The following article was written by Sue Barham, Consultant, HFW in Travel Law Today, 5th Edition which can be read here.
There are certain fundamental regulatory principles aimed at avoiding discrimination against passengers with reduced mobility (PRMs) in relation to their access to air travel enshrined in EC Regulation 1107/2006.
Those principles are that an air carrier must not refuse to accept a reservation from, or to embark, a PRM, except where safety or aircraft type makes that impossible, and that a PRM is entitled to assistance, free of charge, at the airport and on board the aircraft in order to facilitate their carriage. That assistance covers help to travel through the airport and with embarkation and assistance on board including carriage of assistance dogs, facilitating specific seating requirements, and carriage of mobility and medical equipment. The quid pro quo of the obligations on the part of both airport and airline to provide free of charge assistance is that a passenger requiring special assistance is expected to give advance notice of their needs.
The obligations on airlines are not tightly defined and can lead to uncertainty on all sides as to their scope and extent. That is certainly the case in relation to carriage of medicines and medical equipment. The basic obligation on an airline is set out in Article 10 and Annex II, which state:
“Article 10: An air carrier shall provide the assistance specified in Annex II without additional charge to a disabled person or
person with reduced mobility departing from, arriving at or transiting through an airport to which this Regulation applies.”
“Annex II: In addition to medical equipment, transport of up to two pieces of mobility equipment per disabled person or person with reduced mobility, including electric wheelchairs (subject to advance warning of 48 hours) and to possible limitations of space on board the aircraft, and subject to the application of relevant legislation concerning dangerous goods.”
‘Medical equipment’ is not further defined. Nor, unlike the obligation to carry up to two items of mobility equipment, is any guidance provided as to the quantity of such equipment that the airline must accommodate. The European Commission
Interpretative Guidelines on the application of Regulation 1107/2006 acknowledge the lack of clarity:
“The Regulation recognises that disabled persons and persons with reduced mobility may need additional support in order to allow them to travel. Given the broad spectrum of passengers the legislation seeks to cover, there is no definition of medical equipment or the quantity of such items that may be carried (in contrast to mobility equipment, which is limited to two items). The circumstances of each request to carry such items should be considered on its individual merits taking into consideration the needs of the passenger.”
What is clear is that, provided the passenger gives advance notice of their needs, the airline is obliged to accommodate those needs. So, can any guidance be provided as to what, if any, limitations might apply, and what tips can be given to passengers and airlines where a passenger will need to travel with medicines or medical equipment?
Effective collection of information from passengers by operators, agents and airlines during or after the booking process can ensure that any need for special assistance, additional baggage allowance or for carriage of large quantities of medicine is known in advance. So that either airport staff, security personnel and/or airline staff are already briefed and ready to facilitate a passenger’s needs. Good advance information can also identify whether the passenger wishes to travel with items which may strictly constitute dangerous goods and/or be subject to specific packaging or carriage limitations, or for which additional documentation may be needed. For example, oxygen carried by the passenger must meet international dangerous goods stipulations and, where more than 100ml of medicines are required (i.e. more than would normally be permitted through security), it will be legitimate to request a medical certificate. The key is to ensure that the requirement for medical equipment or medicine to be carried on board is notified clearly in advance thereby improving the passenger’s experience and enabling the airline to meet its regulatory obligations.
Operators and agents have a key role in ensuring as far as possible that any special requirements their customers have are understood at an early stage so that they can be communicated to airlines and other service providers in good time. For example, passengers who may require assistance can be encouraged to complete ABTA’s checklist for disabled and less mobile passengers at the time bookings are made – that can ensure that passengers needing extra assistance are properly attended to and that airlines and other providers are able to meet their own regulatory obligations.
Another fundamental principle of the obligation to facilitate carriage of PRM’s on a non-discriminatory basis is that passengers should not be required to incur additional expense in order to make their needs known to the airline.
Therefore, as a rule, it will not be appropriate to require a doctor’s certificate to prove disability, or to require passengers to pay extra for telephone calls notifying their assistance needs.
In the absence of any other guidance beyond Annex II of the PRM Regulation and the Commission’s Guidelines, it is difficult to impose hard and fast rules and policies as to what medical equipment airlines will or will not carry, and in what quantities. The Commission Guidelines quoted above accept that each case should be considered on its merits and one can expect that a form of reasonable standard will apply to the airline’s obligations in terms of the amount of equipment, which will be carried without charge, and the circumstances in which equipment will not be carried. That is likely to be the approach of the regulatory authorities also and is reflected in UK CAA’s own advice to passengers travelling with medical equipment. Therefore, for example, there may be cases where aircraft capacity limits the amount of medical equipment, which can be carried, or safety reasons dictate that only a certain amount and type of equipment or medicines can be carried on board. It should be remembered however that the unqualified regulatory obligation is on the airline to allow carriage of medical equipment without limitation and so it will also be incumbent upon the airline to demonstrate why, in a particular case, it is acceptable not to carry (all) the equipment requested by the passenger. In devising any internal policies, airlines will generally therefore be advised to err on the side of caution in terms of the volume of equipment they will allow, accepting that in most cases, a passenger’s requirements are not likely to increase the costs incurred by the airline or make a difference to the on-board capacity.
A final point to keep in mind, as noted by the Commission Guidelines, is that it is legitimate for an airline to draw a distinction between medical equipment, which must be carried without extra charge, and regular excess baggage carried by any passenger, including a PRM, for which it is legitimate to impose a charge.
Find ABTA's Q&A for consumers on the Package Travel Regulations here.