These FAQs are for individuals supported by Devon County Council. If your direct payment is funded by another organisation, such as NHS Devon CCG (Personal Health Budget), Plymouth City Council, or Torbay and South Devon NHS Foundation Trust, then please refer to their specific guidance documentation, and contact them directly with any questions.
What is a Personal Assistant (PA)?
A personal assistant (also known as a PA) is employed by someone who needs social care, either because of their age or disability, to enable them to live as independently as possible.
Personal assistants (PA’s) are currently not regulated by the Care Quality Commission (CQC) even if they are providing intimate personal care.
Some PA’s work on a 'self-employed' basis or some PA's are employed by the person needing care and support.
Personal assistants can offer a wide range of care and support services depending on their individual experience. It is a shared responsibility between the person needing care and support and the PA to ensure they have the right skills to work with them and provide the support they need. People often choose to have a PA as they feel this offers a more personalised service and allows them to have full choice over who offers them support.
Care Agencies are regulated and inspected by CQC – the Care Quality Commission. However, there is no such regulation in place for Personal Assistants and their training, qualifications, experience and skills vary greatly. This means that the person employing the PA is responsible for supervising and regulating the conduct of the PA.
What checks do I need to do when I have found a PA?
We strongly recommend you complete checks on the person you plan to receive support from, particularly if they are going to be providing you with any form of personal care.
You should check the employment history of the person. This can be done by obtaining written or verbal references from past clients or employers. We encourage you to seek a minimum of two references.
We recommend you ask to see proof of:
- any relevant training and qualifications
- HMRC confirmation if the person says they are registered as self-employed (see section 3)
- proof of public liability insurance if the person is self-employed
- the worker has a right to work in the UK (https://www.gov.uk/legal-right-work-uk)
- current DBS check (If you receive a Direct Payment or a Personal Health Budget your Independent Living advisor can arrange for this check to be completed for you)
My PA says he/she is Self Employed what does this mean?
Self-employed workers are not paid through PAYE (Payroll) and they do not have employment rights. A self-employed PA may work for more than one client.
He or she will set the rate they charge per hour, and the times they are prepared to come to work for their clients. They declare their own income to HMRC so Payroll is not required. A self-employed PA is not entitled to any holiday pay, sick pay, redundancy or other employment related payment. These are all included in the hourly rate that they will charge for your care and support.
Self-employed PA's must have their own public liability insurance – which they should show you, on request, before they commence working with you.
They are not usually entitled to a notice period unless you have agreed one with them in a signed service agreement contract. A service agreement is a contract which sets out the person’s employment status, how much they will charge and when they will work with you, among other things. It is important to read any document you sign carefully and seek advice if necessary.
Keeping good records of such agreements is good practice – as it is helpful to have things written down if there are ever any disputes.
You can check if the PA has registered themselves as self-employed by asking to see their letter from HMRC which states their Unique Tax Reference Number (UTR).
A self-employed PA is within their rights to send another self-employed PA to carry out their work for them in their absence. It is best to imagine a self-employed PA in a similar way to engaging a window cleaner or a builder to do a certain job for you. If they choose not to attend to do the work themselves send someone else who does the work for them, then you could not complain; the same applies to PAs.
If your worker is Self-employed they should supply a clear invoice to you for payment. This should include their name, address/contact telephone number and where payment should be made. The invoice should state the dates services were supplied, how the total has been calculated (i.e. number of hours multiplied by agreed hourly rate) and the total payment due.
For HMRC purposes you should retain copies of the invoices for 7 years.
My PA is not self-employed, how do I access a Payroll service?
There are many private companies and accountants who supply payroll support for individuals and small businesses. It is recommended that you shop around as costs vary greatly.
If you receive a Direct Payment or Personal Health Budget for your care, the cost of Payroll (up to £3.50 per week) can be covered in your budget. It is your responsibility to contact the payroll provider and complete the forms with your employee. You will need to tell the payroll provider how much per hour you have agreed to pay each member of staff, and how many hours a week they work.
