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View Full Version : Suspending Care/Breach of Contract - NCMA



Pipsqueak
26-05-2010, 09:01 PM
This has been the source of hot debate lately and lively discussion.

However, its great that we discuss it on here BUT everyone needs to tell NCMA that is is not working for us and why not.

If we ALL tell NCMA then they may actually do something about it.

NCMA's stance:

We cannot suspend care as we would then be in breach of contract.

yes I know its madness the parent has already breached contract by not paying up but the train of thought is that they could then countersue us for loss of earnings if care is stop and they can't go to work. Still utter madness to me.

BUT NCMA want to know your thoughts. if there are enough views and opinions perhaps they may change things - in our favour but you have got to tell them.

use their contact us button on the NCMA website.

I have been doing a lot of research lately on 'contract law' and breaches of contract and so far cannot come up with much - but then much of it doesn't seem to make sense to me:rolleyes:

C'mon peeps we managed it with The Sun Newspaper - now lets work on NCMA.
:D

Pipsqueak
26-05-2010, 09:03 PM
http://www.contractsandagreements.co.uk/breach-of-contract.html

miffy
26-05-2010, 09:03 PM
This was raised at our ARM a couple of weeks ago so hopefully will be being fed back to NCMA.

Still it can't do any harm to mention it again so I'll push me button tomorrow! :D

Miffy xx

The Juggler
27-05-2010, 10:34 AM
I've raised it a few times with them, even spoke with someone from customer services and from the legal team but they still take the view that unless payment is weeks behind you can't suspend care!:panic: :panic:

singlewiththree
27-05-2010, 10:46 AM
Is MM the same? If you are term time only do you have to give notice in term time?

auntym
27-05-2010, 12:18 PM
Well im sorry but its tough. Ar far as im concerned none payment means none care.
I dont work for nothing. I cant afford to.
They can take me to court, some may think iv got a wrong approach to it but im not giving 4 wks notice and free care and be disrespected for 4 wks! :)

caz3007
27-05-2010, 12:41 PM
Is MM the same? If you are term time only do you have to give notice in term time?

I have just changed to MM contracts and it states in their contracts

Late payment

I will be entitled to charge -____% per day/month calculated on sums remaining due and outstanding. I will also be entitled to suspend my care of your child until the amountdue has been paid and/or terminate our contract.

So no they are the same as NCMA

Erika
29-05-2010, 10:57 PM
I've seen this come up before.

Correct me if I am wrong but NCMA contracts do state the fee is for the provision of a service, yes? If that is the case, then when one party penetrates the contract by refusing to pay the fee for a service that has been provided as specified in the contract that's it - the contract has been broken.

There are certainly scenarios where a counter claim can be made, such as a loss of earnings however if it is as cut and dry as care suspended due to failure to pay for the care already rendered thus far, any civil court would be unlikely to award damages for such a counter claim. It's not impossible that they would award damages to the parent in this scenario but it is improbable.

Obviously there are certain provisions. An example would be where a parent is paying in advance therefore the service that is being suspended has already been paid for.

The only manner to cover the eventuality for a loss of earnings counter claim would be once payment has not been received give the notice as required by contract. However this leaves a childminder open to providing four weeks of care unpaid (assuming the notice period is 4 weeks) plus the week(s) already unpaid for. Sure the childminder can make a claim for the non payment of fees, and a court can award damages. But after that comes the payment of damages. If the parent refuses to pay the damages, it has to go back to court to be enforced, and is a right old run around chasing it up. I've seen many cases where damages awarded have never actually been paid.

A claim or counter claim can be made for any reason, so it would be ignorant of me to state that even giving notice would not result in a counter claim - it could. The real issue is whether that claim would have a likelyhood of succeeding. Each case is unique however, in order to be successful (in any claim - counter or otherwise) it must have reasonable grounds, and must be evidenced on the "balance of probabilities" that the respondant was negligent - the burden of proof lies with the claimant. Giving four weeks notice, as per contract would hardly be seen as negligence in a claim for loss of earnings.

gigglinggoblin
29-05-2010, 11:10 PM
I have just changed to MM contracts and it states in their contracts

Late payment

I will be entitled to charge -____% per day/month calculated on sums remaining due and outstanding. I will also be entitled to suspend my care of your child until the amountdue has been paid and/or terminate our contract.

So no they are the same as NCMA

Isnt that saying you can stop care whereas NCMA say you cant?

I am about to renew and will be going with MM because of everything I read on here about legal help so I will let them know why. I want to go with them cos they do so much to help cms but I dont feel I can do that at risk to myself

Pipsqueak
30-05-2010, 08:11 AM
I've seen this come up before.

Correct me if I am wrong but NCMA contracts do state the fee is for the provision of a service, yes? If that is the case, then when one party penetrates the contract by refusing to pay the fee for a service that has been provided as specified in the contract that's it - the contract has been broken.

There are certainly scenarios where a counter claim can be made, such as a loss of earnings however if it is as cut and dry as care suspended due to failure to pay for the care already rendered thus far, any civil court would be unlikely to award damages for such a counter claim. It's not impossible that they would award damages to the parent in this scenario but it is improbable.

