DIRECT PAYMENTS. A Guide to Becoming An Employer

Transcription

1 DIRECT PAYMENTS A Guide to Becoming An Employer

2 CONTENTS Introduction... 4 Before your PA Starts... 4 Recruitment Support... 4 Employee checks... 4 Employed or Self-Employed?... 4 When your PA Starts... 6 Your Legal Responsibilities... 6 Finances/Tax and National Insurance... 6 Employer s Liability Insurance... 7 Health and Safety... 7 Induction and Training... 7 On-going Staff Management... 8 Things to think about and discuss with your PA... 8 Time off for staff... 8 What if things are not working out?... 8 This makes employing someone sound quite complicated... 8 Health & Safety Guide for Direct Payment Users and Personal Assistants Introduction When a Personal Assistant comes into your house, you both take on responsibility for Health and Safety The local authority role Employer responsibilities Employee responsibilities Using equipment Using a wheel Chair General Hygiene Safety in the home Fire risks Using electrical equipment Heavy lifting Hazardous materials The Law and how it affects you Why are there Health and Safety Laws?

3 Do Health and Safety laws apply to me? What is the Health and Safety Executive (HSE)? What do I need to do?

4 Introduction This booklet is for people using Direct Payments who wish to employ their own personal assistants (PAs). It explains all the things you need to think about when becoming an employer, from writing contracts to paying tax and national insurance. Hopefully, this booklet will make it easier for you to understand the responsibilities involved in being an employer, whilst also giving you some practical hints and tips on how to manage your Personal Assistant (PA) effectively. However, if you are ever unsure or have any queries about any aspect of being an employer, you can contact the Council s Direct Payments Team who can advise you. Before your PA Starts Recruitment Support Halton Disability Partnership can provide you with free support and assistance in all aspects of recruiting your PA(s), including finding staff, setting up and assisting with interviews, obtaining references and ensuring you meet the legal requirements as an employer. Your Direct Payments worker will put you in touch with this service. Before you start you should consider how many PAs you want to recruit? Think about holiday and emergency cover etc. It is important to remember that, as an employer, you must operate an Equal Opportunities policy. This means that you are not allowed to discriminate against any potential employees because of race, sex, age, religion, sexual orientation, disability or pregnancy. The only time you can specify the sex of your staff member is when it is an occupational qualification. This means that the tasks involved in the job can only be done by a certain sex, e.g. personal care. Employee checks There are three things you should do before the person starts. Make sure that the individual is eligible to work in the UK. This check must be done regardless of how well you already know the person. You may want to have a criminal record check - known as a DBS check. The Direct Payments Team can arrange this for you. You may want to take up references for the successful candidate. Please be aware that many references these days will only confirm the facts about a person s previous work. Many employers will not state an opinion of the person and their capabilities. Employed or Self-Employed? We recommend that personal assistants should be employed directly by you. Here your responsibilities are clear and flexibility is maintained. We do not recommend that you use self- employed care workers. We have been advised by Her Majesty s Revenue and Customs (HMRC) that they now consider almost all personal assistants to be employed, not self-employed for tax purposes. 4

5 Clear guidance on employment status is contained in leaflets ES/FS1 (aimed at workers) and ES/FS2 (aimed at employers/engagers) and can be found online on the Her Majesty s Revenue and Customs (HMRC) website The quickest way of getting HMRC s view on whether a personal assistant is employed or self-employed is to use the online employment status Indicator tool (ESI) at If you are unable to use this tool and are unsure of the personal assistant s employment status you can call the HMRC status customer service team on am to 5pm, Monday to Friday, except bank holidays. It is essential that the employment status of your personal assistant is clarified at the outset and that you have written confirmation of their registration with HMRC. For the purposes of tax and national insurance, you are responsible for correctly deciding whether a personal assistant is employed or self-employed. If HMRC decides that you are the employer (even when the worker has registered with HMRC as self-employed) you will be liable to pay the backdated tax, national insurance and employer s national insurance. As a general rule, if you use a self-employed personal assistant/support worker you should expect them to: Produce invoices quoting their HRMC registration number to request payment from you for the specific services they have provided Produce a contract agreeing the terms and conditions of the support provided, prices charged/cost of service, which would be mutually agreed by you, including when and where to undertake the work Arrange their own cover for public liability insurance and where needed employers liability insurance Have a unique reference number given to them by HMRC and documentation stating they are self-employed, providing you with the written evidence of both of this Be responsible for arranging their own tax, national insurance and general accounts Provide their own equipment (unless agreed otherwise in the contract agreement) Provide the service to more than one person Advertise their service in local publications Suppose someone tells you they want to be self-employed? So that you can be sure, we suggest that you contact the tax office ( and explain the sort of work you want your personal assistant to do. You will need to keep copies of the invoices that your personal assistant sends you. If you re paying for a self-employed personal assistant with your Direct Payment from your local Council, this is part of your Direct Payment monitoring requirements. Being self-employed in one job does not mean that a personal assistant is necessarily selfemployed in another. For example, your personal assistant may be self-employed as a child minder but not in for the work she does for you. Check your personal assistant s status with HMRC. Only personal assistants directly employed by you are entitled to Statutory Sick Pay (SSP), pensions, maternity rights etc. Self Employed personal assistants are not. Only personal assistants directly employed by you are entitled to holiday pay. 5

