FAQ
These pages are dedicated to some of the most commonly asked questions that NCIL receive. We are constantly updating these and welcome your input into this section. If you think there is a current issue that we have not covered then please contact us with your question, and answer if you have one, and we will be happy to include it.
We have grouped the questions loosely into these categories. Browse the categories.
Please click on the question and it will bring you straight to that answer, alternatively you can browse the questions, you never know what you might learn!
Managing your direct payment and workers
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You will be employing personal assistants and as an employer are responsible for insuring that they do not harm or injure themselves while working for you.
This means checking basic things around your home are not a potential danger e.g. frayed carpets, faulty electrical goods etc. It's mainly common sense. Social Services' may also be referring to any lifting that may be required by a PA. You are the expert on how you need things doing. So it's is important to communicate to any new workers how you want to be lifted. Sometimes using an existing PA to demonstrate can help. You should be given any equipment you need to transfer safely.
The Department of Health says "As a general principle, local councils should avoid laying down health and safety policies for individual direct payments recipients." (DH Guidance page 26 para 96)
In other words you say how you are going to meet any health and safety issues (see our section on Health and safety in our employers kit for more details).
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No. " the flexibility inherent in direct payments means that individuals can adjust the amount they use week to week and "bank" any spare money to use as and when extra needs arise" (department of health direct payment guidance pg.24 paragraph 92)
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Yes. "Direct payments may also be used to enable people who are living in care homes to have temporary access to try out independent living arrangements before making a commitment to moving out of their care home.
They can also be used "to buy a day service place or engage in an alternative day time activity". (department of health direct payment guidance pg 22 paragraph 77)
(Answers to Questions 3,4,5 and 6 can be found in Department of Health Direct Payments Guidance 2003. Go to www.dh.gov.uk and look up Direct Payments to download a copy).
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The CRB's aim is to help organisations in the public, private and voluntary sectors by identifying candidates who may be unsuitable to work with children or other vulnerable members of society.
The Criminal Records Bureau (CRB) acts as a ‘one-stop-shop' for organisations, checking police records and, in relevant cases, information held by the Department of Health (DH) and the Department for Education and Skills (DfES). There are two levels of CRB check currently available; called Standard and Enhanced Disclosures.
The two CRB checks are available in cases where an employer is entitled to ask exempted questions under the Exceptions Order to the Rehabilitation of Offenders Act (ROA) 1974. This includes any organisation whose staff or volunteers work with children or vulnerable adults. They are issued free to volunteers.
Standard Disclosure
This is primarily available to anyone involved in working with children or vulnerable adults, as well as certain other occupations and entry into professions as specified in the Exceptions Order to the Rehabilitation of Offenders Act (ROA) 1974. Standard Disclosures show current and spent convictions, cautions, reprimands and warnings held on the Police National Computer. If the post involves working with children or vulnerable adults, the following may also be searched:
• Protection of Children Act (POCA) List
• Protection of Vulnerable Adults (POVA) List
• Information that is held under Section 142 of the Education Act 2002 (formerly known as List 99)Enhanced Disclosure
This is the highest level of check available to anyone involved in regularly caring for, training, supervising or being in sole charge of children or vulnerable adults. It is also available in certain licensing purposes and judicial appointments. Enhanced Disclosures contain the same information as the Standard Disclosure but with the addition of any relevant and proportionate information held by the local police forces.
The CRB recognises that the Standard and Enhanced Disclosure information can be extremely sensitive and personal, therefore it has published a Code of Practice and employers' guidance for recipients of Disclosures to ensure they are handled fairly and used properly.
A copy of the Standard or Enhanced Disclosure will be sent out to the applicant as well as the Registered Body.
Such checks are only part of a good recruitment procedure, which also involves checking references thoroughly. Your local support service should be able to assist you to recruit as safely as you can.
Direct Payments continue to present issues where the bureaucratic systems of government do not meet our particular needs. CRB checks is such a case.
