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.

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

Blimey! Its not a very pleasant job is it?

She is self employed and we don’t get invoices

Why are you paying her for holidays if she is self employed? The whole point of being self employed is that you don't get paid when you don't provide the service.

38% is really shocking and I would have moved long since but presumably this year moving has been difficult? I find the lack of invoices (and receipts?) iffy and I would check the registration - providing bad services then demanding 4 weeks notice when the parents move on is indeed a nice little earner.

However that is separate from the contract unless it says something about quality of service. Make sure that your offers of 40% are in writing with reasons and that everything is documented.

You should pay for the bank holidays when you don’t send her in. My DD is in nursery, occasionally with my husbands shifts and my annual leave/bank holidays, we are both home on a day we have paid for nursery. No way do we ask for it reimbursed (they wouldn’t anyway). We choose not to send her in.
Effectively, paying to keep her slot. The staff cover has been provided and needs paid whether DD actually appears or not. The same would apply to your childminder - unless your contract states that can happen.

I find it bizarre that you was paying for hours that your children were not there, why were you not invoiced and just paying for hours that your children attended, as the childminder cancelled care herself, then there would be no obligation to pay. It all sounds very complicated.
As there’s a contract in place, with a 4 week notice period then you are liable to pay. It’s a bit like if you was working, your boss sacked you without prior warning and you were left without a months pay. This is unfair in my opinion. You have broken the contract and if she takes you to small claims, she will win.

Hi everyone so I’ve spoken to my DP this morning and we’ve rung my mum for advice and we have agreed that we will pay the fee minus the 4 days as we are desperate to move ready for our oldest starting school and we want to be near family so we don’t want anything to risk the moving aspect of our life.

I’m not happy about it but I feel have a duty to continue building a better life for my children and at the end of the day my DP still has his job and we’ve managed to find a better setting which has space for both of them on the days we need them to too

I would not pay the full four weeks whilst she owes you for four days.
I would pay the full four weeks notice, minus the four days owed.

Then I would ensure whenever anyone on local SM groups asks for recommendations for childcare, to say - person X only did 38% of contracted days, wanted early finishes due to football etc, so only use this person if you have local family who can support at incredibly short notice. And I would continue to share that experience, knowing I have done nothing wrong by paying. The childminder will lose out so much more that way, whilst I would avoid any threat of legal action!

It's not straight forward with childminders like it would be with a normal job because they aren't employed by the OP, they provide a service and are self employed. Or were when I was a CM.

@lady08 most employers pay in arrears so I am due to start my new job next Tuesday and won’t get paid until the end of the month. She insists on getting paid in advance which is why we take the days she got paid for in the previous month but did not work of the next invoice. She would not be working anything for September so if she was an employer she would not get paid anything for September

We have chosen to pay her for the fact that we are in the process of moving and don’t want to jeopardise that.

If you are going to pay her, I'd be tempted to pay the nursery place and send DD to the cm.

This is making me much keener to use a nursery than a childminder. I would be fuming. If you pay the notice you would probably pay more than if your child was actually attending (given how much she has cancelled).

I'd normally say 'you've signed up to the contract therefore tough shit you should pay' however if they've only provided you services for 38% of their contracted days, I'd be threatening THEM with legal action.

I'm baffled as to why you continued to use this cm if you were left in lurch 38% of the time surely, after the first few let downs you would have sought different childminding, not continued with the same one and let it get to the point of 38% missed childcare

Have you noted and recorded all her lateness and wrong doings?
Did you warn her at the time? Did you verbally warn her and maybe written too?
Have you documented everything properly?

You are still her legal employer and for all her wrong doings, as appalling as they are, you can't just punish her now for them as you've decided enough is enough...they should have been dealt with at the time?

Why did you allow her all that time off?

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

This is very true.

If she goes through her insurance for unpaid notice then they will handle the legal side of things and literally all the judge is interested in is did you sign the contract and did you pay what the contract said. A court order is then issued for the money and it shows on your record as a CCJ even if you pay within four weeks. I'm a former childminder so not unfamiliar with the process.

Then I would ensure whenever anyone on local SM groups asks for recommendations for childcare, to say - person X only did 38% of contracted days, wanted early finishes due to football etc, so only use this person if you have local family who can support at incredibly short notice. And I would continue to share that experience, knowing I have done nothing wrong by paying. The childminder will lose out so much more that way, whilst I would avoid any threat of legal action!

You need to be very careful with doing this, where you do it, and how you word it as it could constitute harassment.

