When you think your holiday has been mis-sold

By Mrs Arbitrator ACIArb

The following case study covers a holiday which was mis-sold to the consumer on the basis that the agent did not take into account the consumer’s requirements.  As a consequence, the consumer derived very little enjoyment/benefit from the holiday.

When writing an arbitration, it is incumbent on me to ensure that full consideration is given to all submissions, in order to afford the parties every opportunity to present their case concisely, and to the best of their abilities.   Each arbitration is approached in a meticulous fashion, with the starting point determining: i) the crux of the complaint; ii) the desired resolution; iii) the relevant laws (and their application); iv) the burden of proof; v) evidence (or balance of probability, in its absence); and vi) available remedy.

I must also consider that many consumers may not have any knowledge of legal process and, therefore, in order that they are not unfairly prejudiced, within my remit as Arbitrator I am able to pose further questions of both parties, or make recommendations/suggestions for further evidence, where I deem fit.  Indeed, the Consumer Rights Act 2015 (the current law protecting the interests of consumers), provides that where there is a lack of clarity, the consumer should be given the ‘benefit of the doubt’.

I should also clarify that the fact that the Arbitrator finds in favour of one party, does not imply that the other party is telling an untruth – it merely means that the evidence and submissions of the successful party are preferred.

CASE STUDY

The consumer visited the retailer’s store to organise a cruise holiday for both her and her travelling companion.  The consumer had been a customer of the retailer for many years and was therefore well known to the retailer. The holiday comprised return flights, transfers, and a 14-night cruise. As the holiday was purchased as a ‘package’ (i.e. both travel and accommodation), the booking was covered under The Package Travel, Package Holidays and Package Tours Regulations 1992.

The consumer was disabled (wheelchair bound), and partially sighted.  Accordingly, when the booking was made in the retailer’s store, she made her requirements known to the retailer, and indeed as she had been a customer for the past ten years or more, her requirements in relation to her disability were well documented.  When she made the booking, she provided her travel dates and relied upon the retailer’s expertise to provide a holiday which was suitable for her specific needs and requirements.

When the consumer’s pre-booked taxi arrived at the destination airport to transport her to the ship, no consideration had been given to the fact that she had specifically requested a wheelchair-accessible taxi; Consequently, she had to wait for a replacement vehicle to arrive.

Upon arrival at the ship, no provision had been made (such as a ramp or disabled access), and it was necessary for staff members to carry her (and her wheelchair), up a flight of steps to enable her to embark.

The consumer immediately spoke with the retailer’s customer service representative on board, who advised she should never have been sold the holiday, given its unsuitability for her requirements. Measures were thereafter put in place by the house manager on board the ship, to assist the consumer on and off ship throughout the holiday.  The consumer felt anxious at this prospect and, as a consequence, did not take advantage of any of the excursions on offer.

When attending the entertainment provided on board, the consumer had to find seating in an area where she would not block access to other holidaymakers, as no provision had been made for her particular circumstances.  She would have to move a chair and situate her wheelchair in its place but was always ushered away into a corner, thus limiting her enjoyment.

When she disembarked, in readiness for returning home, she was advised she was not on the list for a taxi to the airport and it would appear that the retailer had mistakenly cancelled the taxi (because of the issue encountered when transporting her to the ship), and forgotten to book a suitable wheelchair-accessible taxi in its place. As a result, she had to share a taxi with another couple of guests to ensure she reached the airport in good time for check-in.

In consideration of the consumer’s complaint, the retailer offered a partial refund as a gesture of goodwill; however, no goodwill gesture was offered to the consumer’s travelling companion, whose holiday was also negatively impacted as a result of the failings of the retailer.

My consideration in this case was whether the holiday has been mis-sold to the consumer, on the basis that the holiday did not adequately cater for her needs, and the fact that no adequate arrangements had been put in place.

Mis-selling is the deliberate, reckless, or negligent sale of products or services in circumstances where the contract is either misrepresented, or the product or service is unsuitable for the consumer’s needs.  In this respect, The Consumer Rights Act 2015 provides that goods or services must be ‘as described’ by the retailer and, under Section 49 of the Act, ‘every contract to supply a service is to be treated as including a term that the trader must perform the service with reasonable care and skill’.  In addition, Section 4(1) of The Package Travel, Package Holidays and Package Tours Regulations 1992, also provides protection to consumers, as follows:

“Descriptive matter relating to packages must not be misleading

4.(1)     No organiser or retailer shall supply to a consumer any descriptive matter concerning a package, the price of a package or any other conditions applying to the contract which contains any misleading information.

(2)        If an organiser or retailer is in breach of paragraph (1) he shall be liable to compensate the consumer for any loss which the consumer suffers in consequence.

From the evidence presented to me, I considered the following of utmost significance:

1. the consumer had travelled many times previously with the retailer and was therefore well known to the retailer and it would have had a record of her disabilities;
2. the retailer’s ‘booking overview’ demonstrated its knowledge of the consumer’s disability as these were documented in its ‘welfare notes’

In addition, the retailer advised (after the holiday) that there was not always a ramp or disabled access to the ship as this was dependent upon the facilities at the port, and also dependent upon the tide.  Further, where no facilities were available, the passenger may be carried on board (in their wheelchair), tide permitting, or they may access via the cargo entrance.  Further, in its submissions, it advised this information should have been provided to the consumer at the time of booking.

The retailer clearly failed to fully consider the needs of the consumer, together with the limitations on the ship in relation to disabled access.  Not only should this information have been provided prior to booking, but also the retailer should never have recommended the cruise to the consumer as the ship was simply unsuitable, notwithstanding the fact the retailer had to duty to the consumer to make reasonable adjustments.

As a consequence of my findings in this matter, I considered the holiday had been mis-sold, as the consumer (and her companion) derived no benefit nor enjoyment from the holiday.

When determining the remedy, I considered the issues with transportation, embarking and disembarking, inability to take advantage of facilities on board, not wishing to partake in excursions due to the issues with embarking and disembarking, and the fact the consumer clearly felt uncomfortable on the ship as no provision had been made for her disability.

In summary, the retailer’s failings had a negative impact on both the consumer and her travelling companion and I therefore awarded a full refund.

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