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Are au pairs allowed to claim job-seekers allowance whilst with host family?

(73 Posts)
Mummy1106 Sun 09-Dec-12 15:28:10

Our au pair droped a bombshell on us when she informed us that she is going to claim job-seekers allowance.

Our ap has a lot of spare time and she decided to look for a little part time work.

AP went to the jobcentre, explained that she wants to work part time and they told her that she is eligible for Job-seekers allowance.

Ap came back and told me about her 'great' news, she is very exited and I am very worried as we have never had anyone claiming any benefits from this address.
I explained that people at the jobcentre made a mistake and she got very defensive.
I've been trying to read about this but cant find any information.
She has a very good job with us, she works between 17-20 hr a week and gets £75, she gets her room with tv and wireless + all food. She doesnt have to do cleaning as we have a cleaner.
Is she taking the p...

The whole situation is making me very nervous as I don't want to loose her however I don't want anything illegal attacehd to our address.

I feel that she should not claim job-seekers allowance as she already has a job with us.

Has anyone else had this problem? Please help

Lougle Sun 09-Dec-12 20:15:51

This is all wrong.

Firstly, she can't claim JSA to get 'a little part-time work'. To satisfy the conditions for JSA she has to be available for 40 hours per week.

LadyHarrietdeSpook Sun 09-Dec-12 21:53:56

Yes put £xyz p/ w GROSS in the contract you write for her.

Lots of people don't think of au pairs as employees and will argue this point til the cows come home. She probably said she was getting some 'pocket money' and living as part of the family, yada. So that may be why she was given this advice.

It doesn't help that on government websites the guidance isn't clear on au pairs either. If the person checked on the directgov website she may have well innocently reached this conclusion.

expatinscotland Sun 09-Dec-12 22:13:05

I'm wondering a) how she has so much spare time, I thought they were supposed to be taking classes b) what kind of person thinks the first port of call in looking for 'a little part-time work', when she's single (not living in a domestic partnership) with no kids, is the dole when she has a place to live and an allowance. What a pisstaker and I'd be seriously concerned about having my address attached to such a claim. It's because of pisstakers like this that JSA claimants with no such part-time job already and a place to live and allowance have become the scourge of this government angry.

expatinscotland Sun 09-Dec-12 22:14:32

And if she balks at the contract, I'd kick her out of my house to go and claim JSA and see how 'excited' she is about finding a room share when she's on LHA and having to actually live on that £55-£70/week. angry

SamSmalaidh Sun 09-Dec-12 22:31:13

If she's not from the UK, then she probably just assumed the Job Centre is where you go to find a job - I doubt she went there looking for benefits.

Mummy1106 Mon 10-Dec-12 07:14:11

Thank you for all the answers. It is reassuring.
She's been in this country for over a year and only started with us 2 months ago. She already has a bank account and national insurance number. That did struck me as a bit strange (ni number).
I written her a letter stating the hours + pay.
I have nothing against benefits, but i do have an issue with illegality and fraud. she came here to work as an au pair not to milk the system.
My husband was speechless when I told him, he is out of the country until Thursday, so I'll have to deal with it before she applies on Tuesday.

I will have to have a chat with her and explain my position and worries to her. Not sure how to handle it once she gets all defensive and starts explaining that she can because she's been told so. Not looking forward to this...

Lougle Mon 10-Dec-12 07:27:12

This isn't a moral issue, though. If she is of a nationality which confers rights to benefits, she is entitled to claim them, legally and morally, if she meets the criteria. Not a problem. The problem comes if she doesn't meet the criteria, which she doesn't if she is working as an aupair.

Goldmandra Mon 10-Dec-12 08:48:55

Could you offer to go with her to the Job Centre on Tuesday and help her explain her situation? Then you are not the ones telling her she can't claim. You are simply helping her to complete the forms with the correct information.

SamSmalaidh Mon 10-Dec-12 12:58:55

You need to put some bits about her notice period, holiday (5.6 weeks, can include bank holidays) and sick pay (just SSP is fine) in the contract too - if you want to ensure she isn't eligible for benefits then you need to be properly employing her.

I really wouldn't worry too much about her applying for JSA - she's been given poor advice by the Job Centre, but so long as she is honest on the form about her hours and pay from you then she won't qualify for anything.

MGMidget Mon 10-Dec-12 13:12:55

She has declared her intention to look for another job. So JSA aside, if she gets another job in her spare time you will have to register as an employer and deduct tax and NI as her earnings will exceed the threshold. Definitely a good reason for stating her pay as gross in the contract as suggested (maybe also stating that you are entitled to make any deductions from her pay that are legally required?). Is it going to be a pain for you if she has a second job, I.e. do you need her to do extra hours sometimes such as in school holidays? Her plan to look for a second job would ring alarm bells with me as I would see extra hassle with payroll administration and loss of flexibility in her hours.

Regarding the benefits claim, I too would be worried about someone using my address to claim benefits they weren't entitled to. I would definitely discuss further with her, try and find out what she told them and get the contract in place quickly. Also discuss with her how having a second job is going to fit with her current au pair job.

SamSmalaidh Mon 10-Dec-12 13:14:21

I don't think the OP needs to register as an employer - it will be the second job that deducts tax and NI won't it?

fraktion Mon 10-Dec-12 13:51:44

Yes as long as OP makes it clear they're the primary job. It doesn't hurt to do the paperwork and make it clear. You should be noting the pay anyway just to prove that you've been under the thresholds.

LadyHarrietdeSpook Mon 10-Dec-12 14:52:08

If the AP gets another job technically the OP will have to register as an employer, that is true, as her weekly earnings will be over the limit. She won't have to pay tax etc but that is a different matter. It is still vital a gross salary is quoted in the contract.

