Clearly there are some benefits here. Appointing someone yourself gives you more choice and control over who cares for you and what tasks they do. But it also immediately turns you into an employer, with all the legal, financial and practical issues that entails.

So before going down this road, there’s a lot you’ll need to think about.

Please see below information which you need to consider when employing your own personal assistant.

Checking someone’s right to work in the UK

As an employer, you must make sure that any prospective worker is eligible to work in the UK before you employ them. Ask to check people’s passports or other ID to prove they’re from the European Economic Area or have a visa to work here. Remember to keep a copy of the paperwork.

For more information on the right to work in the UK, visit the Home Office website.

Disclosure and Barring Service (DBS) checks (previously CRB checks)

Criminal Records Bureau (CRB) checks are now called Disclosure and Barring Service (DBS) checks, or Protecting Vulnerable Groups (PVG) checks in Scotland. You must get a copy of the DBS check for anyone you’re looking to employ before you interview them or let them into your home.

Drawing up an employment contract for a carer or personal assistant

You’ll need to provide a written statement of employment, including the specific tasks the personal assistant should provide, place of work, working hours, pay rate, duration of employment and holiday entitlement.

Pay and tax

You must pay your personal assistant at least the minimum wage – realistically, you’re talking about £10 an hour, or closer to £12 if your care needs are more complex. You may also be responsible for deducting tax and National Insurance from their wages.

Find out more about tax and National Insurance when employing people in your home on the HM Revenue & Customs website.

Time off, sick pay and holiday pay

Not only will you have to pay, you’ll also need to find replacement cover. Your corer or personal assistant has an entitlement to:

  • rest breaks
  • a maximum number of working hours in any week
  • holiday pay
  • sick pay (in most cases)

Insurance

As an employer, you must take out Employer’s Liability Insurance and Public Liability Insurance. Your direct payments should be able to help towards the cost of this, but it will depend on your local authority.

Using a carer or personal assistant to manage your direct payments

In some cases, personal assistants can receive and manage direct payments from the council – usually on behalf of someone who lacks the mental capacity to do so themselves and usually because the person’s family has requested the arrangement.

Clearly there are risks and, in particular, vulnerable adults must be protected from fraud. Therefore, before agreeing to such an arrangement, the local authority must be satisfied that the personal assistant or carer is a ‘suitable person’ and will act in the best interests of the client.

Ask your local authority to provide written details about their process for ensuring that a personal assistant is a ‘suitable person’.

Working time, hours and breaks

This will be the hours you want your personal assistant to work. It is also an opportunity to say what the process is if your personal assistant is going to be late or is unable to turn upf or work. You must not ask your personal assistants to work an average of more than 48hours per week, unless they have given their voluntary consent to opt-out in writing. An employee can cancel the opt-out agreement at any time by giving seven days notice.

Your personal assistant is allowed to have regular rest periods. This is in addition to any holiday entitlement. This means your personal assistant is allowed:

  • a minimum of 11 consecutive hours’ (11 hours in a row) rest in any 24-hour period
  • a minimum 20 minute rest break if their working day is longer than six hours
  • a minimum of one day off each week, that is one day off out of every seven.

For young people (under 18) the maximum working week is 40 hours, other than in exceptional circumstances. These hours may not be averaged out and there is no opt-out available. If you employ someone in this age group you must also give them a break of 30 minutes every four and a half hours worked.

You must also allow ‘reasonable’ paid time off to your personal assistants for such things as:

  • attending ante-natal appointments
  • training.

For some things you must allow your personal assistant unpaid time off. This includes family emergencies, and time to perform public duties like jury service or acting as a school governor.

If your personal assistant asks to work flexibly, you must consider this if they have worked for you continuously for at least 26 weeks.

You have a legal responsibility to consider any request, but do have the flexibility to refuse requests on reasonable grounds. If you agree to a request the details should be changed in your personal assistant’s contract of employment. Only one request can be made every 12 months. Toolkit Before your personal assistant starts

Holiday entitlement

You should say how much holiday your personal assistant has per year and when the holiday year starts and finishes, for example 1 January – 31 December. It is good to be clear about things like how bank holidays will be treated and the process for agreeing time off.

All workers are legally entitled to a minimum of 5.6 weeks’ paid holiday a year. This is a minimum entitlement – you can choose to offer more. The statutory paid holiday entitlement is capped at 28 days. So, a worker who works five or six days a week is entitled to 28 days’ paid holiday, including bank holidays; while a worker who works two and a half days a week is entitled to 14 days leave, including bank holidays.

If your personal assistant works part-time in a flexible working pattern, it might be easier to calculate their holiday allowance in hours rather than days. For example, a worker works three days a week. Their leave is calculated by multiplying 3 by 5.6, which comes to 16.8 days of annual paid leave. You can work out the holiday allowance of someone who works irregular hours e.g. shift work by using an online calculator www.gov.uk/holiday-entitlement-rights.

To work out holiday pay

Fixed or contracted hours

 Normal weekly pay

Shift with fixed hours

 An average of the number of fixed hours worked in the last 12 weeks at an average hourly rate.

Casual work

 An average of the pay received each week (in which your PA was on holiday or sick for all or part of one of these 12 weeks, do not use this week but go back one further or more if necessary.

Holiday pay must be based on the worker’s average pay. So if their normal pay includes extra money for working unsocial hours, so must the holiday pay.

Bank and public holidays

You can count any days off for public or bank holidays towards your personal assistant’s statutory holiday entitlement – but only as long as you pay them for those days off. You do not have to give your personal assistant paid time off for bank and public holidays, but you need to be clear about this in their contract of employment. If someone stops working for you, they are entitled to be paid for any holiday they are due but not taken.

Sick leave and pay arrangements

Statutory Sick Pay (SSP) is paid to employees who are unable to work because of illness. SSP is paid at the same time and in the same way as you would pay wages for the same period.

If your personal assistant is unable to work for four or more days in a row, you must pay SSP. SSP starts on the fourth day your personal assistant is off. You do not have to pay SSP if your personal assistant earns less than £111.00 (before tax) per week. This is the Lower Earnings Limit. Your personal assistant must tell you they are sick within the terms of their contract.

For up to seven days of sickness your personal assistant can self-certificate. After seven days your personal assistant will need to produce a statement of fitness (or fit note) from their doctor.

You must keep all records of sickness periods lasting for four days in a row or longer and all SSP payments you make. You can use a form provided by HMRC to keep these records.

Pension arrangements

All employers have a legal duty to check if your employee is entitled to join your pension scheme. You need to give details of the pension scheme you are using and how contributions will be made by both you and your personal assistant.

Disciplinary and grievance procedures

This section should include reference to how problems will be dealt with including details of warnings; the contract of employment and your disciplinary/grievance procedure should be separate documents. There is a sample disciplinary and grievance policy in the templates booklet.

Before taking disciplinary action using the procedure, you will need to be certain that:

  • the matter cannot be resolved through informal mediation
  • you have investigated the matter fully
  • your personal assistant is told that they will be called to a meeting and have
  • the right to be accompanied by a fellow employee, friend or a trade union official of their choice.

At the disciplinary meeting, make sure that:

  • the employee concerned knows the details of the allegation
  • he or she has the opportunity to put across his or her side of the matter
  • any disciplinary measure is appropriate to the circumstances.

If a warning is given, it should tell the employee:

  • the level of improvement required
  • the date by which it is to be achieved
  • what will happen if it is not
  • how to appeal.

Dismissal

This section should say how your personal assistant will be dismissed under certain circumstances, e.g. gross misconduct or gross negligence. Further details about gross misconduct are included in the templates booklet.

What happens when you are away

You should make a plan for what happens when you are away, for example on holiday without your personal assistant or if you have to go into hospital. Use this section to say what you need to happen. If you would like more information about short-term working or lay-off please visit www.gov.uk/lay-offs-short-timeworking .

Confidentiality

You should provide your personal assistant with information and/or training so that they understand the importance of confidentiality and how to maintain this in their work.

Confidentiality is important for both you and your personal assistant. You will hold confidential information about your personal assistant, and they will know much about you that you wouldn’t want passed on. Most of the time you should ask each other before you share any information with anyone else. This should be with informed consent (this means you understand the consequences and have had no pressure put on you). There are some exceptions to this.

Your personal assistant will have access to personal information about you in order to meet your needs and wishes. As it is personal, it is important that you make it clear to your personal assistant exactly who they may share it with and in what circumstances. For example, it is only shared with people who really need to know it, such as other people or organisations who provide you with support; and only if you are not able to give that information yourself. No information should be shared with anyone, even your family or friends, against your wishes.

Sometimes your personal assistant may have to share information about you without your agreement, such as in medical emergencies, or if they thought you were being abused by someone else.

Your personal assistant would also be obliged to pass on information if you have broken the law or if they believe you intend to break the law.

There is also information you need to hold on your personal assistant. This should be kept securely so that other people cannot access it. If a personal assistant breaks a confidence this should be treated as a disciplinary matter. Further details about gross misconduct are included in the templates booklet.

Providing a pension

Every employer has a legal duty to help their workers in the UK save for retirement. As an employer, you’ll have duties in relation to everyone working for you:

  • who is aged between 16 and 74
  • who works in the UK
  • for whom you deduct income tax and National Insurance contributions from their wages.

Automatic enrolment

From a certain date* employers must automatically enrol certain workers into a workplace pension scheme and make contributions towards it. The table below will help you work out if your personal assistant qualifies for automatic enrolment. Please check the thresholds and responsibilities every April as they may change.

*You can find out your date by visiting www.pensionsregulator.co.uk.

