Contract query

[Clare77]

Hello, can someone please help me and give me some advice. I have had a parent sign my Morton Michel contract and the child was due to start with me on the 28th May 2014 but she texted me last weekend to tell me that she was going to cancel the contract as she couldn't afford to pay me and that her friend was going to be looking after her child. The parent wanted me to start of part time but then go onto full time but I told her that she would have to pay me half fee for the two days I wouldn't have him as it is using a space which I probably couldn't fill. She says that she would not have to pay 4 weeks termination money but according to the contract she cancel with immediate effect if the child doesn't settle in within the first 4 weeks (I have only had him for 3 hours one day last which she has paid me for and for those 3 hours he was very happy and playing lovely) but on the other part of the contract it says if you want to end the contract then its 4 weeks notice and the remainder of the fees need to be paid. Can anyone please advise as to what I should do?:(

[FussyElmo]

Hello, can someone please help me and give me some advice. I have had a parent sign my Morton Michel contract and the child was due to start with me on the 28th May 2014 but she texted me last weekend to tell me that she was going to cancel the contract as she couldn't afford to pay me and that her friend was going to be looking after her child. The parent wanted me to start of part time but then go onto full time but I told her that she would have to pay me half fee for the two days I wouldn't have him as it is using a space which I probably couldn't fill. She says that she would not have to pay 4 weeks termination money but according to the contract she cancel with immediate effect if the child doesn't settle in within the first 4 weeks (I have only had him for 3 hours one day last which she has paid me for and for those 3 hours he was very happy and playing lovely) but on the other part of the contract it says if you want to end the contract then its 4 weeks notice and the remainder of the fees need to be paid. Can anyone please advise as to what I should do?:(

If you have a settling in period in your contract then yes she can cancel without any notice. its only after the settling in period has passed that you can insist on notice.

[Simona]

Hello, can someone please help me and give me some advice. I have had a parent sign my Morton Michel contract and the child was due to start with me on the 28th May 2014 but she texted me last weekend to tell me that she was going to cancel the contract as she couldn't afford to pay me and that her friend was going to be looking after her child. The parent wanted me to start of part time but then go onto full time but I told her that she would have to pay me half fee for the two days I wouldn't have him as it is using a space which I probably couldn't fill. She says that she would not have to pay 4 weeks termination money but according to the contract she cancel with immediate effect if the child doesn't settle in within the first 4 weeks (I have only had him for 3 hours one day last which she has paid me for and for those 3 hours he was very happy and playing lovely) but on the other part of the contract it says if you want to end the contract then its 4 weeks notice and the remainder of the fees need to be paid. Can anyone please advise as to what I should do?:(

It depends on how you see settling in and how it is worded in your contract

my personal view is
settling in should start only when parents have signed the contract, agreed your care and hours and you have signatures and permission to settle the child on your own for a few hours or whatever time you feel is right before you start the proper care
Some cms do not charge for settling in but many take a 4 weeks deposit
if parents change their mind during settling in they must give you appropriate notice and pay the fees during the notice then you refund their deposit

By starting settling in you may have said no to other parents ...so keep this in mind in future

If you do not get paid this time consider tweaking your contract for the future and add conditions on cancellation

I know we are all different but I would imagine most cms would not settle in unless sure the parents want their service and all documents signed accordingly.

Good luck

[rickysmiths]

Simona is right.

What I do is when the parents sign a Contract the pay a four week fee Deposit which I make very clear is non refundable if they cancel the Contract before it starts in full, so like in your case have done one or two short settling in sessions which I don't charge for.

Then when the child starts its full Contracted Days and hours I have a 4 week settling in period during which time either I or the parents can end the Contract with no Notice. If the parents end it they loose their 4 week Deposit and they have to pay for any hours they have used, if they have paid for the four weeks in advance and they leave after two then you keep the Deposit but return two weeks fees.

If I terminate the Contract two weeks into the Settling in I refund the 4 weeks fees Deposit and the 2 weeks unused fees.

If I were you I would Write to the Lady saying you are sorry she has decided not to use you. Refund any payment made in advance for time she hasn't used. Remind her that if she has made a claim to HMRC for help paying her childcare fees she will need to inform them at once that she is no longer using Ofsted Registered Childcare and that you will be doing the same. I would wish her luck in the future.

(This isn't strictly true though you can ring them and inform them she has left you) You need to make this clear for your records and so she is clear that she must not continue to use your Registration Number to claim money to pay an unregistered person.

I would then mark this one down to experience and start advertising. Also use the time to review your Fees and Payments Policy and perhaps consider charging a Deposit. I keep the Deposit until the end of the parents Contract and then use it to cover the four weeks Notice Period. It just gives you a bit of a buffer if you get a non payer. It gives you 4 weeks to do something before you are out of pocket.

[bunyip]

I can't answer in terms of MM contracts, as I don't use them.

I have a 'immediate notice' clause for the first 4 weeks, which is referred to as the settling in period (not the same thing as the preceding short settling visits.) If notice is given before the end of those 4 weeks (therefore naturally including any time before the arrangement commences) I'd refund any fees for days on which I had not provided care.

