WE ADVISE THAT ANY ROTAS FOR FULL-TIME CARE SHOULD BE CHECKED WITH THE EMPLOYMENT LAW SPECIALIST ADVICE SERVICE THROUGH YOUR EMPLOYER’S LIABILITY INSURANCE TO ENSURE IT COMPLIES WITH WORKING TIME REGULATIONS
This factsheet is for people using direct payments who need a high level of care and support. It looks at the different arrangements you can put in place for employing PAs if you need care and support throughout the day and/or the night.
This factsheet explores the two main options you have – firstly, employing a team of PAs who work shifts to provide continuous care and support 24 hours a day and secondly, employing a team of PAs who take it in turns to ‘live in’ providing care for up to 12-14 hours a day around their break and rest periods.
It is very important that if you are making any of these types of arrangements you seek advice and guidance from an Independent Lives adviser as there are a range of issues to consider and in some cases employer obligations vary.
Terms used in this factsheet
24 hour continuous care package: this refers to a situation where you employ a team of PAs who work shifts (ideally a minimum of four) to provide you with continuous care and support 24 hours per day. See chapter three below.
Live in personal assistants: this is where you employ a team of PAs (usually two or three) who each live in your home for up to 12 days at a time before they have a period of time off and another PA comes to work for you. For the period that they are living with you the PA usually works an average of 12 hours per day (this may vary depending on your situation – although the maximum allowed is 14 hours per day on average). You will need to manage their working hours with an average daily hours agreement. See chapter four below.
Sleeping night shift/‘sleeping nights’: a PA works a night shift at your home but sleeps while they are there. They are on hand for you to call if you need occasional assistance during the night. A ‘sleeping night’ may be tagged onto a day shift that the PA has already worked or may be a separate shift, each situation requires a different pay rate. See chapter three below.
Waking night shift/‘waking nights’: a PA comes to your home and works a shift overnight as they would during the day. The PA is on call at all times during the night and awake, alert and making certain you are safe, secure and comfortable and providing you with assistance as often as you require. There are some specific working time regulations that apply for people working nights. See chapter three below.
Average daily hours agreement: you must issue one of these to each of your live in PAs. This is a document that you provide in addition to the employment contract in which you and your PA agree the average number of hours per day that they will work. This ensures that they are paid the minimum wage for this number of hours. If you wish you can work with your Independent Lives adviser to adapt employer template 7.10(a) Average daily hours agreement for live in personal assistants for each of your live in PAs.
Rest break: a period not counted as working time during which time the PA is not working and is free to leave the premises if they wish. The Working Time Regulations govern the frequency and length of rest breaks that workers must have. For information about rest breaks for shift working PAs see factsheet 1.6: working time regulations. For information about rest breaks for live-in PAs see chapter four below.
Down time: this specifically applies to live in PAs and refers to a situation where they are working but are not immediately required to work. During this time they might spend time on the premises resting e.g. watching TV in their room but are on call for work as required. This time cannot be counted as a rest break under the Working Time Regulations.
24 hour continuous care
If you need a high level of care and support round the clock (24 hours per day) you will need to employ a team of PAs (ideally a minimum of four) to work shifts.
All of the normal employer responsibilities apply in this situation. For guidance on drawing up a rota and making sure you comply with the Working Time Regulations you can find more information in our factsheets:
You should also seek advice and guidance from Independent Lives if you are thinking of employing a team of PAs so that we can help you ensure you are meeting all your obligations as an employer.
|Overview of the Working Time Regulations for shift working PAs
All PAs are entitled to:
Night time working
If you employ a team of PAs to cover a 24 hour period some of them will be working night shifts. ‘Night-time’ is generally regarded as the period between 11:00pm and 6:00am. However you can agree with your PA to change what you define as the night time period as long as it is at least seven hours long and includes the period between midnight and 5:00am.
A ‘night worker’ is someone who regularly works for at least three hours during this period.
If you employ night workers their average daily hours of work are limited to an average of 8 hours in each 24-hour period. The 48 hour average weekly maximum also applies to night workers. In practice this means that if they work a 12 hour night shift they can only do so 4 nights per week.
Young workers (employees under 18) cannot work between the hours of 10:00pm to 6:00am or 11:00pm to 7:00am and therefore they cannot work night shifts.
