Ofsted suspension - contractual implications?

[Taller]

Hello all,

I am hoping someone can advise me, based on experience (or ideally legal expertise): would an Ofsted suspension be sufficient grounds for an immediate termination of contract by a parent, with no payment in lieu of notice?

This is an NCMA contract, which makes it clear that no payment is due in the case of 'unforseen circumstances when the childminding service is unavailable', which I think would apply in this case. It also says that notice cannot be given when the child is not being cared for, e.g. (but not explicitly limited to) during holiday periods, which might also apply (although this seems unlikely given that Ofsted could take 6, 12, or more weeks). Finally, it gives examples of circumstances in which a childminder can terminate a contract immediately, but not the parent/s.

Many thanks for any advice,

Taller

[sarah707]

If you want to know what a contract will legally entitle a childminder or parent to do then I strongly suggest you contact the company which provided the contract and take further advice from them.

Alternatively you should contact your own legal advisors and see what they suggest.

In the first instance though it would seem most appropriate if the childminder and parent talk about the issue and come to a mutual agreement - yes, Ofsted can take up to 6 weeks and this can be extended but in some instances they are much quicker. It does depend on the individual circumstances of the case.

I hope this helps

[Genesis]

I too would ask if the NCMA for advice if there contracts are being used, but in all honesty if it was my services that i couldnt offer because of a suspension for whatever reason i would hopefully have a relationship with the parents where i could offer an alternative childminder to step in and cover the place for me and then hopefully for the child to return, but i would in all honesty not charge the parent as i couldnt offer the service and would accept leaving with no notice. But then i dont necessarily apply the letter of the law to all my circumstances and have in some instances let a parent with a sudden job loss leave without any notice or pay in lieu, so maybe am too much of a pushover.

[Taller]

Thanks for the replies so far.

NCMA (and Ofsted) both say that cannot discuss or offer any advice on contractual matters and to speak to a solicitor. Particularly in the case of the NCMA this seems like a massive cop-out, given that their own model contract makes no provision for this kind of regulatory intervention.

Is there anyone out there with actual experience of this situation who can advise how it went?

Thanks again.

[sarah707]

From experience of mentoring childminders through situations like this, the emotional upheaval and subsequent loss of business attached to being investigated and closed down by Ofsted leaves them devastated and unable to make well considered contractual decisions.

As a parent you have to make the decision of whether to stand by the childminder which will depend on a number of circumstances including whether you believe the childminder is innocent - whether you can wait for the investigation to take its course - how much you have to pay out for alternative care - how well your child and the childminder are bonded - whether you made the allegation of course... and other very confidential factors which quite rightly should not be shared on an open forum.

As a childminder who supports a lot of others in the aftermath of these investigations I know that many are malicious and the childminder is treated as guilty until proven innocent because Ofsted's remit is to protect the child from perceived or real danger, not the childminder's reputation or wellbeing - which, emotion aside, is fair enough.

I am not insured with NCMA and I do not have a copy of the wording of the contract in front of me so I cannot advise on that. Do you know any other childminders who are insured with them who could approach NCMA and ask on your behalf? I realise that is not the way these things should be done but I am trying to save you an expensive legal bill which I am sure you do not need at the moment.

[bunyip]

Without knowing the details (and it's not for me to pry) my first reaction is one of sympathy for both the mum and the childminder (CM), both of whom have been left in a difficult and upsetting position.

I'm not a legal expert, so my comments here are just ideas - not advice or suggestions. As this may end up as a legal dispute, I think you'll find that members and organisations will be very guarded and reluctant to give firm advice.

TBH, I'm not sure any contract would cover this sort of eventuality, since it's hardly likely to be raised as a 'foreseeable' outcome when drawing up a contract that both parties would hope to last. (As an aside, NCMA contracts are already 4 pages long, 8 if you include the notes on the back, and I have had several parents who find them daunting/off-putting. I do emergency/one-off care, and have lost business simply cos some parents would rather use an unregistered babysitter than go through a big contract. So I can see why, to a degree, NCMA don't put every possible circumstance in there.)

I can understand why it's frustrating not to get an answer from Ofsted or NCMA. Ofsted don't get involved in contractual disputes, as they are a regulatory body, solely concerned with applying the rules of registration. I don't think they even concern themselves with whether a contract even exists. I imagine NCMA's position is a little different. If the CM is using their stationery, then there's a better than evens chance s/he is a member of NCMA. If that is the case, s/he is entitled to legal representation by the NCMA legal team. This means there is a clear conflict of interest, and no legal person in their right mind would do anything that could be interpreted as advising both sides of a potential dispute. I think that would not only negate their involvement in any potential case, but perhaps even leave the legal people open to a charge of malpractice.

I know this will look like a cop-out, but I can only reiterate the previous posters who've suggested you need your own legal advice. It's always going to be a problem that 'expert advice' is rarely 'impartial advice' and vice-versa. I really cannot say whether a solicitor will advise that the non-payment clause for 'unforeseen circumstances' applies, or whether s/he'll say it was up to you to insist that specific circumstances be covered in the contract. I think you should check with a solicitor. But I know solicitor's fees can cost more money than they save. Perhaps you could find one that can give a short free consultation, just to see if it's worth going any further?

The only other thing I can think of that might just help is to contact the Daycare Trust / National Childcare Campaign on 0845 872 6260 or 020 7940 7510 and see if they can help.

[The Juggler]

i cannot believe that NCMA are not advising you on this, despite you being covered with them. That is shocking. I am sorry this has happened hon.

However, I would be of the opinion, that contractually if you can't provide work and can't say when you will return that a parent would be within their rights to terminate without notice. Ofsted really need to get their act together on suspensions and moving things more quickly.

I hope that you are able to seek some more independent legal advice. Have you considered ringing Morton Michel and asking if whether you join today they would offer you legal advice - even if they are unable to act on your behalf?

[kindredspirits]

Surely no childminder who has been suspended can insist on payment in lieu of notice? I think it's taking the mick a bit

[BuggsieMoo]

i cannot believe that NCMA are not advising you on this, despite you being covered with them. That is shocking. I am sorry this has happened hon.

However, I would be of the opinion, that contractually if you can't provide work and can't say when you will return that a parent would be within their rights to terminate without notice. Ofsted really need to get their act together on suspensions and moving things more quickly.

I hope that you are able to seek some more independent legal advice. Have you considered ringing Morton Michel and asking if whether you join today they would offer you legal advice - even if they are unable to act on your behalf?

Reading the post from TALLER I believe they are a parent whose CM has been suspended and they are looking for advise as to whether this is grounds to give immediate notice with no payment. I dont believe they are a CM or one who has been suspended.
x

[The Juggler]

Reading the post from TALLER I believe they are a parent whose CM has been suspended and they are looking for advise as to whether this is grounds to give immediate notice with no payment. I dont believe they are a CM or one who has been suspended.
x

whoopsy, that'll teach me to read all the posts properly. Thanks Buggsie. To the OP apologies. However, I still think that if you have signed a NCMA contract they should be able to tell you your rights in this situation with regards to suspensions. I agree with Sarah though some independent advice would be invaluable. Have you tried citizens's advice?

[wendywu]

Surely no childminder who has been suspended can insist on payment in lieu of notice? I think it's taking the mick a bit

I would have thought the same as Kindredspirits, if Ofsted has suspended you , you cannot demand notice as the setting no longer exists at this moment in time.