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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 49087
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have a dispute with a Nursery over fees that I have paid

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Hi
I have a dispute with a Nursery over fees that I have paid for the semester
but during trial period found their services unacceptable, which they
admit they've failed on trial days my son attended.
Now I want my fees back but they refuse. Their refusal based on their own internal regulations
and contract conditions. However, My view is that because the services they have provided in my case
were not of adequate quality and technically I haven't got the service provided to me in the first place.
My question is:
is there any law that applies to this situation that supersedes the contract conditions?

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

How much had you paid in total?

Also, how long has this been in dispute for?

Customer: replied 1 month ago.
around £2000, the dispute fis or the whole amount
Customer: replied 1 month ago.
typo: "fis or" = for
Customer: replied 1 month ago.
Been in the dispute for about a 3 months

OK, thank you for your response. Leave it with me for now and I will review the relevant information and laws and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Customer: replied 1 month ago.
Hi Ben
I have SMS from my bank asking to confirm the transaction for the justanswer.co.uk charge, which I have confirmed. I guess second attempt to charge my card should be done in order to get paid for your help.
Regards
Vlad

Hi there, thanks for getting back to me about that. I don't deal with accounts myself but it should hopefully be done automatically. DOn't worry about it, we can assume it has gone through...

Also I am available to talk now if you would prefer to do that instead (although there will be the extra charge as outlined earlier)?

Customer: replied 1 month ago.
do mean "to talk" by phone?

yes

Customer: replied 1 month ago.
No, thanks, ***** ***** to communicate here so I can keep records. When do you recon you will be able to answer my question?

I will get on to it right away, so will reply shortly

Customer: replied 1 month ago.
Thanks, Ben

Can I just check a couple of things first - you said they failed to provide the services in the trial period, did you continue using their services afterwards? Also what do their terms and condition state that would prevent them from refusing you in the circumstances?

Customer: replied 1 month ago.
Hi Ben
We had an agreed trial period, which is 2 sessions, that suppose to gently introduce a new guy to the nursery.
After attending those 2 sessions I realised that this nursery fails basic requirements. I pointed out to them and had a meeting with nursery's director where we discussed those issues and they have admitted that they've failed to provide proper service. After that meeting I have sent them a letter informing that I do not want to continue with them.
Apparently, small script catch is that we have to pay regardless of success or failure of the trial 2 sessions and this is what they are using to substantiate their refusal. My understanding is that they have breached the contract by not giving me the product I have paid for. Similar to a gym annual membership which you paid and then discover that it does not meet a basic fitness industry safety requirements and staff is absolutely incompetent.
Does this make sense?

Yes, thank you. Now the main issue is that a contract can contain various provisions, which can be binding even if common sense would dictate that they should not be. Often the terms will be binding assuming that both parties had agreed to them - you would have basically been issued with these terms at the outset and had the opportunity to consider them before deciding on whether to enter into this agreement based on them. The nursery can always argue that you were given these terms and by proceeding with the services you agreed to them, even if you never actually read them.

There are limited circumstances when contractual terms may not actually be binding, even if they are contained in a contract and had been accepted by the parties. This is usually under consumer legislation, which prohibits the use of what are deemed ‘unfair terms’. The issue with that is that it can be quite an open phrase as there is no specific definition of what makes a term unfair.

From a Government paper: “Generally, contract terms and notices are unfair if they put the customer at an unfair disadvantage. The law applies a fairness test that starts by asking whether the wording used tilts the rights and responsibilities between the customer and the trader too much in favour of the trader.

If your customer cancels and it’s not your fault, you’ve got the right to protect yourself, but what you keep must take into account what your business is actually losing as a result. It must not be excessive.”

In your circumstances you can argue that the reason you cancelled was because of the provider’s fault and even if there was a clause allowing them to keep the payments, that they should at the very least refund some of these because they only have to cover themselves for any losses incurred. This can cover the overheads which would have bee chargeable anyway, but they have to remember that they will not be providing a service so will use less manpower, fewer resources, etc. Therefore, the losses they incur will not be equal to the full amount you paid.

What this means is the full fee may not necessarily be recoverable as they can still consider covering any losses incurred as a result of your cancellation. However, a proportion should still be recoverable.

I trust this has answered your query. Please take a second to leave a positive rating by selecting 3, 4 or 5 stars above - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please reply on here and I will assist as best as I can. Thank you

Ben Jones and 2 other Law Specialists are ready to help you
Customer: replied 1 month ago.
Thank you for your answer, Ben.

you are most welcome