The situation with disabled people accessing criminal record checks is still riddled with obstacles for direct payment users. It is clear that it requires a change in the law to enable direct payment employers to access to the full range of checks in their own right. The obstacle is with the restrictions within the Rehabilitation of Offenders Act 1974. NCIL is campaigning to bring about change here.
What can you do until the system changes?
1. Access checks through a registered or "umbrella" organisation that can only say that yes this person is suitable or they are not. They cannot at this stage disclose a full copy of the check.
2. The agency carrying out the check can encourage the candidate to meet and discuss the content of the disclosure with the disabled person.
3. You can ask a potential employee to show you a copy of their own check and if they chose not to you can make a decision based on that. You however cannot legally make producing it a contractual obligation.
The Home Office is working on tackling some of the obstacles raised through a vetting agency. We will update you when there is an outcome on this. CRB helpline 0870 90 90 811 Textphone: 0870 90 90 344 www.crb.gov.uk
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If one of your PAs becomes pregnant and is no longer able to carry out certain aspects of their current job due to pregnancy there are several things to consider.
Firstly, you need to consider whether it is possible for the woman concerned to do suitable alternative work. If not she should then get a certificate from her GP for a medical suspension. (If she is ill for any other reason then this is treated as usual sick leave). She effectively stops coming into work until such time as it medically safe for her to return. This might be a few weeks or it might be until after her maternity leave.
During medical suspension employees continue to have the same employment rights and wages as if they were working until they begin maternity leave. The local authority has the responsibility to ensure that you are able to use direct payments legally and need to make contingency plans to meet its obligation. They need to cover this additional cost where you need to employ an additional PA or pay extra hours to an existing PA.
For further advice regarding maternity leave contact your local ACAS office or www.direct.gov.uk
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The department of health guidance states that "Unless a council is satisfied that it is necessary to meet satisfactorily a person's needs, a council may not allow people to use direct payments to secure services from a spouse(husband or wife), from a partner(the other member of an unmarried couple with whom they live), or from a close relative (or their spouse or partner) who live in the same household as the direct payment recipient.
This restriction is not intended to prevent people using their direct payment to employ a live-in personal assistant, provided that the person is not someone who would be usually excluded by the Regulations The restriction applies where the relationship between two people is primarily personal rather than contractual, for example, if the people concerned would be living together in any event.
In short the local authority needs to be convinced that this is the best way to satisfactorily meet the needs of the direct payment user. This could be a situation where there are cultural issues to be taken account of, or where it is felt because of certain specific needs that the only person able to meet the need is the close family member. It is clear that this should not be a standard way of meeting the assessed needs, but an exception. The issue that the direct payments users needs to consider in these circumstances is if difficulties arise i.e. the person is not doing the job in a way in which you want it, will they be able to resolve those difficulties when it is a close family member and you share the same home. If disciplinary procedures are necessary would the direct payment user feel comfortable undertaking this and how would it affect the future relationship in the home. Whilst it may seem like the best solution at the time, and the above circumstances are not common, it is an issue for people who have gone down this route and as a result cound find themselves trapped into a working relationship that they cannot easily extract themselves from without causing all sorts of personal relationship difficulties.
Having said that, it can also work well when needed and provided a clear working relationship is agreed at the start that includes a job description, contract and agreed procedures, the chance of a positive relationship is greater.
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Yes. Under the Working Time Regulations workers are entitled to 5.6 weeks annual leave if they work full time (35 hours or more per week.) Part time workers are entitled to their proportion of their working week. A worker begins accruing annual leave entitlement from the first day of their employment.
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Yes, an employer has a right to ask a worker to take all or any of the leave due on specified dates provided the worker is given notice before the leave is due to start. Employers and workers can agree how and when to give notice of when leave is to be taken. The employer can ask for consent to be obtained from them before a worker commits themselves to a confirmed holiday booking or any other arrangement.
An employer can refuse a request for holiday if it is not possible to find a replacement at that particular time. This does not affect the worker's annual leave entitlement.
