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I have been a full time carer for 21 months but my employer says it is a 'private arrangement' & does not pay NI etc


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Hello,

 

I have known all along that my situation was not right, but I have no idea what to do about it & I'm a little nervous about getting in to trouble!

 

I have been working as a full time, live-in carer for 21 months. When I took the job I was given the impression that it was part-time, but it most certainly is not! I had hoped to carry on my usual self employment along side, but this has been impossible.

 

The day starts at 7am & finishes at 11pm but I am also on call all night. My employer is an elderly man of 93 yrs, partially disabled by a stroke just over 2 years ago, but mentally very alert (does the Guardian & Times cryptic crosswords in a few hours). He never leaves the one room he lives in & all his toilet facilities have to be brought to him - there is no plumbing in the room.

 

The location is very rural & the longest I can leave him is 90 minutes, so most of the shopping has to be done on line. Everything that he needs to be done for him, or about the place, is done by me.

 

He has a niece who lives 20 miles away & visits approximately once every three months! It was she who was involved in hiring me - via a hand written advert in a newsagents window.

 

Each week I am paid £200 for 7 days (24 hours per day!) & if I want time off I have to arrange it & pay for it out of this. Since I have been here I have had 9 days holiday, & my employer paid for the cover.

 

I asked about the employment situation when I started & the niece told me that if anyone asked - the money I received for my work was 'household expenses'. I knew that this was not right, but I had hoped I wouldn't have to do the job for very long, so it would not be an issue.

 

The first year I did my accounts, most of the year was still my old self employment, so I just added my carer wages into my receipts.

 

About that time I phoned HM RC to ask them about the following year, but in retrospect I do not think they actually heard what I told them, because the adviser said all was fine & I could earn up wards of £400 a week & still not pay any tax - he then mentioned a revenue document. I made a note of this but didn't actually read it until just before I did my accounts in January this year - when I realized that this actually referred to a scheme where an elderly person is looked after in someone else's home & not in their own.

 

It seemed much too late to do anything about it then, so I described myself as a self-employed carer & filled out my tax return accordingly, even though I know that am actually an employee but I don't know what to do about it!

 

I have been going through a divorce & trying to negotiate a financial settlement, but still as yet have no money. However after 21 months working here I have now had as much as I can stand, and have handed in my notice, & will be finishing on March 27th.

 

The elderly mans niece has already sorted out my replacements, a very sweet young traveler couple, who no doubt will also be told that their wages are 'household expenses'. This may not be such a worry to them as they may be 'off radar' & not care! I just feel that I have been put in a very difficult position - & it has all been done to keep my employers costs down - no employers NI contributions, no employers insurance, nothing!

 

He is not a poor man, though he has a poor mentality - he owns his property which although dilapidated is in a very desirable area, he lives on the income from stocks & shares, receives the higher rate carers allowance & has several tens of thousands in his current account.

 

Should I just leave, forget about it all & hope the HM RC never have cause to look more closely. Should I contact them again & draw their attention to the situation? (If I do I certainly will not get a reference in future & I could do with one if I seek employment as I have been self employed for decades). Do I have anything to gain by contacting HM RC - other than a sense of fair play?

 

All advise gratefully received!

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Hi and welcome to the site.

 

I worked out that your were being paid £1.19 per hour. I bet it was also cash in hand so none of the tax and NIC payments were made. There is a whole can of worms here and the one question I would ask, as you don't want to really get into trouble, is were you claiming any benefits on top of the payment? If you were and didn't declare it then if the DWP found out you would be in almighty trouble. So one step at a time, can you answer this or would you rather not?

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Hello,

 

Thanks for getting back to me. No, I haven't been claiming any benefits at all - I'm probably a squeaky clean as I can be - the only area of concern I would have is that because I have been 'forced' to call myself 'self-employed' I have claimed the money I paid out as cover for time off as 'expenses' & the people doing that cover may well be on benefits. I wouldn't want to get them into trouble for helping me out & keeping me sane!

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The other thing I might add, is that £175 per week is actually paid into my bank account by DD by my employer. The other £25 I collect from him by cheque as & when I have spent it on cover. He has deffinately not paid anything in the way of NI contributions etc & before me this type of arrangement was going on with other people for something like 5 years (his late wife had also been disabled by a stroke a few years before him). I have never had a contract of employment of any sort. I think he & his neice have generally chosen quite desperate individuals, as not many others would take this on!

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I'd say you might have a claim for a hell of a lot here - minimum wage, holiday pay etc.

If you don't have any qualms about pursuing the matter given that your employer is an elderly gentleman.

Two things that might stand in your way.

Firstly given that no tax and NI deductions were made, it could be argued that it was an illegal contract and therefore you have no employment rights. I'd suggest a consultation with a solicitor specialising in employment law, hopefully you could see one for free as it's an initial consultation, shop around.

Secondly, people might not believe you! Very few people would have put up working as you did for so long, to the extent that it seems incredible (in the original definition). I think you'd need to be able to substantiate your working conditions to convince an ET / HMRC.

