Advice on dispute with a private school please
Discussion
Steve H said:
JustinP1 said:
From the solicitors article to school bursars:
The contractual relationship between the school and a fee-payer is governed by the Unfair Terms in Consumer Contract Regulations 1999 (“the Regulations”), under which any term that has not been negotiated is deemed to be unfair and unenforceable if it causes significant imbalance in the party’s (the school’s) rights and obligations to the consumer’s (fee-payer’s) detriment. Schedule 2, paragraph 1(e) of the Regulations provides that a term, which has the object or effect of requiring a consumer to pay a disproportionately high sum in compensation for their failure to fulfil their contractual obligation, may be regarded as unfair.
The Office of Fair Trading (“OFT”) has issued guidance on clauses it considers unfair in consumer contracts, including in one where the term requires the consumer to pay “unreasonable interest”, for example, at a rate excessively above the clearing banks’ base rate.
I take your point on the interest but if a parent signs up for three terms and the school commits to the staffing and facilities that this entails and then the parent pulls out and only has to pay for one term, I don't see how that is an imbalance in the school's favour or disproportionately high.The contractual relationship between the school and a fee-payer is governed by the Unfair Terms in Consumer Contract Regulations 1999 (“the Regulations”), under which any term that has not been negotiated is deemed to be unfair and unenforceable if it causes significant imbalance in the party’s (the school’s) rights and obligations to the consumer’s (fee-payer’s) detriment. Schedule 2, paragraph 1(e) of the Regulations provides that a term, which has the object or effect of requiring a consumer to pay a disproportionately high sum in compensation for their failure to fulfil their contractual obligation, may be regarded as unfair.
The Office of Fair Trading (“OFT”) has issued guidance on clauses it considers unfair in consumer contracts, including in one where the term requires the consumer to pay “unreasonable interest”, for example, at a rate excessively above the clearing banks’ base rate.
To answer your question though:
1) The article discusses 'genuine pre-estimate of loss'. That should be the full fees, minus the saving they've made by not performing the contract. Does a child not use consumable stuff at school, and eat? Is there not even a 10% saving? Maybe not - but they've made no attempt to calculate or even approximate it. See 'disproportionately high sum in compensation' above.
2) The parent needs to give a term's notice. However, what if in another part of the contract the school is allowed to give the parent less notice? (This occurred in the contract I saw, years ago.) That would cause a 'significant imbalance in rights', and would likely be unfair, and make the longer notice period that only the parent has to adhere to potentially unenforcible.
Hence the reason why I've been banging on about the Unfair Terms Regs from page 1 and why it is impossible to consider whether the term is fair, or whether the OP should 'pay up' without analysing the whole contract.
I popped back to answer that question as I was conscious that I've been banging a drum about the the above from the start but the thread tangentalised upon me personally before we go to it.
I'm still 'out' though. Those are my arguments that I set out in the first couple of pages done and dusted.
In the meantime - if anyone doesn't like using the Unfair Terms in Consumer Contract Regulations 1999 in relation to the OP's contract, please take it up with the partner of the firm of solicitors who wrote that piece for school bursars - not me!
Edited by JustinP1 on Friday 25th September 11:18
JustinP1 said:
...the thread tangentalised upon me personally...
I missed your earlier reply.And I wanted to apologise for clearly causing offence when I didn't mean to.
It really wasn't meant as some personal attack.
I think "disingenuous" is clearly a far ruder accusation to make of someone than I realised.
I still think that "a term's notice" and the loss calculations are a fools errand but I recognise that you geniunely believe that they (and other parts of the contract) might offer wiggle room.
I know you are trying to help and to suggest otherwise to someone I know has helped plenty of others is churlish to say the least.
So, sorry, again.
Disingenuous is a dangerous word. It means "you are lying". People often mistakenly use the word without meaning to say that, or they use it deliberately, in a way that Mr Pope also (almost, sort of) commented on:-
Damn with faint praise, assent with civil leer,
And without sneering, teach the rest to sneer;
Willing to wound, and yet afraid to strike,
Just hint a fault, and hesitate dislike.
