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Total Fitness miss sold about cancellation fee


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I'm currently not sure how to proceed with this, I have sent one email and they have responded but pretty much ignored what I said. Before i purchased the membership i was told there would no cancellation fee if i had to cancel the contract due to relocation for work. I admit my mistake was that i didn't get this in writing so I'm not sure if i have a leg to stand on when it's their word against mine.

 

Here's the email i sent on 28/02/14:

 

"Dear Sir or Madam

 

Cancellation of gym membership. Member ID: xxxxxxxx

 

I wish to cancel my gym membership with Total Fitness due to having to relocate because my employer has changed my location of employment (active from 31/03/14). My new employment location (Slough) does not have a Total Fitness gym nearby, therefore I will not be able to continue to use your facilities anymore.

 

Before I signed up to the gym (in November 2013) I asked the sales person (Name of sales person) if there was a cancellation fee should I have to cancel due to relocation because of work and he informed that there would be no fee required should I have to cancel for the reason stated above as long as I can provide proof. I recently tried to cancel my membership at both the local gym (in Lincoln) and at head office but was told I would have to pay a £100 admin fee even though I provided them with the appropriate documentation from my employer as verification.

 

It must be noted that I wouldn’t have signed up to the gym if I had been told about this fee (and I asked specifically about it), I feel I have been miss sold the membership and therefore believe that I should not be required to pay this fee.

 

In addition to this here is an excerpt from the OFT Guidance on unfair terms in health and fitness club agreements which is relevant to my circumstance (with sections in bold being particularly relevant).

 

‘5 Financial penalties on members

Paragraph 1 of Schedule 2 states that terms may be unfair if they have the object

or effect of:

(e): requiring any consumer who fails to fulfil his obligation to pay a

disproportionately high sum in compensation.

 

Other factors affecting unfairness

5.4

Many factors influence the fairness of terms that require full payment of the

subscription from the member who cancels early. For example, does it reflect the

supplier’s reasonable losses in such circumstances, were other membership options

available to members, was the term clear and prominent, was the member misled,

and what is the effect of other terms in the contract? Some of these factors may be

relevant only to individual disputes, in cases where a term that is generally fair may

nevertheless be unfair in a particular case in light of the actual circumstances.

 

Sections 2, 4, and 18 of this guidance are also relevant, together with the discussion

of Minimum Membership Periods in Part III.

 

Circumstances beyond a member’s control

5.5

The fairest terms allow members to transfer their membership or to cancel the

contract without penalty if the member, for example, has to relocate, or has suffered

redundancy, or has a medical condition that prevents his use of the gym. Such

terms take positive account of the interests of the member.’

 

I hope that we can come to a fair solution to this matter as I feel I should not have to pay this admin fee for cancellation however I am willing to compromise if the offer is reasonable.

 

I would also like to add that my experience using the gym has been very positive and I hope my final opinion of the gym will continue to be a positive one.

 

I look forward to hearing from you and appreciate your help with this matter.

 

Yours faithfully"

 

 

 

And here is their response on 5/03/14:

 

"Re: Total fitness membership number: xxxxxxxx

 

Thank you for providing documentation confirming your relocation to an area where there is no Total fitness centres.

 

Unfortunately total fitness cannot be held responsible for a change in member’s circumstances and memberships cannot be cancelled in the first year as per the terms and conditions of the signed twelve-month membership agreement.

 

Relocation is not an unusual circumstance and is therefore not a valid reason to cancel your membership.

 

However as a compromise we are willing to allow you to terminate your contract with us, waiving the remaining balance of £280.00 upon receipt a £100.00 cancellation fee.

 

Therefore, please forward a cheque for £100.00 payable to Total fitness 2010 LTD to the address below. Alternatively you may contact us on 01614402680 to make the above payment using your credit/debit card.

 

Thank you for your co-operation in this matter.

 

Yours sincerely"

 

Any help on what I should (and can) do next would be much appreciated

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Hi and welcome to CAG

 

There is a letter sent to all companies by the OFT spelling out what they expect of gym management.

 

http://www.oft.gov.uk/shared_oft/consumer-enforcement/gyms-letter.pdf

 

Relocation is a reason to cancel

 

As for the cancellation fee. If they want to push it, ask for a full breakdown of how the fee is calculated. I feel this will fall under the UTCCRs.

If you are asked to deal with any matter via private message, PLEASE report it.

Everything I say is opinion only. If you are unsure on any comment made, you should see a qualified solicitor

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Hi Dan,

 

If their gym agreements did not include early cancellation due to work-related relocation, the agreement would be considered both unfair and unenforceable.

 

It does not matter if you were aware of their policy and whether it allowed for work-related relocation. They must allow cancellation in these circumstances or they are treating you unfairly.

 

If you don't have a copy of their T&C's, write to the gym asking for a copy of your signed agreement so you can check their T&C's for yourself. Tell them the matter is disputed and they must stop making any demands in the meantime.

