Nanny becoming a nanny share

[SydneyB]

I wonder if anyone can give me some advice. We currently have a brilliant nanny who looks after our two and her little boy. In the not too distant future one of mine will be at school and the other at pre-school 3 mornings a week. We really want to keep our nanny on as we all adore her, plus we still need help with school pick ups and of course the holidays. We currently employ her, pay all her tax etc. What we'd all like to do is for her to take on another baby perhaps 3 days a week to be looked after in our house. That way we'd be able to afford to keep her on and there might be a payrise in it for her. Does anyone know the legal ramifications of this? Do we have to have some kind of insurance if our nanny is looking after someone else's child in our home? Can we still be her main employers and get the other family to pay us so that all her wages still go through PAYE etc? Or do both families need to become her employers?

There are potential legal issues as she would in effect be caring for children from Family A (you) Family B (her) and Family C (new family).

If she didn't bring her own child to work with her, then it's not a problem.
Not sure how well that bit of law is regulated. It could also invalidate insurance - nanny should check with her insurer.

Think that MrAnchovy has mentioned in the past that there is a slight saving on Employers NI if both families employ the nanny directly, rather than as joint employers.
Both families would agree a Gross salary with the nanny (presume you already have done that as PAYE uses Gross salary for calculations) so no problems with you remaining main employer. Nanny could if she so decided ask for a taxcode split but I wouldn't bother doing that, as long as main job payed more than personal tax allowance.

You should check your home insurance policy with regard to what it does and does not cover.

Hi Syndey,

If you have an employee in your home as you probably know you would need employers liability insurance for Nannying purposes as you have a responsibility to provide a safe working environment. Now, some home insurances have this within their policy. If you haven't done this already, contact your home insurance as they will need to be notified of an employee working within your residence. Also, you can discuss with your home insurance how this would work in relation to another child being in your home who is being looked after by your paid Nanny. They might be able to advise you on the legal side of Nanny Shares.

However on saying this, Insurances such as NannyInsure (for the Nanny to take out) cover the Nanny for the care of up to 6 children (this can be from multiple families). This would cover your Nanny for any issues resulting from her care, it would not cover any claims arising from the other families child having an accident within your home (e.g tripping up on a piece of loose carpet and braking their arm/faulty electrical wires etc). Also, she would need to make sure that she notifies her insurance of any new children she is caring for including their medical conditions, allergies etc etc.

As for employment - if you accept the wages from another family and pay your nanny, I believe you would be classed as an employment business. As an employment business you are responsible for the Nanny's NI/Tax, Statutory Sick Pay, Statutory Maternity and Holiday Pay for both positions!! I would personally say that it would give you a lot of legal responsibility but it might be worth looking into a little more...

To avoid the worries of this, you could ask an employment business (like The Nanny Tree) to employ her on your (and the other families) behalf which means she would have one employer who would be responsible for NI/Tax & all legal and Statutory payments.

It's a mine field out there so I hope I could provide some clarity for you!! Good Luck!!

Chelsea x

Thanks nannynick and chelsea. I was under the impression that our nanny's insurance covered her at the moment but you're probably right that it woudln't necessarily cover a child from another family. We do pay her a gross salary at the moment so what you're saying is that we continue to employ her on a gross salary that applies to our share and the other family do the same? Gosh, it's complicated. I imagine PAYE Nannies who we use at the moment would also be able to help. Just want to make sure we do the best by her.

Her insurance may limit it and OFSTED certainly do. 3 families (yours, hers and sharers) brings it into regulated territory. Whilst they might never check it's not really worth the risk. If she's OFSTED registered then it's a definite no-no.

She is Ofsted registered. So from what you're saying there's no way we could do it without her de-registering herself from Ofsted? Which would mean we wouldn't be able to claim childcare vouchers which enable us to afford her in the first place. Hmm, tricky. There must be a way around this as it seems like such a sensible arrangement for all involved.

And we'd much rather do it 'above board'.

If she's OFSTED reg she can be inspected. Then she'd be found out and the register guidance clearly says the a home childcarer looking after 3 or more families must register on the compulsory and/or early years register.

She can't legally do it anyway as care for 3 or more families simultaneously requires registration as a childminder. But if she's not OFSTED registered they'd be less likely to check and the question of how well that rule is enforced could be considered (although I personally would never advise that because in the worst case your nanny could end up being barred from registering in the future).

The only way to do it is for her either to not have her child along or for her to care for another child only during the time yours are at school and preschool.

SnapFrakkleandPop - thanks for that incredibly helpful clarification, much appreciated. I guess we have a lot to think about now.

That's the first time OFSTED has clarified anything to my knowledge! Usually they just muddy the waters

I hope you do find a solution. It sounds like your nanny is lovely and obviously you don't want to lose her but it can be a financial squeeze, especially if you don't 'need' FT childcare.

Ha!