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Hello,

 

Yes I know I'm a lunatic for having put up with it for so long - but in the first place I didn't know how demanding the elderly gentleman was, & after that I kept thinking 'this divorce settlement can't take much longer'...that was my ex's fault as he kept leading me to believe it was all about to happen - huhhh!

 

As far as substantiating the situation, well there are the two ladies who have done the odd bit of cover for me (one of whom did the job for a month before I started...that was her limit!) plus several district nurses who come in every few months. I could also conceivably get hold of a couple of the people who did the job previous to that, I am still forwarding some of their mail!

 

Also - for a period of a few weeks back at the beginning of my stint, I wrote down hour by hour what I was asked to do (because I couldn't believe it either!)

 

As far as being prepared to take an elderly gentleman to the law...mmmm, not sure & definitely nothing I would have ever contemplated before. I was more thinking about HM RC - being right in their eyes, & pensions & all that jazz. I have been paying self-employed class 2 contributions by DD during my time here.

 

Sadly I do not have much affection for the old gent - he squeezed that out of me in the first 6 months. He may be old but I regret to say that I from what I gather he's always been a manipulate par excellence (especially of women). He worries about every little thing - especially concerning money, but does this give him the right to exploit people?

 

So - where are we so far? I still don't know what to do. Looks like walk away, or consult a solicitor?

I could try asking for back holiday pay before I go, but I might just be whistling in the wind. If they say no - (or just laugh derisively), I guess it would be back to the solicitor again.

 

You see it's not that I haven't thought about this during my time here, it's just that I only wanted to put a roof over my head & do a fair days work for a fair days pay (as well as keep my nose clean as far as the Tax man was concerned).

 

The irony of this is that the elderly gentleman is a life long paid up member of the Labour Party, & as far as I can see he's hardly done a days work in his life!

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Oh, & just a wee bit more! The reason that I decided to post on this site & ask for advise was that earlier today there was a knock on the door & there stood two people I had never seen before."We have come about the carers job" they said. I told them that I wasn't actually the one recruiting & that I thought the post was filled, but they were welcome to come in for a cuppa & I would tell them what they had missed (oops - escaped :-)

 

During the course of the conversation he revealed that he used to work for the Revenue & that I would definitely be classed as employed. This is what I suspected - but I still didn't really know what to do about it! It is because I have no contract of employment, yet am earning money, that I have called myself a 'self-employed' carer, but I know jolly well that self employed people have to work for more than one employer. I am between a rock & a hard place. I no longer care about making a stink though because I have resigned...but as I said in the first post, if I do I won't get a reference.

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Definitely go the solicitor route. They have skewered you something rotten for far too long (and the others before you) and to say they were Labour, allegedly looking after the rights and interests of workers and to hypocritically do this is incredible. I assume any money due to you and a minimum wage for 24 / 7 would in itself be considerable could be secures against his property if he does not have the cash to pay you. It does seem the relative has been trying to secure her inheritance at a cost to you.

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Thank you, I will seriously think about that then, when I'm away from here & have more free time :-).

 

I don't much care for the idea of going to a solicitor - I'm now, hopefully, coming to the point of getting a financial settlement from my ex husband & have avoided using a solicitor until the draft consent form came through. Due to my lack of time & money I am using an on-line solicitor & quite frankly, I still feel like I'm on my own - I get virtually no advise or support or anything from him! Maybe that's why he is an 'on-line' solicitor, maybe he doesn't like people! I just hope the bill is as small as the amount of contact I've had from him!

 

When I put on my first post I was really querying my position with HM RC & DWP, rather than anything to do with getting money or compensation from anyone for low wages, lack of holiday etc. I knew the wages were rotten when I took the job, I just didn't realize how many hours I'd be doing for them! No contract you see, just a chirpy 'jolly hockey sticks' niece looking for a 'kind carer for her nice old Uncle...plenty of time off'!

 

Hopefully the solicitor will know where I stand with the Revenue - or should I contact them directly again?

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Hello there. This sounds like exploitation to me, but it's your choice about whether to pursue it or not. It might be worth your while speaking to your local CAB. I know they have contacts with HMRC and were a great help to a lady on the Benefits forum yesterday. They may well have seen this sort of problem before.

 

My best, HB

Illegitimi non carborundum

 

 

 

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Thank you all so far!

 

A plan is beginning to emerge I think: When I finish this job I will first visit the CAB, then depending upon what they will say I will seek the advise of a solicitor & then possibly talk to HM RC.

 

When you hear programs on the radio etc they tend to suggest that it is immigrants who get exploited in the care sector, but I am British, white & a graduate...& I'm probably not alone!

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You should consult sooner rather than later, there are time limits to start ET proceedings ie 3 months. On the HMRC front we have had a few problem similar to yours and it is far worse for the employer than it is for the employee and if it is you who informs first the HMRC can be quite accommodating, so don't be too scared to stick your head up over the parapet.

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Hello,

 

Thanks again - I'm glad I decided to post on the forum...I'd almost decided to walk away & chalk it up to experience, though the danger was that I'd be carrying round shed load of resentments (& anxieties)...not good.

