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Back to "Education Law Notes - Term 3 2022"


Unfair Enrolment Conditions

Much has been written in recent months about a Tribunal case in the ACT involving a school which sought to recover school fees in lieu of notice from parents who withdrew their children from the school at the end of the 2019 school year without giving a full term’s written notice. The school relied on the following provisions of its enrolment contract with the parents:

I/We have read the Fee Schedule and agree to be responsible (when more than one person is signing this Form, both jointly and severally) for the payment of all College fees and charges as set out in the Fee Schedule.

One full College term’s notice in writing to the Principal is required for the intended withdrawal of the child, otherwise a full term’s fees will be charged. The written notice must be received at the College by the first day of term. Any notice received after the first day of term will render parents/carers liable for the fees for that term and the subsequent term in lieu of notice.

Most independent schools have comparable provisions in their enrolment contracts.

The parents argued that the effect of these conditions, in the context of other provisions of the contract, was unfair because the school was able to unilaterally change essential terms such as fees without giving parents an opportunity to withdraw their child without penalty. The Tribunal agreed, noting that the College could unilaterally vary fees by publishing such variation without prior notice and without giving parents opportunity to withdraw their child from the College without penalty, and that parents who found the changes unacceptable had to pay at least one and possibly two terms’ fees following the variation, depending on when it took effect.

The Tribunal emphasised several times in the judgment that it considered the College’s ability to vary the terms of the enrolment contract, including fees, without giving the parents a right to terminate without penalty, was unfair, unreasonable and unnecessary.

The Tribunal also said:

The legitimate interest of the school in forward planning are (sic) capable of being balanced with the rights of the parents by requiring the school to notify parents in advance of changes to the terms of enrolment for the following year; and requiring parents to notify the school by a specified date in term 4 if they accept those terms and intend their children to return the following year so as to allow the school to undertake necessary planning.

The Tribunal did not specifically say that a particular period of notice ought to be given in advance of changes to the terms of enrolment for the following year. However, it could be inferred that at least one term’s notice was envisaged given that the Tribunal suggested that parents be asked to notify the school by some time in term 4 if they accepted the changes. As many of our readers will know, we recommend that at least two terms’ notice be given of changes to the enrolment conditions. We continue to feel that this is safer than giving only one term’s notice even though it seems that this would be acceptable to this Tribunal member in the ACT.

In relation to notice of fee increases, we recommend that parents be given 30 days after getting notice of a fee increase in which to notify the Principal that they wish to remove their child before the start of the next school year. Practically speaking, this means that schools will have to notify parents of fee increases by mid-November. This would give parents until mid-December to decide whether to discontinue their child’s enrolment the following year. While we cannot guarantee that this would be considered fair, it seems to us a likely conclusion given that the parents suffer no adverse financial impact from deciding to remove their child from the School because they can no longer afford the increased fees.

Of course, there are other ways of trying to ensure that the enrolment conditions in relation to fee increases are fair and reasonable. Please contact David Ford to arrange a review of your school’s enrolment contract.

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