Full time care packages

Introduction

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:

• 1.5 Constructing a staff rota
• 1.6 Working time regulations

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.

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.

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.

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.

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

Accommodation

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.

Food

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).

Expenses

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.

Companions

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.

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