 

I have qualms about dropping anyone 'in it', but if they have done no wrong they have nothing to fear. I am planning to give my local CAB a ring tomorrow & take it from there. My first concern is to make sure of my right standing as far as tax & NI contributions are concerned. If the minimum wage thing comes up, we'll see where it goes.

 

I feel more comfortable approaching this from the point of making sure I'm not braking the law, rather than trying to squeeze my 'employer' for more money.

 

I will try & keep you posted as to how things go :-)

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I'd go get an initial free consultation with a solicitor (maybe 2/3). Never been to the CAB, but I know many folks who think they should be called CBA.

 

In fairness, Pulpo, CAB branches do vary. Someone on the Benefits forum got good advice the other day about tax underpayment. Debt-counselling and tax could be something CAB are good at. Are you going all Victor Meldrew on us? :)

 

I'm sure MagWag is smart enough to tell what's good advice and what isn't.

 

My best, HB

Illegitimi non carborundum

 

 

 

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Hello,

 

Just to let you know that I telephoned my local CAB this morning and that they have pointed me to an organization called 'The Low Incomes Tax Reform Group'. I posted a long email explaining my situation on their site, so now I will wait to see their response.

 

Whilst I was on The CAB Advice guide I had a quick trawl around, & yes I can see that I do almost certainly have an 'illegal contract'. I just thought I had 'no contract'! I'll have to look into the implications of this when I have more time. If I can just be sure the tax man is fairly happy with me...& my employer won't be doing this to anyone else...I shall be happy :-)

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Still think you should try and speak to a solicitor. I don't work for The solicitors Regulation Authority BTW, I know I keep recommending them. You're owed a lot of money here IMO. It's contentious whether it as an illegal contract or not, the responsibility to make IT and NI deductions lies with the employer. You can plead ignorance.

Might be worth ringing HMRC too.

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Hi,

 

I haven't ruled out solicitors - but I'm not keen!

 

I have been going through a divorce & trying to get a financial settlement & it's taken YEARS (that is why I haven't bailed out of this awful job ages ago). The stress is painful. Because I don't have a bean I've done it all without a solicitor until the draft consent order was on the horizon. To keep costs down I now have an 'on-line' solicitor.

 

Well the web site looked & sounded good, but quite frankly I felt more empowered when I was doing it myself. I sent off my thoughts on the draft consent order 3 weeks ago & I haven't even had an acknowledgment. I just emailed again today to check he was still alive!

 

So the thought of trying to find another solicitor for this - one who will not make me feel I'm all on my own...is daunting to say the least! I know they are not all money sucking leaches, some even took up the law because they wanted to see justice done (rather than because they were straight A students & didn't want to be Doctors or Vets, Architects or Bankers). How do I find one of the good guys? Suggestions on a postcard ;-)

 

Seriously though, thank you all for being kind enough to give me suggestions - I'll give it a couple of days & see if this Low Incomes Tax Reform Group get back to me - there is no guarantee they will & it actually says on their site that they don't have enough time or resources to enter into correspondence with everyone.

 

I'll keep you posted if there are any developments.

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Hi,

 

I haven't ruled out solicitors - but I'm not keen!

 

I have been going through a divorce & trying to get a financial settlement & it's taken YEARS (that is why I haven't bailed out of this awful job ages ago). The stress is painful. Because I don't have a bean I've done it all without a solicitor until the draft consent order was on the horizon. To keep costs down I now have an 'on-line' solicitor. Oh 'eck.

 

Well the web site looked & sounded good, but quite frankly I felt more empowered when I was doing it myself. I sent off my thoughts on the draft consent order 3 weeks ago & I haven't even had an acknowledgment. I just emailed again today to check he was still alive! Don't part with any amount of cash, if ya haven't already.

 

So the thought of trying to find another solicitor for this - one who will not make me feel I'm all on my own...is daunting to say the least! I know they are not all money sucking leaches What? where do you live, in a Walt Disney movie?, some even took up the law because they wanted to see justice done (rather than because they were straight A students & didn't want to be Doctors or Vets, Architects or Bankers). How do I find one of the good guys? Suggestions on a postcard ;-)

 

Seriously though, thank you all for being kind enough to give me suggestions - I'll give it a couple of days & see if this Low Incomes Tax Reform Group get back to me - there is no guarantee they will & it actually says on their site that they don't have enough time or resources to enter into correspondence with everyone.

 

I'll keep you posted if there are any developments.

I've hear HMRC can be very helpful, especially when there's a chance they can chase someone for money.

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Hmmm,

 

Right - I've just done HMRC's own Employment Status Indicator & that said I was self employed (because there is a high indiation of substitution), so it looks like I may have been tying myself into knots unnecessarily!

 

What seems to swing it (& I was surprised there were so few questions) was that when I want time off, I have to arrange it & I have to pay for it; QED - self employed...according to them!

 

I know they say before one does their 'test' that it is only indicative if you are a worker, but I think it gives me some peace of mind that they won't be pursuing me! I am still over-worked & under paid, but only for 10 more days :-)

 

I am never, ever, ever going to let myself get exploited like this again!

 

Thanks again everyone, for your suggestions,

 

Maggie

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