Section 75 - Query

the_lunatic_is_in_my_head

fiscalfool 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? 

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.

Thanks OP, without clarification of what that means my argument to the bank would be it's unfair, I would quote the legislation above and point them towards to the CMA guidance on the matter:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

5.16 on page 94 onwards

If the term is unfair, that term is void. It's unlikely a term such as this would void the entire contract, rather the contract would stand with that term removed.

If the bank doesn't agree then as DGG mentions you have an avenue of complaint with the bank to raise to the ombudsman. I'm not sure if you are required to follow that avenue before issuing small claims against the bank, on the one hand you have to mitigate losses (i.e lessen them by exhausting all other avenues) on the other the ombudsman is (to my understanding, others will correct if I'm wrong ) only ruling on whether the bank treated you fairly which oddly seems separate as to whether they are acting in accordance to the letter of the legislation.  

DullGreyGuy said:

 This also somewhat comes back to the fact there are many parties to this overall agreement. 

Just to ask on this point, where the bank has liability does other parties affect the situation, isn't the bank assuming the position of the relevant party? 

DullGreyGuy

the_lunatic_is_in_my_head said:
I'm not sure if you are required to follow that avenue before issuing small claims against the bank, on the one hand you have to mitigate losses (i.e lessen them by exhausting all other avenues) on the other the ombudsman is (to my understanding, others will correct if I'm wrong ) only ruling on whether the bank treated you fairly which oddly seems separate as to whether they are acting in accordance to the letter of the legislation.  

Ombudsmen (is that how you pluralise it?) are simply a form of ADR and there is no legal requirement to use ADR if you dont want to (as a normal person, banks etc do have to engage with the ombudsman if a customer raises a complaint). If however you choose not to then the judge may decide to take that into consideration when considering costs.

The Ombudsman isnt bound by the letter of the law and is entitled to give awards based on fairness rather than what a court would do. In most cases that will be in the consumers favour so generally the advice is go to the ombudsman, the court process is always there afterwards if the ombudsman process fails.

Personally, choosing between litigating against a bank or a school I'd choose the later... former are much more likely to have better lawyers on tap. 

the_lunatic_is_in_my_head

DullGreyGuy said:

the_lunatic_is_in_my_head said:
I'm not sure if you are required to follow that avenue before issuing small claims against the bank, on the one hand you have to mitigate losses (i.e lessen them by exhausting all other avenues) on the other the ombudsman is (to my understanding, others will correct if I'm wrong ) only ruling on whether the bank treated you fairly which oddly seems separate as to whether they are acting in accordance to the letter of the legislation.  

Ombudsmen (is that how you pluralise it?) are simply a form of ADR and there is no legal requirement to use ADR if you dont want to (as a normal person, banks etc do have to engage with the ombudsman if a customer raises a complaint). If however you choose not to then the judge may decide to take that into consideration when considering costs.

The Ombudsman isnt bound by the letter of the law and is entitled to give awards based on fairness rather than what a court would do. In most cases that will be in the consumers favour so generally the advice is go to the ombudsman, the court process is always there afterwards if the ombudsman process fails.

Personally, choosing between litigating against a bank or a school I'd choose the later... former are much more likely to have better lawyers on tap. 

Thanks, useful info  

One point whilst the bank may have money to burn on lawyers personally I'd avoid any serious issues with the school, the bank won't treat OP's child unfairly because of legal action where as a school might (not that they should of course). 

eddddy

I'm not sure that consumer legislation is relevant to this situation. I don't think this would be classed as a trader/consumer relationship.

For example, it might be worth looking at the Education Act 2011 as well. The school's argument might be something like this:

• The trip won't be a holiday

• The trip will be an educational activity which forms part of the school's curriculum

• The Education Act gives schools the power to exclude pupils from school - so I imagine that extends to excluding them from school activities, including school trips

• The Education Act doesn't say anything about the school having to pay compensation for losses resulting from exclusion

For example, if a pupil is excluded, child care costs might be incurred. If a pupil is permanently excluded, a brand new school uniform might have to be discarded. The school won't be required to cover those losses.


In my experience from talking to teachers, every school will have "School Trip Policy" documents that are many inches thick, that have been written/checked by their lawyers.

And taking pupils on residential school trips scares the **** out of most teachers - because they are so worried about all the things that can go disastrously wrong.

So the teachers follow the policy to the letter, and/or consult the lawyers on anything they're uncertain about. So I suspect that, if the school is saying "No Refunds", that's likely to based on advice checked by their lawyer.

fiscalfool

eddddy said:

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. 

ah good call .. I used their school portal, 3rd party software but the line on the bank statement says "The XXXX School" and not "ParentPay" or similar. 

the_lunatic_is_in_my_head

eddddy said:

I'm not sure that consumer legislation is relevant to this situation. 

That's an interesting point.

Would it depend upon whether this was state school or private one?

I guess ultimately the claim is against the local authority if state but Googling didn't bring up any info on whether the CRA applies to local authorities.  

DullGreyGuy

the_lunatic_is_in_my_head said:

eddddy said:

I'm not sure that consumer legislation is relevant to this situation. 

That's an interesting point.

Would it depend upon whether this was state school or private one?

I guess ultimately the claim is against the local authority if state but Googling didn't bring up any info on whether the CRA applies to local authorities.  

Section 75 the claim has to be against the supplier and that's why travel claims often fail because you pay the agent but the airline breaches the contract. 

The school and the local authority are not the same entity and hence prior statement that there is a risk that S75 would also fail because the D-C-S chain is broken by extra parties being involved. 

user1977

DullGreyGuy said:

the_lunatic_is_in_my_head said:

eddddy said:

I'm not sure that consumer legislation is relevant to this situation. 

That's an interesting point.

Would it depend upon whether this was state school or private one?

I guess ultimately the claim is against the local authority if state but Googling didn't bring up any info on whether the CRA applies to local authorities.  

The school and the local authority are not the same entity 

Aren't they? I don't think we have enough info to determine that.

the_lunatic_is_in_my_head

DullGreyGuy said:

the_lunatic_is_in_my_head said:

eddddy said:

I'm not sure that consumer legislation is relevant to this situation. 

That's an interesting point.

Would it depend upon whether this was state school or private one?

I guess ultimately the claim is against the local authority if state but Googling didn't bring up any info on whether the CRA applies to local authorities.  

 D-C-S chain is broken by extra parties being involved. 

Thanks, forgot about the chain concept  

DullGreyGuy

user1977 said:

DullGreyGuy said:

the_lunatic_is_in_my_head said:

eddddy said:

I'm not sure that consumer legislation is relevant to this situation. 

That's an interesting point.

Would it depend upon whether this was state school or private one?

I guess ultimately the claim is against the local authority if state but Googling didn't bring up any info on whether the CRA applies to local authorities.  

The school and the local authority are not the same entity 

Aren't they? I don't think we have enough info to determine that.

Maybe, it was more an assumption that legal separation occurred to ensure one rogue school couldn't bankrupt the local council. Around our way most the schools are CoE or Catholic but the one that isnt says in their Privacy Notice that they "the school" are the data controllers not the local authority (but they also say the legal Jurisdiction is the UK Law so maybe not too much can be read into that)