6 Having Employers Liability insurance suggests you are the employer and therefore that your personal assistant is not self-employed. Self-employed personal assistants should fund their own insurance and training. Small pieces of equipment such as gloves and so on are incidental and can be provided by your or the personal assistant. Larger things like lifting equipment should be provided by a selfemployed personal assistant. If a Tribunal rules that you are the employer, you may have to pay the personal assistant for unfair dismissal (up to 58,000). That s why it s essential to check the status of your personal assistant. If Her Majesty s Revenue and Customs (HMRC) judges you to have been the employer, it s possible that you could be required to pay all the Tax and National Insurance due for the period (as much as 50p for every pound you have paid). HMRC New Employers Hotline: or the HMRC Self Employment Registration Hotline: You can also visit their website some of the pages that will be of greatest interest to you are: The HMRC Employment Status Indicator Tool is a useful way of working out whether your personal assistant should be employed or self-employed; this can be viewed at When your PA Starts Once you have recruited your PA you will need to provide them with written terms and conditions of their employment. You should always have a written statement of employment (contract) with your PA. Your Direct Payment Worker has a master copy of this and will help you to tailor it to your individual needs. You should also have a procedure for dealing with grievances. Again your Direct Payment Worker has a master copy of guidance for this, and will help you construct it. Your Legal Responsibilities Finances/Tax and National Insurance You must pay the agreed wage/salary You must notify the Inland Revenue. If you are using a payroll service they will do this for you. Your PA must provide you with a P45 or complete a P46 form, as all earnings must be reported to HMRC regardless of whether or not your PA will be paying tax You must pay employers national insurance (NI) contributions where applicable. This amount is included in the money we pay into your Direct Payment account. 6

7 You must pay Statutory Sick Pay or Statutory Maternity Pay where applicable. You must ensure that the correct deductions are made from your PA s wages. If you are using a payroll service they will do this for you All of the above responsibilities will be carried out on your behalf if you are using a payroll service for your Direct Payment. The financial record keeping involved in running a Direct Payment is extremely important. If you have any queries regarding any aspect of this (no matter how small) please contact your Direct Payment Worker for assistance. Employer s Liability Insurance You must have this insurance in place before your employees start work for you. It covers you against: your PA injuring themselves while helping you a third party being injured as a result of something you or your PA does accidental damage to a third party s property for which you or your PA might be liable the cost of defence if you were issued with criminal proceedings following a breach of Health and Safety at Work Act (1974) Employer s liability insurance will be included in your Direct Payment costings, and your Direct Payment worker will help you set this up. Health and Safety You should do a check of your house to identify any safety hazards. Remember you are familiar with your own home but someone coming in may not be so look out for things like trip hazards, where you store cleaning products etc. Your Direct Payments Worker will provide you with a separate information leaflet on Health and Safety guidance for employers. Induction and Training You must give your staff the relevant training to provide the right support to you. Write down all the things your new PA needs to know about, from procedures that need to be carried out to where the keys are kept Spend some time with your PA to explain details they need to know about you, your home and your family You could have a book with useful information and phone numbers, and a list of do s and don ts If you want something doing in a particular way, explain why this is important to you as it will help your PA feel more involved and committed to the job Give clear instructions on how you want things done. Do not assume your new personal assistant will know how to do a particular task 7

