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Civil Aviation Authority consults on dispute resolution

Consultation means listening and reacting – but have they done that?

When consumers have a problem getting a refund from an airline they can go to an Alternative Dispute Resolution (ADR) provider, who will decide whether the consumer or the airline is right in a dispute. The decision is binding on the airline. The current system is not working well and is under fire from a number of consumer champions/organisations to improve.

Consultation takes off

On 17 July 2020 The Civil Aviation Authority (CAA) launched a consultation on ADR which closed on 25 September 2020. The ADR process is meant to ensure that passengers have a place to go to arbitrate in cases where the airline and consumer are in dispute. In October consumer champion Helen Dewdney revealed that the CAA had not informed any stakeholders such as the Ombudsman Association for which all Ombudsmen are members nor other consumer rights bodies. When this was brought to the CAA’s attention it extended the deadline although it still did not inform stakeholders despite saying that stakeholders had not received the original consultation due to an IT error. [1]

The findings report was published [2] on 18 February 2021 and the responses were published in full on 4 March 2021.Aeroplane in sky with clouds

Does CAA favour the airlines?

The CAA was criticised for not consulting with consumers but it attempted to justify this decision saying that “The CAA does not consider that pausing the process to issue a public consultation is proportionate in the circumstances or will achieve the speedier outcomes for consumers that the ADR scheme is intended to achieve.” And yet it consulted solely with the airlines, which is clearly biased

It would appear that the CAA has in fact completely ignored all consumer voices. There were 13 responses and 8 were published in full: A response from one of the two ADR providers, one airline, 4 consumer champion individuals/organisations, the Ombudsman Association and the Rail Ombudsman, which operates the only current Ombudsman scheme in travel (Rail). All the consumer champions, including Which? and the Northern Ireland Consumer Council, called for there to be a single ombudsman.

Call for a single ombudsman

The CAA has consistently refused consider a single Ombudsman, despite concerns being raised by Which? [3]  the Ombudsman Association and in the Ombudsman Omnishambles and More Ombudsman Omnishambles reports. [4]

For example, in its response to the consultation, The Consumer Council Consumer Panel said:

“Although placed on the Citizen Space of the CAA website, it has clearly not been drafted or presented with citizens or consumers in mind. There is little excuse for this. The substantive proposals have been under consideration by the CAA for nearly a year. This is nevertheless a public consultation and the CAA should be and be seen to be, consulting everyone: ADR schemes, airlines and airports, consumers, consumer organisations, and other stakeholders such as claims management companies and specialist lawyers and legal firms.

Charging a fee – adding insult to injury?

ADR entities are allowed to charge consumers a fee (£25), returnable if the consumer wins the case. This has been criticised, as it acts as a barrier and could put consumers off using the service. In its response the CAA said:

“The CAA acknowledges that there is an ‘in principle’ argument that ADR should be free to the consumer at all times. In traditional regulated sectors, such as financial services, energy, etc, where participation in ADR is mandatory for businesses, it is more straightforward to implement ADR in a way which is free to consumers at the point of use.”

However, this is NOT the case. Other voluntary schemes, such as The Motor Ombudsman and Dispute Resolution Ombudsman, are voluntary schemes and do not charge.

This position from the CAA is one that you would expect from a trade association, not a regulator! They know it’s best practice but are clearly not going to do it!

Calls for a single Ombudsman in aviation

There have been calls from various stakeholders over many years for a single mandatory Ombudsman in Aviation. The CAA has stated that it feels that the ADR regulations prevent them from making ADR mandatory, or approving a single provider, and that neither can be achieved without legislation. Whilst legislation to appoint a single Ombudsman would be welcomed, it hasn’t stopped Ofgem adopting a policy position to only approve one provider, or prevented single mandatory ombudsman schemes being established in both the rail sector and the new homes sector in the absence of legislation.

A spokesperson for the Ombudsman Association said:

“Whilst we welcome the CAA’s stated desire to strengthen the current system of redress in the aviation sector, the small alterations they have proposed do not go far enough to meet the needs of aviation customers, as the OA and other organisations highlighted in response to their consultation. It is clearer than ever that a single mandatory ombudsman is required to provide effective redress in the aviation sector and to help drive the improvements that the CAA are trying to achieve. We will continue to engage with Government and other stakeholders on the need for a single mandatory ombudsman in the aviation sector.”

The rail Ombudsman comments

Kevin Grix is the Chief Ombudsman of The Dispute Resolution Ombudsman, which runs the Rail Ombudsman, operating now for nearly three years. He offered to share the experience of working with the Department for Transport, stakeholders, the regulatory body and members to set up a new scheme with the CAA. The Chief Ombudsman is the longest serving in the country and led on the creation of this new scheme. His preference is for a collaborative approach, eliciting buy in from companies and from consumers/consumer champions.

Grix says “It is no coincidence that regulated sectors in this country favour the Ombudsman model, not only because of the extra layers of protection that they provide – but also because of their now proven track record of helping industry to improve and raise standards. There seems little merit to me in resisting this model.

