Claming a Debt 22 January 2021 at 9:45AM edited 22 January 2021 at 10:05AM in Small Biz MoneySaving 8 replies 91 views

Carli16

Good morning, Can someone please advise, I have an ex student who studied at my private college and therefore he had a total payment to make over 3 years (length of course). However, due to the pandemic, he had to return home to NZ and therefore he missed the last year, but with £5k left to pay. Therefore the Terms of the contract states if a student leaves early, we will uphold our share of the Scholarship, but the balance must be settled regardless of reason. This was last March and since then some emails have been sent back and forth to the parent and they are refusing to settle the account and said to do what we must but they wont pay for a course he is not attending. Are we able to claim it back from the parent and how if in NZ? Many thanks. 

martindow

I imagine it would involve taking legal action in NZ which could be tricky especially if it involves appearing in person. 

Did your student pay for the first two years with £5k being the payment for the final year?  If this is the case, NZ laws may have something similar to ours regarding unfair terms for consumers.  A judge could rule that he does not need to pay for services he has not received regardless of the clauses in your contract.

I think that this may be one to write off.  In reality you have not actually suffered much of a loss for a student you are not teaching.

Carli16

Thank you for your swift and informative reply. I have researched the gov.uk terms of 'Unfair Terms for Consumers' and found this: 

—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.

So does 1 & 2 apply to my situation, in the fact that he chose to leave the course after paying for years 1 & 2 and was about to enter to his 3rd year in the Sept 2020 but left to got to NZ in the March? So by leaving the course, the contract was broken as it states if you leave, the balance of fees needs settling. So you still think I am in a no win situation? Emails have been sent to request the fee with a copy of the T's and C's attached...so I didn't know if I had one last resort? In theory I have lost in a way as another student could have filled that space originally as we have limited space, but obviously things change and they could have left as well. Teaching was transferred to online, so we officially never closed and he had the option to continue training via Zoom in NZ to finish the 3rd year, but his parents declined because of not wanting to pay the last of the fees.

Thank you for your time.

Savvy_Sue

Given that you were still offering online learning, you MIGHT have a case, BUT as martin says you'd have to look at NZ law and see if you could take action under NZ law. 

Carli16

Thank you to you both. I will enquire if I am able to proceed with minimal costs if it seems I don't really have a case. I think I will look in to a company who may do no win no fee. Thank you for your time.

lincroft1710

Carli16 said:

 I think I will look in to a company who may do no win no fee. Thank you for your time.

Do you honestly think you will find a reputable and effective company who would be willing to take on a case involving a NZ based alleged debtor on a no win no fee basis?

oldbikebloke

Carli16 said:

Thank you to you both. I will enquire if I am able to proceed with minimal costs if it seems I don't really have a case. I think I will look in to a company who may do no win no fee. Thank you for your time.

reality check
- your contract may state it is written under English law
- you MAY win in a UK court 

do you seriously think you will be able to enforce a court judgement that says an NZ resident must pay you? 

was the parent a "guarantor" for the fees and (crucially) was that guarantee executed as a deed? If not, then the parent is irrelevant.

You may win in court, but how do you propose to collect from a student who may never re-appear in the UK in a guise you could enforce payment from (eg attachment to UK earnings order)

I agree 5k is 5k, but realistically, put it down to experience as seeking enforcement action in NZ will probably leave you with a debt of your own to a collection agency and/or lawyer 

Mistral001

Terms and conditions cannot always be relied on in a court of law. A judge might rule that the student should not pay for something he did not get despite what the T&C's said.  As the student was offered online learning then as you have said, you might have a case, but then there could be an argument as to the value of that online study.  

Do you belong to a trade body for private education or is there a journal for the sector?  I am thinking of articles in journals or even small ads. advertising solicitors who will do this type of work.  I imagine it is a common problem in your sector, so there is no need to re-invent the wheel.

macman

what oldbikebloke said: your correspondence refers to 'the parent'.  If the student is an adult, then the contract is presumably with him, not with his parents, unless there is a guarantor clause which they have also signed.
Yes, you could pursue the debt through a UK court, assuming that it was proven that the contract was made in the UK, not in NZ (where did he sign it?). You might even win. But, then, you have absolutely no way to enforce the judgement and collect your money, unless at some future date the student settles back in the UK.
If the contract was made in NZ, then you would have to take legal and enforcement action there. Realistically, it's not worth it.