Social Care (Self-directed Support) (Scotland) Act 2013: statutory guidance

Section 8: Employment

This section contains guidance on several topics directly relating to Employment.

There are also a number of other areas of this Guidance which touch on employment issues, including sections on redundancy, roles and responsibilities, contingency planning and the PVG scheme.

Employment of Personal Assistants using direct payments

This sub-section contains information about several important employment issues which relate to direct payments and the use of PAs. A personal assistant (PA) in social care is an employee of someone typically receiving an Option 1 Direct Payment to pay for their support needs. A PA's role is to provide support as their employer directs to help their employer live their day-to-day life and work towards their 'personal outcomes.'

Personal Assistants and employment status

The authority should ensure that the person in receipt of the Direct Payment under SDS Option 1 is made aware of the general responsibilities that come with direct payment options, including those associated with safe and effective employment of a Personal Assistant.

The person who is engaging the Personal Assistant should initially check the employment status of the worker. As matters relating to employment status are reserved to the UK Government, any questions regarding the status of the worker should be resolved by HMRC.

For more information on how to apply HMRC rules to determine the status of the worker, see the Factsheet on Personal Assistant Employment^[121] from the Low Income Tax Reform Group (updated April 2022) and HMRC's online tool^[122] to help individuals and organisations decide whether a worker should be treated as employed or self-employed for tax purposes.^[123]

Direct Payments and Power of Attorney

A power of attorney can be granted from an individual who can understand and explain their wishes whereas a guardian is appointed when a person does not have capacity to make decisions on their own behalf. If a family member holds a power of attorney or is a guardian for a supported person, they are usually not permitted to be employed as a PA for the supported person if, as part of their role as guardian or attorney, they have the power to make decisions about the support to be provided through the direct payment (see regulation 9 of the 2014 Regulations^[124]).

The intention of Regulation 9 is to avoid conflicts of interest that may arise if the family member with power of attorney is making decisions about direct payments and is also carrying out the role of PA, as they would in effect be employing themselves. Regulation 9 also allows the Local Authority to prevent a family member being employed as a PA if they believe that either the family member, or the supported person, is being forced to agree to the care being provided in that way.

However, Regulation 9 does not cover situations where an attorney is not directly managing a supported person's direct payments including the signing of contracts. While local authority systems of supervision must comply with the Regulations and be sensitive to potential conflicts of interest, these must not have the effect of imposing a blanket ban that forces supported people to choose between the role of Personal Assistant and holder of Power of Attorney in situations where that power is not currently being used to sign contracts or where a contract can be managed by a third party.

Efforts must be made to respect the supported person's wishes and to take a proportionate and positive approach to managing risks, in line with the statutory principles of the 2013 Act, and the principles underpinning the Adults with Incapacity Act.^[125]

In other words, while there may be some circumstances in which being a Personal Assistant while also holding Guardianship or active Power of Attorney may not appropriate, in all cases the wishes of the supported person, where these can be determined, should prompt local authorities to be creative in finding solutions that can mitigate, manage or reduce risk.^[126]

Managing financial affairs where the authority is the welfare guardian

The Adults with Incapacity (Scotland) Act 2000^[127] (the AWI Act) sets out arrangements for appointing legal proxies to make decisions regarding welfare or finance and property matters on behalf of an incapacitated adult.

The local authority, via the Chief Social Work Officer as welfare Guardian, can only exercise welfare powers on behalf of the adult. Managing direct payments requires financial powers and because they are ongoing, a financial guardianship will be needed.

The AWI Act states that the local authority has a duty to apply for guardianship where this is necessary to protect the property, financial affairs or personal welfare of the adult and no-one else is applying or likely to apply.

Although the AWI Act does give local authorities the power to nominate themselves as financial interveners, the local authority is not itself allowed to be the financial guardian and, therefore, after working closely with the person's relatives and friends, if no one else is willing or able to act, the local authority must nominate a suitable person, usually a solicitor or accountant. The third party can then take on the duties of the employer on behalf of the supported person.^[128]

Guidance on requirements enabling family members to be employed as PAs

Under the 2014 Regulations, an individual can employ a close relative or family member as a Personal Assistant, with agreement from the local authority. The Regulations provide a clear framework^[129] for such decisions, providing appropriate and inappropriate circumstances for the employment of family members.

This is in line with the statutory principles of the SDS Act 2013 and the spirit of the legislation, which includes the provision of creative and effective solutions for those receiving social care support.