BUT I also take a reservation deposit which I do not refund until the full contract period commences, ie. after those 1st 4 weeks. The reservation deposit is refunded against the bill for the 2nd month's care, and not as soon as the child starts with me. So by the time the deposit becomes refundable, the client would no longer be able to give me immediate notice, IYSWIM.

Hope I've explained this reasonably clearly. :rolleyes:

[Chatterbox Childcare]

If either party stops the contract within the settling in period I would refund any monies paid in advance, apart from what I had worked. If the parent has paid you for hours worked I would walk away. This is what a settling in period is for.

[Koala]

I take a 4 week - non refundable deposit for care to start on a particular day: -

If they don't turn up - I keep it,
If they mess the hours/days about - I keep it,
If they left for no apparent reason - I keep it,
If they leave for a reason and I don't agree or not my fault (reduced hours/loose job) - I keep it

If they leave because I am not happy - I return it.

I've saved places for numpties and they haven't turned up, or just booked full time (edging their bets) and reduced to part time, wasting my time, planning and valuable lossed income and This is why I take a 4 weeks non refundable deposit - which I will deduct from the first months bill, I do include a settling in period of 4 weeks and at anytime in this period short/immediate/negotiated notice can take place but the deposit is non refundable but could be refunded subject to my discretion probably If I wasn't happy to continue the care.

[Simona]

I know that each cm does things differently but I am not sure whether cms are confusing settling-in for the children...a period of adjustment in the care of a key person and forming attachments.... with a ...let's call it ...'trial period' to see whether our professional relationship with parents is going to work and if the agreed contract is ok or needs to be adjusted or indeed terminated?

Settling-in relates to the children...
they may settle in well but parents can still decide to end their contract when actual care starts following settling-in as long as they give the appropriate notice and all deposit matters are clearly understood by all parties

immediate notice, by the cm or parents...also means payment in lieu...that is clearly stated in all off the shelf contracts or own ones and has to be followed by either party.

[bunyip]

I know that each cm does things differently but I am not sure whether cms are confusing settling-in for the children...a period of adjustment in the care of a key person and forming attachments.... with a ...let's call it ...'trial period' to see whether our professional relationship with parents is going to work and if the agreed contract is ok or needs to be adjusted or indeed terminated?

Settling-in relates to the children...
they may settle in well but parents can still decide to end their contract when actual care starts following settling-in as long as they give the appropriate notice and all deposit matters are clearly understood by all parties

immediate notice, by the cm or parents...also means payment in lieu...that is clearly stated in all off the shelf contracts or own ones and has to be followed by either party.

I agree, there is an unfortunate and confusing similarity in the terminology between "settling visits" and "settling-in period".

I don't know about MM or CM-produced stationery, but the pacey contracts use "settling-in period" to define an initial 'immediate notice' period. The notes to pacey contracts explain: "....During this time no notice period or notice payment will be required if either party wishes to end the agreement...." etc. The contract has a line to enter the "date of commencement of the full contract" noted as "...the first working day after the completion of the settling-in period" (ie. when the settling-in period is over and from when the usual notice period will apply.

On this basis, a client giving notice before the arrangement started (and therefore, by definition, before the commencement of the 'full contract') would be entitled to give immediate notice and not be liable for childcare fees. However, they probably would be liable (subject to contracted terms) to surrender any reservation deposit ('start-up' deposit) paid to the CM.

This is where I struggle with pacey contracts, since they only allow reservation deposits on a contract signed within 12 weeks of the start date. They assume anything before this to be covered by a retainer. Personally, I detest retainers, thinking that getting paid to do nothing is not a good way to start a business relationship (personal opinion.) What I really detest is that pacey severely limit my freedom of action as a self-employed person by putting this in the contracts that I must use to maintain their legal support. It isn't necessary. I don't see why pacey believe they have the right to go beyond 'recommendations' and tell me how to run my business beyond the legal and regulatory requirements. :mad:

Note, this all hinges on the pacey contracts. The OP's case may be different, depending on what the MM contracts say.

[Simona]

I agree, there is an unfortunate and confusing similarity in the terminology between "settling visits" and "settling-in period".

I don't know about MM or CM-produced stationery, but the pacey contracts use "settling-in period" to define an initial 'immediate notice' period. The notes to pacey contracts explain: "....During this time no notice period or notice payment will be required if either party wishes to end the agreement...." etc. The contract has a line to enter the "date of commencement of the full contract" noted as "...the first working day after the completion of the settling-in period" (ie. when the settling-in period is over and from when the usual notice period will apply.

On this basis, a client giving notice before the arrangement started (and therefore, by definition, before the commencement of the 'full contract') would be entitled to give immediate notice and not be liable for childcare fees. However, they probably would be liable (subject to contracted terms) to surrender any reservation deposit ('start-up' deposit) paid to the CM.