Walm appears to have used the word in the former manner, and meant no insult, but has apologised for the insult inadvertently given.
Justin, I have not attacked you personally, and I have praised you for offering giving sensible views on legal threads. I have attacked what I consider to be your bad ideas on the present subject. Sometimes it can be hard even for a good referee to see whether the ball has been played or the man, but there is a nice* distinction between the two.
* I am using the word nice in its correct Northanger Abbey sense, natch.
Damn with faint praise, assent with civil leer,
And without sneering, teach the rest to sneer;
Willing to wound, and yet afraid to strike,
Just hint a fault, and hesitate dislike.
Walm appears to have used the word in the former manner, and meant no insult, but has apologised for the insult inadvertently given.
Justin, I have not attacked you personally, and I have praised you for offering giving sensible views on legal threads. I have attacked what I consider to be your bad ideas on the present subject. Sometimes it can be hard even for a good referee to see whether the ball has been played or the man, but there is a nice* distinction between the two.
* I am using the word nice in its correct Northanger Abbey sense, natch.
JustinP1 said:
Steve H said:
JustinP1 said:
From the solicitors article to school bursars:
The contractual relationship between the school and a fee-payer is governed by the Unfair Terms in Consumer Contract Regulations 1999 (“the Regulations”), under which any term that has not been negotiated is deemed to be unfair and unenforceable if it causes significant imbalance in the party’s (the school’s) rights and obligations to the consumer’s (fee-payer’s) detriment. Schedule 2, paragraph 1(e) of the Regulations provides that a term, which has the object or effect of requiring a consumer to pay a disproportionately high sum in compensation for their failure to fulfil their contractual obligation, may be regarded as unfair.
The Office of Fair Trading (“OFT”) has issued guidance on clauses it considers unfair in consumer contracts, including in one where the term requires the consumer to pay “unreasonable interest”, for example, at a rate excessively above the clearing banks’ base rate.
I take your point on the interest but if a parent signs up for three terms and the school commits to the staffing and facilities that this entails and then the parent pulls out and only has to pay for one term, I don't see how that is an imbalance in the school's favour or disproportionately high.The contractual relationship between the school and a fee-payer is governed by the Unfair Terms in Consumer Contract Regulations 1999 (“the Regulations”), under which any term that has not been negotiated is deemed to be unfair and unenforceable if it causes significant imbalance in the party’s (the school’s) rights and obligations to the consumer’s (fee-payer’s) detriment. Schedule 2, paragraph 1(e) of the Regulations provides that a term, which has the object or effect of requiring a consumer to pay a disproportionately high sum in compensation for their failure to fulfil their contractual obligation, may be regarded as unfair.
The Office of Fair Trading (“OFT”) has issued guidance on clauses it considers unfair in consumer contracts, including in one where the term requires the consumer to pay “unreasonable interest”, for example, at a rate excessively above the clearing banks’ base rate.
If challenged, a school may well back down on any of these terms and I understand that this has been your experience but I don't think it represents a legal conclusion.
The actual losses could be:
You could investigate if the class is actually full, by emailing or whatever.
- £0 - if the class is not full
- anything up to full fees up to age 11/13
You could investigate if the class is actually full, by emailing or whatever.
Steve H said:
JustinP1 said:
Steve H said:
JustinP1 said:
From the solicitors article to school bursars:
The contractual relationship between the school and a fee-payer is governed by the Unfair Terms in Consumer Contract Regulations 1999 (“the Regulations”), under which any term that has not been negotiated is deemed to be unfair and unenforceable if it causes significant imbalance in the party’s (the school’s) rights and obligations to the consumer’s (fee-payer’s) detriment. Schedule 2, paragraph 1(e) of the Regulations provides that a term, which has the object or effect of requiring a consumer to pay a disproportionately high sum in compensation for their failure to fulfil their contractual obligation, may be regarded as unfair.
