Nursery closed due to flooding

jocstoke

My son's nursery was flooded on Boxing Day. We have been given an approximate date of reopening of 1st February. We have already paid for his full time place in January and they seem to have avoided my questions regarding a refund for this period. We will have to find (and pay for) alternative childcare for this period. Luckily my parents can take him this week but they are back at work from Monday.

Are we legally entitled to a refund?

BykerSands

What does your contract say?

unholyangel

If the flooding was outwith their control, then they can end liability by returning prepayments.


If it was within their control, then they're also responsible for your losses.

There is no clause that can be fairly included in a consumer contract that would enable a supplier to not provide the services and still bind the consumer to pay for them. If there is such a clause in your contract, it will likely be an unfair term (which is legally unenforceable).

John575

So out of curiosity when terms and conditions say something like "acts of god," they're legally unenforceable as a reason to withhold a refund?

unholyangel

John575 wrote: »

So out of curiosity when terms and conditions say something like "acts of god," they're legally unenforceable as a reason to withhold a refund?

Would depend on the circumstances and the wording/effect of the clause.

Generally, act of god clauses are to disclaim liability for your losses arising from the said "act of god" (ie circumstances unforeseeable and genuinely outside of the suppliers control).

That does not mean that they can fail to complete their side of the contract and keep any prepayments you have made though.

In some other cases, it may be appropriate to have the supplier carry out the contract on a different date (ie kitchen installation). But in OP's circumstances, its not possible for the supplier to do this so they should be refunding prepayments.

If the failure was within their control (for example they were negligent in the upkeep of the building which lead to flooding) then they would be liable to return prepayments AND also be liable for reasonable losses incurred by OP (ie additional travelling expenses or higher fee's for a alternative supplier).

A contract has to balance the rights and obligations of both parties, not just protect the retailer.

Mark_Hewitt

Quite. The flooding may not be the fault of the nursery, but it most certainly is not the fault of the customer. So at the very least they are entitled for a refund for any period the service is not able to be provided.

The financial ability of the nursery to be able to provide this is of no concern to the customer.