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AIBU?

Share your dilemmas and get honest opinions from other Mumsnetters.

Original poster

To not pay the nursery

142 replies

HowamIgoingtogetoutofthis · 02/08/2012 19:58

Forgive the brevity, I typed a monster post so as not to drip feed, but I lost it.

I have left a violent relationship. Children at risk of abduction (international dimension, court orders protecting children now in place) by their father. He was arrested for assaulting me. When on remand my family and friends moved me out hundreds of miles away.

I emailed the nursery explained the situation (in some detail) explaining the children were not safe at the nursery if their father was released and his behaviour may present a security issue with regards other children.

The manager sent me an email saying he would speak to the owner, was sorry to hear what had gone on and would forward the bys portfolios on in confidence when necessary. Today the owner has sent me an invoice for the entire notice period (£1400). I had expected to lose the deposit, but I have literally just run away with my children to save them. I don't have that sort of money. AIBU not to pay? They can't sue me, I have no assets.

OP posts:
MammaTJ · 02/08/2012 20:52

On the basis of your second post YANBU!

olimpia · 02/08/2012 21:04

I wouldn't pay a penny. Like you say, I'd the greedy bastards want to go after you they'll have to take you to the small claims court and you'll have a chance to put your defence forward. In the worst case scenario the court will only order that you pay what you can afford (doing a financial statement is best done by a specialist debt adviser so do seek help).
In my experience it often doesn't come to that because they want to avoid bad publicity.
Im not one to advocate not paying your fees but I think given your circumstances the bastards deserve nothing
Good luck Smile

Foslady · 02/08/2012 21:11

If the children are at risk, do you have a police liaison officer? Would they be willing to write a back up letter to the nursery along with the CAB/solicitor? Maybe they don't appreciate the seriousness of the situation...?

MrsBeep · 02/08/2012 21:12

" JumpingThroughHoops

You could cause someone to lose their job, ultimately their home"

You are saying that by her not paying the £1400 even though the nursery has someone else lined up to join right away from a waiting list will cause someone to lose their job? HOW???

WhereYouLeftIt · 02/08/2012 21:22

OP, I'm no lawyer but I think the contract may fall foul of the Unfair Terms in Consumer Contracts Regulations 1999.

"Schedule 2, paragraph 1, states that terms may be unfair if they have the object or effect of:
(e) requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation."

The notice period is meant to compensate them for any loss they sustain due to your breach of contract. If they are able to fill the place immediately they are not suffering any loss, so really they can only claim to cover, say, their administration costs for processing the new contract for the children who take the newly-free spaces.

I would definitely take that tack with them, e.g.

As you are able to fill the places vacated by my children immediately from the waiting list (and maybe make it clear you know who is filling those places so they can't dissemble), you are suffering no loss from my ending our contract; and I fell that to impose the full charge of £1400 will fall foul of the Unfair Terms in Consumer Contracts Regulations 1999, as you are asking for a disproportionately high sum in compensation for your minimal loss.

I have found in the past that if you mention a specific law, they take fright.

WhereYouLeftIt · 02/08/2012 21:24

I fell that to impose = I feel that to impose

HybridTheory · 02/08/2012 21:36

Unfortunately you had a contract which you have breeched - therefore you should pay. Might not seem fair but if you manged to give notice to your landlord work etc you could have given notice to the nursery. It depends on their goodwill whether they pursue it.
Sorry you're having a rough time of it.

olimpia · 02/08/2012 21:37

whereyouleftit unfortunately it's not the case that if a place is filled immediately, and the nursery doesn't suffer a loss, they customer is only liable to pay admin costs. If she's signed that she had to give 3 months notice then the greedy bastards are entitled to request as much even of they fill the place immediately.

PrincessScrumpy · 02/08/2012 21:41

I'm sorry for all you've been through but the nursery didn't choose your partner so it's not their fault. Everyone has stuff to deal with in their lives - some worse than others, but you are still responsible for bills etc, why should the nursery be £1400 out of pocket?

olimpia · 02/08/2012 21:47

princess but they're not £1,400 out of pocket! They're not out of pocket at all in fact!
Three months notice is ludicrous and although not illegal it is highly immoral to request that level of notice at the best of times, never mind when someone is fleeing domestic violence!

