Refunding fees

[Nuttychicken]

I would appreciate some advice on where to go from here and anyone who has successfully managed to resolve a similar problem.

My childminder became sick at the beginning of December, the day after we had paid her full fees for the month. This coincided with our decision to go with another childminder. It was something we had been looking at for several months and actually put in place a couple of days before her sickness. I planned to give her notice about 2 days after she became sick.

When I gave notice I said that I would be happy for her to mind my son for the duration of the generous notice period I gave. This was all put in writing. She declined. She has not worked since.

I have now requested a refund of the fees for the days she was sick (our contract states she won't charge for days she is unable to work)as well as for a voucher which I inadvertently paid to her automatically at the beginning of January. She has not replied to my email. My partner and I have both phoned and spoken to her husband who has promised she will get back to us but this hasn't happened.

I have spoken to another child's mother who has said she is refusing to pay her. I am getting pretty anxious about this now as we have had a large number of out of pocket expenses including flying the inlaws over from france to help with childcare in the interim. It is now a large amount of money we cannot afford to lose.

I have kept copies of emails and letters. I suppose my question is when should I start being more insistent and what deadline would you consider reasonable for returning the fees?

Any help would be appreciated as I really want to strike the right balance here.

I am a CM and if it was me I would refund the fees immediately. The very latest would be at the end of the notice period. The words 'small claims court' might get you your money faster?

Make sure you have a detailed breakdown of what you think she owes you and why.

I do appreciate that she may have had a lot of expenses over Christmas and now she has a vacancy to fill, but that money is yours, not hers.

Thanks HSMM,

I suppose I feel particularly bad for her circumstances (I am aware that she has had a lot to deal with) and feel like I am putting the nail in the coffin by asking for money back around especially, as you say, around Christmas.

Forget the 'generous' notice period, if her contract says 4 weeks and she's refusing to even work that a) she's in breach of contract and b) she can't be THAT hard up. If she is, it's not your problem as she's decided she's happy to loose that money and not work it so I wouldn't feel guilty about the 2 days she also owes you. I presume you're also asking for the notice period money back? (or did she work the standard notice and not any more, I may have got the wrong end of the stick?)

Oh and agree with HSMM about small claims etc. (I'm also a CM btw)

When you say she hasn't worked since, do you mean she's still sick? If so, dealing with your letter of notice may be the least of her worries.

Just on a side note - it is illegal for her to refund the voucher amount to you in cash. She will have to refund it back to the voucher company who will credit your account. This is because you haven't paid tax and NI on that amount so would be fraud.

I am a CM too and sadened that she is behaving in this way to you. I hope you get it resolved soon.

• saddened

I would refund you the next time I was doing my invoices, so, within a month.

Thanks all,

Yes Minderjinx, she is still sick and her notice period coincides with her sickness. I agree that she probably has plenty on her plate.

Looneytune, I have given her six weeks notice instead of the contractual 4 because I felt like a total b*h ending her contract and major part of her income when she was having some major life events turning her life upside down. The longer notice period would have given her a couple of extra weeks of income but she declined to work those anyway.

I am still unsure about how long I should go before I get more ascertive about the situation. I am a little worried that she has already refused to refund another parent. That seems weird too

It could be that there is more to this than meets the eye in respect of her illness?

Instead of ringing, I would put everything in writing, asking her to either contact you asap so that you can resolve this situation and/or giving her a final date that you would like the refund of fees by.

Oh right, I didn't realise about the sickness bit. Does she owe the whole 4 weeks 'contracted' notice period? Tbh, I couldn't possibly comment on what I think you should do without knowing about these life changing things going on? There's the legal side and what is morally right and it's difficult to help with the moral side of things at this stage. For legal advice you should be able to speak to NCMA if those are the contracts that were used.

I agree with pippin about getting it in writing

Thanks Dancingonmybladder (I have this too btw!),

I don't care how the money comes back to us and I am not asking for cash specifically. The vouchers would be fine as I still need to pay childcare and the out of pocket expenses can be covered by the cash I won't use for the next 3 or so months IF I ever get the vouchers back.

Thanks. In my head as the next step was a slightly stronger written request for the money with a deadline to reach before taking the matter further.

Looneytunes, she owes the full 4 weeks (minus the B/hols as we are contracted to pay those and 3 days between Xmas and New year which she agreed to take prior to her sickness as unpaid hols).

I am hesitant to expand on her situation as she may be known on here and I wouldn't want to make any connections...

I think I will go ahead with the letter if I don't hear from her over the weekend. I will give her another fortnight to process a refund and then look at taking a more formal approach.