The Office of Fair Trading (“OFT”) has issued guidance on clauses it considers unfair in consumer contracts, including in one where the term requires the consumer to pay “unreasonable interest”, for example, at a rate excessively above the clearing banks’ base rate.
I take your point on the interest but if a parent signs up for three terms and the school commits to the staffing and facilities that this entails and then the parent pulls out and only has to pay for one term, I don't see how that is an imbalance in the school's favour or disproportionately high.The contractual relationship between the school and a fee-payer is governed by the Unfair Terms in Consumer Contract Regulations 1999 (“the Regulations”), under which any term that has not been negotiated is deemed to be unfair and unenforceable if it causes significant imbalance in the party’s (the school’s) rights and obligations to the consumer’s (fee-payer’s) detriment. Schedule 2, paragraph 1(e) of the Regulations provides that a term, which has the object or effect of requiring a consumer to pay a disproportionately high sum in compensation for their failure to fulfil their contractual obligation, may be regarded as unfair.
The Office of Fair Trading (“OFT”) has issued guidance on clauses it considers unfair in consumer contracts, including in one where the term requires the consumer to pay “unreasonable interest”, for example, at a rate excessively above the clearing banks’ base rate.
If challenged, a school may well back down on any of these terms and I understand that this has been your experience but I don't think it represents a legal conclusion.
The one time I had the amusement of sending a LBA to a parent for unpaid fees for a private school the first thing I told the matter partner was the school needs to get rid of their Disneyland T&Cs. Drafted, presumably, by a high street cartoon character who liked to eat cheese and had big ears.
I will dig out the one for my kids - see what it says.
I will dig out the one for my kids - see what it says.
thelawnet1 said:
The actual losses could be:
You could investigate if the class is actually full, by emailing or whatever.
Surely if a parent contracts to pay £XX to a school for their child's education and then breaches that agreement and the school is unable to refill that place their loss is £XX (less any direct costs that are now not incurred), not £0?- £0 - if the class is not full
- anything up to full fees up to age 11/13
You could investigate if the class is actually full, by emailing or whatever.
johnfm said:
Why should the school's damages be calculated in reference to an academic year? Depends on the contract term, surely.
Yes, I agree but there seems to be some question over whether the school has an obligation not to state an arbitrary fixed period in the contract and instead to calculate the actual loss caused by a breach of contract. In many cases if a child was contracted to start in the September term the loss to the school caused by cancelation would be a full years fees as they would be unlikely to be able to refill that place until the following September.Really I'm just pointing out that fairness goes both ways and when they breach an agreement they should be careful about how much fairness they ask for.
As the OP on this thread, I feel I owe it to those who have taken the time to post and in particular a couple of individuals who have given me help, to provide a summary of the outcome of my situation.
After posting on here, a couple of PHers – jasandjules and justinP1, very generously offered to take a look at the specifics of my situation and the claim being brought against me in small claims court by the school in question. To cut a long story short it became clear to them pretty quickly that there were some major issues with the school’s admissions policy and the terms of the contract they expect parents to enter into, to the extent that it is arguably impossible for a parent to have a free choice as required under consumer regulations and still comply with the terms of their contract.
There were also a number of specific issues with how the school and their solicitor had subsequently handled themselves and the situation. The net result was Jason and Justin helped me to construct a robust response and make a significantly reduced (by more than £2000) offer to the school by way of settlement that was promptly accepted.
I have always been happy to concede(and stated at the start of the thread) that I was not without fault here in that I cancelled my daughter’s attendance at the school belatedly. So the fact I have paid them a (still not trivial) amount feels entirely appropriate and I feel comfortable we have landed on a fair and equitable settlement that all parties should be happy with.
All in all, I think this thread has really highlighted the best and worst of PH. The best being that there is a community where like-minded people can come for information, help, or just a little bit of fun. The worst being some of the negativity directed at JustinP1 in particular from some quarters for doing nothing more than providing well intended, and as it transpired very well-informed, advice based on taking the trouble to understand facts. A certain other self-proclaimed expert might do well to consider the advice of a truly wise man - it is unwise to be too sure of one's own wisdom. It is healthy to be reminded that the strongest might weaken and the wisest might err.
