Direct payments guidance

If you decide to employ your own personal assistant to provide care services, you will have legal responsibilities as an employer under employment law. The Direct Payments Advisor can provide you with advice and support, but you must consider these important issues before deciding to employ your own staff. There are also several other organisations that can provide you with advice listed at the end of this section.

Disclosure and Barring Service

We would advise that you carry out appropriate checks before employing a personal assistant to provide personal care for you. This is mandatory for services provided to children and is completed by the Children & Young People's Department.

Tax and National Insurance

As an employer by law, you must operate Pay as you Earn (PAYE) on the pay of your employees and pay the correct National Insurance contributions to HM Revenue and Customs.

Pensions

The Pensions Act 2008 introduced new rules for workplace pensions in the UK. These changes affect every workplace and make sure that every worker will have a chance to save for their retirement.

Since April 2015, every employer has had to give their workers the opportunity to join a workplace pension scheme that meets certain standards. Depending on how old they are and how much they earn, many workers will be automatically enrolled into the scheme. Other workers will be entitled to join the scheme if they want to.

Employer Insurance

This is a legal requirement that covers you if your personal assistant has an accident, as you may be held responsible.  It also gives cover for possible legal and industrial tribunal costs.  There are insurance providers offering special policies for people employing personal assistants. 

The cost for insurance is to be met from your existing Direct Payment. There will be no additional funding available for this. Evidence of appropriate insurance cover must be provided to the council each year.

Health and safety

It is your responsibility, as an employer, to make sure that your employees work safely and have a safe place to work in.

As the employer, it is for you and your employees to work out a safe way for tasks to be undertaken, thus reducing risk to a minimum. This could include things like maintaining lifting equipment properly, appropriate training for your staff i.e., food hygiene certificate if their role involves preparing food for you.

The council's Training Section is available to provide advice and support on short training courses that may be available and can be contacted through the Contact Centre.

Employees who work with people in their own homes are at risk if the employer is a smoker and you will need to minimise the risks to employees while at work.

Equality Act 2010

Every employee has the right to work in an environment free from discrimination, harassment and victimisation.

As an employer, under the Equality Act 2010, you have a duty to take reasonable steps to ensure your employees work in an environment free from:

• Less favourable treatment (discrimination),
• Threatening, intimidating, offensive or humiliating behaviour (harassment)
• Further detriment because of a complaint of harassment or discrimination being raised (victimisation)

Where these conducts are linked to one or more protected characteristics under the Equality Act 2010: age, disability, gender, gender reassignment, religion, race, sexual orientation, pregnancy and maternity, marriage and civil partnership.

Annual leave

Your employee will be entitled to paid annual leave. This should be agreed when an employee starts work and included in the employee's written contract. Almost all workers are legally entitled to 5.6 weeks paid holiday per year (known as statutory leave entitlement or annual leave). An employer can include bank holidays as part of statutory annual leave.

If you employ a replacement personal assistant to cover annual leave of your regular personal assistant you will be required to provide details of the replacement personal assistant to the council who will arrange an additional payment to you.

Pay rates

You will need to ensure that your minimum rate of pay conforms to the requirements of the National Living Wage.

Payroll service

The council provides a free payroll support service. You can ask an independent organisation to provide this service for you if you prefer. Any charge by an independent organisation must be paid from your existing Direct Payment.

Statutory payments

You may need to pay your employees' statutory payments even when they are not actually working for you - for example, if they are sick and entitled to statutory sick pay or on maternity leave and entitled to statutory maternity pay.

If your personal assistant is on long term absence or has given notice, you should contact the Direct Payments advisor immediately for advice.

Employer responsibilities

The council will expect you to fulfil your responsibilities as an employer. Failure to do this may result in the council withdrawing your Direct Payment and arranging services to meet your needs.