Managing your direct payment and workers
Is there a 'standard leave' (holiday) entitlement?
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.
Can employers decide when holiday should be taken?
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.
I'm going on to Direct Payments and Social Services have said I need to do a health and safety check. What does this mean?
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).
How much money can I have as a direct payment?
"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.
Do I have to spend my direct payment in the same way every week?
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).
Can I get a direct payment even though I am in a residential home?
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).
What is a Criminal Records Bureau check (CRB)?
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?
- 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.
- The agency carrying out the check can encourage the candidate to meet and discuss the content of the disclosure with the disabled person.
- 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
What do I do if my PA becomes pregnant?
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
Can I pay a relative living in the same house with my direct payment?
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.