Section 75 - Query

fiscalfool

Morning All, 

I have a query with regards to a Section 75 claim I'm preparing to make. 

My child has been signed up for a school trip to take place in October Half-Term.  All monies have been paid on-time and in-full to the school.  The various payments were split between current account and Credit Card.  BUT the deposit was made on my credit card. 

The conversation with school was along the lines of "Monies will not be refunded unless we are successful in our claim with the insurance company".  Essentially they have advised that my child's behaviour is not good enough for the trip and they are pulling the place.

Now, I do not have a contract with the travel company, I paid my money in good faith to the school.  I have spoken to the credit card company this morning who have taken all the payment details, the sum total of the trip and are pulling together a Section 75 claim for me.  

I have dug through the various emails from the school and there is a statement along the lines of "All payments are NON-REFUNDABLE unless we can make an insurance claim".

My query is: Is this a water-tight "no refunds" from the school?  I'm happy to send the Section 75 claim off, as losing almost £1500 is not something I'm happy to take on the chin! 

Thanks in advance.



(Also, I don't need childcare advice regarding behaviour, it is a persistent challenge)

DullGreyGuy

For a successful S75 claim you need to show:

1) The Supplier has breached their contract
2) That there was a direct relationship between the Debtor (you) - Creditor (your bank) - Supplier and no extra entities were part of the process
3) That the product/service was over £100 and below £30,000

Do the T&Cs say that students need to be achieving a certain standard to be allowed to go? If so it doesn't sound like there is a breach of contract. 

The second point is also going to be difficult to work out who the actual "supplier" is in this context. Travel claims often fail because people use a travel agent but it's the airline that are supplying the service hence a 4th party and a failed claim. Claims can be successful however if the breach causes because of the fault of the agent rather than the airline. 

The final one I assume is in scope. 

Ultimately your S75 claim is against your bank not the school but it sounds like it's not a S75 claim but instead a chargeback... the bank doesn't pull together a S75 claim against itself for you. Chargebacks are very different and importantly doesn't require point 2.

Note that banks are not a court of law and do not have the power to make the ultimate ruling. Plenty on here have successful made a chargeback, had the funds returned, but then been sued by the vendor. 

Jenni_D

If the S75/chargeback claim fails then arguably the OP could sue the school, as it seems it is the school who have determined that the child cannot go, not the travel company?

born_again

As @DullGreyGuy said
The crux here is going to be "T&Cs say that students need to be achieving a certain standard to be allowed to go?"
If they have that clause in the T/C then S75 is a no go.
Not sure why CC are pulling together a S75, as you need to prove the case not them. 

MattMattMattUK

Jenni_D said:

If the S75/chargeback claim fails then arguably the OP could sue the school, as it seems it is the school who have determined that the child cannot go, not the travel company?

These kind of trips are usually far more complicated than that, the school still remain responsible for the children on the trips, they are chaperoned by teachers, the pupils must have maintained required behavioural standards to go etc. so it is not as clean cut as a normal holiday purchase via an agent. 

the_lunatic_is_in_my_head

born_again said:

As @DullGreyGuy said
The crux here is going to be "T&Cs say that students need to be achieving a certain standard to be allowed to go?"
If they have that clause in the T/C then S75 is a no go.
Not sure why CC are pulling together a S75, as you need to prove the case not them. 

There would still be a question of fairness.  

It would depend upon the exact nature nature of the clause, were it too vague then it would likely be classed as unfair under:

https://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

Consumer contract terms which may be regarded as unfair

7 A term which has the object or effect of authorising the trader to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the trader to retain the sums paid for services not yet supplied by the trader where it is the trader who dissolves the contract.

OP can you quote the exact wording of the clause regarding behaviour please? 

born_again

the_lunatic_is_in_my_head said:

born_again said:

As @DullGreyGuy said
The crux here is going to be "T&Cs say that students need to be achieving a certain standard to be allowed to go?"
If they have that clause in the T/C then S75 is a no go.
Not sure why CC are pulling together a S75, as you need to prove the case not them. 

There would still be a question of fairness.  

