Childcare Counsel - lockdown legal obligations

While Covid-19 remains with us, there is unfortunately always the possibility of another lockdown. It is worthwhile to remind ourselves of the duties and obligations of nurseries, from a consumer rights perspective.

Law

Where Covid-19 laws prevent a nursery from delivering a service, or prevent a consumer from using the service, then payments must be returned to the customer. Payments already made for a service (which now cannot go ahead) must be returned to the customer, and no payments can be collected for services that cannot be performed.

Personal decisions

In cases where the customer makes their own decision not to use the services, independently of any laws or guidance, then a business has a strong argument that the customer is not entitled to a refund, and ongoing payments remain due.

Guidance

In cases where the business or individual is following Government guidance as opposed to law, the legal position in respect of contracts is more complicated. For example, if a parent has been advised that they are at serious risk of harm if they were to contract Covid-19 and isolation is recommended (but not mandated), the customer may still be considered to be entitled to a refund, because their circumstances prevent them from using the services. Situations like these must be considered on a case-by-case basis.

Rights to refunds

When providing refunds, a business is entitled to offer credits as an option, but it is not permitted to do anything that would imply that a cash refund is not available. Many independent businesses have asked regular customers to make voluntary donations while the business is closed. This is permitted, provided that the customer understands that donations are made entirely at their discretion.