To not pay the childminder

[Surelyunsure21]

Hi all,

I am hoping to get some advice on a very tricky situation. DP and I have always seemed to find it impossible to find good reliable childcare and as a result we have bit the bullet and put both our DC (aged nearly 3 years old and 18 months) in nursery over 3 days. They are due to start next week which is lucky as I start a new job on Tuesday, it is my dream job so I don’t want anything to mess it up.

Previously to this we have had a childminder for the last 10-11 months however she is highly unreliable.. DP started a new job in February and he was hoping to pass his probationary period this month.. since May the childminder has been incredibly unreliable to the point where on the days where he is working from home he ends up looking after the children, in between working. His job is a lot more flexible for this.. my previous job was in a contact centre so it impossible to even grab a drink when it was not scheduled.

The childminders excuses were always legitimate and obviously there would be no payment for the days they didn’t do but we didn’t mind paying.. we’d rather have smooth childcare than none. The one issue with payment and it was a little something was that they insisted on getting paid for bank holidays even if we didn’t need to send the children (which we didn’t) and if we wanted or needed too it was double fee. We never sent them but we just thought the whole process was ridiculous.

So long story short the childminder has been that unreliable in the last few months that it nearly cost my OH his job. They have chosen to extend it for 3 months but he cannot work from home anymore and he basically doesn’t get any privileges for 3 months (it’s better than being fired though)

I’m due to start a new job and he’s in a probationary which should have ended and we’ve just put our house on the market too sell and move closer to my new job so obviously cannot afford for anything to screw it up. I sat down with OH and we rang a few nurseries in our new area and one had space to take them from next week so we signed them up and paid the deposit.

We then text the childminder to advise them that we would not be requiring their services any longer as they have been so unreliable they have nearly cost my OH his job and that as a result of this we would not be returning them in September and we would not be paying anymore money.

What’s the percentage she’s worked if you ignore the COVID days?

I think the fact that you've had tofu d emergency care due to her service being unreliable is the key here and the main thing to mention. It's not ok to give you days you don't need and you've been quite accommodating but I think rather than work out a fee based on her reliability and say you'll pay 38%, stick to facts I.e. you are being forced to leave due to her failure to provide a service and offer 2 weeks notice. That's what I'd offer anyway. And take the free advice if you can get some

Decide what you think you should pay and set it out in a factual text that doesn’t mention your husband’s job or Bank Holidays.

You have said ‘I don’t want to pay you a full 4 weeks because you have been so unreliable so I will pay 38% of the fee minus the days you owe us back’.

This is what you want to pay so tell her this although I agree with @Indecisivelurcher that you are more likely to get her to agree to this if you say ‘half’ rather than 38% as it comes across as less accusatory. The aim is to get out of the contract, not to prove yourself right.

You wont get a CCJ

The law can be very black and white. OP signed a contract which stipulates the notice she must give. The childminder may well be in breach of contract but the OP has had her money returned where this has happened. Small claims is about money, not damaged reputations or service provision. At least as far as I see it. I’m no expert.

OP - perhaps post in legal?

It depends if she goes through her insurance company to reclaim the money (which will cost her nothing). Her being sick in September is irrelevant, because the days would just roll forward to October, so don't worry yourself about that. I would try offering the 38% and keep your text messages. You could also calculate the overpayments for every day she's asked you to collect early (which is very shoddy).

Personally, I have taken 2 days off at short notice in 20 years. I have stayed open with a broken boiler. I have also been lucky not to have a COVID closure.

Sorry you have had such a bad experience with a childminder. This is not normal. Good luck with the nursery.

She has provided a third of her side of the contract so far. Unless there is evidence that this was time limited and would change (guessing not or youd have kept your child there) I'd pay notice on the days you would likely have been billed for. Ie pay a third of the notice period

I would send her a message saying

I have had to remove my children because of her extreme unreliability. Since the start of May you have only provided care on the contracted days 38% of the time and you have asked us to collect early on x occasions equating to another x missed days.

I don’t consider it reasonable to pay 100% of the notice period given that you have only met 38% of your obligations so I am prepared to offer 40% of your notice equating to £x less the £x owed for childcare not provided in August in full and final settlement of our contract.

Then I would wait for her to blink first.

I'm a childminder. I've only ever taken one sick day - ironically from my covid vaccine. I wouldn't close for a broken boiler or a leak - I would give the parents the choice eg we are having a cold lunch, is that ok or do you want to collect? If they chose to collect, the would still need to pay as the offer of childcare is still there, even if it's not perfect. So if this is your experience, then I'm sorry, as people like this give childminders a bad name.

She's perfectly within her rights to ask for covid tests repeatedly or exclude otherwise. Please remember that this has bee a very stressful time for childminders, having multiple families in our homes during a time the whole country wasn't allowed to. If she's been closed for covid reasons, no one will argue this or call her unreliable for this, it's been a nightmare!

However, these things are all separate from the contractual last months notice fee. If she still owes you money from being closed in August, then by all means deduct this, but the notice still needs to be paid.

I've taken several families to small claims for not paying this, and won everytime, plus the family then has a CCJ.

@3Br1tnee

She's a cheeky bitch and unfit to operate really. I'd report her to Ofsted or whomever, and not pay her another penny.

Totally agree with this. Don’t pay anymore than you have.

OP all you need to ask yourself is this: what's the likelihood she sue's you? I'm thinking zero as she's woefully disorganised and even if she did the fact she turned up oy 38% of the time is likely to give her a truly crap case. Personally I'd tell her no, you turned up 38% of the time & we always did our best to accommodate your reasons, which unfortunately has led to my husband's work from home benefits being removed, which now necessitates him having to work from the office for which we will now need a concrete, reliable nursery solution. Then ignore all future Comms.

