Childminders - Deposits/Retainers WARNING

[pippin26]

After enduring a horrific experience with a parent over the last 24hrs please can i urge you all to check check and clarify the position when taking retainers/deposits.

to cut a long story short

i have the older style NCMA contracts
parent signed with my tuesday gone - paid the deposit. we signed, discussed and ticked all the right bits on the contract including the non-refundable bit about the deposit.
parent phone me the following evening saying she wasn;t going ahead with the contract and wants her money back.
I said i will get back to her after seeking advice.
It turns out that regardless of what I ticked on that contract I have to give her back all the money BECAUSE I ticked that the deposit counts towards minding fees. Not being a robbing cowbag i was quite happy for the parent to pay me this large sum of money and allow it count towards minding fees.

After a LONG day wrangling with the utterly useless (we favour parents) NCMA legal line the upshot - after being verbally abused and screamed at by the parent and her mother on my doorstep in front of my mindees - is that NCMA side with the parent.

I am out of pocket after following the ncma contract to the letter, following the advice on the NCMA website, being fair to the parent, turning down work in the meantime etc. And all NCMA can say is that they 'sympathise' with me.

This is why the changed the look of the contracts and wording - because the old style ones were contradictory.

So please beware that you are savvy with the contracts.

IF you have a problem (as I now do) with NCMA and their glaringly lack of support for the people they are supposed to represent then please do let them know.

I am sorry that you have had such a torrid time through all of this.

I have posted on a number of threads recently on Mumsnet (and other sites), that I do not and indeed have never used NCMA contracts as I found them to be lacking in so many areas and gave little or no opportunity for personalisation or individual business needs. Surely it is up to the Childminder how to run her/his business yet the NCMA contracts funnel everyone down one path regarding such things as notice periods, holiday pay etc. WE are running our businesses and it up to us to decide how to run it, not the NCMA!!! I am beginning to really question what benefit they offer to Registered Childminders...........

You must feel so let down - you mention that you are using "older style" contracts (I am not familiar the currents ones) - what happens when they update the text? Presumably everyone using an "older style" contract ends up in the same boat as you??

Did the parent cancel before receiving any services from you?

yes scurry they cancelled before receiving any service from me - however they realised that that the deposit was non-refundable and had signed and agreed to this condition.

i queried this Millenium and apparently the older style contracts are still valid - just not this part.

i followed NCMA advice to the letter only to find out their own legal line totally contradicts the contract and the ncma website.

but the legal line says the contracts are still valid - confused?????? so am I - as well as out of pocket.

Seems a bit strange then,can you claim back from NCMA for losses?

oh believe me i will be letting NCMA know today exactly what I think of them and what I expect. I will be asking for something.

oh and i am not green to minding - been doing this 7 years and have always been an ncma member. might be changing to MM soon!

Hi

I have mm insurance for this exact same reason. That way I can write my own contracts, use my own accident book etc.
Had a horrendous experience with ncma in the past and would NEVER use one of their contracts again!

Oh Pippin! Sorry you've lost out on this one, that seems so unfair. I would see a non-NCMA solicitor as well though because although the NCMA legal people ought to know what they're doing their opinion isn't necessarily what a court of law would decide iyswim?

The NCMA have also said that we are not entitled to retain payment if the child has never attended the setting because the courts would consider that the contract never started. don't know if thats true either.

I have given the parent back the money - think i have had a very lucky escape there.
I have told NCMA exactly what I think of them but do you know what i think they are terrified of being accused of being biased towards childminders.
I think they are terrified of being sued.
I think they should be renamed PC World because thats the world they seem to live in.

I might just take further advice on this and when the time comes - as they won;t refund my subs for the rest of the year, i will be going over to MM

I am also putting in a formal complaint.

So sorry youv'e had all this stress, I've had other minders mention that NCMA are very understanding, compliant until you actually have a problem. I also don't understand how part of a contract can be valid yet another bit not, that sounds very convinient for them. I was told (I think about a year ago) that I needed to use the new format contracts that had parental responsibility added, cost me a small fortune to replace everyones, even more peeved as I'd renewed with the old ones only a few months before anyway, my parents were quite bemused to get two within 4 months.

I've just got my renewall for NCMA not sure what to do tbh, was thinking about going MM last year. Anyone with MM whats the crack with them?