This is where I struggle with pacey contracts, since they only allow reservation deposits on a contract signed within 12 weeks of the start date. They assume anything before this to be covered by a retainer. Personally, I detest retainers, thinking that getting paid to do nothing is not a good way to start a business relationship (personal opinion.) What I really detest is that pacey severely limit my freedom of action as a self-employed person by putting this in the contracts that I must use to maintain their legal support. It isn't necessary. I don't see why pacey believe they have the right to go beyond 'recommendations' and tell me how to run my business beyond the legal and regulatory requirements. :mad:

Note, this all hinges on the pacey contracts. The OP's case may be different, depending on what the MM contracts say.

I think you can tweak the pacey contract if not suitable by adding your own Terms and Conditions on a separate addendum...I know more paperwork but it has to suit you...I used to have a full page of my own T&C while using Pacey's contract

Retainers are really...in my view....a parental choice
Some would not dream of paying one and when they enquire later it is a disappointment the place has been filled...others insist to guarantee the space ....as long as it is their choice we can't feel guilty of being paid to do nothing...well it means also earning half the potential fee...does it not?...I don't think this is available in nurseries when they only pay a deposit?
In addition during the retainer period parents can use the space by topping up the fees


I would be so happy Bunyip if you could research your legal rights even if you did not have an off the shelf contract...ask a solicitor and I am sure you will be told that...as long as a contract is signed by all parties it is legally binding...I am not quite sure what your contract protects you against that mine doesn't? but would be like to hear....mine certainly protected me
Honestly let us know if you get a different answer

[bunyip]

I think you can tweak the pacey contract if not suitable by adding your own Terms and Conditions on a separate addendum...I know more paperwork but it has to suit you...I used to have a full page of my own T&C while using Pacey's contract

Retainers are really...in my view....a parental choice
Some would not dream of paying one and when they enquire later it is a disappointment the place has been filled...others insist to guarantee the space ....as long as it is their choice we can't feel guilty of being paid to do nothing...well it means also earning half the potential fee...does it not?...I don't think this is available in nurseries when they only pay a deposit?
In addition during the retainer period parents can use the space by topping up the fees


I would be so happy Bunyip if you could research your legal rights even if you did not have an off the shelf contract...ask a solicitor and I am sure you will be told that...as long as a contract is signed by all parties it is legally binding...I am not quite sure what your contract protects you against that mine doesn't? but would be like to hear....mine certainly protected me
Honestly let us know if you get a different answer

Mine certainly get tweaked. I wonder how recognisably 'pacey' my contracts are by the time I've crossed out and added various details. :rolleyes:

I doubt if my contracts protect me in any way that yours don't, and I'm certainly not arguing in that vein. I think there may just be some difference over the terminology.

As for seperate/additional Ts&Cs, I've had completely contradictory advice from different people at pacey legal as to whether we should do this or just struggle on with their 'one size fits all' approach to contract stationery.

The advice I've had from an acquaintance in the legal profession is that my contracts (as amended) are pretty legally solid to all intents and purposes, but not to be surprised if the pacey people tried to wriggle out of pursuing a debt cos I'd made a few changes. This doesn't bother me unduly. With payment in advance and my own approach to "acceptable risk" on reservation deposits, I'm not likely to need their debt recovery services. Anyway, I'm perfectly aware of how many claims for arrears are 'won' in court, but the creditor never sees a penny of the money in any case. So I just try to be realistic and cover my backside as much as is practicable. From my point of view, I could (and have) lost some potential earnings, but I'm never likely to do any actual work that I don't get paid for IYSWIM.

[Simona]

Mine certainly get tweaked. I wonder how recognisably 'pacey' my contracts are by the time I've crossed out and added various details. :rolleyes:

I doubt if my contracts protect me in any way that yours don't, and I'm certainly not arguing in that vein. I think there may just be some difference over the terminology.

As for seperate/additional Ts&Cs, I've had completely contradictory advice from different people at pacey legal as to whether we should do this or just struggle on with their 'one size fits all' approach to contract stationery.

The advice I've had from an acquaintance in the legal profession is that my contracts (as amended) are pretty legally solid to all intents and purposes, but not to be surprised if the pacey people tried to wriggle out of pursuing a debt cos I'd made a few changes. This doesn't bother me unduly. With payment in advance and my own approach to "acceptable risk" on reservation deposits, I'm not likely to need their debt recovery services. Anyway, I'm perfectly aware of how many claims for arrears are 'won' in court, but the creditor never sees a penny of the money in any case. So I just try to be realistic and cover my backside as much as is practicable. From my point of view, I could (and have) lost some potential earnings, but I'm never likely to do any actual work that I don't get paid for IYSWIM.


Judging by the many comments and different ways Cms operate 'one size' will never 'fit all'...I would call that 'cloning'...my view of course

That will definitely be what will happen with agencies when everything will be the same for ALL cms who join such an outfit...no individuality, independence or freedom of thought or scope to develop one's own practice... or the agency will have kittens every time they look at individual paperwork

off the shelf contracts will still be acceptable if they allowed for each CM to add his/her own T&C within it...can't imagine that Pacey will expect their nurseries members to be restricted to the association's restricted wording

Until then let's remain Unique and able to decide how we want to run our business :thumbsup: