SECTION 5: EMPLOYING STAFF: PERSONAL ASSISTANTS AND CLOSE RELATIVES
'…My personal assistant comes to suit me and now I can go to the doctor when it is convenient. I go to the gym and swimming on a Monday, riding with the Riding for the Disabled Association on Tuesday. The difference is like being let out of jail. Now I am free, it has taken a lot of stress and worry away.' (Physically disabled man in his mid 30s).
86. The option of employing a personal assistant ( PA) can be attractive to some people as the best means of meeting their individual needs. Whilst it is empowering, and can increase the choice and flexibility of the package, the role of employer carries important tasks and responsibilities. Those who choose this option need advice and assistance to enable them to meet their obligations as employers as well as to get the most from the relationships they build with their staff.
87. It is important that care is taken when recruiting PAs and that individuals know where to get the type of information, training and practical support that they need. This section outlines some best practice that individuals will need to follow if they are to fulfil their employer's role, and where advice and support can be found.
88. Safe and effective recruitment by PA employers requires commitment by the user, the local authority, the support organisation and others to:
- explore what is best for the individual and how this may be achieved
- put in place all the various recommended stages in the recruitment processes, and
- provide appropriate targeted advice and training on roles and responsibilities.
89. The responsibility for ensuring the quality of support rests with the individual. This is because the Care Commission's regulatory system does not cover situations where an individual employs a person directly ( i.e. personal assistants), whether paid for through self-directed support or otherwise, for example using private means. Individuals may contract with or employ people who are not regulated by the Care Commission, provided that those individuals are not certain categories of close relative.
90. The prospect of allowing a non local authority support worker into their home may seem daunting for some individuals, even though enhanced disclosure checks will have been carried out. Those thinking of employing a PA can find out a lot from those who have managed to do so successfully.
91. Using safe and effective recruitment and employment processes should also help. This means:
- taking up references, on paper and by telephone
- carrying out police checks (enhanced disclosures, see below)
- staff induction and training
- probationary periods of employment
- local peer support
- staff management including meetings
- staff appraisals, including disciplinary procedures
- obtaining employer's liability insurance
- obtaining employer's indemnity cover.
92. The above list does not fully apply where an individual contracts with a self-employed PA, as they will be responsible for their own training and liability insurance.
Enhanced disclosure ( ED)
93. Where individuals employ a PA directly, the PA must get an enhanced disclosure ( ED) check through Disclosure Scotland which is the clearing house where criminal record checks are carried out under the Police Act 1997. All enhanced disclosure check applications must be countersigned by a registered person or a person nominated by them. All local authorities in Scotland are registered with Disclosure Scotland as are a number of direct payments support organisations 36 and so they can countersign applications. But because individuals cannot countersign applications, they will not receive a copy of the ED. This will be sent to both the applicant and the registered person who countersigned the application. If the registered person asks for a fee for this service, then any additional cost should be met by the local authority. The registered body cannot normally give advice on the applicant's suitability for employment.
94. The sharing of information contained on the ED is governed by the 1997 Act and a Code of Practice issued by Scottish Ministers. Also relevant is the Data Protection Act 1998, the Human Rights Act 1998 and the common law duty of confidentiality. Under the 1997 Act it is possible for the registered person to pass the ED to the individual service user. The prospective PA may also show the certificate to anyone. Only in exceptional circumstances can information be shared further.
The enhanced disclosure process
95. Section 3 described the agreement that the local authority has with an individual. This agreement should include the following:
(i) the individual assumes the responsibilities of an employer if they choose to employ PAs, and that they adhere to good employment practice;
(ii) the individual should ask prospective PAs to initiate an ED application via the relevant local authority or through using another registered body, after interviewing and taking up references etc but prior to appointment being confirmed;
(iii) the individual secures the written consent of the prospective PA to share information derived from the disclosure process with the local authority. Unless this is given, the local authority, even where it has countersigned the application on behalf of the individual, cannot make use of the information contained on the ED for its own purposes, and that includes considerations about the safety of making, or continuing to make, payments for self-directed support.
96. As part of safe recruitment and good employment practice, the PA employer must see full proof of a prospective PA's identity including present and recent addresses, and share this information with the local authority.
97. A self-declaration will be required from a prospective PA that any past criminal history, ongoing criminal investigations, or other information as to their conduct or behaviour, does not make them unsuitable to undertake such work. For those employing PAs to support children under 18, a PA commits an offence if they apply for such work whilst on the Disqualified from Working with Children List ( DWCL).
Enhanced disclosure ( ED)
98. If a PA is successful at interview, the post should be offered subject to completion of both a satisfactory enhanced disclosure ( ED) as well as a suitable probationary period. The PA cannot be employed until consideration of an ED is completed.
Decision to employ a PA
99. The ED certificate may or may not contain information. Some possible outcomes from the ED are:
- No information is returned on the ED. The PA employer is able to go ahead and employ the prospective PA, subject to safe recruitment processes including checkable references and the probationary period recommended by good employment practice.
- DWCL or information from equivalent lists held elsewhere in the UK is disclosed on an application in relation to a child care post. The employer cannot employ the prospective PA. Note that access to the DWCL is only available for those applications to Disclosure Scotland that are requested to enable the consideration of a person's suitability for a purpose set out in section 113C(2) of the Police Act 1997.
- Some information is returned on the ED. This might be unspent criminal convictions (current), spent criminal convictions (old) or if they have incurred any reprimand warning or caution. It may also reveal that the PA is placed on the list of individuals barred from working with adults which operates in England and Wales, the Protection of Vulnerable Adults list. As part of good recruitment practice, no prospective employer should unfairly discriminate against the applicant solely on the basis of the information on the disclosure. For example, an item declared may have no relevance to the ability of the person to carry out the PA duties required, and/or not be of a serious nature, and/or not part of a pattern of offending behaviour and/or have taken place a long time ago and/or the prospective PA has demonstrated in some way that his or her circumstances have changed since the offending behaviour.
100. Unless the prospective PA is applying for a child care post from which they are disqualified from working, the PA employer has a right to decide that the information is relevant to the post and to decide the person is unsuitable for this work. For adult care posts, the ED may reveal that a person is on the Protection of Vulnerable Adults List held in England and Wales (and consequently disqualified from such work in that jurisdiction), and that would be a factor that should be taken into account when assessing suitability. Only in the case of child care posts is it an offence to employ a PA who is disqualified from working. Where an applicant may be deemed unsuccessful, this information should be provided to the applicant in writing. For example, a PA employer may have decided that they wish to apply the same recruitment standards to employing PAs as the local authority. A local authority will need to inform service users about those standards.
101. The prospective PA should give their agreement to the information on the Disclosure Certificate being shared with the local authority for its purposes. In this situation, if there is a disagreement between the PA employer and local authority about the relevance of information on an ED to the prospective PA's suitability for the post, and the PA employer wishes to employ the PA, the local authority will wish to assess the level of risk to the individual on self-directed support, and may discuss the circumstances separately with the PA. Where, following an assessment of risk and discussion with the PA, the local authority remains concerned as to the welfare of the individual the local authority will consider whether to make payments for self-directed support.
102. In rare circumstances police intelligence may be provided by a chief officer only to the person who countersigned the application. For example, it may be related to investigative police work in progress. Only the counter signatory would have sight of this and it will not be shared further without the written consent of the chief officer who provided the information.
103. Local authorities also need to take account of exceptional circumstances on a case by case basis of a prospective PA's suitability to provide the necessary support. Exceptional circumstances for employment of PAs will shortly be applied under the Adult Support and Protection (Scotland) Act 2007 for the employment of close relatives. Under certain of such exceptional circumstances (for example, perhaps in the final stages of an individual's illness) the local authority may decide that a close relative may be employed before the ED is issued and assessed. Once received their continued employment would be subject to the normal consideration of information within an ED. A probationary period would also be necessary.
104. For further advice on the ED process contact the local authority care manager, Disclosure Scotland, SPAEN (Scottish Personal Assistant Employers Network), the Princess Royal Carers Trust in Dundee, Dumfries and Galloway Direct Payments Support Service Partnership or the Scottish Disclosure Advisory Service (see Annex C). Local authorities are reminded to seek legal advice from Council Solicitors on any matter of doubt.
Chris lives with his family who used to provide all his personal care and assist him to go out. He has been using self-directed support for four years which has allowed him to employ 5 PAs who help him with all aspects of personal care during the day. They also enable him to go out during the day when he wants, instead of waiting for times when a member of his family is free.
Chris has more control over his life. He can decide what kind of support he needs and when he wants it. His full time PA, Richard, has been working with him for the last four years and says that Chris has become much more outgoing and self-confident since he started working with him.
Self-directed support also enables his family to get on with their lives without worrying about him or planning their day around him. They are much happier that Chris can now do what he wants with people that he trusts.
Short stays in hospital
105. Local authorities should fund PA employer packages during short stays in hospital, where appropriate. This will enable individuals to continue paying employees (not service providers) for the initial four weeks of any hospital stay. Where the hospital stay is planned and sufficient notice can be given, a period of annual leave could be included. Local authorities should encourage PA employers to include arrangements for hospital admission within the employment contract and terms and conditions. In all circumstances the statutory requirements governed by employment legislation must be applied.
106. The continuance of this funding beyond the initial four week period will be subject to local agreement. Assessment of the needs of an individual, whilst in hospital, may mean that the local authority agrees that a PA is required beyond four weeks, with regular review of the arrangement.
107. In some circumstances it may be part of the assessed need that the PA continues to provide support to the employer while they are in hospital, for example, when there is no-one to bring personal care items to hospital. Contingency funds could be used to fund the admission period.
108. In circumstances where the PA is not required to provide a service during the hospital stay, local arrangements can be made to pay a retainer fee ( e.g. 50%) to enable the continued employment of the PA, with a resumption of the contracted hours on discharge from hospital. This will ensure continuity of care for the employer and avoid delayed discharge.
109. Where the period in hospital is likely to be prolonged or the discharge plan is likely to require considerably more support at home, self-directed support might resume after a transition period of arranged services. This could support the discharge plan and facilitate further assessment in the home environment to ensure that the person's needs are met, taking account of any preference towards becoming, or resuming the role of, a PA employer.
Employing close relatives
110. Section 63 of the Adult Support and Protection (Scotland) Act 2007 amended section 12B(6) of the 1968 Act to allow the Scottish Ministers to empower local authorities to offer increased flexibility in tailoring individualised self-directed support packages. The Community Care (Direct Payments) (Scotland) Amendment Regulations 2007 (SSI 2007/458) (the '2007 regulations'), which come into force on 12 November 2007, amend the Community Care (Direct Payments) (Scotland) Regulations 2003 (SSI 2003/243 as also amended by SSI 2005/114) ("the 2003 regulations") by changing the rules on employing close relatives.
111. Certain close relatives cannot be employed to provide support services. This general position remains important because of the very different relationships that a person would have with an employee and a family member and the conflicts of interest that can result from employing a close relative. However, a local authority may now exercise a discretion to allow such a close relative to be so employed if the local authority is satisfied that securing a service from that person is necessary to meet the beneficiary's need for a service, or that securing a service from such a person is necessary to safeguard or promote the welfare of a child in need.
112. The 2007 regulations amend the 2003 regulations to specify the following close relatives:
(a) the beneficiary's-
(iii) son or daughter;
(iv) brother or sister;
(v) half-brother or half-sister;
(vi) aunt or uncle;
(vii) nephew or niece; or
(b) the spouse or civil partner of-
(i) the beneficiary; or
(ii) any person of a description specified in regulation 4(2) (a) or (e) of the 2003 regulations;
(c) a person who-
(i) is of opposite sex to the beneficiary, or to any person of a description specified in regulation 4(2) (a) or (e) of the 2003 regulations; and
(ii) is not married to the beneficiary or to that person (as the case may be); but
(iii) lives as though he or she were the beneficiary's, or that person's, husband or wife (as the case may be);
(d) a person who-
(i) is of the same sex as the beneficiary, or of any person of a description specified in regulation 4(2) (a) or (e) of the 2003 regulations; and
(ii) who is not a civil partner of the beneficiary or that person (as the case may be); but
(iii) lives as though he or she were the beneficiary's, or that person's, civil partner (as the case may be);
(e) the beneficiary's aunt or uncle's son or daughter;
(f) the stepparent, stepchild, stepbrother, stepsister, or step grandchild of-
(i) the beneficiary; or
(ii) any person of a description specified in regulation 4(2) (a) of the 2003 regulations but not the beneficiary's grandparent's stepparent or the beneficiary's nephew's or niece's stepchild;
(g) the parent in law, son in law, daughter in law, brother in law or sister in law of-
(i) the beneficiary; or
(ii) any person of a description specified in regulation 4(2) (a) of the 2003 regulations.
113. The 2007 regulations expand the list of close relatives of the beneficiary from which services may not normally be purchased. This is in order to reflect modern family set-ups and applies irrespective of where they live.
114. Under section 12B(5) of the 1968 Act, if a local authority is not satisfied that a condition imposed by the 2003 Regulations has been met in relation to a direct payment (or part of a direct payment) made by them, the local authority may require the payment (or part payment) to be repaid to them (see section 8).