Independent schools, like schools in the public sector, are struggling to maintain their services during the lockdown. Hard pressed parents trying to both work and support their children’s education at home are equally struggling. Some schools are inevitably better than others at providing online content and teaching. Everybody is on a perpendicular learning curve.
One issue that has arisen across the independent school sector is the question of whether fees remain payable despite the schools not providing the service contracted for. Some schools are offering discounts, some are demanding the full fees notwithstanding that they cannot provide a full service.
We have received a number of enquiries from parents affected by this issue. The arrangements between the parent and the school are contractual. All parents will have been asked to sign a parent contract. Most of these will contain clauses which excuse the school from offering its normal service if there is what is known as a “force majeure” event. Some of these will refer to pandemics, some will not. They will probably all refer to the school being excused from offering its normal services if events “beyond our control” prevent them from doing so. They will point to the fact that the legal restrictions imposed by the government are of course beyond their control.
That is not the end of the story however. In order to rely on a force majeure clause the school does have to show that the pandemic is the sole cause of its inability to provide its normal services and it has to mitigate the situation by taking reasonable steps to provide the services in another way.
There are also restrictions in the Consumer Rights Act 2015 which may impact on clauses which would otherwise protect the school. If clauses in the contract attempt to provide greater protection than allowed for to the school then these clauses could be “blacklisted” under the Act.
Failure to comply with published timetables could give rise to a right to ask for repeat performance or perhaps more relevantly, the right to a reduction in price. How this will impact on individual schools will depend on the extent to which they have taken reasonable steps to continue to deliver services they have contracted to provide. It is a complex situation and our sympathies should lie with both parents and schools in this situation of course. However there has to be an appropriate balance. The position of any particular parent depends on the exact terms of the parent contract, but it is certainly open for parents to negotiate for a reduction in fees if the school is being inflexible in its approach and demanding full fees notwithstanding that they can offer only a very reduced service.
If you would like further guidance or support in relation to your own situation please contact 01206 700113 or email [email protected].