Nursery has asked me to sign a new contract without any change in ownership

[MGMidget]

My DD's daycare nursery have sent a bulletin in which they have mentioned that there is a new contract attached which parents must print off sign and return. There is no change of ownership mentioned just that they want to change the contract. I am not happy with a couple of clauses in the contract and I have emailed them to say that I do not wish to accept the new contract and pointing out what I am not happy with and why. Their response in writing has been to say that the new contracts are effective from January and that they would call me to 'explain'. Having had a discussion I have still said I am not happy with a couple of the clauses and they said they would look at this. Since then no further contact from them. I am wondering what legal situation I am now in! Have they given me notice by asking for a new contract to sign and if so does the notice start from when they first sent out the request to sign the new contract or when they replied to say the new contact would be effective from January (as previously no start date for the new contract was given) or would it be when I emailed them to say I did not wish to accept the new contract? What happens if I carry on paying them and turn up as usual in January? Would I have accepted the terms of the new contract? If anyone can help I would really appreciate this! Thanks.

[Creampastry]

Depends on the clauses ....

[insancerre]

I think if you carry on using them you are in effect agreeing to the new contract
What are the changes you are not happy about?

[user1471950254]

What will you do if they will only continue if the contract is signed? I would imagine they will not be able to make exceptions so will be risking other parents also refusing to sign.

[MGMidget]

One of the changes I am not happy about is a clause that says effectively that there will be no refund if the service is not provided. There is no context to this - i.e. it doesn't say 'in the event of bad weather/transport strike etc. I am a little worried that it gives them the opportunity to close branches of the nursery chain and not refund customers. They have been making a lot of changes lately by sending out bulletins announcing things. These appear to be cost-cutting exercises detrimental to the customers. They appear to have reached the point where they have realised they can't keep on making changes unilaterally and need to get customers to sign a new contract. There are some other things too, reducing the opening hours, removing the option to temporarily swap a day here and there for an admin fee etc.

I think the reduction in opening hours could be a deal-breaker for some parents and hence I am a little worried about the risk of the nursery closing suddenly with all the problems and financial consequences of this. I don't like the idea of a clause saying there will be no refund if the service is not provided!

I am wondering what's going to happen in January if I don't sign. I am on 8 weeks notice so I am trying to understand if that notice period has been triggered already.

[KP86]

Surely a clause saying no refund if services not provided would be illegal?

[prh47bridge]

It depends what this clause actually says.

[prh47bridge]

If it really does say that the nursery can withdraw its services voluntarily without giving a refund it may be an unfair term, in which case the clause is unenforceable. But without knowing the exact wording of the clause it is impossible to be sure.

[MGMidget]

I have checked the contract and this is the wording of the clause I am concerned about. Would be grateful for thoughts on this!

Fee Refunds
No refunds can be given even in circumstances where the service has not been provided.

[prh47bridge]

I suspect their intention is to say that they don't have to give a refund if the child does not attend but this clause goes well beyond that. They cannot take away your legal rights. They cannot refuse a refund when they fail to provide the service or if the service is not provided with reasonable care and skill. This clause is certainly not enforceable. Indeed, they may be committing a criminal offence by including such a clause as it appears to mislead customers about their legal rights. As you don't seem to be getting anywhere with the nursery you could contact your local Trading Standards.

[MGMidget]

Thanks prh. I will certainly bear that in mind. I think the problem with involving trading standards is that it may result in a serious falling out with the nursery chain. I am currently having a bit of a look around and considering whether to move my daughter as the track record of the nursery in making changes to their terms over the past few months is not good. I am still trying to work out whether the nursery has effectively put me on notice by asking for a new contract to be signed. I can see things coming to a head in January but want to be as informed as possible about what to do before then! Its very useful to know the term I am most worried about is unenforceable though as I guess I could just sign the contract in the knowledge that I can ignore that term!

[underneaththeash]

I had a similar issue with a nursery in London, we were asked to sign a new contract with less favourable terms and I just said no, I'm not willing to sign it.
They could have given me notice under the terms of the original contract, but they chose not to.
In this case, I would contact them and state that you are not willing to sign the new contract. I would also point out to them that it is not possible to contract out of statute law (in this case the consumer act 2015). They must provide a refund if services are not provided.

[MGMidget]

Thanks Underneath. I've already emailed them to say I don't wish to accept the new contract. They haven't given me notice and the contract only states that 8 weeks notice must be given by email or in writing. So I could just wait and see how they respond. I was just worried that I would turn up in January and be refused entry or told just before Christmas that unless I signed the contract forthwith I would not be allowed back in January. Don't want to leave myself open to being put under pressure to sign immediately without knowing what my rights are!
Thanks for quoting the statue law for me - that gives me a good bit of amunition!