Otherwise, workers are entitled to choose their leave dates by giving notice in the same way that employers can. Personal Assistants should take into account any other employer rules, which are in place. Such rules should be notified to workers in written documentation, e.g. written statement, contract or in a staff handbook.
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"There is no upper or lower limit on the amount of money you can get as a direct payment." (DH Guidance page 22 para 82)
Direct payments are not means tested but you may be expected to pay a home care charge.
Each local authority must give you enough money to run a direct payments scheme legally: including additional costs such as administration or insurance as well as the rate of pay for personal assistants.
Money and finance
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Her Majesty's Revenue & Customs (HMRC) says Yes. They confirm that the incentive payments for filing end of year returns are for and paid to the small employer and are therefore theirs to use how they see fit. If a person uses a 3rd party for completing the return then what happens with the money is between the direct payment user and their agent. The incentive payment is due to small employers who submitted their Employers Annual Return P35 online. The payment is then made by crediting the employer's payment record with HMRC. The employer can, if they wish, authorise the payment to be made as a cheque to any other party but HMRC would require a signed authority from the employer first. NCIL supports the legal position that the money belongs to the employer. We believe it should be in the control of the user to decide how this money is spent. This money is not available to people who chose to do manual end of year returns. You can find the statutory instruments (legislation) that supports this position at website: www.hmrc.gov.uk/ebu/incentive-directions.pdf
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Yes. There is a law that states that you must pay workers a statutory minimum for the hours they work. This amount varies depending on your age and will usually increase once a year usually in October. Go to; http://www.hmrc.gov.uk/nmw/ for up to date rates and information.
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No benefits in kind for example meals, fuel, use of a car count towards minimum wage pay except accommodation. To find out the current rate of 'accommodation offset' (the amount you can subtract from a wage to pay for accommodation) go the the HMRC National Minimum Wage Guidance: www.hmrc.gov.uk/nmw.
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No. Such an agreement will be ineffective and any payment below the minimum wage is illegal. Your local authority has a duty to ensure you can meet your legal obligations as an employer.
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The ILF does not require clients to have a separate account for its funding. It is left to the best judgement of the individual or their representative to decide whether it is appropriate for all monies to be held in the same account. It may make record keeping and accounting easier if another account, separate from the one used for everyday expenditure, is used. Some local authorities will allow payments of ILF funding to be made into an account set up to receive direct payments. No plans for review at present.
Personal Budgets
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The commitment to pilot personal budgets comes from the Government reports Improving the Life Chances of Disabled People (Prime Minister’s Strategy Unit January, 2005), Opportunity Age (Department of Work and Pensions March, 2005), and Independence, Well Being and Choice (Department of Health March, 2005) followed by Our Health, Our Care, Our Say (Department of Health January, 2006).
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An personal budget is a sum of money allocated to an individual who is assessed as needing personal assistance services. The key features of an personal budget are:
- A transparent allocation of resources so that individuals know how much they have to spend on their support;
- The bringing together of a number of support streams which could include local authority provided social care, independent living fund, supporting people, access to work, disabled facilities grant, and integrated community equipment services;
- A streamlined assessment process across all agencies meaning less time having to give information;
- Individuals have the opportunity to use the budget in a way that best suits them;
- Individuals can have the support of brokers, advocates or user-led organisations to support them to develop their support plan and manage it.
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At the moment personal budgets are restricted to people living in 13 pilot areas. These are:
West Sussex
Lincolnshire
Essex
Norfolk
Barnsley
Leicester City
Coventry
Bath and North East Somerset
Kensington and Chelsea
Barking and Dagenham
Gateshead
Oldham
Manchester
Each pilot area is trying out personal budgets in a different way. So for example in Oldham personal budgets are available to all adults who receive support from Oldham Social Services; in other areas such as West Sussex personal budgets are only available to older people and younger people with physical and sensory impairments. -
The pilot areas are due to continue until the autumn of 2007. There is an extensive evaluation of personal budgets being carried out by the universities of York, Kent, Manchester and the London School of Economics. They are comparing the experiences of people with personal budgets to those without. They are due to report on their findings in the spring of 2008. A decision whether or not to roll out personal budgets across England will then be taken.
