1.0: Introducing employing staff Last Updated: 22 July 2021 Introduction This factsheet introduces what it means to employ a Personal Assistant (PA) using Direct Payments. Most people come to Direct Payments having never employed anyone before and it can seem daunting. This factsheet will help you to realise that you will have a number of responsibilities, but you will be helped to understand these and gradually be trained to carry these out. This factsheet is simply an overview and you’ll receive more detailed information later. Contents 1. Introduction 1.1 Before you employ a Personal Assistant 1.2 About Independent Lives 2. Employing a PA 2.1 Write a job description 2.2 Make sure you are in a position to offer a job 2.3 Once you have recruited PAs 3. Frequently asked questions 3.1 I’ve found one PA to do all my hours-is this a problem? 3.2 How do I arrange cover if my PA is sick or on holiday? 3.3 Do I have to sort out my PAs tax and national insurance? 3.4 Do I have to set up a pension for my PA? 3.5 Can my PAs be self-employed? 3.6 Can I pay my PAs cash? 3.7 What about health and safety? 3.8 Why type of employment records will I need to keep? 3.9 What type of financial records will I need to keep? 3.10 Do I have to pay sick pay and maternity pay? 3.11 What happens if my PA is pregnant and needs to take maternity leave? 3.12 When I employ PAs will other employment law apply to me? 3.13 What happens if I have a problem with my PA or I need to sack them? 1. Introduction 1.1 Before you employ a Personal Assistant Social Services or the NHS will need to assess that you are eligible to receive a Direct Payment. As part of this process you will put together a Support Plan which you will agree with Social Services. A Support Plan describes the ‘outcomes’ (goals) that you need to achieve with your Direct Payment money and the way that you will achieve those outcomes. Usually you will seek to achieve your outcomes by employing your PAs and as such their job description will depend on and be created around your outcomes. 1.2 About Independent Lives Independent Lives is a user-led charity helping people who have care needs to be independent. We provide a range of services to help people gain and maintain their independence. We listen to what our customers want and develop our services around their needs. We invest all surpluses into improving and widening our services. We're led by our members - people with health and social care needs and their carers. Independent Lives has been operating Direct Payments support and advice for well over ten years – people find that it’s such a success for them, that they recommend Direct Payments to their friends! 2. Employing a PA Independent Lives can help you to: 2.1 Write a job description Before you recruit a Personal Assistant, you will need to think about and write down exactly what you want them to do - this will become a job description. Later on when you start employing a PA, this job description will form part of their employment contract. 2.2 Make sure you are in a position to offer a job Although you can enquire amongst your friends if they might be interested, you should not offer a job before you have certain arrangements in place. Avoid confusion by not even offering a job verbally before you’ve received training on becoming a Direct Payment employer. Many people will need to recruit people they don’t know to do their jobs – Independent Lives can help you do this safely. You will need to do checks on your potential employees before you confirm the job – Independent Lives can help you with this. 2.3 Once you have recruited PAs You will need to: Agree working hours Your rota of working hours will need to be reasonable to recruit for, and meet your needs at the same time. Agree rates of pay You must not pay someone less than the national minimum wage per hour. We recommend that Personal Assistants are paid more than this minimum rate – Independent Lives can help you to calculate what you can afford. Take out insurance As an employer, it’s a legal requirement that you have an Employers’ Liability insurance policy, to protect you and your Personal Assistant in case they become injured in the course of their work. The cost of this policy will be covered by your Direct Payments. Independent Lives can help you organise this. Prepare employment particulars You must give your Personal Assistant written information about your job, sometimes referred to as an employment contract. This would include topics such as working hours, rates of pay, pension, holiday and sickness entitlements. This is a legal responsibility. Independent Lives can help you with this. Carry out ongoing responsibilities You need to pay your PAs appropriately, set up a workplace pension for them if required, safeguard their health and safety, keep a good working relationship with them and iron out problems. You’ll also need to maintain some records so you can keep track of where your Direct Payment is being spent and to make sure that you act as a fair employer. This is not a complete list of everything you’ll be trained on, but it is hopefully enough to give a sense of what it is like to be a Direct Payments employer. There are responsibilities and laws that will apply to you, but Independent Lives will help you to understand these in a step-by-step way. You will gain a lot of knowledge and skills about becoming an employer and new learning can, at times, feel off-putting. Most people feel that they have to learn a lot at the beginning, but one of the main comments our customers tell Independent Lives about their Direct Payments is that their confidence grows as they progress and it all becomes a lot easier over time. 3. Frequently asked questions 3.1 I’ve found one PA to do all my hours - is this a problem? Depending on the number of hours you need, and the type of support, it can be sensible to split the hours between more than one PA. No-one can work 52 weeks of the year for you. All Personal Assistants are entitled to paid holiday, the law requires this. The cost of holiday pay, and of employing another PA to cover for holidays, is included in your Direct Payment – Independent Lives can help you with this. 3.2 How do I arrange cover if my PA is sick or on holiday? Money for contingency cover is sometimes included in your Direct Payments. Independent Lives can support you to discuss this with your Social Worker or practitioner to help you plan for this. You will also develop your own ‘emergency plan’ to make sure that you have a number of options if your regular PAs are unavailable. 