Barclays Bank UK PLC · DRN-5086900

The complaint Mr H complains Barclays Bank UK PLC trading as Barclaycard, failed to honour a claim he brought under section 75 of the Consumer Credit Act 1974 (“CCA”). What happened I issued a provisional decision on Mr H’s complaint on 25 September 2024, in which I outlined the background to the case and my provisional findings on it. A copy of that provisional decision is appended to, and forms a part of, this final decision, so it’s not necessary for me to go over the events leading up to Mr H’s complaint in detail. However, in brief summary: • Mr H used his Barclays credit card to book flights from Indonesia to Thailand, through an online travel agent, “T”, for a cost of £229. The itinerary was made up of three legs, with the transfer between legs one and two being a self-transfer at Bali Denpasar airport. • There was a short connection time of 95 minutes between legs one and two, and Mr H’s inbound flight to Bali was delayed. He missed his connection and this had significant knock-on effects. He would be unable to make his flight from Thailand back to London the following day, or collect some luggage containing valuables that he’d left in Thailand. Mr H ended up paying for a new flight from Bali to London, and the luggage he’d left in Thailand was lost or stolen. • Mr H considered the connection time between legs one and two was impossible to make, meaning it was inevitable that he’d miss the onward flight. He considered it was T’s responsibility not to have sold such an itinerary to him, and that T had broken a contractual missed self-transfer guarantee it had offered with his itinerary. He considered he had suffered losses of around £4,000 as a result of what had happened. He was unable to make a claim on his travel insurance. • Mr H made a claim with Barclays under section 75 of the CCA, which the bank declined. He complained about this decision, and subsequently brought that complaint to the Financial Ombudsman Service. I said in my provisional decision that I was minded to uphold Mr H’s complaint in part. The full reasoning for that can be found in the appended provisional decision itself, but summarising briefly: • I recognised that section 75 of the CCA enabled Mr H to bring a claim against Barclays for any breach of contract or misrepresentation by the online travel agent T, in relation to its booking services or its self-transfer guarantee. I was satisfied the technical criteria for such a claim to be made against Barclays were in place. • I had not been able to find evidence to support Mr H’s claim that online travel agents were contractually responsible to passengers in the event of a missed self-transfer (also known as a “virtual interlining” itinerary).

-- 1 of 10 --

• Information Mr H had provided indicated that there was an industry standard minimum connection time (“MCT”) between flights at a given airport. These MCTs were set by the airports and the airlines operating out of them, with the approval of the International Air Transport Association (“IATA”). In the absence of specifically set MCTs for an airport or flights, a default time was used, which was 60 minutes for a domestic to international transfer (which Mr H’s has been). MCTs were fed into the algorithms which online travel agents used to generate flight itineraries. • I thought that by presenting Mr H with an itinerary, T had impliedly represented that this was an itinerary which was possible to fly. If the itinerary was in fact impossible to fly, I thought T would have made a misrepresentation to Mr H. However, I didn’t think there was enough information to be able to conclude that the connection between legs one and two was simply impossible to make. I thought it was a very tight connection, but that on a different day with fewer problems and delays, it may have been possible to make the connection. • Due to the Consumer Rights Act 2015 (“CRA”), it was an implied term of Mr H’s contract with T, that T would provide its booking services with reasonable care and skill. I thought about whether, in offering for sale flights with such a tight connection time for a self-transfer, T had failed to exercise reasonable care and skill. However, I didn’t think it was reasonable to arrive at that conclusion because it appeared to be industry practice for online travel agents to rely on the MCTs provided by the airlines and airports. There was no evidence that T had not done so here. • I concluded T had breached its self-transfer guarantee because it had refused to honour the guarantee despite Mr H meeting the criteria to claim under the guarantee. I calculated that, according to the guarantee’s terms, he was entitled to £215.68, so this was what Barclays should have paid him to settle his claim, along with compensatory interest. I invited the parties to the complaint to provide any further submissions they wanted me to consider, before 9 October 2024. Barclays responded to say it accepted the provisional decision. Mr H responded with further evidence and arguments. I think I could fairly summarise his points as follows: • The MCT was the minimum time to be allowed for a connection, not the average or a fair reference by which flight connections should be scheduled. In any event, MCTs were not always realistic or meaningful. He had found, for example, that a much smaller airport in Thailand had a longer MCT than Bali Denpasar, when it would take far longer to transfer through the latter than the former. • He had been in correspondence with Bali Denpasar airport, and they had confirmed that their MCT for domestic to international flights was 35-45 minutes, but they advised to leave longer than this because “the situation at the airport cannot be predicted precisely”. The airport recommended to Mr H that he leave 3-5 hours for connections between domestic and international flights. This showed that the MCT was unrealistic and meaningless. • T should have disregarded this obviously wrong MCT when putting together his itinerary. Its failure to do so was a failure to exercise reasonable care and skill, and