However, the Government have made it clear that they are committed to a social care system that is personal to the people who need it and gives people the freedom to choose and to control the type of support they want. At the Individual Budgets and modernising Social Care national conference held on 30th January 2007 Ivan Lewis M.P., Parliamentary Under-Secretary of State for Social Care said, "For me what we are embarked on... is a revolution in the way in which we seek to offer services... the challenge now is to move from a series of pilots of experiments to an absolute understanding this will be the mainstream of the social care system in this country starting this year and next year but over the next ten years."
(See Department of Health Care Networks)
Some local authorities have signed up to the project In Control which like direct payments and personal budgets is a system of self-directed support. More information is available at In Control's website. -
Both personal budgets and direct payments are methods of self-directed support that is it is the individual who decides how their support needs will be met.
A direct payment is a cash payment for social care from the local authority instead of services.
An personal budget can cover more than personal social care, for example access to work, and can be a cash payment, or arranged services, or a combination of both. Therefore all, or part of an personal budget, can be received as a direct payment. -
NCIL has received funding from the Department of health to work with the 13 pilot areas on developing networks of user-led support to assist people to in planning how their support needs can be met and how they can get the most from their personal budget. Our activities include:
- Providing information about personal budgets on our website and telephone
- Providing e-mail advice
- Publishing articles about personal budgets in our newsletter Independently
- Working with the pilot sites to develop the capacity of user-led groups and networks to support people with personal budgets
Rights and legal issues
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You might want legal advice if you feel that your local Council has treated you unreasonably or unfairly. For instance, you might want to challenge social services' assessment of your needs and the resulting care plan. Whilst most complaints should be made to the Council's Complaints Officer, there may be situations where you need to seek an urgent remedy, or you remain dissatisfied with the outcome of the Complaints Procedure. A specialist Community Care lawyer will be able to advise you.
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If you receive Income Support, Income Based Job Seekers' Allowance or Guarantee State Pension Credit, you will automatically qualify for Legal Aid.
If you do not receive one of the above benefits, but your monthly "disposable" income is between £273 and £632 inclusive and your savings are less than £8,000, you may be entitled to Legal Aid. However you will have to pay a monthly contribution towards your legal costs. The Legal Services Commission will work out how much you will have to contribute and send you an "offer" letter. It is then up to you to decide whether you want Legal Aid.
"Disposable" income means what you have left to live on, after set allowances for children and deductions for housing costs, tax, national insurance, maintenance paid and child minding. A number of benefits will also be disregarded. These include (amongst others), Direct Payments, Disability Living Allowance (DLA), Carers Allowance and Severe Disablement Allowance. Unless you get Income Support, your partner/spouse's income will also be assessed. If you own your own home, you may still qualify for Legal Aid. You will need to discuss this with a solicitor.
Community Legal Service (CLS)
If you need information about a legal issue and want to know who and where your local adviser is you can contact the Community Legal Service. You can access free quality legal information and advice by calling 0845 345 4 345. or going to their website : www.clsdirect.org.uk (FAQ answered by Julie Cornes Solicitor from Fisher Meredith Solicitors based in London. www.fishermeredith.co.uk )
Does a service provider legally have to provide information in a way or format that meets my needs ?
Generally Yes. Under the Disability Discrimination Act (DDA) an individual has rights so that information and communication is provided equally to disabled and non-disabled customers alike.
This is a general duty for service providers to provide information to all disabled people regardless of their impairment (Braille, large print, audio, CD Rom, plain
English etc). However, some service providers are not covered by the legal duties specified under the DDA-for example
Manufacturers and designers of products Private members clubs not open to the public. Services available in the UK but provided from outside the UK
Selling, letting or managing of premises. Any service that is not provided to the public.