It would depend upon the exact nature nature of the clause, were it too vague then it would likely be classed as unfair under:

https://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

Consumer contract terms which may be regarded as unfair

7 A term which has the object or effect of authorising the trader to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the trader to retain the sums paid for services not yet supplied by the trader where it is the trader who dissolves the contract.

OP can you quote the exact wording of the clause regarding behaviour please? 

School might even have "The school reserves the right to make the final decision" or such. But in such cases, they would normally have a list of pupils wanting to go so a refund should not be a issue, subject to fair fee's being deducted for admin expenses on change of person.

the_lunatic_is_in_my_head

born_again said:

the_lunatic_is_in_my_head said:

born_again said:

As @DullGreyGuy said
The crux here is going to be "T&Cs say that students need to be achieving a certain standard to be allowed to go?"
If they have that clause in the T/C then S75 is a no go.
Not sure why CC are pulling together a S75, as you need to prove the case not them. 

There would still be a question of fairness.  

It would depend upon the exact nature nature of the clause, were it too vague then it would likely be classed as unfair under:

https://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

Consumer contract terms which may be regarded as unfair

7 A term which has the object or effect of authorising the trader to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the trader to retain the sums paid for services not yet supplied by the trader where it is the trader who dissolves the contract.

OP can you quote the exact wording of the clause regarding behaviour please? 

School might even have "The school reserves the right to make the final decision" or such. But in such cases, they would normally have a list of pupils wanting to go so a refund should not be a issue, subject to fair fee's being deducted for admin expenses on change of person.

I meant more if the exact behaviour or standards the pupil is expected to maintain are not detailed enough then they wouldn't have fair terms to permit them to exclude a pupil based on their behaviour. 

If that were the case they can't retain anything as they would be the one in breach of contract by refusing to allow the pupil to attend based on a clause that would be scrubbed from the contract due to unfairness. 

"The school reserves the right to make the final decision" would be unfair too, it's far too vague.  

fiscalfool

the_lunatic_is_in_my_head said:

born_again said:

As @DullGreyGuy said
The crux here is going to be "T&Cs say that students need to be achieving a certain standard to be allowed to go?"
If they have that clause in the T/C then S75 is a no go.
Not sure why CC are pulling together a S75, as you need to prove the case not them. 

There would still be a question of fairness.  

It would depend upon the exact nature nature of the clause, were it too vague then it would likely be classed as unfair under:

https://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

Consumer contract terms which may be regarded as unfair

7 A term which has the object or effect of authorising the trader to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the trader to retain the sums paid for services not yet supplied by the trader where it is the trader who dissolves the contract.

OP can you quote the exact wording of the clause regarding behaviour please? 

I can indeed: 

Please note that your child’s behaviour and progress during the time leading up to the trip will determine whether they are permitted to travel.

eddddy

Just something else to check - if you're hoping to make a section 75 claim (now or later).

How did you make the credit card payment?   Did you use a service like Payment 4 Schools, Paypal for Education or Parent Pay? (What payee name appeared on your credit card statement?)


If you did use a payment service, it depends whether the company acts as a "payment processor" or "middlemen". "Middlemen" means you pay the company, and then they pay the school - so that loses s75 protection. 

DullGreyGuy

the_lunatic_is_in_my_head said:

born_again said:

As @DullGreyGuy said
The crux here is going to be "T&Cs say that students need to be achieving a certain standard to be allowed to go?"
If they have that clause in the T/C then S75 is a no go.
Not sure why CC are pulling together a S75, as you need to prove the case not them. 

There would still be a question of fairness.  

It would depend upon the exact nature nature of the clause, were it too vague then it would likely be classed as unfair under:

https://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

Consumer contract terms which may be regarded as unfair

7 A term which has the object or effect of authorising the trader to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the trader to retain the sums paid for services not yet supplied by the trader where it is the trader who dissolves the contract.

OP can you quote the exact wording of the clause regarding behaviour please? 

Looking at a couple of FOS cases for disputed S75 outcomes the FOS appears to focus a little more on 6 rather than 7. 

What most are going to be blind on, inc the bank and FOS, is what sunk costs the school have already incurred and what options, if any, there are to cancel or transfer this to another pupil (if there is another pupil that wants to go). This also somewhat comes back to the fact there are many parties to this overall agreement.