I would be sorely tempted to pay her nothing and see if she brings a small claim. Yes technically you'd be in breach of contract by not paying the notice BUT your defence is that she had already "frustrated" the contract with her conduct (38% provision of what had been agreed is appalling and unworkable) so that the contract had already effectively come to an end. Plus you can counter claim for any losses you have suffered, the missed August days etc. I'm a solicitor btw.

Claims under 10k mean the "winner" cannot claim any legal fees except the issue fee. Plus even if she succeded I think the court would likely dock from her award the August days not worked and 38% from the notice period on the basis that the evidence would support that a similar pattern of unreliability would continue (if you present the evidence clearly enough). I think you'd have at least a 50% chance of succeeding with the frustration argument and paying nothing at all.

Oh and even if she succeeded you would not have a CCJ showing up on any credit record etc as long as you pay within 4 weeks and get a certificate from the court.

As I say I'd call her bluff and pay nothing. She sounds so diabolically disorganised if be surprised if she could actually bother herself with making a claim!

I'm not sure the notice does have to be paid, though. If she's breached a term of the contract, then surely it's voidable?

I'm still interested in the lack of invoices, although no-one else seems to be. I'd ask for the these before anything else. I think it'll shit her up and she may rethink her position.

The house and your jobs are not relevant in this situation. The contract is the only thing that matters. Is she is breach of it? Then you may have a claim, but breaching it yourself can only put you in hot water and you'll be lucky if she doesn't act on it.

Having been to small claims court please only consider what is in your signed contract. Judge is not interested in anything else.
Is there anything about minimum provision of hours or reasonable causes to not provide childcare.?
If she has not breached contract and you do - you will end up paying her and the costs plus interest.

Do you have a mortgage OP? are you able to move whilst you are both in a probation period. Also, nursery will call you to pick up for every raised temperature and if it’s the first time your kids have been in nursery they might well pick up every bug going. I would suggest your partner doesn’t take any more parental leave as it’s really not good that not only have they extended his probation they have put him on a performance review, if he does not meet every aspect of the performance plan in the time set then they might well choose not to keep him on.

I'd say as she breached the contract first it's null and void. I'd ignore her it's doubtful she'd try take you to court for it.

Not working half of the time since May seems plenty of grounds for breach of contract to me.

Offer two resolutions:

1. She returns the money she owes you for August and then you take the matter to court.

1. She accepts the August overpayments as full and final settlement.

What a mess. I think I’d offer something like 38% or 50% of fees in the circumstances, citing her previous lack of reliability. I’d set everything out in a letter and word it very objectively - imagine it being read by a judge unfamiliar with the situation, so set out relevant background briefly - and send it recorded with a final offer of payment of £x.

In practice I’d be leaving (again, factual) reviews of her “service” left right and centre to warn other parents. What a nightmare.

There is a really shit childminder round my way, who keeps posting about her availability on social media (now that the last poor sod in her care is off to school), and it’s fascinating to see how she doesn’t get interest when every other childcare setting in the area is rammed. Word gets round.

even if she succeeded you would not have a CCJ showing up on any credit record etc as long as you pay within 4 weeks and get a certificate from the court.

This.

Is there anything about minimum provision of hours or reasonable causes to not provide childcare?

Presumably the contract is to provide child care. Not doing so is (at best, if for unavoidable, outside reasons) a frustrated contract. Entirely speculatively: I just can't imagine any judge ruling that such high levels of absence are 'reasonable'.

I’d let her take you to court and let the court decide what’s fair.
It appears not to be a simple case of breach of contract on your part as the childminder has also not provided the service agreed to on several occasions. Regardless of the reasons, that’s still in breach of any agreement on her part.

Courts tend to offer mediation as a first step these days and they will look at the arguments on both sides, when services have been supplied and what monies have been paid and help both parties try to resolve the issue fairly.

The person mentioning CCJ’s is talking rubbish. CCJ’s only happen when someone has defaulted on a court ordered payment.

* Is she even properly registered? I would consider reporting her to your local Council for unprofessional behaviour. Ask her for a copy of her registration certificates.*

^Definitely do this.

@Getawaywithit

I will just point out that if she were to make a successful small claim (I have no idea how likely that may or may not be with the circumstances), you will then have a very recent CCJ which could well have an impact on your ability to get a mortgage.

You might want to weigh up the chances of her causing you long lasting issues vs. paying up and moving on.

Rubbish! If she makes a small claim against OP and IF she wins then OP just pays up. There would be no CCJ unless OP then didn’t pay the amount awarded by the small claims court.

I would let her take you to court, if she thinks she will win. There's no way I'd roll over and pay her and I used to be a childminder.
For future reference though and for anyone else looking to get a CM, please consider all aspects of the contract carefully before signing. You are allowed to negotiate so that the arrangement works for both of you. Personally I only charged parents for days I was available and willing to work. I considered myself to be self-employed and therefore didn't charge for bank holidays unless I'd been willing to actually look after children on those days. I charged if the child was off sick or if the parent took them out for holidays, but not if I was ill/on holiday and in order to maintain a professional service, I had an arrangement with someone else who was also a registered CM, to be my back up if I was ill. This gives parents some security around their childcare.
Have a look and see if your contract specifically mentions bank holidays. If she is self employed then I'm not certain she could insist on payment anyway, regardless of contract because contracts have to be fair and reasonable. But you'd need to check that with someone legal.

I'd just talk to her and come to an agreement, say you feel it would be unreasonable to pay for the months notice in full as a) you aren't actually sending your children in because she has been so unreliable, and b) she hasn't been open for all of the stipulated days previously, so the precedent is that she would be unlikely to do so this month. I reckon she'd settle on half or thereabouts, i doubt she would go through court or whatever and you could get the notice issue formally closed that way and not risk any come backs.