The World Starts To Slowly Open
The world is slowly starting to ‘open up again’, and educational trips are likely to start resuming both to and from the UK over the coming months. In this article our Associate Solicitor, Nick Parkinson, and Natalie Dindar discuss what that might mean for the educational sector.
The fallout of the Covid-19 pandemic has prompted many service providers to question what their obligations are to customers in terms of trips that are cancelled, curtailed or amended. The starting point is to determine whether or not you are providing a package holiday. What should be straight forward in theory inevitably never is, and education trips are no exception. In this article, we will firstly look at when providers of educational service will, or will not, be providing packages. Secondly, we look at what the impact of Covid-19 may have on the educational sector of the travel industry.
What Is a Package?
The bottom line is that a lot of educational trips can be constructed in such a way as to avoid becoming a package. However, it is important to know where the ‘lines in the sand’ are to make sure you never cross them by accident, and fall into ‘package holiday sinking sand’. Let’s start with reminding ourselves of the basics. In simple terms, a package is formed under the Package Travel Regulations 2018 when two or more travel services are sold at the same point in time, such as:
- Carriage of passengers (flights, trains etc)
- A ‘tourist service’
The ‘typical’ package that we are all familiar with would be ‘flights and accommodation’. However, things get more complicated where one travel service (e.g. accommodation) is combined with something that may or may not be a ‘tourist service’. In particular, the question for the purpose of this article is what happens when accommodation is combined with ‘educational services’, excursions, or both.
Does it Matter?
Definitely. The risks and obligations when selling packages are considerably higher because:
- You are legally obliged to hold insolvency protection
- You have much higher obligations to customers in terms of refunds etc.
- You have various information requirements you are legally obliged to provide to customers in order to make the contract legally binding
Aside from that, it is a criminal offence not to comply with some of the above requirements.
Not much to say here. If you have included carriage such as flights or train tickets, you have already provided ‘one travel service’. Provide one more, and you have supplied a package holiday. Supplying a package therefore seems inevitable if you are supplying carriage and accommodation.
Again, if you have included accommodation as part of the trip, you have most likely already ticked ‘one travel service’. Only one life left before it becomes a package!
One exception, however, is that accommodation for ‘residential purposes’, such as for long-term language courses, will NOT be considered a ‘travel service’.
Providing any guidance as to when accommodation becomes ‘long-term’ would, of course, make life far too easy. Most likely, however, accommodation over a few weeks for a ‘summer school’ is likely to be a ‘travel service’. If you are providing students with ‘longer term accommodation’ than that, and you are not sure whether it is long enough to qualify for this exemption, feel free to get in touch with us for further advice.
Are educational services, typically from a language school, likely to be considered ‘tourist services’? If the purpose is specifically and exclusively for education rather than ‘travel and leisure, the answer is ‘probably not’. A good example of that would be a language school that provides nothing more than classroom (or webinar) based languages classes.
Although contentious at the time, that conclusion is consistent with the views taken by the European Courts back in 1999, based on the old 1992 Package Travel Regulations. Not to detract from the obvious Pink Floyd references in this article, and to instead quote the Beach Boys, wouldn’t it be nice if this had therefore been put beyond doubt by providing specific guidance for the educational sector in the 2018 Regulations? Equally so, if BEIS had issued some guidance on point. Wishful thinking, but in our view there is nothing new in the 2018 Regulations to change the position.
The position seems simple enough if the educational services are exclusively educational; but what happens if the provider starts to incorporate a few ‘day trips? Naturally, it seems a tempting selling point if the students are not confined to the four walls of a classroom. What, if anything, changes if the provider were to include one or more excursions to give the students some ‘downtime’?
If the excursion is exclusively for ‘educational purposes’, it is probably not a ‘tourist service’ at all. Conversely, if it exclusively for ‘travel and leisure’, it will be a ‘tourist service’ if:
- It accounts for a significant proportion (25% or more) of the total value of the travel services, or
- It represents an essential feature of the trip, or
- It is advertised as an essential feature of the trip.
So, if you are selling an educational trip with accommodation and a language school, for say £750, probably best not to throw in a trip to watch Manchester United for an extra £250. That football ticket would probably be a ‘tourist service’ for the purpose of the Regulations and, therefore, all of a sudden you have sold a package!
As to where you stand where the excursion has a flavour of both education and travel & leisure, things get much more difficult. All in all, it’s just another ‘gap in the law’.
Therefore, if you are selling trips with one or more ‘excursions’, and you are not sure whether or not this will create a package, do not hesitate to get in touch with the team here for advice.
The Impact of Covid-19
The ongoing Covid-19 pandemic has, and continues to prompt a range of questions from providers of educational trips, in particular as to your obligations when it comes to refunds, cancellations and alterations.
Providers are concerned about the implications should there be an outbreak at their language school. What if the students contract the virus? Could we be liable for an illness/injury claim? Where do we stand with refunds? What if students have to quarantine at the accommodation for longer than expected? What if they miss their return flights home? What if I have to make changes to the itinerary? Can we switch to an online course instead? Who pays the additional costs of all of this?
The starting point, as above, is to determine if you have sold a package. The second step is to look at your T&C’s to see what, if any clauses, have been included to cater for the situation at hand. Potentially, we may have to consider whether any clauses in your T&C’s are ‘fair’ and, therefore, enforceable. There are a lot of variables to consider here, so if you do find yourself in a situation and you are not sure where you stand, please feel free to get in touch.
Are Your T&C’s Up To Date?
Hey, teachers, leave those T&C’s alone! Actually, no. You may be excused for assuming that it is ‘too late’ to change your T&C’s if you have a number of trips booked for say September, that were booked under your current, and now ‘out of date’, T&C’s. In fact, it might be possible to change those terms with your customers, providing the customers are agreeable to do so.
Either way, even if your T&C’s were only updated last year, a lot has changed over the last 6 months! With the uncertainty that surrounds the ongoing pandemic, there are good reasons to consider updating your T&C’s because:
- You may be able to enhance your contractual rights to obtain additional costs from your students/customers for certain ‘covid-19 scenarios’
- What was once ‘unforeseeable’, and may previously have fallen under a force majeure clause, is becoming increasingly foreseeable! A force majeure clause may therefore no longer offer the protection it once did. Covid-19 scenarios therefore can and should be dealt with under separate clauses.
- There are all sorts of specific Covid-19 scenarios that could arise, and it helps for both parties to have clarity on what each party’s liability and obligations are in all of those scenarios. For example, it is better that it does not ‘come as a surprise’ to a student if they are forced to quarantine and are then landed with a bill for the additional costs.
If you would like a member of our commercial team to review your existing T&Cs and provide you with a free no-obligation quote, feel free to get in touch with firstname.lastname@example.org.
Travlaw advise on regulatory work, litigation, commercial, employment law and intellectual property (to name but a few), all specifically tailored to meet the needs of the travel industry.
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This article was originally published on: 22 June 2020