However, please do bear in mind that if you receive a Direct Payment, then PA rates are fixed by Devon County Council within your personal budget and so, if you choose to pay them more than this rate, you will be required to use your own money to make up the difference.
If you choose to pay them less than this, any surplus in your Direct Payment account will be recouped by Devon County Council. Furthermore, if you pay the PA less than the rate set by Devon County Council, you risk paying them at a rate that is less than the National Minimum Wage. A failure to pay at an average rate that is at or above the National Minimum Wage is unlawful and you run the risk of having a claim made against you by your employee.
Your employee should complete time sheets which clearly outline the days and times they completed work for you and share this information with your payroll provider every 4 weeks. Your payroll provider may provide sample time sheets for your use.
Your payroll provider will work out how much Holiday, National Insurance and Tax contributions to pay and post you the pay slips. If the PA is eligible they will also work out the required payments for the PA’s pension. You are responsible for making the required payments to your PA and HMRC from either your Devon Card account, or from your personal funds if you are paying privately for your care.
Disability Focus offer a payroll service and can offer further advice and support. Please visit their website http://disabilityfocus.org/ or speak with your Independent Living Advisor for more information.
The rates paid by Devon County Council are sufficient to allow you to pay at or above National Minimum Wage and discharge other liabilities such as pensions, sick and holiday pay and National Insurance contributions.
Do I need to worry about my employed Personal Assistant paying tax?
If you are employing a PA directly, it is your legal responsibility as the employer to ensure that HMRC regulations are met and any income declared. If individuals and their employers have not paid tax or contributions correctly they may lose entitlement to benefits and may be liable to pay penalties if their employment status is wrong.
Whether you pay your PA privately or via a Personal Budget, it is important to check that your worker is registered with HMRC and is declaring their income or arrange a payroll service for them.
If I want to directly employ my Personal Assistant – do I need an employment contract?
Yes, you should complete a contract of employment with your worker which sets out the times/days they are due to work for you, their rate of pay and their legal entitlements such as Annual Leave, Sick Pay etc. Failure to offer an employee at least a Statement of Particulars of Employment (a very basic form of contract setting out the terms upon which the person is employed) is a breach of section 1 of the Employment Rights Act 1996, something for which you would be liable were your employee to make a claim against you.
For more information regarding employment contract please visit Skills for Care Information Hub
If you receive funding for your support your Independent Living Advisor can supply you with sample contracts and help you complete these with your worker.
My Personal Assistant works for me, on a regular basis, at the times directed by me. Does this make me their employer?
There is guidance set out by HMRC which clarifies what workers should be considered as Employed. To check if your worker should be considered employed go to https://www.gov.uk/guidance/check-employment-status-for-tax or speak with your Independent Living Advisor for assistance with completing this online tool.
How much should I agree to pay for my personal assistant?
If your personal assistant is self-employed they will probably have an hourly rate for their services. It is important to check this before they start work for you and agree a rate you can afford from within your Personal Budget and/or using your own funds.
If you employ your PA directly, then by law your personal assistant must be paid the National Minimum Wage – this is for all hours they work (day and night).
These rates are for the National Living Wage and the National Minimum Wage which change every April. The up to date rates can be found here https://www.gov.uk/national-minimum-wage-rates.
If you receive a personal budget, the rates set by Devon County Council are higher than the national minimum wage hourly rate. The rate paid by Devon County Council includes allowances to cover holiday pay, employers and employee’s National Insurance contributions and pension contributions where required it will also include an allowance for sickness pay and you are therefore advised to retain a surplus in your Direct Payment account to ensure that such payments can be made, should your employee become unable to work through illness. The hourly rate doesn’t include pension contributions these are added as an additional payment if required.
If you receive a Direct Payment from Devon County Council, you will have been given a 'My Care and Support Plan' and a 'Direct Payment Agreement', both of which will state the actual hourly rate Devon County Council is willing to pay toward your support.
As independent contractors, Personal Assistants are able to set the rate they feel is fair for the services they supply. If the personal assistant you choose requires a higher fee than has been agreed in your budget, you may want to consider negotiating a better rate or you have the choice to pay the difference from your personal funds.
If you are in doubt about the agreed hourly rate you can contact your Independent Living Advisor.
