Beyond the small print

  • 12th October 2023

James Garside reviews the parent contract to show how it should be working for your school

Banish from your minds the phrase ‘terms and conditions’, which may evoke the impenetrable language of the ‘small print’, which is meant to be seen but not read. Consider instead that your parent contract is your script, your guide, your toolkit for shaping your business and the relationships on which it is built and on which it relies. It should say what you do and by doing what it says you should be best placed for success. From a tick box on a to-do list, elevate the parent contract to its rightful place as a priority, and a worthy investment of your time. Read on to remind yourself what the parent contract is and what it can do for your school.

A school’s existence is a matter of registration and regulation, but educational services are provided by independent schools through a private legally enforceable relationship with parents of pupils – this is the ‘parent contract’. It is no exaggeration to say that it is this legal relationship which is the foundation of your business. It bears weight in securing the health and future of your business and optimal outcomes for your beneficiaries, regardless of corporate/organisational structure.

It’s a contract with individuals, not with businesses – a ‘consumer contract’, and as such it must also deliver a fair deal for the parent and be drafted in plain and accessible language. Statutory protections for consumers must be accounted for and often cannot be compromised.

It’s also, at its core, an agreement between a school and parents, where schools promise to provide services to parents and their child, and the parents agree to pay for them. Beyond that, there’s so much complexity the parent contract must navigate in the pupil and parent relationship dynamics, the regulatory and legal framework which governs education, and the broad and variable nature of services provided by schools. The circumstances of the pandemic illustrated well that the utility of what schools do is in deliverable benefit rather than a list of facilities and services which can be separated and individually quantified. All this means that what you do defies simple definition, and the contract should be carefully written to reflect this to best effect.

It’s a contract and so must create a legally binding commitment between parties based on a mutual understanding of expectations, rights and obligations. It’s not just a set of terms and conditions. Your onboarding process and paperwork, and your marketing materials are all part of forming that binding commitment and determining the precise nature of it.

Broadly speaking, the terms of this relationship should address and support the fulfilment of the aims and expectations of the parties. For example, parents generally want high-quality education which they consider is suited to them and their child. Schools will each have their aims but will include delivering high-quality services through a sustainable business model. For parents, this is a question of finding the right school, fulfilling their financial and other commitments to the school, and holding it to account where applicable. For schools this will involve far more, including:

• Creating the space, tools and foundations to deliver a high-quality pupil-centred experience

• Establishing the basis for healthy and productive relationships with parents

• Delivering a fiscally healthy business and protecting the interests of stakeholders and beneficiaries

• Legal compliance and

• Risk management.

Your contract should provide what you need to meet the legitimate expectations of your market, to be competitive, and to deliver the school’s aims.

Your business is education and pupils are at the centre of what you do. The contract can create the footing for a pupil-focused service and space by providing a legally binding foundation for the school’s offer, professional judgement and authority. It can articulate and so embody and enable the school’s personality and mission and help shape the day-to-day experience of pupils and staff.

To succeed, the contract must be compatible with policy. It should also be clear and practical so that it can be understood by all concerned and implemented effectively. It is good practice both to maintain your contractual paperwork but also to train staff to use it. A good parent contract will give teeth to policy aimed at securing a safe and suitable environment for pupils and securing their welfare, including by providing the footing for robust pupil welfare risk management and discipline.

As the basis for your relationship, the contract has an important role to play in setting the expectations and boundaries needed for a healthy working relationship. It can achieve this by giving clear direction on what parents can expect, including reporting and information sharing, where there are conflicting rights and which will prevail, and providing you with the tools to secure parental cooperation and deal with unreasonable conduct.

While the aim is to establish and maintain good relationships, it can cause considerable disruption where a relationship is breaking down. Your contract should support you to deal with issues effectively, minimise disruption, and to end a failed relationship.

Fee income is the primary source of income for most independent schools and in many cases also funds bursaries and scholarships. Strong cash flow is important and effective credit control relies on a clear and enforceable contract with fee payers. The contact should set clear terms for the payment of all fees and extras and provide suitable means of redress for late payment to support effective credit control (typically this will be fee-related exclusion, late payment interest and recovery cost indemnity).

The ability to plan effectively is key. The contract should provide clarity over notice obligations, so that you can accurately predict pupil numbers and plan accordingly. Equally important is the duration of the contract and you should consider carefully how you address this. Certainty has its benefits, but fixing the contractual term can create unintended risk, such as where a school has to close. Where the parent contract has a fixed term, which would typically be until the end of the school’s provision, the closure of the school would likely place the school in breach of contract and expose it to the risk of claims. Such a term could also possibly bolster a parent’s claim for damages if the contract was brought to an end by the school early following exclusion/required removal, as they may rely on the fixed term in order to quantify their loss.

The contract itself must be legally compliant. Consumer rights legislation is key, as it will place specific obligations on the school and limit those you can lawfully impose upon parents. The contract must at least be compatible with the school’s wider legal obligations including with family, equality and information law, but it can also facilitate compliance, for example, by imposing obligations upon parents to disclose material information.

A contract which is up to date with the law and supports wider compliance, will help to manage the risks of legal non-compliance which can give rise to complaints, claims, regulatory action, and sometimes even criminal sanctions.

The contract can also help to manage risk by:

• Facilitating effective ‘know your customer’ practices

• Avoiding disputes through effective relationship management

• Setting parameters of the school’s duty and liabilities

• Imposing obligations of disclosure of material information (for example, family court orders, sources of income and wealth and immigration status)

• Providing a means of ending broken, damaging or disruptive relationships, and

• Providing contractual support to manage pupil welfare risks.

The parent contract is a vital tool of your business and worth your time. In these times of technological, social and political change, and a cost of living crisis, it’s crucial that it is working as hard as it can for you to secure your business now and long into the future. Is yours?

James Garside is a partner at law firm VWV.

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