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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 71034
Experience:  Over 5 years in practice
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I have two children at a fee paying pre-school and I

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I have two children at a fee paying pre-school and I wish to remove them as I am disappointed with the quality of the schooling. There are two academic years, the "lower" and "upper" class. In the T&Cs for cancellation, it stated that unless in the final term, I have to give notice. I assumed that this meant the final term of their year, as in the preceding statement of the T&Cs for cancellation, they state that notice is required to assist with budgeting for the year (i.e. annual budget cycle).
In the first week of their last term, I asked for clarification to make sure I had interpreted it correctly. The school are telling me I have to pay the following term's fees despite the children not attending, as a penalty.
Despite repeated requests to meet and discuss this, they have ignored my point about the T&C being open to interpretation and have repeatedly delayed sending responses to me.
In summary, they have almost 6 months notice to find another two children, and there were two examples of children leaving this term where they waived this notice requirement (not for financial reasons). I struggle to see that they will suffer financial any financial hardship, and I also believe that their T&Cs are not clear as they do not define "final term" anywhere in the document explicitly.
What should I do? They are demanding payment (£4,300) by the 3rd July and have stated I will be liable for lawyers fees as well if I don't pay it.
Thank you for your question. My name is ***** ***** I will try to help with this.
Do you know if they have replaced them?
Is there a waiting list?
Customer: replied 2 years ago.
I will have to check. However it is a very popular pre school. Assume that they do have a waiting list or indications of interest.
It is difficult to define whether you are in breach or not.
'Final term' could refer to the final of that year or the final or their education at the school. Where there is ambiguity then it should be interpreted in your favour.
If that does go against you though and you are in breach then they still have an obligation to mitigate their loss by seeking a replacement. If there is a waiting list then that is easy to do and it should be a simple matter of replacing them.
Can I clarify anything for you?
Customer: replied 2 years ago.
Do other people not having to pay the notice also assist as a precedent?
No, not at all. What happened in their cases would be disregarded.
Customer: replied 2 years ago.
Can you clarify your second point about their obligation to mitigate their loss, and it being easy if there is a waiting list? Are you saying if it is easy then they don't have grounds to impose this penalty? Does the time (nearly six months for them to seek replacements) work in my favour?
They shouldnt impose penalties anyway.
They only have a claim for the sum of their loss. In fairness, once a year has started though a school cannot easily replace a pupil which is probably how they justify the final term point. So a person would be liable until the last term.
If notice was given in breach though they have to try to mitigate their loss by seeking a replacement. If they are able to do so then there shouldn't be any other claim than the sum of their loss which would be the difference between the starting date of the new pupil and the leaving of the old.
Customer: replied 2 years ago.
So if I gave notice in the first week of final term, my child leaves at end of final term (end June) and the new term starts in September, I kind of struggle to see what their loss could be unless they can prove that no child will start by September to replace them?
Yes, that is exactly right.
If they can find a replacement then there is no loss except maybe advertising costs.
Jo C. and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Dear Jo,

I communicated further with the school, and ended up offering them a settlement of £1,000 which they refused. They then kept my deposit of £1,600 and have instructed a firm of solicitors to pursue me for the remainder (£2.7k).

The solicitors dismiss my assertion that the T&C were not clear. The state that the omission of any definition of final term in the section on cancellation is irrelevant as it should be read in conjunction with another section.

They also state the there is no unfair charge or penalty being imposed as:

- a claim for fees in lieu of notice is payable as a debt and therefore the rule against penalties does not apply

- as the claim is a debt there is no duty to mitigate loss

- and I am accruing interest (but they don't state the rate) on these unpaid fees

They also give me 14 days to pay up or face Court proceedings, where the school will claim "outstanding fees together with interest accrued on those fees, as well as the legal costs incurred."

Could you please advise me on my position here?



Well, it is as I've said really.
If you have given notice in breach they have to mitigate. If they were able to do so then they can only claim for their loss.
You are obviously liable for the time your child was at the school and the period during which they could not fine a replacement.
Customer: replied 2 years ago.
Ok. so everything in that solicitors letter is true?
If it goes to court I am liable for their legal fees and unpaid interest as well as their loss from not replacing the child's place? they are also stating that they have no requirement to mitigate? All of the above is contrary to my understanding - are they correct?
They also state that the class is not full (after stating they do not have to mitigate) however i know that some children were not staying on anyway. Therefore should I be asking them to prove that they have not replaced them?
Finally is it worth settling or going all the way to court?
You are only liable if you lose. Also, they would only get costs if it exceeds £10k or they can show you have behaved unreasonably which is rare.

They are under a duty to mitigate.

If the class is not full then they may not have been able to do so though.

If this is just over £4k then I would pursue it but then I am happy to go to court.