Consumer campaigners call for change

The Ombudsman Omnishambles report  and More Ombudsman Omnishambles both called for a single mandatory ombudsman per sector. The latter report in particular evidenced the higher standards required of an Ombudsman than any other ADR provider and called for the approval bodies to action this.

Which? was critical of the consultation too. It called for a more ambitious approach that included establishing single statutory mandatory ombudsman.

Citizen’s Advice has already called for mandatory membership of an ADR scheme for airlines in its April 2017 report Confusion, gaps, and overlaps. [5]

Independent review flawed

The consultation report states that in 2020 the CAA commissioned Verita to carry out an independent audit of the two CAA-approved ADR bodies for assurance as to the quality and consistency of decision making and to determine the extent to which these decisions are transparent.

However, Verita was a peculiar choice, given that is has no experience in undertaking research in the consumer arena. [6] The company undertook no research whatsoever with consumers, airlines or consumer organisations. It literally only looked at information given by the ADR providers! This approach is obviously flawed.

Helen Dewdney, The Complaining Cow, believes that the consultation was a complete whitewash:

“It is quite clear that the CAA restricted who was able to respond and then completely ignored anyone who spoke on behalf of consumers. The CAA should be impartial and not favouring airlines. There appears to no reason why there should not be a single Ombudsman for airlines. A single mandatory Ombudsman would reduce confusion and provide higher standards for all stakeholders, including businesses and consumers.”

References

[1] CAA launches consultation and tells no-one…

[2] CAP2104: Amendments to the CAA’s policy for ADR applicants and approved ADR entities (CAP1324) CAA Decision

[3] Which? related articles

https://www.which.co.uk/news/2020/10/more-airline-passenger-misery-as-court-cases-could-take-years/

https://www.which.co.uk/news/2019/10/easyjet-passengers-lose-out-in-compensation-merry-go-round/

https://www.which.co.uk/news/2019/10/hundreds-of-ryanair-complaints-rejected/

https://www.which.co.uk/news/2018/05/passengers-still-having-to-fight-for-flight-delay-compensation/

Which? press release where it called for a travel ombudsman:

https://press.which.co.uk/whichpressreleases/which-calls-for-overhaul-of-broken-airline-complaints-system-to-restore-damaged-trust-in-the-travel-industry/

[4] Ombudsman Omnishambles:  Serious unresolved issues affecting the operation of the ombudsman ADR system in the UK  and More Ombudsman Omnishambles: The UK ADR landscape 20 months on…

[5] CAB 2017 report Confusion, gaps, and overlaps.

[6] Independent expert audit of CAP 2104 Amendments to the CAA’s policy for ADR applicants and approved ADR entities – CAA Decision February 2021

The CAA consultation response CAP2104: Amendments to the CAA’s policy for ADR applicants and approved ADR entities (CAP1324) CAA Decision

The 8 responses published in full CAP2116: Responses to CAA Consultation on Policy for ADR applicants and approved ADR entities, CAP1324

 

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ADR Ombudsman Latest News Press releases Property

How to build confidence in your home improvement project

Press release

Home improvement – DIY or get some help?

Home improvement has seen a huge rise throughout the pandemic. The increased amount of time people are spending at home, improving mental health and wanting their home to look nice for Christmas are all contributing factors to the 12.8 million people planning to do improvement work at home in the next few weeks.

In the run up to Christmas, 46% of Brits plan to undertake home improvements and 54% of them are planning to do the work themselves, with a whopping 61% admitting that they are not competent to do the job! That’s according to figures released today (16/11/20) from research undertaken by the financial services comparison company, GoCompare.

At the start of the second lockdown, Housing Minister, Robert Jenrick, confirmed that tradespeople would still be able enter customers’ homes to carry out work.  However, in yet another example of confusion around the COVID-19 restrictions, the research reveals that 13% of those wanting to work on their homes believed that they couldn’t have tradespeople in their home and 23% didn’t want them in their home at all.

With so many risks associated with undertaking works in the home, what else do you need to consider when using a tradesperson?

wooden joints

10 Top Tips for taking on tradespeople

1)  Get at least 3 firm quotes, not just rough estimates. Ignore any that are very different to other quotes.

2)  Ask friends and family for recommendations of companies who have already done work for them. If you don’t know anyone who can make a recommendation, ask traders for details of customers willing to show you their work. TrustMark can provide a list of recommended traders in your area, each of whom in turn is registered with a professional trade association. TrustMark say they are the Government Endorsed Quality Scheme and if something goes wrong with a trader – and their process doesn’t put it right – you will be able to use the Dispute Resolution Ombudsman for free. Check out reviews. Be careful and cynical of reviews on Facebook, particularly on the builder’s own page. Scams abound on many sites. So, check carefully before making a decision!

