What is 'babysitting' in the eyes of the law these days?

[nannynick]

Lowrib asked on another thread: What is 'babysitting' in the eyes of the law these days?

It is a very interesting question, so thought I'd promote it to a message thread of it's own

Suppose we need to start by agreeing a definition on what 'babysitting' actually means, what it involves.

Then how it differers from nannying (if it differs at all).

Then how does that affect things such as Employment Status and Taxation.

So... to start us off, I will say that:

Babysitting is between 6pm and 2am, as that is the period of time in The Childcare Act 2006 which is exempt from registration.
The Childcare (Exemptions from Registration) Order 2008

Exempt childminding
3.?(1) The circumstances referred to in articles 2(1) and 2(3) are where a person makes the provision(2)?
(a)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;
(b)for a particular child for two hours or less per day; or
<strong>(c)only</strong> <strong>between</strong> <strong>6pm</strong> <strong>and</strong> <strong>2am.</strong>
~~~ End Quote ~~~

I think the legal status of babysitting is probably impossible to determine, most babysitting goes on in the parents home so there is little or no legal requirements- just that if you leave you child with a 14 yr old and the child dies then the parent will be held responsible. There is no lower age limit for babysitters.

Babysitting tends to be an irregular occurrence, where as nannying is generally regular...as in weekly or daily. Nannying also tends to be in the day and babysitting at night, which is why the childcare act defines babysitting as childcare in the home of the parent between 6 and 2pm. Nanny?s have their tax & NI contributions paid, babysitters do not.

i guess i see babysitting as sitting on the sofa and watching tv while the children are asleep

if the children are up then they are looking after them more like a nanny

Thanks for the new thread nannynick. I'd really like to understand this better. It's all new to me and things have certainly changed since I first babysat for 2 kids, aged only 13 myself!

I'm surprised that the Childcare Act actually mentions exact times. In one way it's good to see that there's a clear definition, but what if you pay your 16yo niece or nephew to look after your DCs for a couple of hours while you go Christmas shopping, for example? Is this not now babysitting, and if not, what is it? It's not what I would consider nannying!

Oh hang on, I get it. They're saying you only have to meet one of the criteria!

But then, in my example, what if it's for 3 hours (point b)? Or is it covered by point a if it's in my home.

If they look after your child/ren in YOUR home then I don't think there is any legal time limit anyway as nannies don't have to be regulated unless Ofsted Reg'd. The 2 hour rule (I THINK) applies to care in another persons home as is classed as 'childminding'

Forgive me if this is not the case, it's what I've always believed as you can hire anyone to be your nanny, they don't have to have quals etc.

The person providing childcare at the home of the child for whom they are caring, has many job titles: Babysitter, Mothers Help, Au-Pair, Nanny. These could all be considered to be the same thing, though there may be differences in what duties the person has. Ofsted will register all these childcare providers as Home Childcarer - that is, someone who provides childcare (for however long a period of time) at the home of the child.

The Childcare Act does not define babysitting. The exemptions to the Act do define a period of time where someone providing care for a child at the home of the childcarer, is not acting as a Childminder. Thus 6pm-2am could be considered to be a period of time within law where childcare rules do not apply.

Childcare provided at the home of the child isn't regulated, regardless of the time of day. So I feel we need to look at Employment Law and Tax Law to see if they can shed any light on the situation. I don't think they will, as they are fairly general covering laws. Where someone is being paid by someone else, to work in that person's home caring for their child, for a set period of time, I feel would fall under Employed Status.
I think Tax Law has a catch-all in that any untaxed income should be declared. Reality is that some income isn't declared - for example, people selling a few items on Ebay/Mumsnet/at car boot sales/NCT nearly new sales.

My view of how HMRC tackle things is that they look at if it is viable to collect the tax. While tax can be collected, if it costs more money in administration than the tax paid, then it's not worth collecting it. If someone sells an few items at a car boot sale, it gets overlooked as a form of income. At some point though it will become viable to collect the tax, so it no longer gets overlooked... not sure at what point that is though.
Trouble with babysitting is that it can be argued I feel that the parents employ the babysitter, so the parents should be registering as an employer and operating PAYE. HMRC costs of setting someone up as an employer I don't know... I expect there is a cost to it and thus it would not be in the Government's interest to set up every parent who ever used a babysitter as an employer.

Where babysitting is provided by a relative, then any money changing hands is 'family money' so maybe it's like a gift. Not sure though as in many small businesses there can be family members working for the business. That is still 'family money' but you would expect family members to be paying tax on their earnings. So maybe part of it may be down to how much is earned. At some point, it becomes viable to collect the tax... but at what point?

Try to ignore the Childcare Act 2006, I picked that bit just to show the 6pm-2am exclusion with regard to Childminders.
Babysitting takes place "wholly or mainly in the home of the parents" thus is exempt from childcare legislation.
Though the interesting thing is that Babysitting can legally be provided outside of the home of the parents... as long as it is between 6pm and 2am. So evening only childminding is legal, if the childcare setting is only open 6pm-2am.

