The right choice

April marked the month that many anxious parents heard whether their children had been given their first choice school. For the parents choosing independent schools for their children, the news is followed by formal paperwork and contracts that are often misinterpreted.

The wake of the 2007 economic crisis saw an unprecedented increase in claims brought by private schools against parents for unpaid fees, and a decade later this trend continues. Wellington College, in Berkshire, has recently hosted a seminar on “fee recovery” that will give tips to private school heads and bursars on excluding children for non-payment of fees and recovering debts through the courts. There are now even a number of solicitors firms specialising purely in school fee recovery.

In short, hard economic times have forced independent schools- like many other businesses- to tighten their belts.

Recently, I defended two conscientious parents against a claim brought by their child’s former school. My clients had been forced to take their child out of the school part way through the term due to bullying, and the School had brought a claim for unpaid fees as a result.

It is useful to note that Independent schools have a much higher level of discretion than state schools do in how to deal with pastoral issues and the concerns of parents. This is due in part to the contract in place between the parents and the school. In my clients’ case, the terms of the contract were enforceable and stated that they were liable to pay the fees for the full academic year should they remove their child from the school part way into the first term. Contractually, the Claimants had a strong case.

My clients had come to the right place, however. Nayyars Solicitors are not afraid of a fight. We robustly defended this claim on the basis that the School had failed in their duty of care to my clients’ daughter, and as such the contact had been voided.

Think of it like this: there is no way that my clients would have signed the contract with the School had it stated that they had no duty to protect their child. My clients had reasonably expected that the School would do all in their remit to safeguard their child against physical, emotional- and on some occasions racial- abuse. To any empathetic person, this sounds like a winning argument. Legally however, it is a complex one. The success of the School’s claim would hang on them arguing that this was a purely contractual matter, whereas our Defence would require us to prove breach of duty of care- a much larger common law issue.

As a firm we are not afraid to fight it all the way, and that is exactly what we did. We built a case that put enough pressure on the Claimant School that on the morning of the trial, they agreed to discontinue the whole of their claim against our clients. I stood next to them as the Judge dismissed the case and criticised the School for their conduct.

Unfortunately, not all Solicitors are seeing the same results. The Courts are increasingly ordering against the Defendant and there are publicised cases of parents being forced into bankruptcy. One private company that runs 66 independent schools across the world, including more than 30 in the UK, has reportedly declared 68 parents bankrupt since 2012*. The contracts that these parents signed allowed this company- Cognita- to claim in some instances more than double the original amount owed.

What’s worth taking from this, is the importance of reading and understanding any contracts provided by the School before signing them. It seems that although many parents are diligent in reading the small print when considering business or monetary contracts, they are simply not doing so when it comes to their child’s school.

Making the “right choice” now goes beyond the consideration of Oftsted reports and facilities, and these recent trends in litigation leave something for parents to consider.

*http://schoolsweek.co.uk/parents-bankrupt-after-chase-for-fees/

Abigail Smith.