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Briefing Note: Parents and the Consumer Rights Act 2015

24 November 2015

1. What is the Consumer Rights Act 2015 (CRA 2015)?

The CRA 2015 is legislation which seeks to consolidate some, but not all, of the existing pieces of legislation which affect consumers and more specifically consumer rights such as the Sale of Goods Act and the Supply of Goods and Services Act.

2. Why is it important to schools?

Schools provide educational services and parents are the consumers. Schools therefore need to be aware of the provisions so as to ensure that their interaction with parents and their contracts with parents are fair, transparent and more importantly enforceable.

3. What are the key points for schools arising out of the CRA 2015?

The CRA 2015 is a consolidation of the existing legislation. Some elements of the existing law have been restated by the CRA 2015 and need to be considered further.

A. Consistency

The CRA 2015 gives contractual status to any statement provided by the school voluntarily relating to the service to be provided. Any such statement will be incorporated into the contract if the parents take it into account when entering into the contract (‘voluntary pre-contractual information’). This will also apply when parents are considering the level of service provided by the school, after having entered into the contract.

The impact of this is that schools need to ensure that the presentation of their pre-contractual information is consistent, for example in the prospectus, online content and other marketing materials. This will also extend to what is said to parents by staff, for example at open days, on parent tours, or on the telephone. It is therefore important to consider not only the consistency of the materials but also whether training may be required for those members of staff who will have direct interactions with parents.

Existing consumer legislation which has not been consolidated by the CRA 2015 already requires schools to provide certain pre-contractual information to parents, for example about the education services to be provided, the fees for those services and any complaints procedure. Such information will also be considered to be incorporated into the contract (‘standard pre-contractual information’).

In the event that the school seeks to make any changes to this voluntary or standard pre contractual information, efforts need to be made to seek the parents’ consent to those changes.

We therefore recommend a review of the school’s marketing materials and its procedures for recording and responding to parents’ enquiries as well as a review of the school’s terms and conditions.

B. Fairness

This is not a new concept. A school’s terms and conditions need to promote an equal footing between the school and the parents i.e. the terms must be fair. If a term is considered to promote an imbalance between the parties to the detriment of the consumer then it may well be unenforceable. It is therefore in the school’s interests to ensure fairness as this will link into enforceability of the terms. It is also important to consider that key terms need to be prominent and if necessary, raised with the parents at the relevant time. The CRA 2015 contains guidance on terms which may be unfair (‘the grey list’) and also terms which are always unfair (‘the black list’).

C. Transparency

The CRA 2015 requires that the terms of the contract are transparent which means that they are written “in plain language and are legible”. Any clauses that may be hard to understand or are too legalistic should be reviewed and clarified to ensure that they are perceived to be transparent. Again, prominence is a feature and there is advantage in drawing key terms to the attention of parents. The requirement of transparency relates to, and will form part of, the review of the consistency of the materials that the school provides to parents.

4. What can parents do if they feel that the school is in breach of the CRA 2015?

The CRA 2015 allows consumers to request a “repeat performance of the service”, although it is hard to see how this could be applicable in the educational sphere. In the event that a repeat performance is not possible or not done within a reasonable time frame then the parents may seek a price reduction. As the legislation has only recently come into force it remains to be seen how this will be applied in practice to a contract between an independent school and parents. In the context of a dispute over unpaid school fees, the provision will provide parents with an additional negotiating tool, if they can convincingly argue that the CRA 2015 has been breached.

Of course, parents could always and may still seek damages for breach of contract. The introduction of the CRA 2015 may add weight to any complaint.

If you would like any further assistance with the new consumer rights legislation and/or a review of your position then please do not hesitate to contact Esther Millard or Joanna Lada-Walicki.