Your Personal Assistants annual salary
Age of PA Under £5772 £5772 to £10,000 Over £10,000
Under 16 Outside legislation Outside legislation Outside legislation
16 -21 Entitled worker Non-eligible job holder Non-eligible job holder
22 – state pension age Entitled worker Non-eligible job holder Eligible
State pension age – 74 Entitled worker Non-eligible job holder Non-eligible job holder
Over 75 Outside legislation Outside legislation Outside legislation

An entitled worker can opt-in to a pension scheme, but you do not have to contribute to their pension.

An eligible job holder should be automatically enrolled into a pension scheme which you will need to contribute to. They do have the right to opt-out of this.

A non-eligible job holder isn’t automatically enrolled into a pension scheme, but should be given the opportunity to opt-in to one. If they opt-in you must contribute to their pension.

The law about automatic enrolment does not apply to someone listed as outside legislation.

For more information

The Pensions Regulator has an essential guide to automatic enrolment for people who employ their own care and support www.thepensionsregulator.gov.uk

The simple tools on The Pensions Regulator website help you to get to grips with your duties, including how you automatically enrol your staff, what the minimum employer contribution you need to make is and when you will need to start doing this.

Your personal assistant can choose to opt-out of your scheme at any time. If they do opt-out (you can set the deadline for this) you must refund all payments made by your personal assistant.

Redundancy

Redundancy is when you ask staff to leave either because you do not need to employ them anymore or because you need to reduce the number of staff you have.

If you have to make your personal assistant redundant you must comply with the law around redundancy. Your personal assistant will have certain rights, which may include:

  • redundancy pay
  • a notice period
  • consultation
  • time off to find a new job.

You must pay statutory redundancy pay if your personal assistant has been working for you for two years or more. When someone has worked for you for two years or more they are entitled to:

  • Half a week’s pay for each year they worked for you whilst under the age of 22.
  • One full week’s pay for each year they worked for you when they were aged between 22 and 41.
  • One and a half week’s pay for each year they worked for you when they were aged 41 or older.

Some insurance companies will help with redundancy payment cover as part of independent living insurance, depending on the reason and circumstances for the redundancy.

Note: There are no set rules regarding consultation if you are making less than 20 people redundant. However, it is still good practice to consult with your personal assistant on the redundancy situation.

Maternity, paternity, adoption rights and parental leave

Your personal assistant is allowed to have maternity, paternity, adoption and parental leave and pay.

All pregnant employees are entitled to paid time off for ante-natal care and 52 weeks’ maternity leave – made up of 26 weeks’ ordinary maternity leave and 26 weeks’ additional maternity leave.

Fathers and partners (including same-sex and civil partners) may be entitled to two weeks’ paternity leave. They may also be eligible for additional paternity leave and pay if their partner returns to work before the end of their maternity/paternity leave. Where a child is adopted the position is similar.

An employee is allowed reasonable time off to deal with an emergency involving a dependant. A dependant could be a spouse, partner, child, grandchild, parent or someone who depends on you for care. For more information please visit www.gov.uk/time-off-for-dependants

Employers can get back most or all of these payments from the Income Tax and National Insurance contributions they pay.

Your personal assistant may be entitled to parental leave (unpaid leave to look after their child’s welfare). Parental leave is limited to four weeks for each child, each year. Eligibility for parental leave is explained here www.gov.uk/parental-leave/entitlement .

Health and safety

You have a legal responsibility to make sure that your personal assistant remains safe and healthy whilst doing their job.

What you must do:

  • carry out some risk assessments on your home, including pets or any animals you keep
  • think about any training your personal assistant needs
  • tell your personal assistant about health and safety, including fire safety
  • record (and possibly report) any accidents that take place in your home
  • take out employers’ liability insurance.

If you employ five or more people you will need a health and safety policy. The Health and Safety Executive website has lots of support and free leaflets, including a model policy.

More information:

Health and Safety Executive www.hse.gov.uk

Insurance

Employer’s Liability Insurance and/or Public Liability Insurance is essential. If you receive direct payments or a personal health budget, you should check that your local authority or clinical commissioning group has included Employer’s Liability Insurance in the amount it gives you.

It’s a good idea to have comprehensive house insurance to cover your property and its contents. You may want to include cover for accidental damage. You should tell your insurer that you are employing people to work in your house. As an employer you have a legal duty to insure against accidents or injury to your staff, or accidents or injury caused by them while they are working for you.

You may also need to think about travel or car insurance, for example if your personal assistant is going to be using your car. If you will be travelling with your personal assistant in their car, they will need to be insured to use their car for work. It is worth looking carefully at what your insurance policy covers and any benefits it may include:

Some insurers specialise in Independent Living Insurance (insurance for personal assistant employers). As part of some of these policies you are given access to employment advice.

Some Independent Living Insurance policies may also help you meet the costs involved in making staff redundant (depending on circumstances) and/or recruitment costs for a replacement personal assistant following a dispute.

Your direct payment adviser local support organisation or the organisation that provides any funding you receive can give you options for taking out insurance.