Nursery Fees Overpayment - Where Do I Stand?

[klallen]

Hi everyone!

I am seeking some legal guidance (or even advice) on a matter regarding my children's nursery fees. Hopefully someone can help...

Both my girls are enrolled at the same nursery. My youngest (now age 3) has been there since summer 2021 and my second joined July 2022 (then 8 months, now 16 months).

The nursery is lovely and I've never had any issues. However, I recently found out that I should have had a 10% discount applied to my eldest's nursery fees since my youngest begun in July 2022. I've done a rough calculation and, looking only at the net amount we've paid (i.e. ignoring the delta amounts paid for via tax-free childcare and now 30 free hours), I believe that we've overpaid on our fees by about £270 in a 9 month period.

I've asked the nursery manager if she can look into the possibility of us getting a refund on the overpaid fees. Last week, I spotted a flurry of backdated invoices come through with an adjustment applied, however, these only go back to Jan, which was the point at which my eldest became eligible to 30 free hours and therefore represents only a 'refund' (by way of fee credit on future invoices) of c.£40.

I am yet to receive an update from the nursery manager, however, I am pre-empting a message to say that "nothing can be done" about a refund for the overpayment in 2022. I am therefore trying to "arm myself" with as much knowledge as possible, so I can confidently state my rights when I go back to them. Could someone therefore let me know:

• Can the nursery just refuse to refund this overpayment, when this discount is available to all family's with more than one child enrolled?
• If they come back to me with the whole "the discount is applied at our discretion" can I do a SAR to find out the grounds for refusal (basically see if there is any reason at all or if this is a cop out answer)?
• Are the nursery required to give me a reason if I ask why we were denied this discount (assuming its applied "discretionarily")?
• Can I challenge this reason on the grounds of discrimination (assuming it is not a 'legitimate' reason)?
• Could I pursue legal action to reclaim the overpayment (by way of actual refund or credit to future fees).

I really do not want to pursue legal action (especially as we otherwise love the nursery!) but we are struggling financially at the moment and this could offer a small amount of relief that we so desperately need for just one month.

Sorry this is such a long post... if anyone is still awake after reading that, I'd be grateful for advice / shared experience if you've been through a similar situation.

Thanks :)

I’m no legal expert but I imagine if it’s only £230 then it’d cost much more in legal fees to get that money back. Does it state about the sibling discount in the contract?

Nobody will be able to advise you without seeing a contract.

You are taking quite an odd approach to this. Can't you speak face to face with the nursery manager? Why would it be discrimination?

The policy could well be discretionary and then you have no recourse at all. You need more intonation and I'd be wary of going in all guns blazing until you know if they're going to refund and if not, why not.

*information

And credit to fees still = money you don't have to pay the following month.

Would think it easier to credit than an actual refund.

No, it wouldn't cost much more in legal fees. This would be a small claim so OP could represent herself. If she won, the nursery would have to pay OP's court fees which, for this size of claim, would be £35.

Can the nursery just refuse to refund this overpayment, when this discount is available to all family's with more than one child enrolled?

Without seeing your contract and/or the nursery's terms and conditions it is impossible to answer this question.

If they come back to me with the whole "the discount is applied at our discretion" can I do a SAR to find out the grounds for refusal (basically see if there is any reason at all or if this is a cop out answer)?

You can do an SAR, but I suspect it won't give you the information you want.

Are the nursery required to give me a reason if I ask why we were denied this discount (assuming its applied "discretionarily")?

No, although they will have to justify their decision if you take them to court.

Can I challenge this reason on the grounds of discrimination (assuming it is not a 'legitimate' reason)?

Only if you are being discriminated against due to a protected characteristic.

Could I pursue legal action to reclaim the overpayment (by way of actual refund or credit to future fees).

If you are due this money, yes, you can take legal action.

I just had a quick look on my old nursery's website. There aren't any details re terms and conditions but it does say they apply it to the eldest child's fees only - and those fees will be lower than the younger child rate (assuming under 1 or 2).

I'd check the website and see what info is on there. You might have something similar so you'll need to check if you've calculated properly.

I would just send a follow up enquiry at this stage. It may be that they’ve done it to the beginning of this year so far as that’s easy within their accounts system, and the next step involves them opening up last year’s accounts (assuming they have a December year end), so they might need to take advice on that.

You have had some good advice above but the main thing is whether you are actually entitled to this discount contractually. If you are then I agree with PPs that it's likely to be easier to treat as a credit for future fees than for them to pay it back.

What did you recently find out that makes you think you're entitled to a 10% discount? The fact that you didn't know before suggests to me that it wasn't part of your contract.

Thank you this was a really helpful response to my questions @prh47bridge . ☺️ Thanks for taking the time to come back. I'll dig out my contract.

Thank you anyone else that gave helpful feedback to the questions I actually asked as well. Appreciate it!

@BluetheBear I found out because the nursery had sent me a message in error back in February which was intended for another parent, regarding sibling discount. When I questioned it they told me I was eligible and this should have been applied since my second child started nursery 9 months ago.

Certainly not disputing credit over cash refund, as I said in the OP. I'd rather have credit in honesty 🤣 Don't want the temptation to spend it lol.

Is there a Term or Condition within your contract that says "Cannot be applied if using any other offer, including but not limited to discounted/free childcare government funding for 2, 3 or 4 year olds" I know my DCs old Nursery have this condition and have since before DC started if so you may not actually be eligible.

Did they put it in writing that you were eligible and it should have been applied for that timeframe? Might be helpful if they have. I'd probably reply to that if written in an email something like," Thank you for getting the credit note sorted for the sibling discount for this year as per the above, but haven't heard back about the adjustment to fees for last year post DC2 joining. Do you have any idea on the timeframe for that to be processed?"