3)   All professional builders should willingly agree to a written contract which includes an agreed staged payment plan. In addition to the contract, continuous communication throughout the project is the best way to avoid problems arising. Many traders are signed up to reputable trade associations which help them to get their paperwork in order, but remember, what comes naturally to a lawyer doesn’t necessarily to a trader.

4)   Beware of websites that just offer to help you to find tradespeople. Often traders pay to be listed on these websites which generate leads for them, sometimes without the trader being vetted or required to abide by an Ombudsman or Alternative Dispute Resolution Service. If the website only helps you to spend your cash but doesn’t help you put things right if they go wrong, avoid it and look for one that will help you at both ends of the project.

5)   In addition to providing lots of advice and information on services, Which? operates the Which? Trusted Traders scheme. Unlike a lead generation site, this carries out checks and requires traders to abide by a comprehensive code of conduct, all of which is underpinned by the Dispute Resolution Ombudsman which can independently investigate complaints if things do go wrong.

6)   Be wary of any builder who can start straight away! Any builder worth their salt will be busy!

7)   Check to see if the builder has public liability or employer’s insurance which will give you peace of mind. Consider a building warranty that either they or you can take out to give you further peace of mind.

8)   Take photos before, during and after the work.

9)   For some larger projects, both parties can agree that an independent expert will value the work and payments can then be made at various stages during the project.

10) If you’re using a home improvement retailer to fit a bedroom, bathroom or kitchen, check that they are a member of the Furniture and Home Improvement Ombudsman before you buy. If they are registered, you’ll benefit from free and independent dispute resolution if things go wrong.

Top tips – what to do if things go wrong with tradespeople

Helen Dewdney, The Complaining Cow, a consumer champion, has these tips:

1)  Try to resolve the matter in person or over the ‘phone before formally writing if you have a complaint.

2)  Under the Consumer Rights Act 2015 you are entitled to goods of satisfactory quality, that last a reasonable length of time and services (such as fitting) to be carried out with reasonable skill and care.

3)  Give the trader an opportunity to remedy the work. If they refuse to do this or they fail to do it satisfactorily, then you can take the matter further. Ensure that you state that you retain your legal rights under the Consumer Rights Act 2015, so that you are still able to claim if necessary afterwards when you write to complain.

4)  If the trader does not respond or does not remedy the faulty work, proceed with getting an independent report and 3 quotes.   Get the work done and write to the trader requesting this amount, attaching the paperwork. You could attach a quote before the work is done to give the trader one last chance, if you wish.

5)  The Defective Premises Act 1972 relates to work undertaken by builders, developers, surveyors and architects. “Defective”, in legal terms, means work causing the property to be unfit for habitation as a result of design, workmanship or materials. Improvement, small jobs and refurbishments are not covered by this Act, so use the Consumer Rights Act 2015 instead.

6)  If the trader is a member of a trade association, you can contact it and see if you are able to use their dispute resolution scheme.

Kevin Grix, Chief Executive and Chief Ombudsman at the Dispute Resolution Ombudsman, says:

“Sometimes even the most straightforward home improvement projects go wrong – and when they do the consequences for everyone involved can be dire. The temporary loss of amenities such as plumbing and electricity caused by a problem are often just the tip of the iceberg. Often when jobs go badly, traders and their customers find themselves in a stand-off, with work left incomplete and arguments over payments escalating.”

There are few more emotive disputes than those that involve the home. Dewdney says that good builders and tradespeople are not just adept with their tools – they also have processes in place to look after their customers. “For extra peace of mind, select those who demonstrate a commitment to standards and putting things right if they go wrong. Look for the ones who are registered with an endorsement website and with an Ombudsman.”

What to include in a contract with the builder etc

A contract should include the following:

  • Total price inclusive/exclusive of VAT
  • Timescales
  • Start and end dates to include delays and disruptions
  • Payment stages
  • Specifications of materials to be used
  • Insurance and responsibilities for loss/damage
  • Liabilities
  • How unexpected work will be dealt with
  • Health and Safety
  • Termination/cancellation rights
  • Sub-contracting
  • Dispute resolution

For more information see How to ensure a stress-free building project which includes a case study and court action which set a precedent you need to know if you are considering legal action!

Cover of How to Complain updated 2019 large cow logo

 

For more help, advice, tips, information and templates buy  How to Complain: The Essential Consumer Guide to Getting Refunds, Redress and Results!

 

 

 

 

man in hard hat

There are some problems in the ADR/Ombudsman sector

There are many issues regarding ADR and Ombudsmen providers. These are mainly to do with the oversight by their approval bodies and are highlighted in my articles Government and regulators continue to fail on resolving consumer disputes and Landing in Court with Ryanair. These articles include links to the reports Ombudsman Omnishambles and More Ombudsman Omnishambles.

This is why we recommend an Ombudsman. (See More Ombudsman Omnishambles for details on how Ombudsman standards are higher than other ADR providers).

Alternative Dispute Resolution – approval and oversight in the loosest sense of the words…