PS. I can't seem to add me to your network Pippin I accept the invite thingamy but it doesn't come up, will ask my sis next time I see her to sort it for me cos she's good with computery stuff.

atworknotworking - That's how contract law works. If a clause is deemed to be unreasonable and/or unfair (depending on whether UK law or EU law, slight differences on what is unreasonable and unfair!!!) then only that clause is struck out, the rest of the contract stands as a whole. If there are two parts of the contract which contradict each other, then I would guess that it would be both unreasonable and unfair and as such those two clauses would be struck out, which would mean that the 'deposit' would revert to common law and statute rather than what is in that particular contract. If the services haven't been performed, then they can get their deposit back.

HOWEVER - There is also what is called 'industry practice'. If this were to go to court I would actually expect the CM to be able to keep their money back because of the following reasons:

• Verbal agreement - the CM made it very clear verbally that it was a non refundable deposit, so even if the clause was excluded in the contract, the verbal agreement is in place.
• Industry practice - it is industry practice to have non-refundable deposits in order for a parent to 'hold' a place for their child. As this is the less expensive option for a parent (ie as opposed to a retainer) a court would be more likely to side with a CM as the CM is not being 'grabby' (clear as mud???!!!).

The problem is most deposits would be sufficiently low as to be dealt with in small claims courts and so this is unlikely to have been tested in a court of sufficient seniority for there to be judicial guidance on this. I haven't looked it up myself, but there MAY be some cases in related fields, ie nurseries, etc or some other comparable field.

The thing that bugs me is that NCMA should have written to all minders explaining that the old style contracts had a potential problem - but they didn't.
Their OWN website states that a minder can charge a deposit, deduct it from fees and keep the money IF the parent does not want to take up the space. I have printed it out just in case I decide to pursue this further. The ironic thing is that the NCMA legal line chappie told me that the NCMA website is WRONG.

So following all the advice, using the NCMA contracts and guidelines - as we members are advised to do so that we can be within the remit of the law and we can obtain help when we need it - I have still been shafted by NCMA and their shambolic 'support'.

AtWork - will look at why we can join networks - hun.
Also who told you that you had to start using the new contracts? I have not ever had anyone tell me that and when i quiried with NCMA and the legal line yesterday about whether I should still be using the old style contracts they just said yes - a contract is a contract - a legally binding document. When I snorted in disgust and pointed out 'obviously not' they then became very non-committal.

Strangely enough - when I asked NCMA if they will refund the rest of my years subs so I could swop over to MM - apparently it's NCMA policy NOT to refund (great that it works in their favour isn't it) even under circumstances where you follow their advice and guidelines to the letter and still come of worse.

the stress of this has made me really poorly.

this is really awful of NCMA. They need to sort this out and the consistency of their website and phone people. They should be fair but if wrong or have messed up they need to take responsibility and be fair to you. 'Non-refundable' comes acorss so clearly here.

If they are sloppy in this area there must be lots of other people affected in other areas too and too stressed by it and overwhelmed by the NCMA institution (and their work) to take it further. I hope you (and any others reading) do, though it must be hard to find the energy for it. Could link to this thread in a letter to make them do the work of reading the situation without having to write it all out again.

Not sure if the mum was returning the very next day after signing. I might be inclined to be nice and refund her though not contractually obliged esp. if you've turned down work. What's a cooling off period- is that relevant here?

pippin

Jesus Christ, what an awful palaver Pippin . I have had a couple of parents who have just not bothered to turn up at the start of the contract because I haven't charged them a deposit and now you're saying that the deposit is a complete waste of time anyway as you won't get to keep it?! What exactly is a deposit then is what I'm wondering!!

Also - what is MM, I've not heard of it?

LOLLIPOP MM is Morton Michel, they do insurance for minders, nannys, nurseries etc, similar to NCMA but without it appears all the crappy hype, much more flexible re using your own contracts etc too.

Pippin I'm sure someone at the network meeting mentioned it, can't remember who thou as it was ages ago.

fp10 thanks for the info you sound verrrrry clever.

I do think that the continuity is pants over this one and pippin has been treated pretty unfairly IMHO.

pippin I'm not far off if you want to offload anytime.

After 25 years with NCMA, I went over to MM last year, I could just not see what I was gaining out of being a member, apart from it costing me more, with less support.

just to update you - I have made a formal complaint to NCMA and its now being investigated.

I don't understand why it would be considered unfair to ask for a non-refundable deposit to secure a CM place.

Why would child-minding be treated differently to other businesses where it is commonplace to ask for a deposit to secure a service?

awful, though the mum sounds an inconsiderate cow and a grasping liar so you may be best out of it anyway... so sorry for you...so angry

UPDATE:

I would like to say that I have now received some first class customer service from NCMA and within 48 hrs they have resolved my complaint to my satisfaction.

I would strongly urge anyone with a concern to let NCMA know about it - if they don't know about it then they can do anything to change it.

oh well done Pippin x x x