Home special needs tutors left in legal limbo

Home tutors teaching children with special needs are in a legal limbo over their employment status and insurance cover because of a clash between three government departments.

The tutors, who provide vital education for children who do not have school places — mainly children with autism — were classed as self-employed until a few months ago and sorted their own tax and insurance.

But Revenue ordered the Department of Education to treat them as PAYE workers and deduct tax at source, and while the department is complying, it says the tutors are employed by the parents whose children they teach.

Meanwhile, the Department of Social Protection, which decides their status for PRSI purposes, insists they remain self-employed and barred from holiday and sick pay and other benefits.

The confusion left some tutors without pay for six weeks over Christmas and the Department of Education has warned they could wait up to 12 weeks “at certain times of the year”.

Some were taxed at the high emergency rate which they can not claim back because they have no employer to issue them a P60. Their tax relief on expenses has also been slashed to just €500 a year when they must spend much more on materials, courses, and transport.

Tutors say the uncertainty is also making it impossible to get bank loans and mortgage approval and they are worried about how they can make an honest declaration for insurance cover.

Fiona Mallin, a tutor with 12 years experience, said the move to the Department of Education’s payroll had caused repeated problems. “When you fill out any legally-binding form, it’s impossible to give a clear answer,” she said.

Up to a few months ago, parents claimed home tuition grants out of which they paid tutors directly, but the system changed after the Comptroller & Auditor General found some tutors were not paying tax.

Elaine O’Dwyer from Cork has brought a complaint to the Ombudsman on behalf of more than 200 tutors who have begun chronicling and sharing their experiences in a private online forum.

“The tax issue could have been sorted by making sure every tutor was registered for tax and had a tax clearance cert before they could be employed. We’re all being punished because a few weren’t compliant,” she said.

Another tutor said the way they were being treated was demoralising. “The reason you’re there in the first place is because the State hasn’t provided a suitable place for the child and you feel very disrespected when the State treats you like this.”

She said it was symptomatic of the haphazard way home tuition services had been left to develop, without any regulation, supervision or inspection.

The Departmentof Education said it was acting on instructions from Revenue. Revenue said it had acted “following a balanced consideration of the broad criteria set out in the code of practice for determining employment or self employment status”.

The Department of Social Protection provided the same explanation.