Creche change of policy - grounds for termination?

Johnny86 · 06-08-2020 7:10pm #1

Hi,

I've recently contacted the creche that my 15 month daughter attends to advise that we wish to withdraw her from attending the creche, given that it no longer meets our needs due to the recent change in their various policies as a result of COVID-19. We were advised by the creche that we must give two months' written notice, during which we will be fully billed or else we will not be refunded our deposit. I find this quite unreasonable, especially as she has not yet returned to creche. Are they within their rights to demand that we fulfill the standard cancellation policy, even though the contracted service provided by them has fundamentally changed?

Some further info:
My daughter originally started in the creche in late February. The aspect of the creche that most appealed to us was that we were allowed to bring her into the baby room (the room she was assigned to for care) and settle her before leaving. Our daughter is not easy around strangers so this is very important. She found it very difficult to settle.
She was only attending creche for 4 weeks prior to the creche closing. We paid fully for two additional weeks after the creche closed even though there was no service being provided (this was a creche requirement).
The creche reopened in late June and we were assigned a return to creche date of week of 20th July. We were advised that parents would not be allowed to enter the creche. Each family would have a 5 min period to hand their baby to a staff member at reception and then leave again. I do understand that this is government mandated policy and the reasons behind it. I am not complaining about the policy. However, the new system does not suit our needs and we do not feel easy about handing our child to stranger in these circumstances. We were also advised that our daughter was being assigned to a different room in in, creche with different staff members.
We then found out, via another parent, that a staff member had tested positive for COVID-19. The creche contacted us two days later to say that our daughter's return would be delayed by one week due to staff shortage due to a staff member testing positive. We then heard through the media that the staff member had gone to work in the creche after returning from Spain and had not quarantined. We got very little communication from the creche about the positive staff member. At this stage, we confirmed that our daughter would not be returning to creche.

Do you think we'd be entitled to a refund of our deposit, given the circumstances, as described?

Gatling · 06-08-2020 8:06pm

You do realise every crèche and preschool settings have stopped parents coming into settings ,
And there professionals they know what there doing

salmocab · 06-08-2020 8:09pm

It’s likely in the contract, they have no choice on the not letting parents in thing they’ve been instructed to do this by the state.

Frankie19 · 06-08-2020 8:48pm

All creches have stopped parents entering the premises to reduce contacts. I have to drop my daughter at the front door to a member of staff whereas before id bring her to her room.

Also when reopening pods were created which very well could mean your child would be in a different room with different staff members then before. If your daughter had only attended for 4 weeks prior to lockdown it shouldn't be as much as an issue as if she had been there for longer.

If you intend to look for another creche you will find the same policies in place.

Having said that you should have been informed directly of the positive staff members case however its not up to the creche to identify them or how they contracted it. If there is a positive case that affects your pod you are informed and the pod is closed. Thats all the info they need to tell you to protect the privacy of the confirmed case.

Johnny86 · 06-08-2020 9:04pm

Thanks for the responses. I understand that parents are not allowed into creches now due to COVID restrictions and I fully understand and support that decision. I mentioned that to provide some context and not to complain about that policy.

Obviously the way in which all creches are now operating will not suit all families and I would presume that some children will be withdrawn from various creches around the countries now for various reasons (children with high-risk family members, parents who are no longer working etc). This isn't the fault of the creche nor is it the fault of the families. It's an unsettling time for everyone.

My question relates to the legalities of the creche withholding our deposit under the circumstances.

We've been more than fair with the creche. We paid two full weeks while the creche was closed (and while they were also advised by government not to charge). The creche in question has a really bad reputation (I'm new to the area so only found this out recently). If you google the info I've given already you can read about this.

Johnny86 · 06-08-2020 9:11pm

Gatling wrote: »

You do realise every crèche and preschool settings have stopped parents coming into settings ,
And there professionals they know what there doing

Thank you for your reply.

Yes, I do understand this and fully support that decision. I'm not complaining about it, I'm simply stating that it no longer suits us as a family so we are withdrawing from the creche. It's not the creches decision, it's mandated by government, I get that.

Regarding the creche knowing what they are doing, I would definitely challenge that statement given their past history, their recent handling of the COVID positive case, and the findings within the subsequent government investigation report arising from their handling of the COVID positive case.

Frankie19 · 06-08-2020 9:58pm

The changes have been implemented by the government to protect children and staff in a creche environment. This no longer suits you which is fine however they are within their right to implement the contract/joining policy you would have signed when your child started. The two months notice and fees/deposit gives them a chance to fill the place so they arent financially at a loss.

When my daughters creche reopened we were given the option to not send her back at no cost however we agreed to send her back as she loves it there. However if I decided now after a few weeks to suddenly pull her out I would be expected to give notice or forfeit deposit. As they would have turned away other kids e.t.c for that space. I also didn't get refunded for those 2 weeks however was informed the staff were fully paid till end of march before they went onto the covid payment.

It sounds like you are really unhappy with the creche which must be tough however if you really don't want to keep her there for the notice period id say you will have to lose the deposit. Cant see why the creche would give it back. Unless maybe speak to mgt and express your concerns to see if they would maybe part refund?

Johnny86 · 06-08-2020 10:24pm

Frankie19 wrote: »

The changes have been implemented by the government to protect children and staff in a creche environment. This no longer suits you which is fine however they are within their right to implement the contract/joining policy you would have signed when your child started. The two months notice and fees/deposit gives them a chance to fill the place so they arent financially at a loss.

When my daughters creche reopened we were given the option to not send her back at no cost however we agreed to send her back as she loves it there. However if I decided now after a few weeks to suddenly pull her out I would be expected to give notice or forfeit deposit. As they would have turned away other kids e.t.c for that space. I also didn't get refunded for those 2 weeks however was informed the staff were fully paid till end of march before they went onto the covid payment.

