Section 5: EMPLOYING STAFF: PERSONAL ASSISTANTS OR CLOSE RELATIVES
'…My care worker comes to suit me and now I can go to the doctor when it is suitable. I go to the gym and swimming on a Monday, riding with the Riding for the Disabled Association ( RDA) on Tuesday. Now I can go out and do things when I want. 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).
119. Section 4 looked at the services and other support that some people purchase to meet their needs. Local authorities cannot insist that a person only uses their direct payments in this way. Section 5 considers another option which is to become a PA employer in charge of staff. It also gives guidance on employing close relatives.
120. The option of employing a personal assistant 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.
121. 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.
Safe recruitment
122. 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 service user and how this may be achieved;
- put in place all the various recommended stages in the recruitment processes;
- provide appropriate targeted advice and training on roles and responsibilities.
123. The responsibility for ensuring the quality of support rests with the service user. 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 direct payments or otherwise, for example using private mean. Service users may contract with or employ individuals who are not regulated by the Care Commission, provided that those individuals do not fall within the list of persons excluded by Regulation 4 of the 2003 Regulations. (See Annex A.)
124. The prospect of allowing a non-local authority care worker into their home may seem daunting for some service users, even if enhanced disclosure checks have been carried out. Alternatives may be buying services from an agency (perhaps one used by their local authority) or other service provider such as a voluntary organisation may best meet their assessed needs in the short or longer term. This option is discussed in section 4.
125. Certain safeguards can be undertaken for those people who do decide to become PA employers. A key element may be the experiences of successful practices that arise from local peer support. This may help encourage people to use self-directed care, with the local support and training that can help prevent unnecessary misunderstanding and subsequent breakdown of working arrangements.
126. Using safe and effective recruitment processes should also help. These include:
- PA employer training
- local peer support
- taking up references, on paper and by telephone
- carrying out police checks (enhanced disclosures, see below)
- staff induction and training
- staff management including meetings
- probationary periods of employment
- staff appraisals
- indemnity insurance.
Enhanced disclosure checks
127. Enhanced disclosure checks provided by Disclosure Scotland are carried out by local authorities for their care staff and it is strongly recommended that direct payments users follow this procedure when employing PAs. These checks provide up to date information on any criminal record that a potential employee may have, as well as so-called 'soft information' that may have been recorded about any involvement they may have had with the police, even if this did not involve them being charged, or if charged, not convicted. Disclosure Scotland allows umbrella organisations to carry out enhanced disclosure checks on behalf of service users. Further information on how to access Disclosure Scotland checks can be obtained from local support organisations and from the Disclosure Scotland website 20. Local authorities should fund these checks as part of the set-up costs of direct payments packages.
128. PA employers are strongly encouraged to undertake disclosure checks as part of good employment practice. It is for PA employers to decide, with the best available knowledge, whether to employ someone with a conviction, or who has had other information recorded about them by the police service. These are careful judgements, but decisions should not be based on a disclosure check alone as these do not guarantee that a person is suitable to provide support, particularly children's services.
129. Potential employers should be advised of the importance of having a rigorous recruitment procedure in place where the taking up of references is essential. PA employers might be encouraged to declare in advance which, if any, types of conviction they think would prevent someone from working with them. PAs could also be encouraged to self-declare any convictions they have been subject to, or indeed any previous difficulties with PA employment.
Employing close relatives
130. The rules on employing close relatives are to be changed following amendment of direct payments primary legislation within the Adult Support and Protection (Scotland) Bill currently being considered in the Scottish Parliament. Local authorities will be able to offer increased flexibility in tailoring individualised packages, including allowing, in exceptional circumstances, the employment of certain categories of close relatives. The current timetable is that the Bill will be passed in early 2007, and the associated regulations enacted shortly afterwards. Updated guidance will be issued at this time.
131. Meanwhile, regulations about employing close relatives (currently the 2003 Regulations) make it a condition of the payment of direct payments that the person to whom the payment is made does not use the payment to secure services from certain people. These are:
- the spouse or civil partner of the person to whom the services are to be given (the beneficiary) wherever the spouse or civil partner lives,
- the beneficiary's partner ( i.e. the other member of an unmarried couple), where the couple live together as though they were married. This also includes same sex couples who are not civil partners, but who live together as if they were.
- a close relative of the beneficiary if the close relative lives in the same household as the beneficiary,
- the spouse or civil partner of a close relative if the close relative and the close relative's spouse or civil partner both live in the same household as the beneficiary and
- the partner ( i.e. the other member of an unmarried couple, including a same sex couple, who live together) of a close relative if the close relative lives in the same household as the beneficiary and the partner and close relative live together as though they were married. This also includes same sex couples who are not civil partners, but who live together as if they were.
132. A close relative in this context is a parent, parent-in-law, aunt, uncle, grandparent, son, daughter, son-in-law, daughter-in-law, stepson or stepdaughter, brother or sister. It also applies to the equivalent relationships arising through civil partnership and through a relationship where the same sex couple are not civil partners but live together as if they were . Until new regulations are made, a local authority is unable to apply an exception to the rule about employing these people, even if it is satisfied that such employment would be the most appropriate way of securing the relevant services.
133. The condition against using direct payments to secure services from the people mentioned in sub-sections (a) to (e) in paragraph 129 above does not extend to securing services from:
- a close relative of the beneficiary who does not live in the same household as the beneficiary
- the spouse or civil partner of a close relative of the beneficiary if either the close relative or the spouse or civil partner of the close relative does not live in the same household as the beneficiary
- the partner of a close relative if the close relative does not live in the same household as the beneficiary
- someone living in the same household as the beneficiary who does not fall within sub-sections (a) to (e) in section 80 above or
- any other person, wherever they live, who does not fall within sub-sections (a) to (e) in section above.
134. 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).
Training
135. Local support organisations have a crucial role to play in direct payments training and local authorities should fund them accordingly, in line with expectations arising from the additional resources provided for this purpose. They also provide peer-support, advocacy, awareness-raising and confidence-building.
136. Basic training mechanisms are in place across Scotland with an emphasis on tailoring content and pace to meet individuals' needs. For example, the training needs of those aged over 75 may be different to those who have recently retired and who may be more up-to-date with employment practices. Where self-directed care is not yet seen as a mainstream service option locally, individuals may need particular support to enable them to challenge the status quo. More information on training and other local support is given in the following section.