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It is illegal to pay a friend to look after DD if she's not registered? Really???

(74 Posts)
spekulatius Mon 11-Feb-13 23:24:39

I was looking on council's website under childcare for more info re childcare in general and it said the following:

"By law, you must be registered with Ofsted (The Office For Standards in Education), if you are being paid or rewarded to look after other people's child(ren) in your own home."

Does that mean I can't ask a friend to look after DD (will be 9 months by then) when I go back to work (would only be for 2 mornings anyway) and pay her? Really???

I would rather leave her with a friend who loves her anyway than with a complete stranger! And she would be the only child under 12 so would get more attention.

Xenia Wed 13-Feb-13 14:44:52

Yes, but it is likely on the facts given the wages are well under all the tax and NI levels so all this panic on the thread is not helpful to the pesron concerned. The basic point is that if you pay someone two mornings a week or 2 evenings a week to mind your children as long as in your house is not subject to registration, is legal and probably does not have tax implications particularly if she earns nothing else from anyone. So the poster can probably sleep easy and go away without worries unless she wants the child looked after in her friend's place.

MrAnchovy Wed 13-Feb-13 14:58:48

Just to clear it up, the main reasons a babysitter is not employed are:

1. Babysitting is generally booked on an ad hoc basis; the parents have no right to expect that the babysitter will be available for work and the babysitter has no right to expect the parents to ask them to babysit.

2. Once the children are in bed a babysitter can generally do as he wishes - read a book, watch a film, do homework or marking etc.

Note that neither of these are necessary conditions, but either is sufficient on its own.

Mrscupcake23 Wed 13-Feb-13 15:07:14

Mr anchovy surely you are not allowed to take the cleaners word for it that she is self employed? Also what difference does it make if the sitter can do what they want when children are in bed. What about people on call ? They still get taxed.

Mrscupcake23 Wed 13-Feb-13 15:08:27

So if you don't employ a cleaner every week you don't have to pay tax?

OutragedFromLeeds Wed 13-Feb-13 16:07:57

Xenia it is 7 hours a day, that is the equivalent of 9am-4pm, it is not two mornings (i.e. a couple of hours) a week.

There is a difference between giving someone accurate information and panicking. No-one is panicking.

OutragedFromLeeds Wed 13-Feb-13 16:12:00

'Mr anchovy surely you are not allowed to take the cleaners word for it that she is self employed'

Guidelines from HMRC decide who is self-employed/employed. The cleaner can't just decide she is employed/self employed.

Here is the link to the guidance.

TheDoctrineOfSciAndNatureClub Wed 13-Feb-13 16:18:27

<applauds Mr A's patience>

MrAnchovy Wed 13-Feb-13 16:51:38

I don't think this is the place for a full analysis of the whole of employment law, however I will try to provide some answers:

"surely you are not allowed to take the cleaners word for it that she is self employed?"

No - what the cleaner says is irrelevant. The person engaging the cleaner determines that they are not employing the cleaner and therfore they are not liable to operate PAYE. That is their only obligation.

"Also what difference does it make if the sitter can do what they want when children are in bed."

It removes the element of "control" which is an essential element of a contract of service i.e. employment.

"What about people on call ? They still get taxed."

Yes they do because taken as a whole their contract is a contract of service and so all payments made under it are taxable as remuneration.

spekulatius Wed 13-Feb-13 17:06:58

This seems to be going the wrong way. My only question was if it is illegal to pay a friend who is not registered to look after our daughter while I'm at work (in her own house I should have added). From the documents that somebody has linked its clear that it is so we need to look at other options.

I thought Mumsnet is about support, advie and experience, why are some people so aggressive? Not only in this thread BTW.

MrAnchovy Wed 13-Feb-13 17:24:48

"Guidelines from HMRC decide who is self-employed/employed."

Actually that is not true. HMRC use those guidlines in order to determine employment status for Income Tax purposes (and by implication for National Insurance purposes although NI is actually imposed by a statute with different criteria), however it is generally acknowleged that those guidelines often come to an incorrect decision, with the error almost always being falsely concluding employment.

However, as HMRC themselves recognise in their internal manual, employment status in any particular case can only be decided on a detailed examination of the facts of that case and whether on balance the facts determine firstly that a contract exists between the parties, and secondly that the contract is a contract of service.

Xenia Wed 13-Feb-13 17:32:50

Control is often the key issue.

Anyway I thought it said two mornings a week so no tax issues would be likely to arise. She wants it to be care in the friend's home and to pay her and I think we answered that further up. There was a case inthe press I think about two mothers wanting to go back to work and if they swapped houses when the other was working (both part time working) they were okay. If they stayed in their own house when home then not which of course shows the regulations are ridiculous but we have to work around them.

Thanks for clarification, no idea where I got that idea from.

ledkr Wed 13-Feb-13 17:38:23

Who polices this tho? Dil looks after dds and I bung her a few quid I also pay a local teen for occasional evenings out and my pil and dm help too. Fuck em. Sick of this country telling everyone what to do. We claim no benefits so they can keep their beaks out of my business

Xenia Wed 13-Feb-13 17:40:19

Someone might report it, disruntled ex partner ( see the Huhne marriage) BUT if that few quid is not enough to take someone over the tax threshold there may well be no tax due on it anyway.

TheMightyLois Wed 13-Feb-13 17:46:06

Its not about tax really though is it, its whether someone who isn't registered can look after a child on a regular basis for payment.

TheDoctrineOfSciAndNatureClub Wed 13-Feb-13 17:51:07

From Netmums, but I think it's a couple of years old:

www.netmums.com/work-childcare/childcare-swaps-the-rules

MrAnchovy Wed 13-Feb-13 18:04:17

On reflection, I'm going to change what I said earlier:

The main reason a babysitter is not employed is that once the children are in bed a babysitter can generally do as he wishes - read a book, watch a film, do homework or marking etc.

TheMightyLois Wed 13-Feb-13 18:20:29

That's a really good link Doctrine, even if it is netmums wink.

The reciprocal childcare agreement is different - it was decided that that was fine. Its if there is a financial reward that there's a problem.

Interesting to see that there is an exemption for babysitting between 6pm and 2am though, I didn't know that.

TheMightyLois Wed 13-Feb-13 18:22:35

It is about 4 years old though I think.

ledkr Wed 13-Feb-13 18:36:22

Well dh and I work often at those times so that makes no sense.

Tanith Wed 13-Feb-13 19:00:13

Aggressive, Op??? Honestly?!?

Haven't seen any aggression on here.
Have you been introduced to the vipers ladies on AIBU, yet? :-D

MrAnchovy Wed 13-Feb-13 20:12:48

Doctrine all the information on that link has been superceded by the regulations explained in Flisspaps link in the third post in this thread. It would probably have been best if that had been left as the last post too.

Flisspaps Wed 13-Feb-13 20:18:05

MrA grin

TheDoctrineOfSciAndNatureClub Wed 13-Feb-13 20:32:23

Ah, sorry blush

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