Do I need special Insurance for a Personal Assistant to work in my home?
If you directly employ your PA you are legally obliged to have employers’ liability insurance in place and you must obtain this as soon as you become an employer. Employers’ liability insurance will help you pay compensation if an employee is injured or becomes ill because of the work they do for you.
Self-employed PA's should have their own public liability insurance. However, we do recommend you take out employers’ liability insurance specifically for carers/personal assistants to ensure all parties are covered for accident/injury/loss and to protect you from personal liability should your worker feel they have suffered a loss or been unfairly treated.
This type of insurance will often also give you access to an employment advisor for basic help and advice free of charge, but you should ensure the cover itself offers you legal protection should there be an employment dispute.
Many insurance companies offer this cover and the usual cost is in the region of £90 per year.
If your care is funded by Devon County Council Direct Payments or you receive a Personal Health Budget, the cost of the required insurance is usually covered within your budget.
Speak with your Independent Living Advisor for more information.
Do I need to think about a work place pension for my Personal Assistant?
Yes, If you directly employ your personal assistant you will need to consider a work place pension.
Your payroll company can support you with everything you need to do regarding setting up a pension for your personal assistant if they are or become eligible.
You must enrol and make an employer’s contribution for all staff who:
- are aged between 22 and the State Pension age
- earn at least £10,000 a year
- work in the UK
You can find out more information on the gov.uk website - https://www.gov.uk/workplace-pensions-employers, speak with your payroll provider who should be able to support you through this process or your Independent Living Advisor. Your Personal Budget should include an element for pension liabilities.
What can my personal assistant help me with?
If you are paying for your own care it is important that you think about the type of help/support which is useful to you and clearly communicate this to your personal assistant. You may want to consider writing out a ‘task list’ or job description.
If you receive a Direct Payment or Personal Health Budget to fund your support you need to refer to your ‘My Care and Support Plan’ or Personal Health Budget Agreement which sets out the purpose of the funding.
You can then agree a ‘task list’ with your worker so they are clear about what you need them to do on a day to day basis, in line with what you have been assessed as requiring within your Care and Support Plan.
If you are unsure about any particular task or what your funding is aimed to help you with you can contact your Independent Living Advisor.
However, your support is funded, it is important that your worker knows what is expected of them and what to do in an emergency.
It is helpful to keep an emergency contact sheet available in the house and details of your GP, community nurse team and list of medications.
What happens about payment for petrol if my PA takes me out in a car?
If your Personal Assistant is to take you out in their car you will need to check they have the relevant insurance to carry you as a business passenger. You will need to agree a mileage rate for the trip to be paid to the worker.
If you receive a Direct Payment budget for your care, you will usually need to pay for mileage on a private basis, direct to your worker.
What records should I keep about my care and support?
It is often useful to keep a record book or communications log in the house, particularly if you have several personal assistants or carers supporting you.
You can ask your workers to record the times/days they visited.
If you wish this can also include more personal details about you, such as what tasks they helped with, what your diet/fluid intake was like, or how you seemed in general – this is very helpful to other people/professionals who support you.
It is your choice to have any records written about you by your personal assistant. Unlike many care agencies, personal assistants do not usually supply a care folder or information book. If you would like records kept, you will need to supply a book or folder for the PA’s to use and consider where you would like this to be kept.
Devon County Council may at times ask you for information about the way in which your Direct Payment is being applied and the services that your Personal Assistant is providing, in order to decide whether a Direct Payment continues to represent an appropriate way of ensuring your needs are met.
I have a 24 hour care needs. How many hours should my Personal Assistant work?
The maximum hours anyone should legally be asked to work is directed by the Working Time Regulations (WTR).
The daily and weekly rest break elements of the WTRs still apply as listed below;
- 20 min rest break after 6 hours work
- 11 hour rest break between the end of the first shift and start of the next
- A full 24 hour rest break per 7 day reference period (or 48 hour rest break per 14 day reference period)
More information on the working time directive.
Your employee should be paid an average of the National Minimum Wage for all hours worked, including times they spend asleep but available to attend to your needs as and when they arise.