 

No need to argue the toss at all at this stage about their views and whether you owe any more. You don't, but you don't need to argue this at the mo.

 

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Thanks for your help guys, I'll write to them asking for a breakdown of the cancellation fee and my signed T&Cs as i do not have a copy of this.

 

The current T&C on their website states this:

 

"In unusual circumstances and at the Company’s discretion, the Membership can be cancelled by paying the current membership cancellation / administration fee. "

 

This seems rather ambiguous to me as they get to decide what counts as an 'unusual circumstance' but ill get a copy of the one i signed as it might differ to this.

 

I'll post their response here when i receive it along with my letter to them.

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No ! You don't need a breakdown of the £100 Cancellation Fee - it is just a "Goodwill Gesture" or compromise on their part. It should be ignored completely for now.

 

Write to them saying :-

 

Dear sir or madam,

 

I refer to your email reply of 5th March.

 

Perhaps you are unaware of The High Court case of The OFT v Ashbourne Mgt Services Ltd in 2011; or of the agreements reached in 2013 between The OFT and major gym services providers (LA Fitness, Harlands, DW Sports, Bannatynes, David Lloyd Leisure and Fitness First).

 

As your gym agreement T&C's failed to allow for early cancellation in the event of work-related relocation, it is unfair to me as a consumer. Accordingly, the agreement is unenforceable.

 

I am willing to pay for use of the gym up to when I move in March 2014. If you accept my offer, I will pay by debit card at the gym.

 

If you insist I pay any cancellation fee or any amount beyond the membership fee for March, I will pay you nothing more.

 

I must also point out that any admin fee or cancellation fee you try to charge is a penalty and not lawful.

 

Yours faithfully,

 

This is what I suggest you say and let us know how they reply.

 

:-)

Edited by slick132

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Thanks for your response slick132, i have sent them a very similar email to the one you just composed. Thank you for that. Ill post total fitness' response here when i get it

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  • 3 weeks later...

Its taken them a while to respond, but here is their reply:

 

"21 March 2014

 

Dear XXXXX

 

Re: Total Fitness Membership Number: xxxxx

 

Further to your email dated 10th march 2014 regarding the cancellation of your total fitness membership.

 

We confirm as per our previous correspondence membership is a commitment for a minimum period of twelve months regardless in changes in personal circumstances and cannot be cancelled within the first year.

 

However we have agreed as a gesture of goodwill to allow you to terminate your agreement waiving the remaining balance upon payment of £100.00 cancellation and documentation confirming your relocation.

 

We also note from your documentation you are relocating for six months, as you may be aware members may apply for their membership to be frozen for a period up to six months at a cost of £5 per month. This will be collected via direct debit from your nominated bank account on or immediately after the 1st of the month. Please note that the remainder of the twelve month membership agreement must still be honoured once the freeze period is over.

 

Should you wish to freeze your membership, please confirm this in writing to the address below.

 

However, should you still wish to cancel your membership we will agree as a further gesture of goodwill to cancel your membership with one calendar month’s notice. As we first received your notice to cancel on 28th February 2014, your membership will be cancelled as requested from 31st March 2014.

 

We thank you for your co-operation in this matter.

 

Yours sincerely"

 

They're still maintaining their position, what should be my next action?

 

Also on a side note, they called me on the 12th March to ask about the duration of my relocation (which was stated to be 6 months in the letter i sent them from my employer - its a work placement) asking whether i would be returning to Lincoln after that time period, i told that i would be based in Keighley after that so freezing my account would be pointless (they suggested this over the phone). I have since sent them written proof of this from my employer and received a confirmation receipt on the 17th March.

 

Any help would be much appreciated.

Edited by Dan1607
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Hi

While you don't want to get into prolonged letter tennis with them, I would suggest they they issue a deadlock letter as they are being fairly intransigent with this. I am not sure if they have the right to be marking your credit file but it is worth checking.

 

I would be saying that if they think they are in the right, let a court decide.

 

As you say, a 6 month freeze is inappropriate in this case as you will not be moving back to Lincoln.

 

I would be escalating this to the Financial Ombudsman.

If you are asked to deal with any matter via private message, PLEASE report it.

Everything I say is opinion only. If you are unsure on any comment made, you should see a qualified solicitor

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Hi Dan,

 

This is not likely to appear on your CRA files as gyms don't do this these days. Also, the FOS is not involved in gym m/ship cases so that's not an option.

 

However, contrary to what you say, they are NOT maintaining their position if my reading of their letter is right. They say :-

 

However, should you still wish to cancel your membership we will agree as a further gesture of goodwill to cancel your membership with one calendar month’s notice. As we first received your notice to cancel on 28th February 2014, your membership will be cancelled as requested from 31st March 2014.

 

Despite what they say earlier in their letter, they say you CAN cancel m/ship from 31st March.

 

If you have paid for March, then you have nothing more to pay. If you haven't paid for March, pay it now to end the matter.

 

You should write to them confirming your wish to cancel as per para 6 of their letter, and not freeze the m/ship.

 

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