How much to pay relative's carers now that relative has passed away?

[NoonarAgain]

My granny died before Christmas. Thanks to a team of 4 great carers, she was able to stay in her own home until the end. She needed round the clock care at the end, and this obviously was not cheap.

Now that gran has passed away, how much should the carers be paid in lieu of notice? The main carers are of retirement age, and two were friends of extended family stepping in to help my gran out. as far as I know are not rushing to find alternative employment.

I want to be fair to them. There is no written contract, so we have to just do what feels right. They were paid cash weekly. We cannot afford a month's pay for all as that would amount to many thousands of pounds. I said to dh that I'd like to ask them what's they'd feel happy with, but dh says that puts them in a difficult position.

Any thoughts?

You see, quite likely, that sounds very unfair to me that the other carers get nothing! We shall be paying them notice.

Noonar. I'd get some independent advice and I would do whatever is the 'correct' thing to do is. I wouldn't pay more and I wouldn't pay less.

If any of the carers are officially not due anything I would consider giving them a gift of a few hundred pounds.

£13k sounds ridiculously high but if that is what you are legally obliged to pay then you can't choose not to as its too much. Hopefully, you can get someone to look into this properly and give you a definitive answer.

Good luck and I'm very sorry for your loss

Flowery didn't decide you were a villain. If these people were employed legally then they have the protection of the law and there are no grey areas at all. It doesn't matter what you think is fair, the law is the law. You can of course give over and above to those not legally entitled to anything but you can't give less.

If they are genuinely registered as self employed and declaring income on their tax return then it is no issue whatsoever.

It sounds like they may have been have been paid cash in hand with no consideration for their employment status but with everyone benefiting from the cash in hand economy. Its essentially against the law, but may never be an issue as, if the carers were aware of their cash in hand status, they are unlikely to want to draw the attention of HMRC. However they may strongly have believed they were employees. In this case legally your solicitor can advise what you have to do, morally only you can decide how you want to proceed.

Blimey this has turned into a complete fiasco. Exacerbated by the fact that as usual lots of people who don't know the law come on and give an opinion. Why do people insist on doing this every time?

I am a very senior employment lawyer.

The contracts of employment are frustrated due to death and thus no notice monies are due. Outstanding salary and holiday pay is due out of the estate.

Redundancy payments are due to those with qualifying service (2 years).

I didn't click onto all the links in the thread because I know the law but redundancy is a set amount according to age, length of service and weekly earnings. Unfortunately if someone has increased their hours and is paid a higher amount immediately prior to the redundancy then that is the figure you use. There is no career averaging.

They should not be submitting invoices. You as executor of the estate should not be paying them notice to which they are not entitled.

Thanks.

Mrs, what i meant was that flowery decided very early on that my agenda was to diddle someone, rather than discuss what might be considered fair. My mistake in thinking that there might be dome sort if negotiation! My beef with flowery is that she seemed to interpret my ignorance and inexperience as ill intent.

Atticus, thanks for your post. What about the point that the lady in question has offered to keep working to help me manage the books/ property (which happens to be a HMO) over the next few months? She'll still be 'redundant' at the end of this period. I'm not meaning to drip feed, it's just that as I'd assumed average earnings would be the relevant factor, I didn't mention this right at the start of the thread.

'Some sort'

But atticus what if they were genuinely self employed? I'm not disputing statutory redundancy is due if they were employed, but at this point, it isn't clear if they were or not, which I think is the key issue.

HMRC are also very clear on employee vs self employed status :

Employed ­ if you answer yes to most of the questions you are likely to be employed:
• Do you have to do the work yourself?
• Can someone tell you where to work, when to work, how to work or what to do?
• Can someone move you from task to task?
• Do you have to work a set number of hours?
• Are you paid a regular wage or salary?
• Can you get overtime pay or bonus payments?
• Are you responsible for managing anyone else engaged by the person or company
that you are working for?

Self­employed ­ if you answer yes to one or more of the questions you are likely to be self­employed.
• Can you hire someone to do the work, or take on helpers at your own expense?
• Can you decide where to provide the services of the job, when to work, how to work
and what to do?
• Can you make a loss as well as a profit?
• Do you agree to do a job for a fixed price regardless of how long the job may take?

As the carers would have been directed by the OP's mother, or the family, then they are almost certainly employees.

OP, I don't think it's fair for you to accuse people of attacking you, when they are only stating the facts. Flowery has been very helpful and clear. The law is the law. I'm sure the lawyer handling the will will take this all into consideration when addressing the estate.

