Making Sense of Employment Law for Professional Deputies, Attorneys and Relatives
As Professional Deputies and Attorneys you often have to deal with your client’s complex care needs which often requires teams of carers to provide 24 hour care. Added to this there can be additional complexities and regulations to navigate if your client’s care package is partially or fully funded by Direct Payments from Health or Social Services.
The Covid-19 pandemic led to many Deputies, Attorneys and relatives having to review existing Care Home placements, or changing home arrangements to ensure sufficient high quality cover. This might include employing your client’s relatives as part of the care team.
If hiring directly, it is important to ensure that the contractual relationship with all carers is lawful to avoid any arguments with the Inland Revenue that your client is guilty of tax avoidance. This is usually where carers work on a self-employed basis when in reality they are employees. This could result in your client facing a large tax bill for any unpaid tax plus punitive interest payments. It is also important to be clear about these carers’ status to avoid costly and time consuming employment disputes.
Under current employment law tests, a live-in carer and those carers who provide regular and substantive support hours will undoubtedly be employees. This is due to the need to set up continuity of care. These carers, whether live-in or not, will be providing their services personally. They will also be under an obligation to work a set working pattern to ensure your client’s care needs are met. This means the necessary employee control tests will have been met. There is also an expectation that these hours will be offered and that the carer will perform them, so that there is mutuality of obligation.
It is therefore important, as your client’s Deputy, to ensure you are aware of their responsibilities as an employer. These will include making sure that your client’s carer has the right to work in the UK, providing them with a written contract of employment before they start work, setting up and running their payroll and pension and ensuring that they have Employer’s Liability Insurance in place.
You will also need to consider how your client’s main carer will take their statutory holiday entitlement and what other back up arrangements will need to be in place to cover sick leave, holiday and rest breaks. Combining live in care or a full time carer with agency staff is often a good working solution.
A comprehensive Staff Handbook with up to date policies, even when you are only employing one member of staff, is very useful to set out their employment law duties and to help guide your client through the process of managing their carer(s).
Our Employment Law team take a holistic approach and work closely with our Community Care team to provide tailor made advice and bespoke contracts and policies to support each and every client. This will depend on their individual care needs and their access to funding.