Thanks for the feedback all. It is much appreciated. I think this is one where I need to use my moral judgement. Trouble is I have no references to work from... :(

Sorry - I still don't get it. How can she decline - or rather how could she agree - to work the extra two weeks if she is sick?

Putting to one side the moral rights or wrongs of in effect dismissing someone while they are sick (and with pleas that you do not shoot the messenger) the way I read the standard contracts, you may not be legally entitled to give notice on days she is off (sick) or for which you do not pay her anyway. If I understand correctly and she has either been sick or on unpaid leave since before you gave notice then then would section 25 of the NCMA contract not apply? "Such notice of termination must not be given during a period of the childminder's or the parents)/guardian(s)time off or where no fee has been given for time off...If it is necessary to end the agreement straight away, then payment in lieu of notice must be made".

I appreciate the circumstances are probably exceptional and also probably not those this clause was intended to safeguard against,but I would be interested to know if it would hold up.

Thanks for the feedback minderjinx. I was not aware of this clause and I will wait and see what happens with the situation.

It would seem particularly unfair on the person in receipt of service to be prevented from ending a contract due to sick leave. After all, she could end up being unable to work indefinitely and therefore I would be bound to a contract with her but without any childcare until she was well enough to accept my notice of termination. That could go on for years!

I have definitely struggled with this on a personal level morally and will never be fully happy with it in my own mind. It has caused me considerable distress to have to take this route.

In terms of declining to work the notice period, I gave her the opportunity to work the notice if she were well enough. She has declined to work but not given her reasons. I assume that she is not well enough.

I don't appear to have a copy of the contract we signed so I cannot comment any further but I did receive a call from the childminder today to say that she is forwarding a partial refund today so the situation may be solved anyway. She is not a bad childminder and my DS has been very happy with her for the last 1.5 years.

Hi Minderjinx,

I have pulled out my new NCMA contract for my new Childminder which I guess is the same unless it has changed dramatically in the last 2 years.

It seems that the childminder is covered for all circumstances. In brackets at the front page is clearly says the notice should not include paid time off and on the reverse it says cannot be given during unpaid time off either. This means that even if I paid for the full notice period, I would not be able to terminate the contract. I think that this would be challengable in legal circumstances but I think the termination clauses should also be read in the context of sections 18 and 19. In this situation it does clearly talk about holidays and time off. It makes no reference to sickness.

I appreciate your feedback on this. I think it is healthy to challenge this understanding. I am seriously considering raising this as an issue with NCMA as I do believe it is quite ambiguous.

Hi Nuttychicken,
Hopefully your situation will now be amicably resolved by mutual agreement.

I would still be interested to hear what the legal view is on this, and perhaps raising it with NCMA may help to clarify what should be done in your circumstances.

For what it's worth, I believe NCMA have a track record of supporting parents as much as childminders (I know a lot of childminders would say at the expense of childminders) so I think any unreasonable conditions are likely to be by oversight rather than design.

Thanks Minderjinx,

I emailed NCMA last night and I'm waiting for their reply. I have reread the clause several times and still can't see how it can be anything other than a badly worded intention to protect both parties from being dropped in it while they are on holiday/leave which is fair enough. I just don't think they have considered the consequences if the unpaid time off is due to long-term sickness. I will copy and paste their reply when I get it.

I have looked at a couple of other smaller organisation contracts and they seem to have similar clauses but there is nothing out there about long-term sickness for childminders.

Do you guys never get sick!? :)

Too busy to get sick and made of sterner stuff. Your CM is clearly an imposter.

LOL - I always had my doubts, Minderjinx!

Well as promised here is the helpful reply from NCMA:

'You would need to contact the Citizens Advice Bureau or your own Solicitor as we are not legally trained to deal with issues regarding the contract

Regards'

Overwhelmed by the useful response. Any solicitors out there prepared to unpick the finer points of the contract!?!!!

No!!? Strange that...

On a positive note we have received a partial refund from the childminder and we will wait to see what happens from here. Still no proper contact though...

They are not LEGALLY TRAINED???!!! [SHOCK] So what about their 'Legal Advice Helpline'???!!!!

I'm a CM and NOT impressed at all with that response!!!

I assume that the legal Advice helpline is only available to subscribers (i.e. childminders...).

Thanks for the feedback Minderjinx. Your insight has been really useful.

Gonna call it a day unless something miraculous happens.

Thank you to everyone for their comments.

Nutty :)

Nuttychicken quote:
Well as promised here is the helpful reply from NCMA:

'You would need to contact the Citizens Advice Bureau or your own Solicitor as we are not legally trained to deal with issues regarding the contract

Regards'

That's ridiculous - it's their contract, and one that they are recommending to both parents and childminders to use. How on earth can they then say they are not able to advise on issues that then arise.

I completely agree Minder. Not very impressed.