It sounds like you are really unhappy with the creche which must be tough however if you really don't want to keep her there for the notice period id say you will have to lose the deposit. Cant see why the creche would give it back. Unless maybe speak to mgt and express your concerns to see if they would maybe part refund?

Thank you for the response.

Your creche seems really reasonable and it's great that it suits your daughter.

We were never given the option of not sending our daughter back, we were just allocated a return to creche date. We were given one week's notice of her return date, which was then subsequently withdrawn five days later due to the covid positive case. We then responded to state she wouldn't be returning (it wasn't that we decided a few weeks in to pull her out). We also received an invoice in early July, billing us in full for the entire month of July (at this stage we didn't even have a return date and it was later confirmed it would be the last week in July but they still wanted full payment for July). We refused to pay the invoice (as did some of the other parents that I have been in contact with). She has never returned to the creche. Yes, I am really unhappy with the creche but I do feel that they are being unreasonable.

Thanks for the suggestion, I will try to get speaking to management.

Frankie19 · 06-08-2020 10:33pm

Hope you get sorted. For what its worth I wouldnt have paid that July invoice either untill I had a confirmed return date.i then would have just paid for the last week of July.

rock22 · 07-08-2020 8:46am

i would question the value of legal advise you receive, free, from the internet!

listermint · 07-08-2020 8:51am

You are going to have an incredibly difficult time with your daughter at school age if you are setting up any handovers to new people like this. She should have been more than used to the staff after only a few weeks but you've continued on with elongated goodbyes in this manner.

More often than not this is more for the parents than the child, I'd work on getting out of this habit you need to start thinking a bit more strategically long term.

Uncle Pierre · 07-08-2020 11:55am

listermint wrote: »

You are going to have an incredibly difficult time with your daughter at school age if you are setting up any handovers to new people like this. She should have been more than used to the staff after only a few weeks but you've continued on with elongated goodbyes in this manner.

More often than not this is more for the parents than the child, I'd work on getting out of this habit you need to start thinking a bit more strategically long term.

With respect, the OP is not looking for parenting advice. He'd have posted in a different forum if he was. And the daughter is just 15 months old, so it'll probably be another four years before she starts school. She'll be a very different child then.

OP, I think you're in an unfortunate situation, but I can't see myself how you'd be entitled to a refund or to not have to pay for two months, if that was the contract you signed back at the start. Sorry.

Lenar3556 · 08-08-2020 1:30am

Johnny86 wrote: »

Thank you for the response.

Your creche seems really reasonable and it's great that it suits your daughter.

We were never given the option of not sending our daughter back, we were just allocated a return to creche date. We were given one week's notice of her return date, which was then subsequently withdrawn five days later due to the covid positive case. We then responded to state she wouldn't be returning (it wasn't that we decided a few weeks in to pull her out). We also received an invoice in early July, billing us in full for the entire month of July (at this stage we didn't even have a return date and it was later confirmed it would be the last week in July but they still wanted full payment for July). We refused to pay the invoice (as did some of the other parents that I have been in contact with). She has never returned to the creche. Yes, I am really unhappy with the creche but I do feel that they are being unreasonable.

Thanks for the suggestion, I will try to get speaking to management.

I agree with many of the other respondents, the nature of the service hasn’t changed to such an extent to allow you successfully argue frustration of contract.

If it is the case I am thinking of, my understanding is the staff member herself who did not follow procedures and as soon as the employer became aware they acted immediately and reported to HSE.

In the first couple of weeks following closure, many services continued to charge fees. The instruction not to charge came later in the context of the wage subsidy childcare scheme, where providers were contractually bound not to take payment from parents.

A meeting with the service to discuss your range of concerns might be helpful. As a matter of reputation and to avoid referrals to Tusla, childcare services are generally anxious to get things wrapped up with minimal fuss.

Bear in mind that the vast majority of childcare services are availing of the TWSS scheme currently and will have the benefit of the EWSS scheme until April ‘21 regardless of turnover. There may be scope for compromise!

padser · 08-08-2020 10:37pm

OP, basically your question boils down to whether the change in policy from the creche (although sensible and government mandated) is a substantial enough change to the service to mean you are entitled to terminate the contract without going through the notice period.

Others are more qualified than me to answer that.

However, you have omitted from your summary a relevant point. You recieved an email from the creche in or around the 17th June setting out the new policy for drop off. You didnt object to it (it looks like) for roughly a month.

I think your argument would be far stronger had you informed the creche immediately on receipt of the email that the new service didnt work for you. It would also mean you would he facing a bill of under 1 month.

Peregrinus · 10-08-2020 2:48am

padser wrote: »

OP, basically your question boils down to whether the change in policy from the creche (although sensible and government mandated) is a substantial enough change to the service to mean you are entitled to terminate the contract without going through the notice period . . .

Unless there's an unusual term in the contract itself, the likely answer is "no".

What you're talking about is frustration of contract. If circumstances change in an unforseen way so that it becomes basically impossible to perform a contract in the way the parties envisaged when they made the contract, rules about frustration kick in to determine how the losses that result from this will be allocated. But the frustration does have to be fundamental, rendering performance of the contract actually impossible or at any rate completely pointless. And it has to be something that both parties, or a hypothetical third party, would have recognised as rendering the contract pointless, if they had been asked about it at the time the contract was formed. The detail of being allowed in to settle their child may be important to a particular parent, but it's not sufficiently fundamental to a contract for creche services to provide a basis for arguing that the contract has been frustrated.

Creche change of policy - grounds for termination?

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