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Have you headed back to the gym during COVID times? We made the decision not to go back to our local David Lloyd club when they reopened in July. They have allowed us to freeze our membership, until now that is.

From 1st October, the options are to either pay full fees for adults and come back (kids are free to the end of the year to incentivise people back) or pay 25% to continue to freeze our membership (but we’d have no access to the club). 

What is on offer is very different to pre-COVID times for obvious reasons. 

• There is no access in the spa to the sauna or steam room (probably my favourite part of my visit!).
• Every second cardio machine is out of action to allow for social distancing and there are restrictions on capacity in the building as a whole. 
• Class sizes across the board have been reduced in line with the 1 metre rule.
• The signature Blaze classes (which we pay premium membership fees to attend) are now capped at 8 people, rather than 24.

We joined as a family. To attend our own classes, we need to get the girls booked into their kids club classes at the same time as our own. No mean feat in normal times as the popular weekend and evening times go fast, but it seems this is going to be nigh on impossible with only 8 slots per class now. Indeed, in speaking to those who have already returned, they have said Blaze classes have been really difficult to book as they fill immediately on release. 

So what are my consumer rights in this instance?

Do I have to pay full fees for a gym which isn’t the same, and some would argue is materially different, to the one I signed up for now the COVID restrictions are in place?

Our David Lloyd have stated that they have put on more classes to compensate for the smaller class sizes, but if I can’t get booked into a class and get my kids in a class at the same time, I am not going to end up going, so what is the point of continuing to be a member? If you want to cancel, do standard cancellation terms apply when there is a change to the provision of services?

I asked Helen Dewdney, The Complaining Cow – who is a consumer champion author of How to Complain: The Essential Consumer Guide to Getting Refunds, Redress and Results! and 101 Habits of an Effective Complainer – to look at this case and she offered the following:

Normally if a service you have paid for isn’t delivered, you would be entitled to a full refund under the Consumer Rights Act 2015. We keep hearing that these are unprecedented times which of course they are. In a legal context it means that cases like this have not been tested in court because they simply have not arisen before. The provider of the service had no choice but to make the changes for reasons of public health and safety.

A frustrated contract?

If the contract has been “frustrated”, meaning that through no fault of either party the contract cannot be performed or would have to be performed in a radically different way, then a refund would usually be due. The Competition and Markets Authority has made clear in its Statement on coronavirus (Covid-19), consumer contracts, cancellation and refunds that a refund is due where a service is “… radically different to what was agreed”.

So, ultimately, a court would have to decide whether the service being offered was radically different or not.

Who defines radically different?

Is it radically different? Certainly, not having access to some facilities would be considered quite different, I would think. When it comes to classes this is more difficult. A court may consider how many people could have attended a class in a given week on the old timetable compared with how many could attend a class on a new timetable, so access is in theory the same if similar numbers are possible. (Whether you can attend those days or whether childcare makes it difficult would be unlikely to be considered, as the offering is still similar.) However if the offer is considerably less this could be interpreted as a radical difference.

T&Cs and your Rights

Then we come to terms and conditions. The gym’s terms and conditions may state that they can change class timetable as necessary. However, if the classes are radically different to how they were was sold, then that could be considered an unfair contract term under the Consumer Rights Act 2015. In addition, if a contract is weighted in favour of a trader then this would be a breach of the Consumer Protection from Unfair Trading Regulation 2008. (CPUTRs).

Another common fob off we see is that a Government Act means they can do as they like, or similar! This is not true. The Coronavirus Act, that came into force to ensure that Government could make certain quick decisions to deal with the crisis, made no changes whatsoever to any consumer rights.

So where do you stand?

• If the contract has been radically changed then you can get out of the contract with no penalty.
• If the service can be provided with only minor changes then you would be entitled to a reduction in price.

Without knowing the differences in the classes on offer, compared with what was previously on offer, it is difficult to say. However, given the lack of access to the steam and sauna rooms and apparent lack of availability to classes, it would appear that the difference is substantial. I advise writing to the manager of the Gym and pointing out your rights under the Consumer Rights Act 2015, the breaches of the CPUTRs if they quote a term and condition that is weighted in their favour, and that you wish to terminate the contract. Say that should you not be fully satisfied with their response you will not hesitate in taking the matter further which may include taking them to the Small Claims Court for the return of any charge. They may offer a reduced rate, which would, of course, be your decision whether to take or not. 

Time to escalate?

However, if you are not satisfied with the response, escalate the issue by writing to the CEO using ceoemail.com saying the same. But this time go to Money claim online fill out all the details right up to the submit button. Take a screen shot and attach it to the email. This is the Small Claims Court where you apply online. Say to the CEO you will be taking the matter to court and add the amount of court costs and any out of pocket costs you may incur, such as parking. It shows that your threat was not an empty one and you are fully prepared to do it.

That should do the trick!

Further advice from The Complaining Cow: For more advice on COVID-related refunds see Getting help for Coronavirus cancellation claims and shopping

I should say that I’m writing this post as I think there will be lots of people across the country wondering if they should cancel services which they aren’t able to use in the same way as pre-COVID, so it’s a timely post. I want to highlight your consumer rights. However, I think it’s important that we think about the wider context here too. Before COVID, we really loved our visits to David Lloyd and it played a big role in our family weekends. I don’t want to see it go under and like any of our favourite services, we need to support them if we want them to be around in the post-COVID world. So paying to support even though we may not attend might be the right thing to do in the long run….