In certain circumstances it may be agreed that you can employ a family member to provide your care and support, as long as they are not your Financial and Welfare Guardian or hold a Power of Attorney on your behalf.
All of the following requirements must apply in order for you to employ a family member.
Your practitioner,the supported person and the family member (proposed worker) must agree to the family member providing the support, that they are capable of meeting the supported person's needs by means of an employment agreement and any one of the following additional circumstances apply:
- There is a limited choice of service providers who could meet the needs of the supported person.
- The supported person has specific communication needs which mean it will be difficult for another person or provider to meet the needs.
- The family member will be available to provide support which is required at times where other providers would not reasonably be available.
- The intimate nature of the support required makes it preferable to the supported person that support is provided by a family member.
- The supported person has religious or cultural beliefs which make the provision of support by a family member preferable.
- The supported person requires palliative care.
- The supported person has an emergency or short-term necessity for care.
- There are any other factors in place which make it appropriate, in the opinion of the local authority, for that family member to provide support.
You should think very carefully about employing a family member who lives in the same house as you, as it can be difficult to separate the times when they are your employee and when they are delivering unpaid care and natural supports.
There are many ways in which you can advertise for staff. You can advertise in the local newspapers, free publications, local colleges or universities, community centres. You may also find personal assistants through friends who are already employing personal assistants. You will need to interview the proposed worker, take up references and select the most suitable candidate for the job. It is very important to be able to ‘get on’ with your staff. You should also think about back-up staff for emergencies.
All employees are legally entitled to a written statement of the main terms and conditions of employment within two calendar months of starting work with you. We advise that you issue contracts to all employees on their first day of employment, as both parties then know what they can expect from each other and misunderstandings are less likely to happen. Further information can be found in the Employing a Personal Assistant or in the Becoming an Employer guide.
These guides also provide information about Contracting the Services of a Self-Employed Carer (HMRC Registered) or a Self-Employed Support Worker (HMRC Registered).
Aberdeen City Council strongly recommends that all personal assistants and carers are employed directly by the supported person. It is possible in certain circumstances for a carer to be self-employed and for the supported person to contract their services. In this situation the supported person is not an employer (they contract with the self-employed carer). Details of the criteria the Inland Revenue apply to determine if a worker should be classed as self-employed are given at the HM Revenue and Customs website: Employment Status: employed or self-employed or in the Employing a Personal Assistant guide.
We have developed an information sheet to provide you with information to clearly identify the difference between these types workers: Employing a Personal Assistant.
Who do I complain to if I am not happy about the services provided by an agency or by my personal assistant?
If you are not happy with the services being provided by an agency, you can highlight your concerns to them directly. If the company fail to respond then a complaint can be made to the Care Inspectorate. If your complaint is regarding your PA you should address this directly with them as you are the employer. It is best practice to include your procedure for complaints within your written terms and conditions.
Can I state in my staff's terms and conditions that we will review their position after a defined period of time i.e. 8 weeks after starting the position?
Yes. It is good practice to review your contract before finalising it as this will give both parties the opportunity to discuss how the position is working and if any changes are required. Any changes must be agreed by both the worker and the employer and recorded in the new terms and conditions.
My Personal Assistant can provide me with an alternative respite facility by taking my child to stay in their home, is this an acceptable use of the Direct Payment?
Your child can receive respite services provided by the Personal Assistant in the child’s own home to allow you some time away from caring without the need for them to register as a childminder. If the Personal Assistant were to provide daytime / overnight care in their own home then they would have to be registered as a childminder with the Care Inspectorate. The Personal Assistant would also need have to have the required insurances in place to safeguard the child.
Yes. If you are an employer you must have liability insurance at a minimum and might want to consider indemnity insurance as well. If you are a self-employed carer it is your responsibility to have liability insurance. It is a legal requirement for every employer and self-employed person to make an assessment of the health and safety risks arising out of their work. The purpose of the assessment is to identify what needs to be done to control health and safety risks. You can check more about this in the Management of Health and Safety at Work Regulations 1999 (Regulation 3).
Personal Assistants are not required to register with the Care Inspectorate because they are not a company or an agency providing care services. If the Personal Assistant employs another person for example to cover any absence (sickness, holiday) or sends a substitute worker in their place then at this point it becomes a service and they would need to register with the Care Inspectorate. Further details can be found at www.careinspectorate.com.
When you employ your own Personal Assistant, you choose where and when you wish your support to be carried out. You will have more choice and control around the type of person, their role and their hours of work. As an employer, you are able to take control of your care and support needs so you must give your staff clear concise instructions, have regular meetings with your staff to check all is well, and remember that communication is extremely important. All your employees are legally entitled to written terms and conditions. Good practice is that this document is given on the first day of employment. Within this document you would have a job description detailing the exact duties you would expect your worker to undertake. A copy of draft terms and conditions is available here.
Yes, this is possible. A group of people may wish to buy support for shared activities. You can discuss this with the practitioner who is helping you plan your support.
You can do this in a number of ways. You can employ your own Personal Assistants or you can purchase services through an agency or service provider.
All personal assistants must let you (as the employer) see an up to date certificate from the Protection of Vulnerable Groups Scheme confirming their eligibility to work with vulnerable groups. This document belongs to the worker therefore they are responsible for all costs attached to it. The cost cannot be met from your budget.
When you are setting up your own services, there is the expectation for you to make back-up plans for times when one or more of your staff are away, such as if they are off sick or go on holiday.
Someone who holds a power of attorney or financial and welfare guardianship to make decisions on behalf of a supported person cannot become the supported person's personal assistant.
This is because the situation would cause a conflict of interest. The local authority cannot provide the funds for the legal representative to employ themselves to provide the care and support to the supported person.
This information is documented in the Self-Directed Support (Direct Payments) (Scotland) Regulations 2014 under section 9.
HMRC have developed a free course for employers regarding Statutory Sick Pay and it can be accessed here.