8 Go through procedures step-by-step. It is often useful to have an experienced personal assistant working alongside a new personal assistant, to demonstrate how you like things done Try and be consistent if you keep changing how you want things done, you cannot expect your personal assistant to always get it right You can use your set-up money to provide formal training, e.g. o moving and handling o food hygiene and preparation o first aid On-going Staff Management Management is about developing and maintaining the right sort of relationship with the people you employ. You will have your own management style. Some people like to give precise instructions, whereas others are more informal. It is wise to be friendly but firm with your staff about how you want things done. Communication is one of the most important factors in a successful working relationship. Your PA needs to be clear about what your expectations are, and also to hear when they have done a good job. Listen to your PA and encourage them to let you know immediately if they have a problem so it can be resolved quickly. Things to think about and discuss with your PA Your house, are there any off limits areas? If so, please specify these. What are the rules of the house? If you have employed a smoker, are they allowed to smoke in your house? Do you have pets? - You should mention this at the interview. Will you have a probationary period? How long in advance should a PA book their leave? Agree whether the time spent with you includes breaks or not. Supervision versus private time. For example, if your PA is doing the laundry, do you expect to oversee them, or let them do it their own way? Friendship versus paid employment ensure there are clear boundaries. Be clear how you want to be addressed. Do you want to be called by your first name? What are the risks involved in supporting you? For example, moving you from bed to chair, do you have lifting equipment and is it properly maintained? Will you need in help taking medication? Devise a safe system will it be recorded anywhere? Decide on a clear system for money matters. Is your PA going to handle any financial matters for you? Will you pay any transport costs if they drive their car for you? 8

9 What will you do about giving and receiving gifts? Time off for staff Apart from paid holidays (which are laid down in the contract), an employee can take unpaid time off if they have an emergency involving a dependant (child, elderly relative etc.). The time should be to allow alternative arrangements to be made, so shouldn t normally be longer than a day. Parents of children under 5 (or 18 if disabled) can take unpaid time - No more than 4 weeks in a 12 month period can be taken and the individual must give you at least 21 days notice. If the timing is inconvenient for you, you can postpone their leave but you must let them take it within 6 months. The only exception is if the leave request coincides with the birth of a baby (or adoption of a child) when it cannot be postponed. There are separate rules for pregnancy and maternity leave. Please speak to your Direct Payments worker or Halton Disability Partnership for further advice. What if things are not working out? Occasionally, you may find that you cannot establish a working relationship with the person you ve recruited. It may be the standard of their work, their attitude or many other things. If you really believe that things aren t working out and there is no way that you can improve them, you should consider ending their employment. This isn t a decision you should take lightly there s another person involved and in addition you will have to go through the recruitment process again but it may be that it is the best solution. If you do decide to terminate someone s employment you should first seek advice from either your Direct Payments worker or Halton Disability Partnership, as your employee has legal rights and any dismissal needs to be carried out according to employment law procedure. Your employer s liability insurance provider will also offer you a 24 hour employment law support telephone helpline service. The details of this will be sent to you with your insurance documents. This makes employing someone sound quite complicated It s not intended to. In the vast majority of cases, you and your PA will work together effectively to increase your own independence and improve your quality of life. It s important to remember however that you and your PA have a legal relationship and within that there is a right way and a wrong way to deal with problems if they do arise. For further advice please contact the Direct Payments Team on , or Halton Disability Partnership on

10 Health & Safety Guide for Direct Payment Users and Personal Assistants Introduction The Direct Payments team has developed this booklet to raise awareness of health and safety issues which may arise when you are employing someone to work in your home. You should go through this advice with anyone that you employ in your home as a Personal Assistant. The most important issue concerning health and safety is that you and anyone you employ in your home feel safe and comfortable, both with each other as well as within your home. So, if anything threatens to undermine that, it should be dealt with immediately with either the help of your family, the Direct Payments team or your Social Services team. This booklet is only intended as a guide to health and safety and any relevant government legislation should be referred to for more detailed information. When a Personal Assistant comes into your house, you both take on responsibility for Health and Safety. It is your responsibility to provide a healthy and safe work place for your Personal Assistant and not to do anything, or ask them to do anything, which may cause harm. It is your Personal Assistant s responsibility not to do anything which might endanger your safety or theirs. They must report anything that may in their opinion cause harm in the future. Health and safety affects everyone. It is part everything that happens in your home during the day; reaching for something, boiling a kettle, cutting food, using cleaning products, just moving around the house all of these activities could result in an accident. However, increasing awareness of health and safety and using common sense usually results in the avoidance of any accidents. The local authority role As a general principle, local authorities should avoid laying down health and safety policies for individual direct payment recipients (DOH guidance pg.24) This means that we will not be able to provide you with policies and procedures, however this information sheet is intended to introduce the subject of health and safety and signpost you towards information from the Health and Safety Executive. Employer responsibilities Help by providing a safe working environment. Aim to prevent health and safety issues. Speak to your employee about any health and safety issues you feel may arise. Make sure you know about safe working practices. 10

