Nanny backed out, agency won't refund

[Sophie1001]

My husband and I have recently been through an agency to find a part-time nanny for our two boys. We found a great nanny and the agency sent us an invoice for £450 for finding her, which they said had to be paid within ten days. Because we were in the middle of sorting out her contract (and looking after our baby son and toddler), we paid it after 13 days - and even then felt this was too early as the nanny hadn't even signed the contract yet. Anyway, we went back and forth with the nanny on a few issues, like mileage and hours and on Friday - a week before her start date - she said she didn't want to work for us because she'd found another job with more hours.

This was awful in itself, but now the agency are refusing to give us back our £450 - they say it's because we paid their invoice 3 days late which, in the small wording of the contract, makes their refund policy invalid. Is this even legal? Do we have a leg to stand on? Now it turns out the nanny has a new job so the agency have made two lots of £450 from this girl, and only placed her with one family. Has anybody had a similar experience? Or have any advice for us?

Does the contract say within 10 days of nanny signing contract, or within 10 days of you offering her the job?

If the latter, then the starting point would be that if you did not satisfy that condition, you may not be entitled to a refund per se. However, you may have a claim for damages in respect of the agency's failure to deliver the service you contracted for, i.e. the provision of a nanny who actually starts work for you. The measure of damages would be your loss, so the £450 plus any indirect loss (e.g. temp childcare to cover the period from the intended start date of first nanny while you find a replacement). Recovery of indirect loss may be excluded under the contract terms though.

It does very much depend on the precise wording of the contract. However, assuming indirect loss is not excluded, I'd be inclined to write to the agency saying you are considering your position given that the nanny did not start work, and you may have to incur sums in respect of replacement childcare which you will look to the agency to meet, in addition to your £450.

I agree. You need to look at the contract between you and the agency and see if both sides have acted reasonably. Has the agency fulfilled their side of the contract?

Set out clearly to the agency what you feel they should do, see if you can come to a compromise. Then consider taking them through small claims court. Do all communication via methods you can record, such as in writing or email. Keep a copy of the contract between you and the agency, their terms of business, refund policy, payment policy. Things could depend a lot on how things are worded, such as at what point the agency considers their role has been completed.

Seems a little weird of the agency. If she hadn't started the job then surely the agency havnt found you a nanny and you shouldn't be charged

Sure the agency will be annoyed with the girl for letting you and them down - tho guess better it's happened now then 2 weeks In to the Job

Sure the agencies I work with invoice once the nanny has started or must be by the date they start

Def argue your case

May be worth posting in employment as well - flowery is usually good at knowing what is legal

We had issues with an agency over their service provided and ended up at the small claims court where we got fees back. In our case the nanny had started but was well below the standards they advertised. Additionally they had failed to collect references, check ofsted suitability, failed to provide advertised employment support and was falsely advertising professional registration.

My advice would be to go through the terms and conditions of the original contract. Check that they performed as advertised and per contract. Did they send you the invoice via mail in a timely manner for payment. Ours messed up sending the invoice to an incorrect email address until I chased them. Above all write all your issues in a letter recorded delivery giving say 14 days for response. Also dont rule out small claims court which is the route we took. Be clear in your grievance without emotional clouding. There is a clause in the provision of services act that stipulates that a contract must be fair and not biased to the provider which some agencies terms may breach.

Think 2plus1 is thinking of the Unfair Terms in Contracts Act 1977, which limits a commercial party's right to exclude implied terms (such as that services will be carried out to a satisfactory standard) or restrict terms in a contract with a consumer especially where the contract is on the basis of the commercial party's standard R's a

...terms and conditions.