And so do I. We so want to keep her - our kids and hers have grown up together and we'd like to prolong that as long as possible and we all adore her. But yes, we've been living on an extremely tight budget which has only been possible knowing we'd only need childcare for both ours until they went to school. And no, we can't afford to employ her on our own FT. Seems such a shame that Ofsted put all these barriers in our way when there's such a shortage of good affordable childcare and the govt are so keen to keep us all in work!

It isn't Ofsted who put this barrier in place. It is in UK Childcare Law - specifically The Childcare (Exemptions from Registration) Order 2008 Ofsted are just the regulator responsible for checking if childcare providers are keeping to the relevant legislation.

Government feels that a line has to be drawn somewhere between a private childcare arrangement such as with a nanny, and Childminding. The line has been drawn at children from two families. Once a third family is involved, that is then Childminding.

That can be challenged by going to the Care Standards Tribunal following the regulator (Ofsted in the case of England) telling them provider that they can't do what they want to do.

At present, I can not locate any cases involving that particular thing having ever got to tribunal. Thus there is no ruling on it and thus you need to read the legislation and decide for yourself if what you propose is Exempt from childminder registration.

That's helpful nannynick. I had been wondering if there was a way around it as the third 'family' was nanny's little boy. And so us and the other family could employ her legally. Dodgy ground perhaps though. Will think on.

OFSTED have been asked the question and say that they consider that 3 families. I don't think anyone's gone ahead with it to have it taken in front of a tribunal. But given that the issue has been raised and addressed, and the guidance is fairly self-explanatory, and the legislation doesn't provide an exemption for a parent caring for children of 2 other families alongside their own, it's unlikely to fly.

I think OFSTED already count you as a nanny share as far as registration purposes go with you being the first parents and nanny being the other family.

Frakkle has expressed her personal opinion, and the opinion of Ofsted (who have a track record of placing their own interpretation on legislation and acting accordingly).

However, I strongly disagree with this interpretation and I do not believe that it would hold up in court - if Ofsted ever dared to take it court given the way they were slapped down the last time they interpreted legislation narrowly to suit their own desire to regulate. The legislation that provides the exemption for nannying, and for nanny shares makes no mention of the children of the nanny.

This is what the legislation says:

Registration is required for "the provision of childcare ... on domestic premises for reward" (Childcare Act 2006 96(2),(4),(6) and (8)).

But nannies provide childcare on domestic premises for reward! So the Childcare (Exemptions from Registration) Order 2008 makes the following exceptions:

where a person makes the provision [of childcare on domsetic premises for reward] for:

(i)a child or children for particular parents, wholly or mainly in the home of the parents, or

(ii)a child or children for particular parents ("the first parents") and, in addition, for a child or children for different parents ("the second parents"), wholly or mainly in the home of the first parents or the second parents or in both homes;

Nowhere in there does it say that either of the exemptions (i) or (ii) (which provide exemptions for ordinary nannies and nanny shares with two families respectively) does not apply if, in addition to providing childcare on domestic premises for reward the carer is looking after her own children.

Ofsted have made this up, I assume because the number of children for which a childminder can provide care for reward is limited by the number of her own children he or she cares for and so their registration system takes this into account. But Ofsted's systems and procedures are not the law, and if the law says you don't have to register as a childminder they are irrelevant.

As Nick says, you (and the nanny) can read the above and refer back to the legislation if you wish and come to your own conclusions.

Blimey, I had no idea of the intricacies of all this! Thank goodness for MN. At the moment I can't see how Ofsted know that her own child is with us. She's registered so we can pay her in childcare vouchers, we pay for it every year and it has never been mentioned that her child is here too. No-one knows its a nanny 'share'.

Ofsted do not win every case that goes before the Care Standards Tribunal as a case v Ofsted. So Ofsted don't know for sure how a tribunal would rule... they just seem to hope that people won't challenge them.

Read the legislation, check insurance policies and then do as you feel is right.

I can't see how Ofsted know that her own child is with us.

Exactly. Ofsted won't know about it, unless someone reports it - or unless they carry out an inspection visit (they should inspect 10% of home childcarers each year).

But if she were to be inspected, which of course as her employer you could refuse permission for, they would see the number of children and they request to see the contract which, if it mentions her DC and the share children is enough proof for them.

Maybe I'm just too law abiding for my own good It might be OFSTED's interpretation but they're the ones enforcing it...

At the moment, for me, its the insurance question that is uppermost in our minds.

The other thing is that presumably they can't just turn up on our doorstep without warning us can they? I mean WE aren't registered with them, our nanny is. And for most of the day she won't actually have 3 'families' as my two will be at school/preschool as will her LO in the mornings. NOT THAT I'M THINKING OF DOING ANYTHING ILLEGAL.

Not sure that Ofsted have the authority to request to see a contract.

The contract we have with her now doesn't mention her DC.

Snap - law-abiding is good, that's what we want to do!

Not all employers have a contract do they? You don't HAVE to have one.

Ofsted do not have power of entry when it comes to checking a Nanny. They HAVE TO BE INVITED into the home. They are not checking the home, they only are able to check that the nanny meets the conditions for registration on the voluntary part of the Childcare Register.