Also reporting to Ofsted, the council, etc? They don't get involved in contract disputes.

You are still her legal employer

Childminders are self employed, they set their own pay and conditions including whether bank holidays are payable (and for those who offer "free" bank holidays and annual leave where you don't pay because they're closed, it's not really free, it's just included in their costed fees for when they are open).

We’ve sent her the money via BACS so she should receive it fairly soon. I’ve also screenshot the payment and sent her a message to show we paid her today

Hi OP, I’m completely on your side. You are getting some very iffy “legal” advice about CCJs and breach of contract in this thread. I’m a litigation solicitor. I suggest you do your own research.

Hope your new nursery works out well. From personal experience I found a great nursery was a much less stressful option than the unreliable childminders we seemed to experience.

@sleepyhoglet

This is making me much keener to use a nursery than a childminder. I would be fuming. If you pay the notice you would probably pay more than if your child was actually attending (given how much she has cancelled).

To be fair not all childminders are the same, just as not all nurseries are the same if someone posts negatives about them. There is the additional risk of closure as its just one person (although some have arrangements with others if they are closed, so worth checking), but also cheaper, different environment which suits some families more, often more flexibility etc. Ours has only ever closed for one day, and is absolutely brilliant. DS is at pre school now and really miss him being with a childminder.

I wouldn't want a person who doesn't maintain her house properly so everything constantly breaks down and demands you pick them up for a football match looking after my children anyway.

I think you’re wise to pay according to the contract, taking into account what she still owes you- you don’t want the long-term ramifications of a court judgement against you. You’ll need to take a short term financial hit. The stuff about jobs will probably be considered irrelevant; in court the contract would be key.

However, I would inform her in writing that you expect your child care places to be fully available throughout the month that you are paying. She can be your back up childcare if the children cannot go to nursery for whatever reason. If your children are not going to her on a particular day, give her the minimum contracted notice every time. She won’t be able to collect from nursery, but you should be able to pick up the children and drop them with her if necessary - you will expect a daily itinerary for the service you are paying for.

It would be worth getting legal advice (maybe available through your home insurance?) to see whether the CM would be in breach of contract if she does not provide contracted care during the notice period. She is expecting to get the money, but doesn’t expect to have to provide care- you need to make it clear that you expect care to be available. Does the contract allow for weekly payments? She might be more willing to settle if she has to actually earn the money during the notice period.

If she took me to court I'd say the premises were not safe for the children and premises not properly maintained re; constant breakdowns and keep the text about the football = what's that if not contravening the contract.

The stuff about jobs will probably be considered irrelevant; in court the contract would be key.

That works both ways the childminder broke the contract to the point her DH nearly lost his job, that’s an impact of her not fulfilling the contract.

Same with say a guaranteed delivery not being made or targets not met, the contract will have a clause stating penalties.

OP is applying penalties. In this case the penalty is for the period her children won’t be attending anyway.

I bet other parents have been let down equally.

I would also question some of her reasons, for example IF op has covid in her house then the child can’t attend - this is a new clause, had it been agreed in writing? Same as covid in childminders house, was it agreed in writing and if childminder was well and covid free? Legally the children could’ve attended,

If OP had made the decision not to send the children yes she would’ve been paid, in full, but not if the childminder had with drawn services.

I am glad you decided to pay. I was totally on your side until your later posts appeared - it seems you are moving house and area so really you won't require her services anymore anyway. Also, you keep saying DP had a warning because he had the kids at home with him so much - but you then go on to say you were at home too in June and July, and actually his trouble was around starting late - something about a covid test? I think you are understandably pissed off and stressed and so are dragging up other issues, which weren't otherwise actually bothering you that much - you said yourself you hadn't given much thought about how much time off she took until now!

Anyway it sounds sorted now, good luck with the job, the move, and DPs probation!

@privatehall we were planning on moving for awhile but the house only went on the market two weeks ago because we thought DP’s probationary was set to end. I accepted the new job in July and it is only 1/2 away from where we currently are and we actually discussed keeping our children in the setting and making it work until we had moved and we had found new childcare.

My DP kept saying I’ll just try and work round it if it remains this unreliable but hopefully it has been a few bad months and that’s it but when his employer extended it and said he had to return 5 days a week we knew it must have been so much worse than we thought it had been. Then when we worked out how often we had been without childcare.. we realised we can’t carry this on whilst I’m in my new job and he’s in his extended probationary & we cannot wait until we move to find new reliable childcare.