In closing, Alexander Pope has been quoted a couple of times in this thread and there is a very apt quote of his “do good by stealth, and blush to find it fame” that made me think of the Jason and Justin’s selfless willingness to give of their time and expertise to help me out, with no ask in return. Hopefully they will not blush too much when I say it is really heartening to know there are people such as them on PH willing to offer assistance to others just for the sake of helping the “community”. I for one will be working to follow their example.
After posting on here, a couple of PHers – jasandjules and justinP1, very generously offered to take a look at the specifics of my situation and the claim being brought against me in small claims court by the school in question. To cut a long story short it became clear to them pretty quickly that there were some major issues with the school’s admissions policy and the terms of the contract they expect parents to enter into, to the extent that it is arguably impossible for a parent to have a free choice as required under consumer regulations and still comply with the terms of their contract.
There were also a number of specific issues with how the school and their solicitor had subsequently handled themselves and the situation. The net result was Jason and Justin helped me to construct a robust response and make a significantly reduced (by more than £2000) offer to the school by way of settlement that was promptly accepted.
I have always been happy to concede(and stated at the start of the thread) that I was not without fault here in that I cancelled my daughter’s attendance at the school belatedly. So the fact I have paid them a (still not trivial) amount feels entirely appropriate and I feel comfortable we have landed on a fair and equitable settlement that all parties should be happy with.
All in all, I think this thread has really highlighted the best and worst of PH. The best being that there is a community where like-minded people can come for information, help, or just a little bit of fun. The worst being some of the negativity directed at JustinP1 in particular from some quarters for doing nothing more than providing well intended, and as it transpired very well-informed, advice based on taking the trouble to understand facts. A certain other self-proclaimed expert might do well to consider the advice of a truly wise man - it is unwise to be too sure of one's own wisdom. It is healthy to be reminded that the strongest might weaken and the wisest might err.
In closing, Alexander Pope has been quoted a couple of times in this thread and there is a very apt quote of his “do good by stealth, and blush to find it fame” that made me think of the Jason and Justin’s selfless willingness to give of their time and expertise to help me out, with no ask in return. Hopefully they will not blush too much when I say it is really heartening to know there are people such as them on PH willing to offer assistance to others just for the sake of helping the “community”. I for one will be working to follow their example.
I also look forward to the responses from certain quarters.
So were these points minor technicalities that the school couldn't be bothered to defend or were they unlawful points related directly to the issue?
Well done to those who ACTUALLY helped out.
Edited by Centurion07 on Monday 5th October 08:01
Sounds to me like you managed to reduce the amount paid on a technicality and that as such, BV is still correct in his original point?
You were bang to rights and you should have paid up in full as per the contract's conditions. However, you've been a sneaky little bugger and, with assistance, made a mockery of a s
tty set of T&Cs; the stty T&Cs making it impossible for the School to enforce their charge.
Now the quality of its T&Cs are of course the School's responsibility and you were well within your right to question them (so fair play) but BV isn't incorrect, you're just a sneaky sausage.
You were bang to rights and you should have paid up in full as per the contract's conditions. However, you've been a sneaky little bugger and, with assistance, made a mockery of a s
tty set of T&Cs; the stty T&Cs making it impossible for the School to enforce their charge.Now the quality of its T&Cs are of course the School's responsibility and you were well within your right to question them (so fair play) but BV isn't incorrect, you're just a sneaky sausage.
IIRC BV's advice was, essentially, "pay up because a contract with a school will be very simple and therefore watertight so there's no point in reading the whole thing". Good job somebody did, eh?
From the sounds of it, it wasn't argued on a technicality, more that the other points contained within it were ludicrous. Either way, OP is two grand better off having not followed BV's advice, I would say that makes him decidedly incorrect!
From the sounds of it, it wasn't argued on a technicality, more that the other points contained within it were ludicrous. Either way, OP is two grand better off having not followed BV's advice, I would say that makes him decidedly incorrect!
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