This is an important consideration where more formal support may be difficult to access (because of geographical remoteness) or where a person's specific cultural needs require to be met by someone with a comprehensive understanding of those needs, and that person may be a family member. Both the professional judgment of social workers and the wishes of the supported person should inform all decision-making in relation to appropriateness of family members being employed as PAs.

Family members may also be employed as a temporary PA. The individual in receipt of this support should ensure that there is a clear procedure for the original, or a new, PAs to resume or start their role when possible. The family member employed to provide replacement care should understand this arrangement may be temporary, and may have an impact on benefits such as Universal Credit.

The authority retains the power to either agree or disagree to the employment of a family member, though this should be on the basis of whether the arrangement will or will not meet the assessed needs of the supported person in line with the criteria set out within the 2014 Regulations. There should therefore be no blanket bans imposed by authorities on the employment of family members as PAs.

Under the 2014 Regulations, 'family member' means:

a. the spouse or civil partner of the supported person;

b. a person who lives with the supported person as their spouse or civil partner;

c. the supported person's parent, child, brother or sister, aunt or uncle, nephew or niece, cousin, grandparent, grandchild;

d. the spouse or civil partner of any person listed in (c), and

e. a person who lives with any person listed in (c) as if their spouse or civil partner.

All other relationships fall outwith the scope of the Regulations.

The authority should approach each request to employ a family member on a case-by-case basis, taking account of the supported person's preferences and the family member's health, their capacity and willingness to provide the required care support, and other welfare, protection and wellbeing factors.

If the authority does not agree with the employment of a family member it should explain its reasoning in writing and – if necessary, in such other form as is appropriate to the needs of the person – to the supported person (who may or may not choose to share this outcome with the prospective PA employee).

It should inform the supported person of the additional support and information services and, where appropriate, their right to advocacy with respect to the decision. It should give the supported person an opportunity to query their decision with reference to the circumstances set out in the Regulations.

Fair pay and Personal Assistant Rights

PAs have access to entitlements and support that other social services workers have, including Fair Work practices and access to support. The PA Employer's Handbook^[130] is a tool for the employer that provides details on how to embed quality assurance when employing PAs using Option 1 – Direct Payment. The PA Handbook^[131] is a separate resource.

Further support and advice for PAs can be found at Personal Assistants Network Scotland^[132] who also offer a photo ID badge as a proof of identity.

Option 1 rates of pay

Concerning care for adults, Direct Payment budgets must enable PA employers to pay PAs delivering adult social care at least £10.50 per hour from April 2022.

From 1 April 2022, the minimum hourly rate for PAs delivering direct adult social care increased from at least £10.02 per hour to at least £10.50 per hour. Therefore, funding to deliver this uplift will be provided by applying a 4.79% uplift to 90% of SDS Option 1 Budgets^[133], equating to contract uplifts of 4.31%. This will be applied by the relevant authority.

This funding will enable pay for these workers to be uplifted from at least £10.02 per hour to at least £10.50 per hour. Where PAs are already paid more than £10.50 per hour, this funding should be used to increase pay above these levels. All funding should be spent on uplifting pay.

Any requests to change other costs within SDS Option 1 Budgets, outwith this policy which focuses only on uplifting pay, would form part of normal processes agreed with local social work teams. The minimum hourly rates for adult social care workers, including PAs, are reviewed annually and any changes to applicable rates will be communicated in due course.^[134]

Concerning care for children, as of September 2022, pay rates for PAs supporting children are linked to the National Living Wage. Decisions on pay rates are informed by discussion with sector representatives.

Payment of mileage costs

Mileage is an area of employment law that is reserved to the UK government, and employers are not legally required to pay mileage costs, although some employers offer mileage payments as an additional benefit.

Mileage can be paid for from a supported person's budget as part of meeting their needs – for example where travel to college has been identified within the individual's support plan^[135]. See additional sources of advice on mileage.^[136]

Death in service

The COVID-19 social care worker death in service payment scheme^[137] was introduced following the high risk workers are exposed to while performing frontline duties and providing care to Coronavirus (COVID-19) patients.

The Scheme recognises the vital contribution of social services workers, including PAs, in tackling the Coronavirus (COVID-19) pandemic. This scheme provides a one-off payment of £60,000 to a named survivor of a social care worker who has died in service as a result of, or the suspected result of, contracting Coronavirus (COVID-19) at work.

The scheme will make payments for eligible claims in respect of coronavirus-related deaths occurring between 17 March 2020 and 30 June 2022. Claims can be submitted until 30 June 2023. Details on eligibility and how to apply can be found through the Death in Service scheme website. See also the PA Employer's Handbook.