Regulatory Alerts2011-12-22
Added · Updated
Childminding agencies and the prohibition under Section 3:5 of the Wft
The prohibition under Section 3:5 of the Financial Supervision Act (Wft) generally does not apply to childminding agencies because payments received from parents are not considered repayable funds. Once parents pay the agency, their obligation to the childminder is discharged, and they cannot claim reimbursement, meaning the agency does not hold funds it must repay. This classification remains unchanged even if the agency uses a separate customer accounts foundation to segregate funds. An exception applies only if parents retain the right to claim repayment from the agency before the funds are passed on to the childminders.
Q&A
Read aloud
Question:
Does the prohibition under Section 3:5 of the Financial Supervision Act (Wet op het financieel toezicht – Wft) also apply to childminding agencies?
Published: 22 December 2011
Answer:
A childminding agency provides intermediation services between parents looking for childminding services and individuals providing this service. In some cases, parents’ payments to childminders are made through the childminding agency.
Does this construction involve repayable funds?
In other words, does the childminding agency retain repayable funds, in which case the prohibition under Section 3:5 of the Wft applies? No, this is generally not the case.
The parents’ payment to the childminding agency means they have fulfilled their payment obligation with respect to the childminders and are discharged of this obligation. They cannot claim reimbursement from the childminders or the childminding agency. Therefore, there is no question of repayable funds and the prohibition under Section 3:5 of the Wft does not apply.
The childminding agency will usually be required to transfer the parents’ payment to the childminders. Again, this situation does not involve repayable funds, since they do not relate to repayments from the childminding agency to the childminders.
Customer accounts foundation
Many childminding agencies use a separate customer accounts foundation. By receiving parents’ payments on such an account, the agency ensures that the funds payable to the childminders are segregated from its own funds.
The use of a customer accounts foundation does not matter for answering the question of whether payments through a childminding agency involve repayable funds. In such a case, we look through this construction and determine on the basis of the actual underlying activities of the childminding agencies whether or not repayable funds are involved.
Exception
Only in the event that parents have paid the childminding agency and are still able to claim repayment – in whatever form – for as long as the childminding agency has not yet passed on the parents’ payment to the childminders, there may be a situation involving repayable funds. In such a case, the rules for onward payment described here apply .
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