Is the clause that a term's fees are due in lieu of notice enforceable?

[honor1979]

This is a rather sensitive topic, but I'd really like some advice with regards to the enforceability of a term's fees in lieu of notice.

My DD has attended a boarding school for the last four years. However, she was sexually assaulted (really quite badly - attempted rape, essentially - and the police investigation is ongoing) by a boy at a neighbouring school last term. She has obviously been very upset about it.

We were extremely concerned for her wellbeing and her mental health - not least because both schools are in a small town and as the chances of DD bumping into the boy are very high.

So we made the difficult decision to remove her at the end of Yr 12. This decision was only made during the summer holidays, so we have failed to give a term's notice. The school hasn't yet asked us for the fees but the headmaster has said we'll be hearing from the bursar.

I'd like to know from anyone with experience of this or from any lawyers out there whether this clause is enforceable? I've read online that penalty clauses are often not enforceable, but I'm worried. We were struggling to pay the fees anyway so this would hit us very hard indeed.

Given the circumstances they'd be ridiculous to ask for it. What if it was a financial decision? You can't get blood from a stone.

I'm so sorry this has happened to your daughter, especially under their care. If they try to make you pay in these circumstances, I would start loudly making noises about appointing your own solicitor to deal with their negligence and the subsequent harm suffered by your daughter. They have forced your hand to withdraw by demonstrating they cannot uphold their end of the contractual bargain (not to mention their statutory obligations). Try not to worry and I hope your daughter recovers as best she can.

I work in a school, and yes the clause is enforceable. Many parents accept this, and some do try to avoid paying.

The school are presumably well aware of what has happened and how it has affected your daughter? If the Bursar contacts you asking for a term's fees in lieu of notice please don't ignore it, but contact them and say what you've put here - difficult decision, nothing to do with the school but can't risk her mental wellbeing by returning there and running the risk of seeing the boy. See no other option. Fresh start and all that. They'll be concerned about other parents who have had to pay fees in lieu so stress that you understand the rationale for charging a term's fees but would very much appreciate special consideration given the circumstances.

If they are insisting on it, you might be able to negotiate only half a term's fees spread out in instalments of over a year.

I'm really sorry about what happened to your daughter.

I'm afraid a requirement to give notice of one term or pay fees in lieu is not classed as a penalty clause and is enforceable. The school may choose not to enforce it under the circumstances, but that is their decision. If they insist, I'm afraid you will have to pay.

To deal with the post by @FluffMagnet , there is nothing in your OP that indicates the school has been negligent or that they have breached any of their statutory obligations. If they have been negligent that clearly gives you a bargaining chip, but without knowing the circumstances of the assault it is impossible to say if there was any negligence or breach of statutory obligations involved.

We had a similar situation years ago. I can't give you the details as it will out my family. The school persued us through the courts at this difficult time and made it impossible to get a mortgage for 6 years. We had spent a six figure sum with them and although there were others in a similar position we were the only ones subjected to their aggression as they didn't want to admit their behaviour towards our dc.
They then had the cheek to ask our dc back to speak to the current cohort as they have achieved great success. We never told our dc until this came up.
I suggest you try very hard to get a settlement. The courts use case law to settle matters like this. I think you would be paid to pay.

I agree with others regarding the fees. It would be extraordinary if they pushed you, in my view.

You might not have read the Governments view of safeguarding at boarding schools. I suggest you do. A relevant page is attached. All boarders should be safe, including away from the school premises. I would certainly use this if they want the fees. What safeguarding action was taken by the way?

Schools can and do regularly enforce this clause through the courts.

The best you can do is have an open and honest conversation with the school and hope they might be generous in their approach

I work in a school. It gets passed on to debt collectors if you don't pay. School can obviously waive it at their discretion though, which they may do dependent on the circumstances what happened.

In general, it is enforceable if you just upped and left without notice. However, you have left because of a serious safety issue and so the school ought to waive the term's fees in this case. Before you "hear from the bursar", I would contact someone very high up, explain and plead your case.

I agree with @TizerorFizz. A young relative was taken out of their boarding school without notice and their parents were sent a bill for the following term. After an exchange of emails and highlighting several safeguarding issues the Head decided not to press them for the £10k+ fees.

I would want to know what the Safeguarding Policy says and whether they followed it. The school has a duty of care towards this DD. I would be discussing this with the Head. Stuff the Bursar!

You will have signed a contract which included a clause in regard to notice. The clause is enforceable. the same way as notice is enforceable in any contract. The school could waive if they choose but if not you are liable. In view of the Head suggesting you will hear from the Bursar it sounds like they plan to enforce. The Head is typically the decision maker in such matters..

Yes, they do but OP's daughter was at least 16 when the incident happened and may have been 17. We don't know any details other than that it involved a boy at a neighbouring school. Whilst the school has a duty of care, they aren't expected to supervise a 16-year-old girl 24 hours a day. If the school was in some way negligent then yes, they may agree to waive the fees and, if they don't, OP or her daughter may be able to take action against them. However, if the school was not negligent, the only way OP will be able to avoid paying the fees is if the school waives them as a goodwill gesture.