3.3 Do I have to sort out my PAs tax and national insurance? You must pay HMRC any income tax, employee national insurance, and employer’s national insurance contributions due. You will need to hold these amounts back from gross pay and send them to the HMRC regularly. The cost of tax and National Insurance contributions are included in your Direct Payments and Independent Lives can help you budget to cover these. Most people use a Payroll Service to make these calculations, so you don’t need to worry about this. 3.4 Do I have to set up a pension for my PA? You may be required to set up a work based pension for your PA if they meet certain criteria. Your payroll service can help you to set up the pension for your PA. You can also contact Independent Lives for more information. 3.5 Can my PAs be self-employed? It’s extremely unlikely. The tax office has very strict rules around this which means that they almost never determine that a PA is operating their own business of self-employment. Independent Lives can advise you about the checks that must be made to determine if your PA is genuinely self-employed. Almost always, a PA must be directly employed by you. 3.6 Can I pay my PAs cash? It is not recommended that you pay your PA’s cash. Payment by bank transfer or cheque is a safer option. If you do wish to pay by cash, you should first check your agreement with Social Services or the NHS and discuss with your Social Worker or practitioner before doing this. For example, it’s against West Sussex County Council policy and West Sussex Continuing Healthcare to pay in cash, although other areas may allow this. 3.7 What about health and safety? It is a legal responsibility to ensure that risk is reduced to a minimum; including risks to yourself and that your PA is safe and healthy while at work. Independent Lives will help you to think about how different risks might apply to your jobs, we will provide a risk assessment template for you to think about which will help you identify how these risks will be managed. This should be personalised to take into account the particular characteristics of your PA (eg their level of experience and whether they have any health issues which you need to make adjustments for). The assessment should be discussed with the PA and you must provide training where appropriate. 3.8 What type of employment records will I need to keep? You’ll ask your PA to complete a timesheet showing all the hours they work (preferably on a weekly basis) and get them to sign it. You should keep a copy of the timesheets in case of dispute. 3.9 What type of financial records will I need to keep? You must keep proper records of all the payments you make from your direct payment, together with the receipts. You should make all payments from your Direct Payments account by cheque, standing order, direct debit or electronic transfer (for example, Internet banking or telephone banking) - not cash. Your funding body will want to see records of your spending, for example in West Sussex you will need to give the County Council a copy of your bank statement from your DP bank account each month. Check with Social Services or the NHS to see what they require. After you’ve drawn up a budget with Independent Lives’ help, you’ll be able to check that your spending is staying on track – Independent Lives can help you to learn about this. 3.10 Do I have to pay sick pay and maternity pay? Your Personal Assistants may be entitled to statutory sick pay or statutory maternity pay – your Payroll Service would help calculate these. 3.11 What happens if my PA is pregnant and needs to take maternity leave? Pregnant PAs have special legal rights and you cannot refuse someone a job or dismiss her just because she is pregnant. If you are in this situation please contact Independent Lives for further advice. 3.12 When I employ PAs will other employment law apply to me? Yes, but that is why you are about to go through a training programme with Independent Lives. Many people find that Direct Payments is the best way to achieve their support. They have learnt about their responsibilities and found that they’ve been able to carry them out. 3.13 What happens if I have a problem with my PA or I need to sack them? If you are faced with a difficult situation after you’ve been trained, you could first visit Independent Lives’ website to read factsheets that will remind you of key points. After that, you can contact Independent Lives for advice before taking any action. You should also contact your Employer’s Liability Insurer for advice if you have legal cover included in your policy. If you wish to end someone’s term of employment, it’s essential to follow the correct procedure - otherwise you could be breaking the law. But that is why Independent Lives operates Direct Payments services to help you. 3.14 Do I have to provide training opportunities for my PA? You are legally required to ensure that your PA has the training that they need to be able to work for you. This will make sure that they can be good at their job, work safely with you and it will motivate them and develop their confidence. If you have a care plan in place, you should think about what training your personal assistant needs to meet that plan. This should include any clinical responsibilities that they have. You should talk about training during induction and supervision. Training topics might include: Communication skills Emergency first aid Food hygiene Infection control Moving and handling Personal resilience Your personal assistant could also do more formal training where they gain a qualification. Your social care or health direct payment adviser, local support organisation or the organisation that provides any funding you receive will be able to help you to find a suitable training course and learning provider. Keep a record of any training that your personal assistant does and ask for a copy of the certificate if they have one. Independent Lives offer training for PAs in a variety of different areas, such as basic first aid, medication and moving & handling. Depending on where you live, this training may be free. To find out more, please visit our website: www.independentlives.org and explore the options in the Training and Events menu. Alternatively you can email our training team at [email protected] or call us on 01903 219482 and select option 4.