If they had no contracts were you paying their tax and national insurance from the wages? If not then they are self employed. In which case you do not technically owe any redundancy so whatever you do pay is goodwill.

I do think you need to get an opinion on whether the workers were employed or self employed - if hmrc challenge the 'self employment' status the estate may have additional national insurance liabilities, penalties and interest.

Surely as executor the op can't pay out from the state any more (or less) than the carers are legally entitled to, because it would impact on the legal entitlement of other beneficiaries. If the op offers to pay the carers more than they are legally entitled to, surely it would have to come out of her own pocket rather than from the estate?

Not paying someone's tax and NI does not automatically make them self-employed. In the case of this poster's GM, it seems clear that the carers should have had their tax and NI deducted at source as they were employed but, as must be quite often the case, the employers were not part of a business with HR departments and pay roll clerks to fall back on and simply weren't aware of their obligations.

There has definitely never any deduction from wages for tax/ NI.

Clash, I'm also interested in that question.

Carole, the trouble is, in a complex situation it's nice to be able to come on MN and discuss things that might have a bearing on a situation ( without being accused to avoiding fair payment). Fair enough, if that turns out that what is mentioned not to be relevant legally. But I am upset by being accused of trying to avoid payment, when I'm simply seeking clarification of the situation (and, I admit, expressing some incredulity that average earnings would not be a factor).

It would be odd, wouldn't it for me to just write a cheque for £13k , without any discussion or exploration of factors that I feel may have a bearing on the situation.

Lala, xpost

There must be thousands of households that employ eg cleaners, gardeners, babysitters on a cash in hand basis. Then must they all pay employers NI , tax and pension contributions plus holiday pay? Sounds like a headache.

op, I'd try to have a quiet word with your grans carers before you start the ball rolling with all this

I'm guessing your gran paid the carers in cash and the carers did not declare this income as it wouldn't have been very much and they might not have thought about it, being paid in cash might have suited them...and you dont know if they were receiving any benefits/pensions that this cash in hand might have screwed up a bit..

so what I'm saying is, you might find they are happy to reach an arrangement with you regards what you both feel is fair and what your gran would have wanted, instead of everything being made legal and them having to tell HMRC that they've been paid some money..

One of the key factors on employment status is who the obligation is on.

If the employer (for want of a better word) is obliged to provide work, and dictates start, finish times, holidays etc they are more likely to be employed.

If the worker can arrange the times to suit themselves, take holidays when they please, finish and start as they please and can choose what work they do, they are more likely to be self employed.

Given that, I believe, two of the carers were friends of extended family 'stepping in to help', it sounds as though they could choose to do as they pleased, rather than being bound to do as ops grandmother said - although that is of course, just my interpretation.

I do think, therefore, that given the lack of contracts and seemingly casual nature of the engagement, there is a good argument that they were self employed.

But, the solicitor dealing with probate should know more about the situation and be pointing you in the right direction.

And tbh if one of the carers was also a bookkeeper, I would be very surprised if she wasn't declaring the income.

You could do this, but you would have to be fully aware that it's illegal and any of the carers could complain to HMRC at any time in the future, and any liabilities would still have to be met.

Re ChristmasPies post - I have employed cleaners and gardeners and they were clearly self-employed. They could work for anyone they wanted, they chose their hours and how they worked, and invoiced me weekly or monthly. I had a nanny who was an employee - I paid her NIC, PAYE, holidays etc.

Btw, if you goggle hmrc employment status indicator, that should take you to a page where you can check if, in hmrcs opinion, they would be employed or self employed.

Google, not goggle

Oops! My thread was referring to ssd's thread about having a quiet word.

Noonaragain - you're right, it would be mad to write a check without clarifying the situation first. You need to take advice.

Firstly I'm sorry op but over many years flowery is, unfortunately you might find, right. I've read/
commented alongside her too so both recognise her expertise and know she knows/is senior to me professionally.

I guess the problem is you thought this casual help. Friends offering something friendly. And actually law defines that friendship and help quite well. Just that very often no one bothers to look.... Yes many relationships could come under it, gardening, handymen, decorating, caring. Many 'average joes' just don't equate that to actual law.

It's been clearly and pleasantly laid out. It's a bit more (I guess/expect) than you thought likely. If you're unsure imo take this info in RL to an employment expert. No biggie. It likely won't change much.

I guess I'm wrong then

and op, flowery absolutely knows her stuff re employment law, you wont get much better advice than hers