Obviously there are certain provisions. An example would be where a parent is paying in advance therefore the service that is being suspended has already been paid for.

The only manner to cover the eventuality for a loss of earnings counter claim would be once payment has not been received give the notice as required by contract. However this leaves a childminder open to providing four weeks of care unpaid (assuming the notice period is 4 weeks) plus the week(s) already unpaid for. Sure the childminder can make a claim for the non payment of fees, and a court can award damages. But after that comes the payment of damages. If the parent refuses to pay the damages, it has to go back to court to be enforced, and is a right old run around chasing it up. I've seen many cases where damages awarded have never actually been paid.

A claim or counter claim can be made for any reason, so it would be ignorant of me to state that even giving notice would not result in a counter claim - it could. The real issue is whether that claim would have a likelyhood of succeeding. Each case is unique however, in order to be successful (in any claim - counter or otherwise) it must have reasonable grounds, and must be evidenced on the "balance of probabilities" that the respondant was negligent - the burden of proof lies with the claimant. Giving four weeks notice, as per contract would hardly be seen as negligence in a claim for loss of earnings.


Thats really interesting Erika - thank you. Do you have a legal background?

I have been 'researching' across the net in what spare time I have (not much) regarding contract law and this breach of contract.
It just seems ridiculous that contracts (NCMA) seem so heavily weighted in favour of the parent - if they have breached the contract first by non payment then why on earth should we carry on providing care. I know NCMA are trying to be fair to the parent as well but we are the ones in a vulnerable position and seeing as we (and not parents) pay our subs to NCMA - I honestly do think that NCMA ought to start valuing its members a bit more.

My contract notice now is however many weeks they have payed in advance - so ie/ if they have paid a 4 weeks in advance then they get a 4 week notice period, if they have paid 2 weeks then its 2 weeks notice period. If they default on payment, the most I will loose is possibly 1 weeks fees as its that benefit-of-the-doubt week.
Any emergency contracts are payed up front.

Erika
02-06-2010, 08:53 PM
Hi pipsqueak. I do have some legal knowledge, but I must stress that I am not as yet qualified, therefore anything I say is only my opinion based on what I know. I've dabbled in the law for a number of years but only recently started my degree.

I think with NMCA - at least what I know of NMCA and SMCA - their policy is designed to protect from coutner actions. (albiet in a round-a-bout manner).

As they provide the legal cover, I expect they might use this as a get out clause for representation if a counter action is raised. I do seem to recall one case being reported in the press where a parent submitted a successful counter claim in a similar scenario for loss of earnings - which may well be why NMCA's policy is how it is. However, if I remember correctly the case was in a lower court thus did not set a precedent. Again, if I remember correctly it wasn't a clear cut case.

Millenium
03-06-2010, 09:45 AM
As I have mentioned on a previous thread, maybe a more practical consideration would be to not use NCMA contacts??? I have never used them as I have found them to be lacking in many areas.

My contracts provide for one months notice to terminate EXCEPT in the case of non-payment where I only have to serve seven days. Additionally, you should seriously consider taking a month's money in cash at the start of the contract to hold as a deposit, fully refundable when the contract ends - don't accept an undated cheque as that can be stopped. In this way, in the event of late payment, you will always have the "deposit money" to fall back on whilst serving them notice. This does of course mean that they will have to find two month's money at the beginning but it's your business not theirs, to run how you wish.

rickysmiths
03-06-2010, 10:38 AM
As I have mentioned on a previous thread, maybe a more practical consideration would be to not use NCMA contacts??? I have never used them as I have found them to be lacking in many areas.

My contracts provide for one months notice to terminate EXCEPT in the case of non-payment where I only have to serve seven days. Additionally, you should seriously consider taking a month's money in cash at the start of the contract to hold as a deposit, fully refundable when the contract ends - don't accept an undated cheque as that can be stopped. In this way, in the event of late payment, you will always have the "deposit money" to fall back on whilst serving them notice. This does of course mean that they will have to find two month's money at the beginning but it's your business not theirs, to run how you wish.


I have for a long time now taken four weeks fees as an upfront Deposit, held against the final notice period as long as all fee payments are up to date at that time and as you say it buffers against a non payment episode and minimises any losses.

My parents also pay a month in advance the first Monday of the month. It is a bit hard if they seek care on short notice but of course if they sign a contract say a month in advance of starting and for me the Deposit is due when they sign the contract, that does mean they are not paying two months fees at once. Also I'm not so hard and I have allowed the Deposit to be paid in installments to help.

If you are an NCMA member and you need to use their legal services they will not do anything for you unless you use their Contracts and Registers and they are all filled in and signed.

I have long felt their Contracts are unclear and favour the parents forgetting to fully protect us and we are their members! However as Pip said at the beginning unless we all keep at it and demand a change it won't happen.

They do listen to us because through talking to them on numerous occassions and writting to them they have changed the advertising habits of BLu Fin and are looking further into the relationship they have with Blu fin and realising that despite Blu Fins best to make us all believe that they are the only company that fully covers childminders that this is very much not the case.

So all write to them about the inadequacies of the contracts with constructive ideas of how you would like them changed.