-- 2 of 10 --

he’d been sold an itinerary that was not fit for purpose. Part of T exercising reasonable care and skill should be considered to include assessing MCTs for viability. T were the experts, not him, and they had access to lots of historic flight data to allow them to develop algorithms to assess the viability of a given itinerary – this was a simple task one would expect any travel agent to be capable of. • T appeared to be aware that a connection time of under 120 minutes was insufficient for a self-transfer, as they had set up their self-transfer guarantee to come into effect if the time allowed for a self-transfer fell below this. • The itinerary may have been possible on paper but it was impossible in the real world for a normal person to make the connection between legs one and two. The case has now been returned to me to consider again. What I’ve decided – and why I’ve considered all the available evidence and arguments to decide what’s fair and reasonable in the circumstances of this complaint. I thank Mr H for his further submissions and for obtaining information directly from Bali Denpasar airport to support his case. Neither party has challenged my findings regarding T’s failure to honour the self-transfer guarantee, so I don’t intend to revisit that part of my provisional decision other than to say that I’ve reached the same conclusions on that point, for the same reasons. I also don’t think there is any serious dispute over my finding that MCTs are used as a reference when putting together flight itineraries, and that this appears to be a normal industry practice. Mr H has put forward some reasons why they shouldn’t be used in this way, but that doesn’t necessarily mean that T failed to exercise reasonable care and skill in relying on them when putting together Mr H’s itinerary, if it is a normal practice (which I think it is). I suspect that different online travel agents exercise different levels of caution when building itineraries and may have their own criteria for connection times – my own research shows that Mr H’s itinerary is offered by some online travel agents but not others, for example – but that doesn’t mean that a travel agent relying on the MCTs failed to exercise reasonable care and skill, in my opinion. I take the point that one might expect a competent travel agent to include extra time beyond the relevant MCT, to allow for potential delays, because (as Mr H points out), the MCT is the minimum time required. But it appears that is what T did, because the connection time between legs one and two was 50 minutes longer than the MCT the airport has said is its standard for domestic to international transfers. Overall, I remain of the view that T did not fail to exercise reasonable care and skill when building Mr H’s itinerary. Mr H has referred to the itinerary not being fit for purpose, however this requirement relates to goods, and T was providing services to Mr H, rather than goods. Misrepresentation is different in that it doesn’t matter if T exercised reasonable care and skill or not: if it falsely represented the itinerary as possible when this was not the case – then it would be liable to Mr H for misrepresentation. But I don’t think Mr H has shown that the 95 minute connection time for his itinerary was impossible, which is what he would need to do to show that T had misrepresented the itinerary to him as being possible to complete. I think it’s the case, as I said in my provisional decision, that it was a very tight connection time. If anything at all went wrong or took longer than expected (which is not uncommon in international travel), there was a high risk of missing the connection. Which is, in the end, what happened. I remain of the view though, that T did not make any misrepresentations to

-- 3 of 10 --

Mr H over the itinerary. As I’ve already mentioned above, my views remain unchanged regarding the self-transfer guarantee. I think Mr H was entitled to be paid £215.68 by T under this guarantee, and that is what Barclays should have paid him in fair settlement of his section 75 claim. I realise this does not go very far in terms of compensating Mr H for his losses. I suspect, were I to have reached a different conclusion on other parts of Mr H’s complaint, the end result would still have fallen a long way short of fully compensating Mr H. For example, it’s unlikely I would have been able to conclude T was liable for the loss of his belongings in Thailand. It appears these items were lost due to the negligence or dishonesty of the hotel he had entrusted them to, which likely breaks the chain of causation. And I’m not sure that such losses would have been reasonably foreseeable for T at the time Mr H booked his itinerary. I recognise that Mr H will be disappointed with my decision. There may be other avenues he could consider to try to obtain reimbursement, for example going through the courts or by seeing if there is any other part of his travel insurance, such as cover for lost valuables, which might be able to help him. My final decision For the reasons explained above, and in my appended provisional decision, I uphold Mr H’s complaint in part and direct Barclays Bank UK PLC to take the following actions: • Pay Mr H £215.68, this being the amount T should have paid Mr H under the Self Transfer Guarantee. • To the amount above, add interest at 8% simple per year*, calculated from the date it first declined his section 75 claim, to the date he is reimbursed. *If Barclays Bank PLC considers that it’s required by HM Revenue & Customs to deduct income tax from that interest, it should tell Mr H how much it’s taken off. It should also give Mr H a tax deduction certificate if he asks for one, so he can reclaim the tax from HM Revenue & Customs if appropriate. Under the rules of the Financial Ombudsman Service, I’m required to ask Mr H to accept or reject my decision before 14 November 2024. Will Culley Ombudsman

-- 4 of 10 --

COPY OF PROVISIONAL DECISION I’ve considered the relevant information about this complaint. Having done so, I’m minded to reach different conclusions to our investigator in some respects, so I need to give the parties to the complaint an opportunity to comment further before I make my decision final. I’ll look at any more comments and evidence that I get before 9 October 2024. But unless the information changes my mind, my final decision is likely to be along the following lines. The complaint Mr H complains Barclays Bank UK PLC trading as Barclaycard, failed to honour a claim he brought under section 75 of the Consumer Credit Act 1974 (“CCA”). What happened Mr H travelled to Thailand for a wedding in the spring of 2023. He had purchased return flights from London with a return date somewhat later than the wedding, and he ended up doing some travelling in the region, leaving some of his belongings at his hotel in Thailand. He planned to return to the hotel after finishing his travels, pick up his belongings and catch his return flight to the UK. Mr H’s regional travels took him to an island in Indonesia, and it was from this island that he intended to fly back to Thailand. Mr H booked his flights from Indonesia to Thailand with an online travel agent, “T”, and his itinerary cost £229, paid directly to T with his Barclays credit card. The trip consisted of three legs. The first leg flew from the Indonesian island to Bali, and the subsequent legs flew to Bangkok and then from Bangkok to the town where Mr H had been staying, and from which he needed to catch his flight back to London the following day. The transfer between legs one and two was a self-transfer, meaning Mr H needed to go through passport control and security, and collect and re-check his luggage. Mr H says the flight was delayed arriving into Bali by about 20 minutes. He says that by the time he’d reached the check-in desk, the second flight had already departed. Mr H says he called T but they were unable to help, and he couldn’t get hold of his travel insurer because of the time difference. Mr H was stranded in Bali with no way to get to his hotel in Thailand to pick up his belongings or in time to take his flight back to London. He ended up booking a last minute flight from Bali to London, leaving later that day, for £1,354.70. His belongings were subsequently lost or misappropriated at the hotel. Mr H estimated his total losses at around £4,000. Mr H held T responsible for what had happened. He considered T had given an impossibly short connection time between legs one and two (95 minutes), so it was inevitable that he or anyone else taking the same flights he did, would have ended up in the same situation. Mr H also considered T had failed to honour a contractual guarantee which covered him for missed self-transfer connections in the event of a flight delay. When Mr H had tried to claim on this guarantee, T told him that the airline had informed it that the leg one flight had arrived on time in Bali, and closed his case.

-- 5 of 10 --

Mr H then contacted Barclays to raise a claim under section 75 of the CCA. But Barclays declined the claim, and the subsequent complaint about its decision, on the grounds that the technical criteria had not been met for a successful section 75 claim to be made. Dissatisfied with this response, Mr H referred his complaint to the Financial Ombudsman Service for an independent assessment. One of our investigators looked into his case. In her first assessment, our investigator concluded that section 75 covered misrepresentations and breaches of contract by T, and she did not think either of these things had happened. She considered it had been up to Mr H to make sure he could make the connection between the legs of his itinerary. Mr T disagreed and made further submissions, which our investigator considered, but ultimately they did not change her views on the case. In her second assessment, she restated that it had been up to Mr H to check the time allowed for the connection had been suitable, even if T’s website had given him limited time to do this during the booking process. Our investigator also considered that T had relied on the transfer times provided by the airport and/or airline, which it had been entitled to do. She also concluded that the delayed leg one flight was not the only reason he’d missed the connection (the airport had also been very busy for example), so T’s guarantee didn’t apply. No agreement could be reached, and the case has now been passed to me to decide. What I’ve provisionally decided – and why I’ve considered all the available evidence and arguments to decide what’s fair and reasonable in the circumstances of this complaint. Section 75 of the CCA allows consumers who have purchased goods or services using a credit card, to claim against their credit card issuer in respect of any breach of contract or misrepresentation by the supplier of those goods or services, so long as certain conditions are met. The two main conditions which need to be met for section 75 to apply to a purchase, are that the claim must relate to an item with a cash price of over £100 and no more than £30,000, and there needs to be what is called a debtor-creditor-supplier (“DCS”) agreement in place. Whether or not there’s a valid DCS agreement in place has been disputed at times in this case, so I’ve considered this issue first. While the DCS agreement can be a complex subject, for present purposes it means that for Mr H to be able to make a claim against Barclays under section 75, he also needs to have a claim against the same entity he paid with his credit card, for breach of contract or misrepresentation. T is an online travel agent, and its role in Mr H’s travel arrangements was to arrange for Mr H’s entry into contracts of carriage with the respective airlines for the various legs of his itinerary, when Mr H opted to purchase a particular itinerary. As part of its booking service, it displayed combinations of flights for Mr H to choose from, and ensured he was issued with the relevant tickets. T also undertook to provide a “self-transfer guarantee” for the first leg of the itinerary, which was subject to separate terms and conditions and had two levels of coverage – a basic level and an upgraded level. I’ll return to the guarantee later. T was not responsible for the performance of the flights themselves – that was down to the individual airlines – but it was still contractually responsible to Mr H for the things I’ve mentioned in the preceding paragraph. It appears Barclays didn’t really understand that T had significant responsibilities of its own to Mr H, as it took the position, in response to the claim, that because Mr H had paid T and not the relevant airline(s), section 75 did not apply.

-- 6 of 10 --

Nobody has disputed that the cash price requirements for section 75 to apply have been met in this case, so I’ve not examined this issue in detail. The overall cost of the itinerary was £229, and I note T described the purchase as a “self-transfer package”, which I think implies the itinerary was offered at an inclusive price. So while I’m aware the individual tickets, purchased separately, may not have fallen within the range to which section 75 applies, I think the relevant price here is the overall itinerary price, and this includes all the flights and any services supplied by T. Background to online travel agent itineraries Mr H has supplied information from the travel industry to support the arguments he’s made regarding T’s alleged failings in putting together his itinerary. I think it’s worth analysing in a little more detail how online travel agents put together flight itineraries, as this is relevant to whether or not T misrepresented something to Mr H, or was in breach of contract. Mr H has said that part of T’s itinerary was what’s known as a “virtual interlining” itinerary – specifically the connection between legs one and two. Under virtual interlining, the airlines are not responsible for missed connections in the same way they would be if the same airline was flying both legs, or different airlines were flying them under a codeshare or other formal agreement. Mr H says that under virtual interlining, the travel agent is responsible for missed connections. I’ve read the information Mr H has linked to, which is from an organisation which supplies data to the air travel industry, and I was unable to find any reference to travel agents being responsible contractually to passengers in the event of missed virtual interlining connections. It appears that many travel agents offer their own contractual guarantee relating to such missed connections, but what this entitles a passenger to will depend on the guarantee’s terms. Mr H has also referred to the minimum connection time between flights, which I think is also relevant in this case. The industry information he’s provided indicates that the minimum connection time is the industry standard time allowed for a connection between two flights at a given airport. Where no specific time has been agreed for an airport, the default minimum standard appears to be 60 minutes for a domestic to international connection (which Mr H’s was). The guidance goes on to say that different standard connection times for a specific airport can be set, on approval by the International Air Transport Association (IATA), following agreement between the airlines operating out of that airport as to what the minimum connection time should be. The airport and specific airlines can specify “exceptions” to the standard minimum connection time for various reasons. All of this information feeds into the algorithms used by online travel agents to generate potential itineraries. I’ve borne the above in mind when considering Mr H’s complaint. Misrepresentation A misrepresentation is a false statement of existing fact (or law) made by one person to another and which induces the person the statement has been made to, to enter a contract. Mr H hasn’t clearly articulated whether he thinks he has a claim against T (and therefore Barclays) for misrepresentation or breach of contract, or both. He’s referred to T’s algorithms presenting an itinerary that wasn’t possible to be completed, due to insufficient time being given for the connection between legs one and two.

-- 7 of 10 --

I think that by presenting a specific itinerary for sale, T impliedly represented that this itinerary was possible to fly. Mr H has given a detailed account of his experiences in the airport in Bali, both when he was trying to connect to his flight to Thailand, and when he later flew back to London. His view is that it would be impossible for someone to make the connection. I think it was clearly a very tight connection that left little margin for error, but I don’t think I have enough information to say that it was simply impossible, and therefore that T’s implied representation was false. On a different day, with no inbound flight delay, fewer queues and problems with baggage reclaim, and no disruptive construction works at the airport, it may well have been possible to make the connection between these two flights. Breach of contract A breach of contract occurs when one party to the contract fails to honour its contractual obligations to the other. These obligations may be expressly included in the contract, or they may be implied into the contract, for example through the operation of legislation. Mr H’s contract with T was a contract for services, and he made the contract as a consumer. This means the Consumer Rights Act 2015 (“CRA”) applies to the contract, which makes it an implied term that any services will be performed with “reasonable care and skill”. What this means isn’t defined in the legislation, but has generally been taken to mean the level of care and skill to be expected of a competent person professing to have the skill in question. So in T’s case, this would mean the level of care and skill to be expected of a competent online travel agent. I’ve thought about whether, in offering for sale flights with such a tight connection time for a self-transfer/virtual interlining connection, T may not have performed its services with reasonable care and skill. I don’t think it would be reasonable to come to that conclusion, because it seems to be standard industry practice for online travel agents to rely on the minimum connection times provided by the airlines and airports operating the flights. There’s no evidence that T had failed to do so here and, for example, came up with its own minimum connection times instead, or used an outdated database. While T may have exercised reasonable care and skill in performing its booking services, it still needed to honour the express terms of its contract with Mr H, and that included honouring the “Self-Transfer Guarantee”. I’ve read the terms of the guarantee, and can see that it covered scenarios where, at short notice, one of the flights in a self-transfer itinerary was delayed, cancelled or rescheduled, and this reduced the connection time to the next flight to under two hours. If such a scenario occurred, a passenger was entitled to book comparable flights themselves and claim reimbursement from T, subject to a cap which was calculated in the following way: “(mileage of unused leg(s) / mileage of total trip) x total price paid”. The passenger was also entitled to the equivalent of $15 towards food expenses. There was an “upgraded” version of the guarantee available, which came with a higher cap to reimbursement, but it doesn’t appear that Mr H opted for this at the time of booking. The guarantee also contained an exclusion clause, which essentially stated that if a connection was missed for reasons other than a flight delay, cancellation or rescheduling, then the guarantee would not apply.

