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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I have a county court hearing in a couple of weeks and would

Resolved Question:

I have a county court hearing in a couple of weeks and would like to check if in fact we have a case from a legal perspective. in short
This is in relation to outstanding school fees and fees in lieu of notice (FILON).
The school claims that the FILON are due as we withdrew the children. The refer to letters stating that unless the outstanding fees and the current terms fees are paid by the first day of term then the children will not be allowed back to school. the contract states that 3 days written notice is required and if payment is not made within 28 days they are deemed withdrawn.
It now gets complicated we have several letters from them stating that fees have to be paid by half term for the children to be allowed back after half term.
I had offered to clear the outstanding debt on the first day of term but needed till half term to pay the current terms fees which would match what is stated in the letters, but they insisted on payment of the current terms fees by the first day of term or they would not be allowed to return. (this is stated in the contract that fees are due before the start of term)
I'm claiming that the policy agreed by the board in allowing till half term to pay the current terms fees would waiver their right in the written contract to demand the full payment before the start of term and as such they are in breach of contract for excluding our children.
I will also add that in the proposal I made the school was in 3 parts, an initial payment, then on the first day of term to pay the outstanding fees and then pay the current terms fees at half term.
I made the initial payment, but on the first day of term they told me over the phone that even if I pay the outstanding fees our 4 and 7 year old children would not be allowed into the building and we would be asked to leave the premises. As such I did not make the payment on the first day of term as I would have had to borrow the funds to do so, which I couldn't justify as our children would not be allowed to return regardless.
8 days after the start of term I received a letter stating that we had withdrawn our children which I don't understand as for that to have happened under the contract they would have had to have been excluded for 28 days.
I would like to know if I have any chance in this case
Apologies for the length of the question.
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts :

Hello my name is ***** ***** I will help you with this.

Alex Watts :

For now please let me know if you signed the contract please?

Customer:

Hi, yes the contract was signed for both of daughters

Alex Watts : So was norice given at any time by any party?
Customer:

we received letters saying that unless the full outstanding balance is received and the current terms paid in advance then the children will not be allowed back. but as mentioned I also have a letter from the school just as they school broke up for the holiday stating that the agreed policy of the Board is that children will not be allowed back to school after half term unless the outstanding fees are paid.

Customer:

but they didn't allow us back at the beginning of term..

Alex Watts : Ok. So they didn't allow back and you are saying that is when the contract ended so no more is Due, is that right?
Customer:

They claim that we withdrew the children without notice and therefore the fees in lieu of notice are due, (ie for the term that our children were not allowed back.) the contract states that if excluded for non payment and excluded for more than 28 days then they are deemed withdrawn without notice. The contract also states that fees are due before the start of term.

Customer:

however...

Customer:

we have several letters and also a specific letter addressing the late payment policy which clearly states the agreed policy of the Board (Board of Governors) is that where fees are outstanding they myst be paid before the end of half term otherwise the children cannot return until the fees are paid...

Customer:

the policy differs to the contract.

Customer:

They excluded our children on the first day of term and didn't give us until half term to pay the current terms fees.and told me that if we take the children they will be asked to leave.

Customer:

So I accept that the fees are due for when our daughters were there, but we are claiming that the policy they have supersedes the terms written in the contract and therefore we should have been given till half term which we weren't.

Customer:

Also under the written contract, it states that the children have to be excluded for non payment for 28 days before they are deemed withdrawn without notice. I got a letter 8 days after the start of term stating that we withdrew our children, so not sure why they sent that letter.

Alex Watts : What is the value of the claim?
Customer:

I'm speculating that they are taking the end of the previous term as the date they were excluded, but even so the letters state that we had till the start of term.

Customer:

amount of claim is over 8k and less than £10k I believe they are still adding interest.

Customer:

I'll be back in a bit, but if you need to know more, just let me know.

Alex Watts : But what have they siad in their claim? Does it set this out?
Customer:

There claim says that we owe the outstanding fees and also the fees in lieu of notice as we withdrew the children without notice. they then refer to the contract regarding payment terms etc. they also claim we says we withdrew them on a set date ie 31st

Customer:

sorry for that last message it got away from me...

Customer:

they also claim that we withdrew on a set date which was around the end of term, ie 31st but at no time did we say we were withdrawing the children and in fact on the Friday before school started and again on the first day of term I phone the school to ask if we could pay the outstanding fees and let the children back and then pay the current fees at half term which they declined and said we had to pay all.

Customer:

it was then 8 days after the start of term that we received a letter saying that we withdrew our children.

Customer:

and it was only on Thursday I received the documents that they are relying on in court where it says we withdrew them on the 31st. I have no idea how they came up with that date, there is nothing in the file to say as such.

Customer:

when I say Thursday, I mean Thursday this last week.

Alex Watts : Right. So you are saying you are not in breach?
Customer:

When they told me on the phone that if I paid the outstanding fees our children would not be allowed back to school until we paid the current terms fees I did not make that payment, as I would have had to borrow it from family so and it would have been pointless making the payment as they still would not be allowed back to school.

Customer:

we are claiming it is at that point the contract was broken, as they should have allowed our girls back to school and allowed us till half term to pay the current terms fees. As per the policy which was agreed by the Board of Governors (as per the letter we have from the school)... They said the only way our children could return to school is by paying the full outstanding amount and the current terms fees.

Customer:

I had made the school an offer as such, ie to pay the outstanding fees before the start of term and then the current terms fees by half term (I've included that offer in the papers I've sent to the court and the other side) along with the letter that rejected it.

Alex Watts : Ok. I understand now. What is your queation of me?
Customer:

I just need to know if we have a case and if there is anything legal wise I need to mention to the judge in the hearing? does the policy which they have applied to us in the past and indicated in writing that it is the policy of the board of governors (that they should have given us till half term to pay) supersede the written contract (where it says we needed to pay by the start of term), in effect waiving that part of the contract.

Customer:

If the judge does rule in our favour, (so that we are liable just for the outstanding debt) how would be proceed if we wanted to claim damages for distress to us and our children?

Alex Watts : It is a matter of contract, there is no law
Alex Watts : If the policy has been applied they can now not apply it.
Alex Watts : As for damages you can only claim that if you put in a counter claim.
Alex Watts : as you said you have a hearing in a couple of Weeks then I assume you did not do this and now is too late. When you put In your defence it should have been done them,
Alex Watts : But they need to provide the policy was not applied when it Clearly has been
Alex Watts : On this basis I think they will lose.
Alex Watts : Can I clarify anything for you about this today please?
Customer:

If we win, could we not put in a new claim for damages for what we have been put through or not?

Alex Watts : No. It has to be part of this claim. I am sorry. It's arising out the same facts.
Alex Watts : it should have been a counter claim as part of this claim.
Alex Watts : Does that clairfy?
Customer:

okay, I understand, was just something that never crossed our mind when they issued the claim

Customer:

Thank you for taking the time to look into it for me.

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