11 Employee responsibilities Follow safe working practices. Be aware of any potential health and safety hazards. Report any hazards as they arise. Consult with your employer if you feel you need more training. Speak to your employer about any health and safety issues that may give you concern. Using equipment Ensure you only use equipment including lifts, hoists and household appliances when: You have been fully trained to use the equipment. You feel totally confident in doing so. The equipment has been checked to ensure it is in good working order. The equipment is correct for the purpose for which it is being used If you are an employee using any equipment to assist your employer, e.g. a wheelchair, make sure you talk to them and explain what you are doing. Using a wheel Chair When using a wheelchair to provide assistance with mobility you should ensure: The person you are assisting has fastened their lap belt. You leave enough room to move your feet. You keep both hands firmly on the handles when pushing the wheelchair. You use the weight of your body to push the wheelchair. You do not tilt the wheelchair backwards or forwards. You aim to move steadily, avoid making sudden movements or turns and be aware of others around you. General Hygiene In order to help prevent the spread of illness/infection you should ensure: You always wash your hands especially after sneezing, using the toilet and before and after preparing food, using either liquid soap or an alcohol hand wash. You wear disposable gloves when coming into contact with bodily fluids and dispose of them safely after use do not reuse. You have all the immunisations you need. You cover any cuts and scratches immediately. That if either of you have any additional safety measures that you would like to see in place you should inform the other. Safety in the home To maintain general safety around the house you should always: Clean up all spills immediately. 11

12 Make sure cables do not trail across doorways or rooms. Put equipment back in a safe place after use. Use ladders to reach objects above head height. Fire risks To minimise the risk of fire in the home you should ensure: Heaters are kept clear of flammable items. If you or your employee(s) smoke, cigarettes are put out before leaving a room. Ashtrays are emptied into a metal bin regularly. Smoke alarms are installed and kept in good working order. Using electrical equipment To help reduce potential hazards when using electrical equipment you should make certain: You remember to turn electrical equipment before cleaning it. You remember to take any safety precautions or wear protective clothing if instructions recommend it. You check sockets are safe and in good working order. You check wiring on the equipment is not damaged or frayed. Heavy lifting To avoid injury or strained muscles when lifting heavy objects you should be sure to: Use a ladder to avoid stretching to reach items above head height. Keep the object you are lifting close to your body. Bend at the knees and keep your back straight if you are picking something up below hip height. Avoid twisting when lifting. Take regular breaks if you feel you need to. Hazardous materials To avoid accidents or injury when you need to use hazardous materials you should: Ensure you do not mix chemicals. Always follow the instructions on the bottle. Make sure that recommended precautions are adhered to. Wash your hands thoroughly after use. The Law and how it affects you Health and Safety is about preventing people from being harmed or becoming ill at work by taking the right precautions and by providing a satisfactory working environment. Why are there Health and Safety Laws? 12

13 Health and safety at work is so important that there are rules which require all of us not to put ourselves or others in danger. The law is also there to protect the public from workplace dangers. Do Health and Safety laws apply to me? Yes. Health and safety law applies to all businesses, however small, and to all employees including self-employed. Most legislation is applicable to Personal Assistant employers and you should seek guidance from a health and safety professional in order to establish how best to comply with the legislation. Free guidance can be obtained from the Health and Safety Executive via their website or their telephone number is What is the Health and Safety Executive (HSE)? The HSE is a government organisation that works to protect the health, safety and welfare of workers by enforcing health and safety law across the country and offering advice and support. This is undertaken in association with the Environmental Health Department of your local council who will also offer you impartial advice and guidance. Health and safety law places specific responsibilities on both employers and employees, e.g. it is up to the employer to provide a safe place in which to work, but the employee also has to show reasonable care for his or her own safety as well as those who may be affected by their actions. The settings in which you employ a Personal Assistant are generally covered by the Health and Safety at Work Act 1974 (HASAWA). This Act has been updated and supplemented by many sets of regulations and guidelines which extend, support or explain it. The regulations most likely to affect you are: Manual Handling Regulations 1992 Health and Safety First Aid Regulations 1981 Management of Health and Safety at Work Regulations 1999 Control of substances Hazardous to Health Regulations 2002 (COSHH) Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) Please note; this is not a complete list and is provided for information only. Before making any decisions as to what does or does not apply to your personal situation, you should seek professional advice as other regulations may also apply. What do I need to do? As an employer you will need to ensure that your workplace is safe and that the risks associated with operation within your workplace are reduced to their lowest possible level. To do this you will need to carry out a risk assessment (or a series of risk assessments) which will identify: Any hazards that are present What the risks are in relation to these hazards What control measures are required in order to minimise these risks Remember, both you and your employee have a shared responsibility for maintaining a safe working environment which means that you both have a duty to continually share information, review and where needed change your current risk assessment 13