Please note: you are obliged by law to complete a night workers health assessment for any PA who will be working nights before they begin work for you. You must also carry out regular health assessments throughout their employment (at a time agreed by you and the PA). If you wish you can use employer template 1.6(b) Night worker’s health assessment.
There are different types of night shift for PAs. These are:
Sleeping night shift/‘sleeping nights’: a PA works a night shift at your home but sleeps while they are there. They are on hand for you to call if you need assistance during the night. For advice on hourly rates/payments for sleeping nights please speak to your Independent Lives adviser.
Waking night shift/‘waking nights’: a PA comes to your home and works a shift overnight as they would during the day. The PA is on call at all times during the night and awake, alert and making certain you are safe, secure and comfortable. You must pay an hourly rate equivalent to at least the minimum wage for waking night shifts.
|Case study: we employ a team of PAs round the clock!
My father has advanced Alzheimer’s and lives by himself in the family home I grew up in. My brother receives the direct payment on his behalf and acts as the employer.
Together we have organised a team of PAs to provide care and support to my father 24 hours per day. We chose not to employ live in PAs as he needs constant supervision and assistance throughout the day and night and this would be too tiring for one person as they would not be able to take appropriate rest and sleep breaks.
The shifts worked by the team of PAs are as follows:
Monday – Sunday (day): 8:00am – 6:00pm
Monday – Sunday (evening): 6:00pm – 11:00pm
Monday – Sunday (overnight): 11:00pm – 8:00am
Each PA works a mixture of these shifts to ensure that they get the appropriate rest breaks required by the Working Time Regulations.
We also have double up support (two PAs working at the same time) once a day to help with bathing.
Employing live in PAs
If you need support throughout the day and sometimes at night (or vice versa) and your budget allows, you may choose to employ live in PAs. If you do, you will ideally need to recruit at least three PAs. If you only recruit two PAs you may face difficulties covering holiday/sickness absence or if one of the PAs leaves.
Each PA will work and live with you in your home for up to 12 days at a time before having a period of time off. The PA will not usually live in your home during their time off.
Average daily hours agreements and the minimum wage for live-in PAs
Although the PA will live at your house throughout the period that they are working, in practice they will only be actively working an average of around 12 hours per day. The PA is paid the minimum wage for the average number of hours they work each day e.g. 12. To agree this you will need to think about how much care and support you need and issue them with an average working hours agreement which states how many hours you have agreed they will work on average per day.
If you wish you can work with your Independent Lives adviser to adapt our employer template 7.10(a) Average daily hours agreement for live in personal assistants to fit your situation.
|Example: minimum wage calculation for a live-in PA
Louise is a live in PA who works seven days at a time before having two weeks off, as part of a team of three PAs who provide live in care and support for Gill who has an acquired brain injury and lives with her husband and two children. Louise is 23 and so is eligible for the minimum wage of £10.42 an hour. Her average daily hours agreement states that she will work 12 hours per day on average over the week. During her live in week she works seven days so she is counted as having worked 84 hours that week (seven (days) x 12 (average daily hours) = 84 hours).Therefore her wage for the week should be a minimum of £875.28. Louise will not be paid by Gill for the two weeks that she does not work following her live in week.
Working time regulations for live-in PAs
A live-in PA is technically working or on call in your home for up to 23 hours a day for the period of time that they are living there. However this does not mean you can expect them to be actively working for the whole time! The PA will need appropriate rest breaks and time to sleep/relax.
To ensure that this happens you will need to make sure that their average working hours do not exceed 14 hours per day as the PA will need at least eight hours in a 24 hour period for sleeping/relaxing plus a minimum of one hour (preferably two) allocated for breaks e.g. one hour for lunch and two 30 minute breaks at other times in the day.
Most live in PAs work between 10 and 12 hours per day on average depending on whether you need support in the night. 14 hours per day on average is the maximum a live in PA should work to allow for appropriate rest breaks. If you need your PA to work for more than 14 hours per day on average you will need to employ a team of PAs to work in shifts round the clock (see chapter 2). Note: the National Minimum Wage Regulations state that only the time when the PA is awake for the purposes of working is counted as working time.
|Example: day in the life of a live in PA
Louise is a live in PA who works seven days at a time before having two weeks off, as part of a team of three PAs who provide live in care and support for Gill who has an acquired brain injury and lives with her husband and two children.
