Employing or Contracting Staff
A Direct Payment (Option 1) is the only SDS option that enables an individual to employ their own staff if they so wish. There are three different categories of employment status each of which have different requirements and particular advantages and disadvantages for the individual to consider and decide which one is best suited to their needs.
- Employee – One or more Personal Assistants (PAs) will be employed by you and you will pay their salary, any agreed overtime, their annual leave, and any other paid leave requirements as well as the employer’s pension and National Insurance contributions. As their employer you will be able to decide when you want your staff to work, how you want to be supported and how your outcomes will be met.
- Casual/relief workers –A casual or relief worker may be employed on a zero hours contract because you do not need them constantly but on an as and when basis instead. You as the employer do not have to give any minimum working hours however be aware that your employee is not obligated to take any work offered. Their employee entitlements and your employer obligations still apply.
- Self-Employed – Self-employed carers or self-employed support workers are contracted not employed and have more influence over where, when and how they will work. A Service Agreement will set out the agreed work schedule, rates of pay and other relevant conditions. As the contractor, it is your obligation to check the individual’s employment status. You need to use the HMRC’s Employment Status Tool to determine this: https://www.tax.service.gov.uk/check-employment-status-for-tax/setup
Employing Personal Assistants
If you choose to employ Personal Assistants, they will work for you under a contract, which will fully explain their terms and conditions of employment. You are legally required to provide your employee(s) with this written statement within 2 months from the start of employment.
You will ensure that you pay all employer contributions for your PA’s i.e. Tax, National Insurance and pension(s). If you wish, your selected payroll provider can undertake this responsibility on your behalf. There is a mandatory requirement to purchase Employers Liability Insurance as soon as you become an employer (Employers' liability insurance - GOV.UK (www.gov.uk)).
You cannot ask your PA to become self-employed to enable you to avoid taking on employer's responsibilities. It is important to remember that a PA cannot send a substitute if they are unable to come to work on any given day.
Engaging with a Self-Employed Worker
Contracting a self-employed worker means negotiating with them about how your assessed needs and agreed outcomes will be met and agreeing the details of where, when and how this will be achieved.
A self-employed worker must hold their own registration with Her Majesty’s Revenue and Customs (HMRC), will have a Unique Tax Reference (UTR) which will be allocated by HMRC and will submit an annual tax return. In addition, they must have the right to work in the UK, account for their own national insurance and tax deductions, have their own liability insurance, and organise their own sick pay and holiday pay.
The contracted worker is responsible for their own learning and development to enable them to evidence that they are capable of meeting your particular care and support needs. They are also responsible for providing their own Personal Protective Equipment (PPE).
Both you and your self-employed worker(s) must be very clear about the contingency arrangements that might need to be put in place should they be unable to work due to sickness, holiday or unexpected family events or commitments.
If a substitute worker is required for any reason, this person must provide you with their separate terms and conditions and you must negotiate with them how your needs and outcomes will be met. You should not assume that a previously agreed Service Agreement will be acceptable to other self-employed workers.
An Option 1 Direct Payment maximises your choice and control into how your assessed needs and agreed outcomes can be met but this greater involvement has greater responsibilities also. It is an arrangement that works for some but will not work for everyone and it is recommended that you discuss the advantages and disadvantages of receiving a Direct Payment with your social work practitioner.
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