The closure of schools due to Covid-19 has been an unprecedented challenge. In addition to the difficulties associated with remote learning, independent schools have had to contend with parents questioning whether the education being delivered justifies the fees being charged. In particular, we have seen parents challenging the fees due for examination year groups where exams are not taking place, as well as challenging the fees for younger pupils where it has proved harder to run a full curriculum remotely. Some schools have even witnessed parents seeking to invoke the force majeure in the parent contract, alleging that Covid-19’s impact on their family’s income is a force majeure event.
The extent to which parents have been justified in the issues they have raised, and the merit of any legal argument that they have sought to rely on, has depended not only upon the quality of remote learning that has been put in place, but also upon the terms of the parent contract. Many schools are therefore now taking the opportunity to consider whether the terms of their parent contract provide the school with sufficient protection, or whether those terms need updating to reflect the rapid pace of developments and challenges that have been presented by Covid-19 and school closures.
Over the past months, most schools have discovered that the terms of their parent contract permit them to implement learning in whichever manner the school sees fit – during the period of school closures this has meant remote learning. However, not all parent contracts make it explicitly clear that a refund of fees will not be due in circumstances where remote learning has been implemented. More worryingly, a few schools have discovered that their parent contracts place an obligation on them to refund fees in the event of a force majeure event causing the school to close. Schools should therefore check that their parent contract makes it undisputedly clear that, where a school opts to implement remote learning, for any reason, fees will continue to be due in full. Schools should also ensure that the contract specifies that each term’s fees are the same, regardless of the length of any term, so that the school is protected in circumstances where it is necessary to end a term early for any reason.
Schools may also want to reflect upon whether the force majeure in their parent contract works for them, based upon their experience during the course of this pandemic. Despite the challenges posed by remote learning, schools have demonstrated that it is nevertheless entirely possible to deliver education remotely. It is therefore worth revisiting the wording of the force majeure clause to make clear that the force majeure will be invoked only in circumstances where the school is completely unable to deliver any level of education at all – a “doomsday” scenario, rather than simply a shift to remote learning. Schools might also want to check that their force majeure is capable of heading off attempts by parents to avoid paying fees by alleging that their inability to pay the fees is a force majeure event.
As a matter of general good practice, schools should regularly be revisiting their parent contracts to check that the contract’s terms continue to do what the school needs them to do, that they take into account recent legal developments and that they reflect the “on the ground” practice and policies at the school. Many schools took the introduction of the GDPR as an opportunity to make sure the terms of their parent contract were compliant with data protection law, and we would advise that they again take the lessons learnt as a result of the pandemic as an opportunity to update the terms of their parent contract. Where schools identify that the terms of their parent contract may be out of date, they are welcome to contact us for a review of their terms and for advice on the process for rolling out new terms.