On Tuesday Louise gets up and has her breakfast at 7:30am ready to help Gill get up and dressed at 8:00am. 8:00am is the start of Louise’s working day. Gill works Tuesday, Wednesday and Thursday morning and so Louise travels with her to work and provides any support she needs before they return home at 12:30pm.
At 1:00pm Louise makes lunch for Gill and vacuums the house before taking time for her own lunch from 2:00pm – 3:00pm. This is a rest break and is not counted as working time. Often Louise goes out into town during her lunch break.
At 3pm she goes out with Gill to pick her children up from school and then shopping before they return home at 5:00pm. Louise then takes a one hour break before preparing dinner for the family at 6pm. She eats dinner with the family and then spends time in her room watching TV before helping Gill into bed around 9:00pm.
While Louise is spending time in her room she is available for work if Gill needs her and is having ‘down time’ rather than a rest break-as such this is counted as working time. After Gill goes to bed Louise finishes some household tasks before finishing work herself at 9:30pm.
At 3am Louise wakes for 30 minutes to help Gill who has woken and needs some medication before going back to sleep. Louise’s average daily hours agreement states that her agreed average number of hours per day is 12. On the day outlined above she has worked 12 hours (inc. the 30 minutes she was awake in the night supporting Gill).
On another day she might only work 11.5 hours if Gill needs less support or 12.5 hours if Gill needs more support. What is important is that when all her hours for the week are taken into account Louise has worked an average of 12 hours per day over the seven day period.
|Case study: I employ live in PAs!
I am an active young woman with cerebral palsy affecting all of my limbs. I rely on a wheelchair and have very limited movement in my hands only. I work, go to university and have a full social life. To live independently I decided to use my direct payment to employ ‘live- in’ PAs.
I chose this route as I did not want shift times to interfere with my busy life. I do need someone on hand overnight just in case but 99% of the time I do not need assistance and have a good night’s sleep.
I employ ‘live- in’ carers on a one week on two weeks off rota. This fits in with Working Time Regulations and it means I have three ‘live- in’ carers on the books which is useful when I need to arrange holiday cover.
In addition to my ‘live- in’ carers I employ PAs to help them carry out personal care tasks in the morning and for two hours a day so my live in carer can take a break.
If your PA lives in with you while they are working they will not be able to take their 24 hour consecutive rest breaks and may on occasion not be able to have 11 consecutive hours rest in each 24 hour period. It is custom and practice in live-in situations that PAs take compensatory rest for this by having an appropriate period of time off after each period of living in.
There are different combinations of time working/time off that live in PAs can work. Traditionally many live in PAs work one week on followed by two weeks off. However others may work Monday – Thursday before having Friday, Saturday and Sunday off or they might work for 12 days before having time off.
12 days is the maximum a live in PA can work at a time. The arrangements you put in place will need to suit your lifestyle as well as ensuring you meet your obligations as an employer. Your Independent Lives adviser will give you advice and guidance on appropriate arrangements for your specific situation.
Practical arrangements for live-in PAs
You must provide live-in PAs with their own bedroom where they can rest and relax. In their room you must provide a bed, a wardrobe, a window, a door that can be closed and adequate heating. Accommodation should be welcoming and pleasant with appropriate privacy. You may also wish to provide additional facilities e.g. ensuite bathroom, TV, internet access etc. – but you do not have to.
The accommodation offset
If you employ a live-in PA you can count some of the value of the accommodation you provide them with towards National Minimum Wage pay. This is called the accommodation offset rate and applies in any of the following situations:
- the accommodation is provided in connection with the employment contract.
- keeping their job depends on the PA occupying the accommodation.
It applies even if there is no connection between the job and the accommodation.
Under the current rules the maximum amount you can count towards National Minimum Wage pay as an offset is £9.10 per day (equalling a total of £63.70 per week). It makes no difference whether you take this money out of the PAs wages, the PA pays this money to you after receiving their wages or you provide accommodation as part of an overall remuneration package.
As well as accommodation, any charges you make for gas, electricity, laundry and furniture are added to the rent for the purpose of calculating the accommodation offset.
For more information on the accommodation offset rules please you can visit: https://www.gov.uk/national-minimum-wage-accommodation.