The way this girl is accessing 'the system' in the UK I would be covering my bases and doing everything by the book.

OP - I don't see why the conversation is so difficult to have, explaining that she is over the earnings threshold in her role with you and she won't be eligibe for benefits. Is it that you're really exposed with childcare issues if she goes?

Don't go to any meetings at the job centre with her, just do your own paperwork and leave it at that. I;m guessing if you're this worried about childcare coverage you're at work anyway and wouldn't take time for for this nonsense.

I think the issue is not that she can get JSA or not - it's whether the AP is likely to tell the truth/describe her role in such a way that it is clear she is earning money with the OP's family.

Principality Tue 11-Dec-12 00:12:22

When I was looking for an ap in the summer my first choice said she would be applying for jsa... That several of her friends who were aps did the same etc.. I did not employ her.

It may sound harsh but I really didn't like the idea that she was setting herself up to come here and claim money off a different government- one where she had never put in to the pot, as it were. I now understand that she may have been refused but it really put me off her.

MGMidget Tue 11-Dec-12 13:34:03

If the AP doesn't tell the second employer she already has a job (eg if she doesn't regard being an AP as a job when she completes forms) is there a risk that the second employer gets registered as the first employer? OP then registers as employer and finds they are regarded as the second employer and has all the payroll administration and tax deduction duties? I have heard of this happening but don't know the circumstances behind this. If it was me I would want to make sure I was regarded as the first employer to avoid this burden but don't know what are the best steps to safeguard yourself. Is the contract and record of payments enough or does OP need to beat the second employer to register with HMRC? Obviously OP can make the situation clear to the AP but won't know what the AP is stating on official forms.

And, Principality, I would feel the same as you about an AP who wanted the milk the benefits system having not contributed anything. Not really a good role model for DC!

OP's au pair may not have been so calculated though, it could be an innocent mistake if the job centre told her she was entitled to JSA and she told them the truth. If she persists with the claim and gets awarded benefits though after OP has made her employment or worker status clear to her then she is not looking so innocent.

SamSmalaidh Tue 11-Dec-12 13:54:58

The OP doesn't have to register with HMRC though I don't think, as she is paying under the tax limit. It is then the responsibility of the au pair to correctly fill in her P46.

BAPAA Tue 11-Dec-12 14:24:18

BAPAA have recently been liaising with the government since the replacement of the directgov website to the new .gov website.
We do have a definition of what an Au Pair is on this site. Please do feel free to read this at: gov.uk

BAPAA Tue 11-Dec-12 14:26:14

Dear all,

the actual link for the new Au Pair definition is:

https://www.gov.uk/au-pairs-employment-law

LadyHarrietdeSpook Tue 11-Dec-12 14:30:21

Sam, the OP doesn't HAVE to register although she can, there is nothing to stop her doing this. As Midget says I don't know what would happen if the AP didn't declare that she had another job, the other employer would 'get in there first' true. If she puts the pay in gross in the contract that would protect her cost wise.

I would be giving the contract and stating that if she pursued benefits despite her earnings with us it's immediately out. Simples, seriously.

fraktion Tue 11-Dec-12 17:04:25

The Government are ignoring a binding judgement against them issued by the ECJ. Oh dear.

MGMidget Tue 11-Dec-12 22:08:21

Ok so AP is not an 'employee' or 'worker' according to this latest government definition. However the guidance says they may have to pay tax and NI if pocket money high enough. Also JSA guidance says they are only eligible if not 'working' more than 16 hours a week. Therefore, I suppose it depends whether what an au pair does is regarded as 'working' when they are not regarded as a 'worker'. Morally it wouldn't feel right to me if they were claiming the benefit when doing more than 16 hours a week of au pair duties.

MrAnchovy Wed 12-Dec-12 01:57:28

We do have a definition of what an Au Pair is on this site. Please do feel free to read this at: gov.uk

Yes but unfortunately both the English and European courts have a totally different definition which means that anyone who works for someone for reward for more than a few hours each week has the same rights as any other worker.

And even by the definition linked to the majority of au pairs in the UK would not fit - "they sometimes go on holiday with the host family"?

MGMidget Wed 12-Dec-12 13:25:54

It looks like the safest, most straightforward approach would be to do as LadyHarrietdeSpook suggests then as long as she hasn't been with you for over a year (in which case employment rights might apply as Mr Anchovy mentions). However, Mummy1106, I appreciate that you don't want to lose the AP so it will be risky to take that stance. Would you still want her though if she goes ahead with the benefit claim despite your reservations and the discussions you have had/will have? Is she really good? I know it can be really disruptive to have to let an au pair go so your situation and potential back-up options may determine how tough you can be on this. Otherwise you would need to protect yourself with steps already suggested and keep an eye on the situation to see if her application gets rejected (hopefully it will). Its awful to think there may be au pairs out there telling one another to claim JSA as Principality experienced!

MrAnchovy Wed 12-Dec-12 14:45:59

Employment status and availability for work are not actually relevant here: all regular income is taken into account in assessing the amount of a claim so even if there is an entitlement to JSA the amount (maximum £75pw) should be reduced by the amount the AP is paid, reducing the claim in most cases to £0.

LadyHarrietdeSpook Wed 12-Dec-12 15:20:02

I really want to know more about the au pairs that Principality mentioned who are claiming JSA/talking about claiming it. Are these people who have been here for a while?

My mind actually boggled at this, I just can't conceive it. I am vaguely considering whether to put soemthing about this in our contract for next year but I'm probably being paranoid.

WHatever disagreements over their employment status may be I am assuming that the BAPAA person who took the trouble to post agrees that an au pair receiving money every week for the duties should mention this in a discussion about benefits with someone, lest risk exposing the au pair and the host family to something unpleasant. That's the point really.

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