Concerns have been raised with the NASUWT that schools that had educational visits scheduled to take place after the partial closure of schools have been experiencing difficulty with providers of the visit facilities and insurance companies in receiving refunds of money that has been paid for the visits.
NASUWT advice on visits that had been booked and scheduled for this term
It is quite clear that even if the current lockdown arrangements are changed in the near future there will still be restrictions with regard to social distancing, travel and transport arrangements which would make it not only impracticable but also impossible for schools to be able to conduct the trip safely protecting the health and welfare of staff and pupils. Safeguarding and health and safety in the context of a global pandemic takes priority over all other considerations.
In this situation, schools have no option but to cancel the visits and to seek a refund of money paid to both the providers of the accommodation, activities and transport and to check the policy with the insurance company. In considering the rights to refunds in this situation, two key factors must be borne in mind:
- the school’s rights, as a consumer, to cancel and request refunds from the providers of accommodation, activities, transport, etc;
- any rights under the policy of insurance for the insurance company to pay out following cancellation by the school.
In either of the two scenarios, the starting point for claiming refunds will be the agreement between the providers of the accommodation, activities and transport and the insurance company, as the contractual terms will be determinative of the outcome of the dispute.
In relation to point 1 above, schools should first check whether there is a cancellation clause within their agreement and exercise their contractual right to cancel.
Additionally, the school, as a consumer, has statutory and common law rights in respect of their purchases of goods and services.
More importantly, a consumer contract may be frustrated, resulting in the application of the law relating to frustration of contract.
Therefore, whether or not the agreement has a cancellation clause, the national restrictions in response to COVID-19 have made it impossible for the school to have continued with the visit, whether they wanted to or not, since to comply with the national restrictions, the providers of the venue, accommodation, transport, etc would not have been in a position to fulfil the terms on which the visit was booked.
Where the provider is refusing to refund the money paid, in addition to seeking legal advice to enforce their legal rights, schools may also consider lodging a complaint with the Competition and Markets Authority (CMA).
On 30th April 2020, the CMA announced that it is investigating complaints about cancellations and refunds in scenarios such as holiday accommodation and nurseries and childcare provision. In addition, the CMA has published a document setting out its views on consumers’ rights in relation to cancellations and refunds for goods and services. This is accessible on the Government web page The Coronavirus (COVID-19) pandemic, consumer contracts, cancellation and refunds.
It is worth noting that the CMA can prosecute traders for breaches of consumer protection law, insofar as these are offences.
As to point 2 above relating to insurance, regrettably, there has been no move from the UK Government compelling insurers to indemnify businesses for revenue losses irrespective of the terms of their policy. However, the Financial Conduct Authority (FCA) expects insurers to show fairness and flexibility in the treatment of their customers during the pandemic.
In addition, in a ‘Dear CEO’ letter, the FCA reminded insurers and brokers that it expects them to provide clear, accurate and timely communication to customers who are unsure. The FCA has also stressed that, where it is clear that an insurer has obligation to pay out on a policy, it is important that the claims are assessed and settled quickly.
As expressed above, the starting point will be the policy of insurance. However, whether losses resulting from COVID-19 are covered will depend on the specific wording of the policy and the factual circumstances surrounding the school’s losses. Therefore, if the policy covers, for example, expenditure on the visit as well as coverage for accidents and injury and loss of property etc., then you may be entitled to the refund.
In addition, the policy may list notifiable diseases that are covered. Unfortunately, COVID-19 was only declared a ‘notifiable disease’ in the UK on 5th March 2020 and a school’s insurance policy would probably have been taken out before this date. However, if the policy lists SARS, for example, as one of the notifiable diseases, it might be possible to argue that it should also cover COVID-19, but such an argument would require a significant amount of scientific evidence.
On 1st May 2020, the FCA announced that it intends to obtain a court declaration to resolve contractual uncertainty. The idea is to take relevant cases to court and seek an authoritative declaratory judgement about the meaning and effect of some insurance policy wordings where there remains unresolved uncertainty. In future, this may assist schools in putting their argument to the insurers.
Meanwhile, schools may wish to visit the Financial Ombudsman Service for information on how to lodge a complaint and the time limit for any such complaint.
In any event, if the insurance company refuses to do this, the NASUWT advises that the headteacher/principal writes to the government raising this issue and copy in the NASUWT so that we can also raise concerns. In Scotland, the NASUWT advises that the headteacher writes to the local authority.
NASUWT advice on cancellation for education visits planned for the Autumn Term 2020
Many schools will have educational visits planned for the autumn term and will be reviewing the situation about whether or not to cancel those visits.
The NASUWT advises that the contracts and insurances policies relating to those visits are reviewed now and decisions made in the light of this on whether to cancel the visit at this stage.
In many contracts there will be clauses about dates for cancellation without costs being incurred.