It’s a small win, in the grand scheme of things. But the implications and ripples extending from this, if others follow suit and assert the laws that serve us, could be HUGE. Nurseries around the country might think twice and follow True Science* when it comes to decisions about closing their doors, sending their children home, forcing parents to take annual leave and disrupting people’s lives and incomes.
Background
Earlier this week I reported that a positive PCR test from a healthy, disease-free individual had prompted my daughter’s nursery to blindly follow the government’s GUIDANCE and close down for ten days…
I then followed up by sharing the Competitions and Markets Authority (CMA) advice to Early Years Childcare Providers (EYCP) that they shouldn’t charge parents for services they’ve suspended.
In my original post and email to the nursery, I explained the reason they cannot charge, and must refund me is that, by following GUIDANCE to close down, the closure doesn’t fall into the category of being “beyond their control”:
They, as a business, have every control over decisions they make in the light of guidance.
Guidance, by definition, is non-mandatory. This is the fundamental difference between law and guidance. We have now tested this principle and won. We didn’t even need to hire expensive lawyers or appeal to a judge. We simply applied the law, argued it logically, with references, and got the correct result. Everyone can do this!!
Outcome
So the outcome, of course, is that the nursery has agreed to refund what I have paid upfront for my daughter’s nursery fees, for the six working days of their closure. This is a number amounting to hundreds, not thousands or hundreds of thousands. So it’s a small sum, and many parents who believe in the deadly virus might be happy to forfeit this sum for the imaginary benefit that the nursery is saving lives. They might take pity on the nursery for being ‘forced’ to close and buy the line that closure is beyond their control because the government says so.
Not me.
Don’t get me wrong. I don’t lack sympathy for the business decisions that must be taken in a fake pandemic. I just think that the ONLY correct decision for a nursery, where True Science* shows there is practically zero risk of transmitting a deadly disease, is to keep the nursery open. Therefore, I cannot and will not subscribe to paying financially for the wrong decision being taken.
(I have in the past provided some references to the nursery owners about what is going on, and I have said I am always available if they wish to discuss the issues or their options).
The nursery asked me not to broadcast our agreement to the other parents, because if they refunded everybody then their business would be in jeopardy. They needn’t have worried. I imagine the other parents, who turn up every day obediently wearing their masks, would avoid conflict like the plague, and not wish to cause the nursery any inconvenience.
So, I’m not about to shout across the 3m distance and give them good news that they’ll probably ignore. But I’m broadcasting it here because, if you’re reading this, you probably agree that asymptomatic Plandemic closure is wrong, and you’d probably want to take action if you could. And I feel it is my duty to help others through this totalitarian nightmare.
Sidenote: difference between ‘advice’ and ‘guidance’
This is a subtle one. The references and links I provided in this post were framed as ‘guidance’ but in actual fact, it was more like advice – the CMA advised early years childcare providers about the law, and left it to them to make their decisions based on the law.
Now, when we use the word ‘advice’ in a legal, or other professional context, this tends to come with a heavy burden – the person giving that ‘advice’ then sets themselves up to take responsibility, if things go wrong, after a person has acted on that advice!
This is why you will often get disclaimers that “this is not legal advice” and encouraging a person to take legal advice on a matter – it protects the person who is offering their opinion, by reminding the opinion-seeker they are in control of decisions and should make up their own mind on their own evidence.
So. What I’m saying is, the ‘guidance’ provided to EYCP was more than just an opinion. It was a professional analysis of current law. It even went so far as to explain that contracts would be unlawful, if the EYCP procured from the parent a commitment to pay for services during a period of interruption. So the EMC advice, framed as guidance, should be followed by the nursery, if they want to avoid breaking the law. And they have to reimburse a parent if they request it. If they didn’t, the parent could start a small claims (legal) process and easily win, because the law is clearly on their side.
Government coronavirus guidance, on the other hand, is not based on any law. It is based only on a few people’s opinions about how deadly a particular virus is. Now, if these opinions were wrong (which they are), you have to ask yourself whether it’s correct to follow the guidance. Could it cause harm to yourself, or others, if you follow that guidance? In the nursery’s case, could it cause financial loss to your business? If so, is that financial loss worthwhile – are there positive gains that outweigh the cost to yourself and/or others?
As I said above, government guidance, by definition, does not have to be followed. It would be ridiculous for any sensible business to treat guidance as a mandate. Only a spineless person with no faith in their own wisdom and experience would follow guidance like the law. The government asserts no responsibility for a person following their guidance and coming to harm as a result. So, the nursery alone is responsible for any and all decisions which are likely to affect its business. And that’s why the government calls it “guidance”!
Unlawful contracts
Lots of things, including contracts, can continue to operate unlawfully for many years. It is only when someone steps up to challenge an unlawful situation that the thing gets ‘tested’ at law, and then we see where the chips fall. So, in this scenario, having been advised by the CMA, Early Years Childcare Providers have a choice:
a) continue to charge parents unlawfully, and just hope nobody challenges them, OR
b) reimburse parents immediately when they suspend their services.
What would you do?
What’s the worst that could happen?
Well, the worst that could happen is ALL the parents demand their money back. Then, they’d just have to refund the money that they would have given them in the first place, if they’d done it voluntarily.
Not really a tough choice then, is it? Especially if you are worried that you’ll go out of business if you keep voluntarily refunding fees every time someone tests positive. You’d probably take the gamble, keep quiet and hope for the best.
It’s not a crime to break a contract. It can happen innocently, by accident or ignorance. So contract law is reasonable and provides the defaulting party a chance to put things right.
Step up to the challenge
The best thing that could come out of this little incident is that my child’s nursery rethinks their ideas about how closely they should be following government guidance. I hope in the future, they will think twice about denying everybody a service when they receive a positive PCR report.
If you are paying fees to a nursery, or a private school, who is continuing to accept your money when they choose to suspend their services based on guidance, I hope you will take on this challenge: force them to reconsider their actions by demanding your money back. The relevant law is here. And a template to help write your polite email is here.
I hope I’ve explained things clearly enough to help others feel more empowered. If not, feel free to post comments or questions below and we’ll see if we can get to a place where everyone really understands where they stand!
Knowledge is power. Keep fighting.
* I considered adding a ‘TM’ symbol after this term, just for fun, but I thought it might look pretentious. True Science means science done by independent scientists, using the scientific method. It doesn’t include computer modelling. Independent scientists are those who have nothing to gain from promoting patentable pharmaceutical products, and nothing to lose by not doing so.
Well done Mina!
A small win, but a SIGNIFICANT precedent for nurseries and possibly many more similar situations.
Need more like you fighting for common sense and the truth!
Thank you Mina, for the clear differentiation on rules/advice and law. Too many words of trickery have been used on people to muddy the waters and mislead them. Its only when people are able to see a clear line drawn between these matters, that freedom can come. As Jesus said “You shall know the truth and the truth will set you free”. Thank you for fighting for the truth and supporting the weak and vulnerable. Please keep me informed of any further progress and let truth be shouted from the roof tops.
Let’s hope that the floodgates open on these ridiculous businesses, it’s frightening how few of them can discern the difference between law, guidance and advice. Had a long chat with a golf club steward last week, apparently it’s law that he closes down half of his toilets and urinals for social distancing, that’s some visit to a urinal if it’s taking 15 minutes? Keep up the great work.