by their law firm, Irwin Mitchell, following the ruling, Mr and Mrs Lipton, from Westerham in Kent, said:

‘We see this as not just a win for ourselves but a victory for people who are prepared to fight for common sense and justice against corporate behemoths who have access to every resource.

‘We never wanted to be in this position but felt we had little choice but to continue our legal case given the stance of the carrier all the way through this.

‘Their insistence to continue this battle to the highest court in the land has now met with the correct conclusion and our significantly smaller, but no less wily team has succeeded against all odds.

The CAA is of the view that this ruling should be applied to all staff sickness at an airline, not just that of the pilot. Anna Bowles, head of consumer at the CAA, said:

‘This provides clarity to passengers and means airlines are no longer able to refuse compensation claims by arguing that pilot illness counts as an extraordinary circumstance.

Given this court ruling, she added: ‘It is our view that delays and cancellation caused by staff illness – whether they are a pilot or member of crew – do not count as an extraordinary circumstance.

‘We expect every airline that has refused claims due to staff illness, or placed them on hold pending the outcome of the appeal to the Supreme Court, to now pay compensation owed to passengers.

‘We also expect airlines to apply our interpretation to both existing claims and future disruptions.’

A spokesperson for BA said: ‘We are disappointed with this decision and respect the judgment of the court.’

The CAA has said it will monitor closely how airlines comply with this.

How often are flight delays caused by extraordinary circumstances

The only publicly available data on the causes of flight delays and cancellations comes from Eurocontrol – but this is limited and somewhat oddly categorised. 

Its latest data shows that in June 2022 and 2023 June last year, the main cause of the longest delays was due to something cryptically labelled as ‘reactionary’. The second biggest impact is labelled as an airline. 

However, when you dig deeper into the coding of the data, ‘reactionary’ codes also include things like the late arrival of another flight and the slow rotation of the aircraft or crew due to the late arrival of another flight. 

These are arguably also reasons you might put down to the fault of the airline. 

Air traffic control disruption due to system failures, staff shortages and strike action account for a much lesser impact in June 2022 and 2023 data than than you typically see reported. The weather had the least impact on delays during those months.

What can you do if your flight is caused by an extraordinary circumstance?

If your flight is delayed due to a genuine extraordinary circumstance, then your airline should look after you while you wait for your flight – paying for necessary meals, drinks, accommodation and transport.

And, for cancelled flights, your airline should give you a refund or offer you an alternate flight. Find out more about what you are entitled to claim for in these circumstances in our guide to claiming compensation for delayed or cancelled flights.

You should also take a look at your travel insurance policy to see what else you might be covered for. And read our tips to help you avoid travel insurance problems.