A service provider may claim, occasionally that it is not reasonable for them to provide accessible information. The service provider must give a very good reason for this. This justification would be seen as reasonable if it fell into the following categories:
Health and Safety
The disabled person being unable to enter into a contract
The service provider being otherwise unable to provide a service to the public. The greater cost of providing a tailor made service.
Small providers may have more room to use these particular get out clauses than bigger ones. Many people want further changes to the DDA.
For further information about the DRC Code of Practice and other obligations of the DDA contact the Disability Rights Commission (DRC) Helpline: 08457 622633
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" Fair Access to Care Services" is a government policy. It provides a guide to Social Services departments. This helps them decide who can get a service from adult social services through an assessment. Fair Access to Care Services Guidance covers all adult users of social care, including older people.
It says that authorities should assess ‘presenting' needs and decide whether these are ‘eligible' needs, that is, whether they mean the person fits the criteria for getting services. If there are eligible needs, the authority must arrange appropriate and cost effective help.
To decide which needs are eligible, the authority must assess us against an eligibility framework, grading needs as either:
• Critical
• Substantial
• Moderate
• LowThey should assess the risk to the independence of the person being assessed, in each of four areas below equally not just risk in relation to Health & Safety:
• Autonomy and freedom to make choices.
• Health and safety including freedom from harm, abuse and neglect, and taking wider issues of housing and community safety into account.
• The ability to manage personal and other daily routines.
• Involvement in family and wider community life, including leisure, hobbies, unpaid and paid work, learning, and volunteering.So the assessment should take into account risks to:
• sustaining social support and relationships sustaining family roles and other social responsibilities
• life and health including risk of abuse or neglect
• choice and control over day to day environment
• ability to carry out personal routines
• ability to take part in work, education or learningA judgement on whether the risk in each area is critical, substantial, moderate or low will be made. Authorities can set a level for meeting eligible needs, taking into account their resources. They should prioritise needs with immediate and/or long term consequences.
The assessment should be rounded, person centred, transparent and non discriminatory. If it is agreed you need assistance then, together with the individual, councils a ‘care plan' should be developed.
The written record of the "care plan", a copy of which should be given to the user, should include as a minimum:
1. A note of the eligible needs and associated risks to independence.
2. The individuals preferred way of getting the support
3. Options to manage emergency situations.
4. Details of services to be provided, and any charges the individual is assessed to pay, or if direct payments have been agreed.
5. Agreed support which "carers" and others are willing and able to make.
6. A review date.Councils should not have blanket policies to not provide certain services. Councils can have cost limits on packages as a guide, but should not apply these rigidly. In particular, the range of services available to older people should not be substantially different from those available to younger people.
NCIL has growing concerns that the spirit of FACS guidance is not always followed. This can lead to inequality of access to Independent Living in different parts of the country. What is your experience? Let us know!
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An Enduring Power of Attorney Information pack is available through: Oyez Stationers 144 - 146 Feter Lane London EC4 tel: 0870 7377370 or www.formslink.co.uk It costs £10.49 - ask for the EPA pack with guidelines.
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Local Authorities, when producing their policy on charging should make sure that the individual service user has the choice about whether the assessed charge is taken at source(Net) or that the charge is reimbursed to the local council after payment of the direct payment(gross).
Any local authority who has policies stating that charges will be taken at source as the only option is not complying with the department of health guidance (DoH) which is also backed up by the Chartered Institute of Public Finance and Accountancy (CIPFA). The DoH guidance states "There are two ways in which an individual may make a financial contribution to the cost of his or her care. The council may make a direct payment that is equivalent to their estimate of the reasonable cost of the service and subsequently seek reimbursement (gross payment). Alternatively, the lcoal council may deduct from their estimate the assessed charge before the payment is made and make direct payments net of the amount that the individual is expected to make (net payment). Councils should take into account the views of users when producing their policy on charging allowing sufficient flexibility to respond to individual circumstances."
If you are having your charges deducated at source and wish to change this arrangement please contact your local authority direct payment service (referring to the guidance above) and ask for this to be done.