-- 8 of 10 --

When Mr H tried to claim on the guarantee, T denied the claim on the basis the leg one flight was not delayed, and that a delay had therefore not been the cause of his missed connection. It relied on a statement by the airline, which read: “Based on tickets still on schedule”, and included an extract from the Passenger Name Record (PNR) for the booking. This extract appeared to show departure and arrival times associated with the flight. Mr H said the first flight had only arrived at the departure gate at the time it was due to take off, so there was no way it had departed on time. He also provided data from an online flight data aggregator, which stated the flight had taken off 28 minutes late, and arrived at the gate in Bali 25 minutes late. When Mr H presented this information to T, T said that essentially it couldn’t be sure this information was accurate and preferred the information supplied by the airline. Having considered the evidence myself, I prefer Mr H’s. Other flight aggregation sources appear to support his account of events that the flight departed and arrived late. One such aggregator, for example, recorded a departure which was 28 minutes late, and an arrival which was 10 minutes late. The evidence from the airline is unclear – I think its response to T is meant to suggest that the flight departed and arrived exactly on time. I find this unlikely – and I think the extract produced from the PNR showed the scheduled departure and arrival times, not the actual ones. The late arrival of the flight, whether this was by 10 minutes or 25 minutes, meant the connection time was under 2 hours following the delay.1 T argued that there were other issues which caused Mr H to miss his connection, such as delays at baggage reclaim, but I don’t think that prevents the guarantee from applying. I think the guarantee is worded in such a way that, so long as a flight delay was a cause of the missed connection, it will apply. There is some scope to interpret the guarantee differently, but I note that section 69(1) of the CRA states that where a contractual term could have more than one meaning, the meaning more favourable to the consumer will prevail. So, my conclusion is that the first flight was delayed in arriving at Bali, that this was a cause of the missed connection, and T should therefore have honoured the guarantee. It failed to do so, and this was a breach of contract which Mr H can hold Barclays liable for under section 75 of the CCA. What redress was Mr H entitled to? Mr H has had a very unfortunate experience which has caused him significant losses, but Barclays will be limited to providing redress equivalent to what he should have received from T, had the contract been honoured. I’ve worked out what reimbursement Mr H would have been entitled to, based on the formula given in the Self Transfer Guarantee. The total length of his itinerary was about 2,560 miles. Leg one was 280 miles, leg two was 1,850 miles, and leg three was 430 miles. This means he was entitled to £203.952, plus the equivalent of $15 towards meals. This would have been about £11.73 on the day. So the total Barclays should pay Mr H is £215.68, plus compensatory interest. My provisional decision For the reasons explained above, I’m currently minded to uphold Mr H’s complaint in part and direct Barclays Bank PLC to take the following actions: 1 I’m aware the connection time was under 2 hours even without the delay, but still think a delay reducing the connection time further, would be sufficient to “activate” the guarantee. 2 (2,280 / 2,560) x 229 = 203.95

-- 9 of 10 --

• Pay Mr H £215.68, this being the amount T should have paid Mr H under the Self Transfer Guarantee. • To the amount above, add interest at 8% simple per year*, calculated from the date it first declined his section 75 claim, to the date he is reimbursed. I now invite the parties to the complaint to provide any further submissions they would like me to consider, before 9 October 2024. I will review the complaint again on or after that date. *If Barclays Bank PLC considers that it’s required by HM Revenue & Customs to deduct income tax from that interest, it should tell Mr H how much it’s taken off. It should also give Mr H a tax deduction certificate if he asks for one, so he can reclaim the tax from HM Revenue & Customs if appropriate. Will Culley Ombudsman

-- 10 of 10 --