Should I pay the nursery?

[TileLane]

Am I being unreasonable for refusing to pay?

Background: ...

Given the pandemic, our nursery made the decision to close for the foreseeablefuture on 31 March, despite the government directing nurseries to remain open for key workers.

As a resultof them closing we had little option but to seek alternative childcare arrangements which came at a cost.

On the 29 March the nursery posted a message on the communication app, stating that to retain a place at the nursery, they would seek 25% of usual child care costs during the pandemic.

Several days later and following an outcry from parents, this message was deleted and another message appeared stating that the fee would now be a one off 25% of usual childcare costs to retain a place at nursery, this fee would effectively be a refundable deposit.

We decided not to retain the place at nursery and sent a message to confirm that we wouldn't be taking them up on the offer.

We have today received a phone callfrom the nursery, stating their intention to invoice one months fees (circa £1k) as a notice period...
even though it was them who chose to shut - they made their nursery unavailable for childcareservices during the notice period which was at a cost to ourselves.

They keep referring to the agreement, however, despite three requests, i still haven't received a copy.

I go out of my way to manage our finances efficiently and as a rule I do not pay for services that I do not receive.

I got a bit mad on the phone and told them, the only way i would pay is if directed by a court... was I unreasonable?

Don't pay.
All they can do is take you to court and they won't win. There is absolutely no chance that a court would award in their favour. They tried to alter the contract and when you refused, they tried to enforce the original agreement. You can't legally do that. It's a pretty common concept that the counter offer destroys the original offer. They have no legal grounds to enforce the notice period.
I wouldn't be paying.

Just to clarify, I assume that they nursery weren't charging fees for April? Therefore you gave your notice at the start of April and paid full fees (of nothing, because they weren't providing childcare) until the beginning of May. That would be your one month's notice - paid in full.

I'm assuming that you are a key worker. Guidance was they were expected to provide care for your child. For whatever reason they didnt and it doesn't sound like they held up their side of giving a notice period so why should you. As PP they would not be successful if they tried to take you to court. I understand it's hard for early years childcare providers at the moment but it's also really hard on parents. They amended the original contract by introducing the retainer fee you rightfully let them know that you were not in agreement with the revised contract so have decided to terminate it.

Thanks Lockedup - the problem is, is that i do not know what is in the agreement...

They are an independent locally owned nursery, the childcare is great, I'm just not sure of how to play this... the owner of the nursery stays out of all comms with parents but is obviously calling the shots behind the scene - today I'm ashamed to say as the saying goes 'I shot the messenger'

when you chose not to pay the retainer you have notice. they weren't offering the service so no fees due for the month.

What date/ How many weeks since you said you won’t retain the place?

So they invoiced us 25% at the end of March for April fees, however, we didn't pay as decided not to retain the place.

Now they have come back today asking for 1 month full fees as the 1 month notice.

I’m a big supporter of trying to help and prop up nurseries but yeh yours is trying their luck. I would agree the amount of notice, state the date you informed them not to hold the place and that’s that.

Do you want to send your DC back there or are the arrangements you put in place after they shut long term?

If you don’t plan to return I certainly wouldn’t pay. The CMA says they can’t charge when they are not providing a service anyway.

It doesn't really matter what was in the agreement. They wanted to change it and you said no. That is your right. They cannot change the contract without your consent and they cannot charge you for not consenting - that's economic duress and a contract is voidable if it is secured under economic duress.
Unless they charged all parents full fees in April, whether or not they paid the retainer fee, then there is a 100% chance that the nursery would lose in court. Even if they did charge all parents full fees in April, I would hazard that there's a 95% chance you'd win in court. Not to mention, they would have to take you to court for any of this to be relevant - they're unlikely to do that.
Just don't pay them.

Does it say anything in your contract about a 25% retainer fee?

We did intend to return to nursery in July, but only on a part time basis, however, that bridge may well be burnt.

Baby due at the end of June, so planned a return to nursery on a part time basis in July, once baby arrives, keeping DD1 at home until then as don't want to risk it with Covid... we obviously didn't inform nursery of this as a solid plan as things are a bit up in the air.

You actually gave your notice end of March so under usual circumstances your child would have attended in April and you would have paid full fees and child left end of April

As it stands nursery is closed but you still only gave your notice end of March so should pay the 25% for April ?

Having said that if I read it right everyone who pays the 25% to hold their place will have it deducted off future fees when they reopen then no I wouldn't pay it because you wouldn't be better getting it refunded.

Are the nursery staff still getting paid? I think that would sway my decision.

*So they invoiced us 25% at the end of March for April fees, however, we didn't pay as decided not to retain the place.

Now they have come back today asking for 1 month full fees as the 1 month notice.*

There's no logic in that. If you'd paid the 25% and given notice, would they have asked you for more then?

I think there's an implication, when asking you for "25% fees to retain your place", that the alternative is not paying. If that wasn't the case, I think they should have been much clearer when they asked for the retainer.

despite the government directing nurseries to remain open for key workers

That's not the case, the government didn't want all nurseries to remain open for key workers.

Our local authority chose a few private nurseries to work with for key workers, the rest had to shut.

It depends what your nursery contract is/was.
Most nurseries do want a months notice before leaving, I get that circumstances are totally different just now but that doesn't change the fact you hadn't given a months notice, and I presume the nursery have taken your unwillingness to pay as you don't want the space so therefore are leaving, so therefore need to pay a months notice.

I don't agree with the nursery charging parents and they should have asked for voluntary contributions instead.

All the staff were furloughed, not sure if this was topped up or not by the company.

We did continue to receive updates though from the staff... activities for kids etc

If you had paid to retain your place I could understand why they were asking for fees. However by not paying you’ve effectively given your notice although with hindsight it may have been better to confirm in writing (presume this wasn’t done?)

It’s a crappy situation for everyone and I do feel sorry for the nurseries as they’ll still have costs even when closed, including bills, fees and possibly rent. One risk is that if like you, lots of parents haven’t paid and won’t pay they could go bust.

I didn’t realise you still hoped to have a place without paying ....

No I wouldn’t pay.
They asked for a retainer, you gave notice. That was a choice they offered you.
Can you not email to say ‘our notice period was from x March to x April. Childcare was not provided or received during this period and as such the final invoice should be nil’.

onlyfoolsnmothers... yes... we did plan on going back in July but not full time as maternity pay won't stretch to this...

Both children would have been there full time when back at work...

Just our plan not to commit has landed us in this situation...

Then I’d expect you to pay something to hold a place- so this is where I’m confused as to whether you actually gave notice in April to say you won’t need a place

Google frustrated contracts and direct them to it too if required. It’s an unfortunate situation but you owe them nothing.

They enjoyed the benefit of furlough and possibly grants too.

They may not be chancing it and may just be unclear themselves.

Send them a one of letter your actions and reasoning. Ask for them to send a copy of the agreement that was signed by you within two weeks ao tou can consult and make a decision. Write back after the two week period stating that as tou have not recieved the agreement by x date you will consider the matter close and will consider any further correspondence as harrasment. Our child minder threatened us with court last year.....I did the same nothing happened. She was lovely but kept letting us down leading to lots of annual leave taken for me. She tried to say that she was entitled to sick pay from us and we pulled out without notice and put our son in nursery. I refused to pay for a service that I wasn't receiving.

but you owe them nothing

She owes them a months notice if that's what's stated in the contract though.