An important lesson for every school

By Chris Morey

Most educators go into education because they want to help shape and teach the young minds of the future, not because they want to be bogged down in legal or administrative issues or in paperwork.

But, especially for private schools, the paperwork, and especially that all important initial enrolment documentation, is critical.

Most schools tend to treat enrolment documents as an opportunity to find out more about the student and family, including getting contact information correct, obtaining relevant medical information and details of previous education.

They may also treat it as an opportunity to tell the family a little about the school, including rules, expected codes of behaviour, and may even write a requirement to comply with school rules into the enrolment form.

But there are so many more things that need to be considered in an enrolment form, or should we say contract, because that is exactly what it is – a legally binding contract between the school (who commits to providing educational services to the enrolled student), and the parents (who commit to paying any fees, and may be committing to other obligations, depending on the contract).

So let’s turn to three key issues arising from the enrolment contract.

Fees

Most private schools assume that in exchange for educating their child, the parent will pay school fees. However, these are often only mentioned in passing in most enrolment contracts, and there is rarely detail about the precise obligations, including the impact of failing to pay, or the exact arrangements where sibling discounts are offered. This can lead to an awkward situation where a school continues to provide education to a student, despite not being paid fees. Even worse is where it is unclear who is liable for the fees, or the person liable has not in fact signed the contract, e.g. where parents are overseas, or are separated. Fee collection is becoming an increasing problem in our private school system, and more schools are turning to legal processes and ethical debt collection to recover fees.

Court Orders

It is vital that the school be aware at enrolment of any Family Court orders or other Court orders that may impact on the student. This may affect who should sign the enrolment form, who is entitled to receive information about the student (including reports) and who can collect the student from school. This can also be important in the context of confidentiality obligations under the Australian Privacy Principles. Even more difficult is if separation occurs after enrolment. How does the school ensure they are notified of any orders? What processes does a school have in place to deal with the situation where a domestic violence (intervention) order has been obtained by one parent against the other? To avoid liability, it is critical that schools require parents to keep them notified of any such situation.

Liability for failing to provide educational services

This arises as a direct impact of the fact that the enrolment contract forms a legally binding contract between the school and the parents. In most situations, this only impacts the other way, where it comes to pursuing parents for fees. However, with the rise (and rise) of private school fees, there has been a movement towards parents taking the (legally correct) view that this also means that the school is legally contracting to provide a certain level of educational services to the student. While this does not apply to the public school system, as there is no such contractual obligation, the impact on the private school sector is significant. As a matter of common sense, it does not mean that a school is obliged to ensure a student achieves a specific mark or level of education, especially if the student simply refuses to learn. But it does mean that if a school does not ensure that every effort is made to teach a student at the required level, then the school may be sued for breach of contract by the parents. Therefore, being clear as to what services you are providing in your enrolment contract, and limiting your liability, becomes a key matter of contractual interpretation in such cases.

If you have any questions on education law, please contact Chris Morey (Principal, Director of Business Law) or Elizabeth Shalders (Senior Associate, Head of Not-for-Profit Law) on (03) 9629 9629.