Socknickingpixie · 02/08/2012 21:52

olimpia that is not correct a contract that is deamed to be unfair cannot be enforced if the court agrees its unfair.and to enforce a contract the company HAS to go to court unless you willingly pay it back

people legally cannot consent to agreements that exempt a company from opperating within all relevant rules. its why ppi ect and unfair bank charges /care home fees get refunded

HybridTheory · 02/08/2012 21:52

Olimpia - you may feel that it is immoral but I'm sure the terms were clearly stated when the OP signed up to them. It's not the nurserys problem if te OP will have problems paying. Just as it is irrelevant whether they immediately fill the space or not. A contract is a contract and is legally enforceable.

McHappyPants2012 · 02/08/2012 21:55

there are things called loop hole find them and that will be one problem solved for you

WhereYouLeftIt · 02/08/2012 21:56

I'm not so sure olimpia. From an Officefor Fair Trading pamphlet

The effect of unfairness on the contract

If a term is unfair, it is not legally binding on the consumer. If an unfair term requires consumers to do something, they cannot be made to do it.

For instance, a business is not entitled to obtain a court order to enforce a demand for payment based on an unfair term.

And the onus is on the nursery to prove that this term of their standard contract (3 months notice) is not unfair, and that it does not require the OP to pay a disproportionately high sum in compensation.

WhereYouLeftIt · 02/08/2012 21:58

Any lawyers out there who could offer an opinion?

Socknickingpixie · 02/08/2012 21:59

hybrid i would be intrested to see them try it. should the op decide not to pay.
a contract is only a contract if its legal, enforceable and there is nothing in it that allows either party to change it depending on the suituation.

olimpia · 02/08/2012 22:01

socking I agree with you that they'll have to take her to court for it but what I'm trying to say is that a contract is not necessarily illegal just because it's unfair and the UCTA doesn't offer a great deal of protection for the consumer. The principle of freedom of contract still stands strong in English law. PPI and banks are a notable exception of course but mostly because of the furore it caused in the media

lovethesun1 · 02/08/2012 22:01

...

WhereYouLeftIt · 02/08/2012 22:02

Three months notice is not illegal. But in these circumstances (no loss of income through the place remaining empty) it could be deemed unfair. It is certainly challengable, and the nursery may decide to cut their losses as legal costs could be greater than OP's £1,400.

SarahBumBarer · 02/08/2012 22:04

Well I still think YABU to a large degree and you should pay what you owe to the nursery and your landlord etc too. You also come across very much as if you just came on here expecting to be told YANBU and are a bit snarky with those of us who disagree with you.

BUT - I think a 3 month notice period is excessive especially if they can fill the space in relatively short order. How long were your children at the nursery for?

If they are not willing to come to some agreement I would be tempted to quote unfair terms in consumer contracts regs to them (don't think you could win that argument legally but I recently had a 3 month gym notice period reduced on a "goodwill" basis after arguing this point).

geegee888 · 02/08/2012 22:04

I would argue Frustration of Contract due to Impossibility. Nothing due on either side.

SarahBumBarer · 02/08/2012 22:05

x-posted with others

foreverondiet · 02/08/2012 22:08

Whilst its a lot of money for you, you do owe them the money.

If they can't fill the place they will be out of pocket due to your lack of notice, and they could sue you via small claims court.

However if you believe that they can fill the place quickly you shouldn't pay as they couldn't sue you for loss of income as they wouldn't have a loss.

HybridTheory · 02/08/2012 22:18

Socknicking - sorry I only do this sort of thing for a living. Best I can suggest is the OP opens negotiation with the nursery appealing to their goodwill with a view to reducing the bill - the deposit should be used to mitigate any charges not just withheld.

Noqontrol · 02/08/2012 22:22

Op, i wouldn't stress yourself. Let them chase you, if they decide to spend the money to take it to court (if they find you) then the judge can take the circumstances into consideration and decide. Hope you are ok by the way.