If you wish to make use of the accommodation offset provisions it is very important you speak with your Independent Lives adviser for further guidance as in some situations additional income streams may have implications on other services and benefits you receive.
There is no legislation governing this aspect of PA employment. You should check what rules your local council or NHS funder have about a food allowance for PAs in personal budgets. With this in mind it is up to you and your PA to make an arrangement which suits you both.
It is up to you whether you ask the live-in PA to contribute towards your household’s food budget and provide their food for them or whether you agree that they will buy their own food and give them cupboard and fridge space to store it. Please note, whatever you choose to do, meals cannot be counted towards the accommodation offset (see above).
You should reimburse any expenses that the PA incurs in the course of their work for you e.g. mileage, public transport, parking, tickets/refreshments if you go out etc.
You are not obliged to cover the cost of your PA’s travel to and from work.
A companion is someone who works for you as a personal assistant and who lives in your home as if they were part of your family.
If a person is employed to live-in, as part of your family, then they are not covered by the minimum wage legislation. So you can legally pay them below the minimum wage.
The PA (‘companion’) is exempt only if they:
- take part in work and leisure activities on the same basis as others in your household; and
- live in your house and share all your facilities; and
- have food, heating etc. provided by you.
If you want to take advantage of the exemption from the minimum wage, you must genuinely treat your PA as a member of your family. If you employ a PA who lives in your house but you do not treat them in this way (for example if you require them to stay in their own room when they are not working), then this exemption will not apply, and you must pay them the minimum wage as you would any other employee.
Building a good working relationship and respecting boundaries
If you employ shift working or live-in PAs it is very important to give them comprehensive job training and agree clear boundaries and expectations with them to ensure that everybody is happy with the working relationship and living arrangements.
A PA, especially a live-in one, can often end up feeling more like a friend than an employee. This can be a good thing as it means that there may be more give and take on both sides. However it may also mean that it is much more difficult to deal with if you feel your PA has let you down or vice versa.
This could lead to you and/or your PA feeling upset, angry, exploited or let down. Differing expectations and unclear boundaries can cause conflicts.
When you take on a PA think about where the boundaries are in your relationship with them. Think about how you will make this clear and what you will do if the boundaries are over stepped.
It is vital that you give them adequate training to ensure that they clearly understand what their job involves and how you would like these tasks to be done. As soon as they start working for you, you should discuss with the PA how you like things done as well as what is acceptable and not acceptable behaviour in your home.
You may wish to give them some written guidance. If you wish to, you can use employer template 4.3(b) Information for PAs: Rules of employment and employer expectations.
This is a template document so you can adapt it to fit your particular situation. You might wish to add points about social media, for example, (see guidance below).
It is important to think about what balance you want between independence and support and what your expectations are in terms of things like privacy, confidentiality and communication and ensure this is clearly communicated to your PA.
In particular it is important that you ensure your PA understands that all information regarding you, your family and your domestic or personal circumstances is strictly confidential and cannot be discussed with anyone else without your specific permission or in an emergency situation (see also social networking below).
If you are unhappy with something your PA has done, think about how serious it is. Often, minor issues can be dealt with in a quick conversation. There may even be a particular reason for their behaviour which you can help to resolve. If the situation does not improve or your PA does something more serious it is best to follow your formal disciplinary procedure.
Social networking (Facebook, Twitter, Pinterest etc.) in the workplace
There are no specific laws around the use of social networking in the workplace. Instead, it is up to you as the employer to formulate your own policy on the use of the internet/social networking sites by your PAs whilst they are working in your home. Its terms must be reasonable and should be written down for your PA to refer to.
It might include things like:
- a ban on including/sharing any information about you/your family/friends or the workplace on social networking sites;
- a ban on making any derogatory remarks about you/your family/friends or their colleagues on social networking sites; and
- a declaration that consent must be obtained from you before they post any pictures of the workplace or individuals on social networking sites.
Your PA should understand that if they ignore your policy and post pictures or comments, from which it is possible to identify your home/family/friends or their colleagues they may be in breach of data protection laws.
It is important to note however, that with regards to pictures, if you are present at the time they are taken and do not object, you will usually be deemed to have given implied consent.