Babysitting however I feel is used to mean childcare in the home of the child. Are we in agreement about that?

oh babysitting is only until 2am..........oopps - so what was my babysitter on Saturday morning between 2-3am??

Awassailinglookingforansw - only if the childcare is provided outside of the child's own home. Where the childcare is provided in the child's home, then there is no time limit.
A nanny provides care in a child's own home, for any period of time. So a babysitter is a nanny - a nanny is a babysitter ~ is there a difference between a nanny and a babysitter?

Wow, there are is a lot of reasoning here based on some pretty shaky assumptions.

First of all, I don't think there is a meaningful answer to the question 'what is babysitting in the eyes of the law'. Giving something a label of 'babysitting' doesn't exempt it from the provisions of the Childcare Act regarding regulated child care, nor from the tax statutes and case law that determine how income is treated for tax purposes.

As you know Nick, the treatment for tax purposes depends on whether there is a position of employment, and this is a matter of fact based on the reality of the situation, not on any job title or even written contract (where the reality is different from the contract).

Now the normal pattern of babysitting, where if I want to go out on a Friday night I ask around neighbours and so on until I have found someone that can do it does not fall within any reasonable test of employment. Although mutuality of obligation is no longer included in HMRCs so-called employment status test, I suggest that where there is a total absence of mutuality of obligation there can be no contract for services and therefore no employment.

So no, parents using babysitters are not in general employers and should not operate PAYE on payments they make to their babysitter.

Of course if you are using a babysitter for 4 hours every afternoon, then that is employment.

Income from selling things ('chattels') that you own but no longer need is not in general subject to tax so it is not a question of HMRC 'overlooking it'. If you buy or make stuff with the intention of selling it, then that is business income and you must register as self employed.

There is no such thing as 'family money' (except in most cases between husband and wife): you can of course give money to anybody but if they do something for you in return it is not a gift, it is income and is treated as such (as income from employment or self-employment as appropriate).

The obligation to pay taxes is not a matter of whether it is viable for HMRC to collect it, if you have income you are obliged to declare it and pay any tax that is due (and if you employ someone you are obliged to operate PAYE).

What's normal pattern of babysitting? These days some parents use an agency, the agency calls round some people on their books and sends someone. Is that person an employee? Some parents use the teenager next door. Is it different?

If a parent calls one teenager and if they can babysit, then the parent goes out, if they can't the parent stays at home - would that be considered employee?
Is there any case law on this type of thing? Parents have used babysitters for years, has it never come up.

"Now the normal pattern of babysitting, where if I want to go out on a Friday night I ask around neighbours and so on until I have found someone that can do it does not fall within any reasonable test of employment. Although mutuality of obligation is no longer included in HMRCs so-called employment status test, I suggest that where there is a total absence of mutuality of obligation there can be no contract for services and therefore no employment."

Trying to get my head around this.

MrAnchovy, please could you elaborate a little further - who would "not fall within any reasonable test of employment" - what are your criteria here?

Also exactly what do you mean by a "mutuality of obligation"

TIA

Well, in order...

nick - If a parent uses an agency then it is even clearer to me that the situation is not one of employment - the sitter will pass the 'works for many engagers' test (either that or the agency is useless!). There may be no direct contact between the sitter and the parents until the sitter turns up on the night (we usually get a text), so I find it impossible to infer a contract of service between the parents and the sitter.

nick again - er, no - if the parents don't go out, the sitter isn't even working, so they can't be employed!

lowrib - what I was trying to say is that in my opinion it would be impossible to come up with some rules that meant that someone doing 'normal' babysitting is performing a contract of service unless those rules were so unreasonable that they brought up a whole load of other anomalies that made them unworkable.

You see the big thing is the question of control, which is generally considered to be of the essence (along with mutuality of obligation) in a contract of service. When somebody is babysitting, they might have to put the kids to bed, but then, as long as they are around if the kids wake up, they can do what they want - watch a DVD, do their homework, whatever, the parents have no control over what the babysitter does.

Mutuality of obligation would mean that there is a contract where the parents have to pay the babysitter, whether they need babysitting or not, and the babysitter would have to turn up when asked to or be in breach of that contract and liable to the parents for their losses arising from that breach.

That doesn't sound like babysitting to me.

nannynick "A nanny provides care in a child's own home, for any period of time. So a babysitter is a nanny - a nanny is a babysitter ~ is there a difference between a nanny and a babysitter?"

no, no, no a nanny has their NI & Tax paid by the parent, a babysitter is paid in cash & probably is too young to pay tax anyway (unless they have been sent by the babysitting agency in which case.....i've no idea if they are employed or self-employed??)