The fine print: School Exclusions and Fees

In these challenging circumstances, is your parent/school contract still fit for purpose?

Are parents challenging decisions around exclusions or fees in lieu of notice? Vicky Wilson reports...

A parent/school contract contains the legally binding contractual terms and conditions between a parent and an independent school for the delivery of “education services”.

Following the election result in December 2019, a degree of stability has been restored to the independent schools sector and certain threats have significantly diminished. The UK is due to leave the EU entirely by December 2020, which brings a host of different challenges. With the end of freedom of movement in sight, schools should be aware of the potential employment and pupil recruitment and retention implications. Increasing costs will also remain a threat to the sector, including TPS contributions.

As the tendency of parents to challenge school decisions grows, the terms of the contract are becoming increasingly important. Here are some top drafting tips that can assist from the beginning to the end of the contractual relationship with parents.

Parties to the contract

It sounds obvious, but getting the right people to sign the right documents in the first instance can save a lot of time and money in the long term. Don’t be afraid to do a bit of due diligence around your parent “consumers”. Who is involved in a child’s life? What are the arrangements for contact, communications and collaborative working? Make use of the third-party fee agreements if fees are to be paid by grandparents, aunts or uncles, or an educational trust fund.

GDPR and data protection

Since GDPR came into force in May 2018, data subjects’ rights have improved and schools must take steps to ensure that registration and acceptance forms are GDPR-compliant. Schools must ensure that they have proper policies in place to collect and process personal data in a safe and secure manner. It is important for these forms also to refer to the relevant data protection policies and privacy notices for parents and pupils. It is advisable to keep data protection documentation separate from the parent contract so that these can be updated separately from the contract, as required.

NB: consent. It is advisable to remove any blanket data protection consent clauses from your contractual documentation. If you have no other lawful basis on which you can rely and you require consent to process personal data for a particular purpose, draw up a GDPR-compliant consent form.

Billing/invoicing

Your initial paperwork should explain the rules around anti-money laundering and the documentation you may require from parents during the admissions process. Make sure you know who is expecting to receive the first invoice and the expected source of funds.

Exclusions

Unfortunately, there may be instances where a school requires a pupil to leave the school for poor attendance or conduct in breach of the school’s behaviour policy. The contract will usually provide the head with a discretionary power to suspend or permanently exclude a pupil in circumstances where they consider that the pupil’s attendance or behaviour (including outside school) has been prejudicial to the reputation of the school. It may also be beneficial to include a clause to allow the head discretion to require the parents to remove the pupil from the school. Required removal clauses may provide an alternative to exclusion but require careful drafting and application in the particular circumstances.

Notice

The most common dispute that arises in respect of a parent/school contract is when a parent wishes to withdraw their child from the school but fails to give a term’s notice. Any definition in the contract must be clear on the notice required to terminate the contract and the consequences that flow, for example: whether a term’s fees in lieu of notice will be owed to the school as a result. From a commercial perspective, “a term’s notice” should ensure that the school is able to properly budget for the forthcoming term and the next academic year. The point about notice should be consistent on any other financial documentation that is issued by the school and should also be brought to the attention of parents at appropriate times throughout the year.

Joint and several liability

It is advisable to have more than one party to the contract wherever possible. The contract should clearly state that any such parties are individually and jointly responsible for complying with their obligations under the contract, including equal responsibility for paying fees. This affords the school greater flexibility in seeking payment from either parent, in the event of non-payment of fees. Each case should be dealt with on the facts – if you are unsure, it is best to take advice early.

Allowing for change

The contract should allow for the possibility of constitutional changes to the school or amalgamation and provide for the transfer of all rights and obligations contained in the contract in such circumstances. Including such a clause will provide the governing body with the power to assign the benefit of the contract to another legal entity, if required. This will allow the contract to simply continue as before under the new circumstances without the need for a new contract to be implemented.

Final tips

Most of the work is in the drafting of the documentation so that operational tasks are made easier. An update session for key staff on how to use any amended documentation is also essential. Your bursary staff, registrar, heads and deputies should understand how the contractual documentation is to be used so that systems are properly implemented.

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For further information or to discuss a potential issue or requirement, please contact Vicky Wilson or your usual Wilsons contact.