If your PA breaches your policy you should initially make a reasonable formal request that the pictures are removed in order to protect your privacy. If the PA does not then remove the pictures they will be failing to follow an instruction from their employer and this would therefore constitute a low level formal disciplinary issue.
|An example of how a good working relationship might look in practice.
Louise is a live in PA who works seven days at a time before having two weeks off, as part of a team of three PAs who provide live in care and support for Gill who has an acquired brain injury and lives with her husband and two children.
When Louise began working for Gill she had a period of induction training provided by Gill and another PA which covered all aspects of her job role. Gill talked through with Louise what her tasks were and they also talked about how Gill liked things to be done – right down to how she liked her tea! Louise was really pleased as she felt much more confident once she was doing the job independently without the support of another PA.
After this initial training Gill and Louse also took time to sit down over a cup of tea and chat about what sort of boundaries and expectations there would be in the working relationship and the sort of behaviour that was appropriate whilst Louise was living-in.
With her other PAs Gill has always built up very friendly relationships and likes to encourage a relaxed informal atmosphere in her home so long as her privacy is maintained and her PAs always respect her ability to make decisions about herself and her family.
On Monday, Louise is taking some ‘down time’ in her room listening to music and checking Facebook while Gill watches TV with her family. She takes a quick snap of herself on her phone so that she can upload a new profile picture.
However as her music is quite loud she does hear Gill’s young daughter Eva playing outside in the hallway and does not realise that she is clearly visible in the background of the picture as the door of her room is open. Gill and Louise are friends on Facebook and the next day she notices Louise’s new profile picture.
She knows that Louise is normally very careful to respect their privacy as a family and so she just brings it up casually over coffee, mentioning at the same time that Louise’s music was a little louder than she would have liked! Louise explains that she did not realise and apologises straight away agreeing to take the picture down.
The following evening Gill and her husband Martin have friends over for dinner. Whilst Louise would normally cook for and eat with the family she offers to eat earlier with the children so that Gill and Martin can have a more relaxed evening with their friends who do not know Louise.
While Louise is eating with the children Eva becomes very upset and throws her dinner on the floor. Louise and Gill have discussed that it is not her place to tell the children off if they misbehave and so she pops into the sitting room to let Gill know as she has requested Louise do in such situations. Gill calms Eva and asks her to apologise to Louise for behaving badly.
In the morning Louise goes to work with Gill. Some days Gill finds it difficult to read emails and rather than using software she prefers to have Louise read them to her and type her responses for her.
Gill’s manager is happy with this as she has her own office so no one can hear. One of the emails Louise reads contains some information about a disciplinary matter regarding a member of staff who Louise sometimes bumps into in the kitchen regularly.
Gill makes sure that Louise understands her responsibilities around confidentiality before asking her to read the email for her and type her response.
Budgeting: key issues to consider if you employ live-in PAs
Our standard budgeting tool employer template 1.2(a) Employer budget template and the factsheet accompanying it are not designed for budgets concerning live-in PAs. Therefore you must seek advice and guidance from your Independent Lives adviser when putting together this type of budget.
When putting your budget together with your adviser you should consider the following:
- work out average pay over a 4 week period to calculate employer NI and holiday pay as most live-in PAs do not work every week over a 4 week period.
- always budget for Employer NI for holiday cover, if you are not sure who will be covering holiday periods and whether they earn over the £175 per week threshold, after which employers start paying national insurance.
- if you employ a live-in PA but have an agency covering their holiday remember the holiday cover will be charged at agency rates and rather than the rates you pay your PAs. This will be more expensive so you need to account for this in the budget.
- think about what training your PAs need and who might provide this. You might wish to research different training providers and then estimate the cost for the year.
- will your PA be driving their own car for the role? If so you may need to factor in expenses for mileage and/or parking.
- does your support plan involve social visits out in the community?
You may wish to include PA expenses for social activities in your budget e.g. swimming entrance fee, lunch out expenses, train/bus tickets. This will be an estimate to go in your budget.
- are there times when your PAs will hand over to each other? This might mean there are additional hours to budget for.
- do you need 2 PAs for manual handling? If so, you will need to budget for the extra PA hours.
When employing a team of PAs to provide continuous 24 hour care (see chapter three) standard budgeting considerations apply and you can find more information in our factsheets and employer templates:
- factsheet 1.2: Preparing your employer budget
- employer template 1.2(a) Employer budget template