What happens if things go wrong?
It’s important to know that continuing to receive support from your personal assistant is largely your choice. If the relationship is not working then you can take steps to change it. The main issue is to communicate with your worker at the earliest opportunity.
If an employment related dispute or disagreement arises with your worker the first step to take is to be honest open and discuss it directly with them. It maybe they are not aware there is a problem or there has been a misunderstanding.
However, if this does not address the issue, or you have additional concerns, seek advice from your liability insurer about what to do next.
If your worker is self-employed it may be simply a case of advising them their services are no longer needed and agree a mutually acceptable end date for their support.
However, if your worker is employed by you, remember they do have employment rights and your insurer needs to be involved in any action you take.
You can also contact ACAS for independent employment related advice and guidance http://www.acas.org.uk or speak with your Independent Living Advisor.
If I feel my Personal Assistant has been neglectful or caused me harm?
- speak to a trusted family member or friend, or any professional involved in your care straight away.
- if your budget is funded by Devon County Council – contact the Direct Payment Team via Care Direct and ask to speak with your Independent Living Advisor
- contact Adult Safeguarding via Care Direct 0345 1551007
- if you feel threatened or that you have been a victim of a crime contact the Police on the 999 emergency line if you feel in immediate danger or 111 to report/discuss an incident
What happens if my PA is unwell or becomes pregnant?
If your PA is unwell they should let you know at the earliest opportunity so you can make alternative arrangements for your care
If the worker is self-employed they are not entitled to any payment for the period they are absent.
If your worker is employed by you they will need to let you know the nature of their illness and how long they are likely to be away. They will need to see their GP if they are unable to return after one week. They are entitled to Statutory Sick Pay during this period, on receipt of a fit note from their GP. Your payroll provider can offer you further advice regarding this or visit https://www.gov.uk/employers-sick-pay
It is advisable to that you carry out a brief return to work meeting with your employee following a period of absence to ensure they are fit for work. For more information visit Skills for Care http://www.skillsforcare.org.uk
Your employee may be entitled to Statutory Maternity/Paternity Allowance – speak with your payroll provider or visit https://www.gov.uk/employers-maternity-pay-leave
Your direct payment is calculated to address such matters and it is therefore advisable to keep a surplus in your Direct Payment account should you be required to pay maternity or sickness pay whilst also continuing to employ an alternative person to carry out your care.
How can I access Training for my Personal assistant?
Many personal assistants come into this area of work from other related jobs in the care industry. It is important to check what qualifications, training or experience they already have when deciding to use their services. It is your decision to make if you feel the worker has the right skills to support you.
Your worker may need some refresh training for a new care task requires new skills.
If you have a professional therapist or a community nursing team involved they may be able to offer guidance/advice about specific care tasks.
If your worker is self-employed they are usually expected to arrange and fund their own training.
If your workers are employed by you, there may be funding available via a Skills for Care Grant.
There are also various private training agencies who will work with you and your workers to draw up a training plan and apply for funding, many of these advertise on line.
If you receive funding for your care speak with your Independent Living advisor about how the training needs can be met.
I receive a Direct Payment from Devon County Council, can I employ a family member?
Yes. If the family member doesn’t live at the same address as the cared for person then it is acceptable to employ a family member, however they do live at the same address then it does need to be agreed by the care manager and is generally only granted in 'exceptional circumstances'.
When any family member is paid to provide care services your Independent Living Advisor will speak with you about the best way to manage your budget, this may include the budget and payments being managed by a third party, such as Disability Focus.
Can I have help to manage my budget?
Yes, if you receive a Direct Payment or a Personal Health Budget, Disability Focus http://disabilityfocus.org/ can be put in place to manage your funds and make payments to your workers.
They can also offer a full payroll service, support you to register as an employer with HMRC and support with the work place pension.
Disability Focus DO NOT arrange care and support for you – you remain responsible and in charge of finding your workers, supervising/directing them and organising your own day to day care arrangements.
If you fund your own care privately, your solicitor or accountant may be able to support you to manage your care costs or contact Disability Focus for more advice or information.