The rights of personal assistants in social care

By 2025, more than 700,000 people in England could be employed as personal assistants to social care service users, up from 168,000 in 2010. The shift towards personalisation means many more service users are receiving direct payments from local authorities, giving them the power to arrange and pay for their own care. But with this freedom also comes responsibilities, particularly towards PAs they directly employ, who may be unaware of the range of benefits to which they are entitled.

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By 2025, more than 700,000 people in England could be employed as personal assistants to social care service users, up from 168,000 in 2010. The shift towards personalisation means many more service users are receiving direct payments from local authorities, giving them the power to arrange and pay for their own care. But with this freedom also comes responsibilities, particularly towards PAs they directly employ, who may be unaware of the range of benefits to which they are entitled.

Social care staff may be in a similar position, a survey by Unison and Community Care suggests: more than 80% of 400-plus workers said they needed knowledge about employing PAs, but only half thought they already had enough.

It is crucial that this information and knowledge deficit is addressed; an incorrect employment status could be spotted by the tax office – and unsuspecting PAs hit by large bills for unpaid tax and national insurance.

To address these problems, Unison has produced a guide that outlines what PAs should expect from service users who employ them.

“There’s an enormous variety of information and people can find it difficult to navigate through it,” says Helga Pile, Unison’s national officer for social work, who hopes the guide pulls together all the information.

An important starting point is that PAs should be aware that they are employees, and are not self-employed, if they work on a regular basis at set times under the direction of their employer.

Once this is established, PAs are entitled to a series of basic rights (see below), including at least 5.6 weeks of holiday a year (including public holidays) and a maximum working week of 48 hours, on average.

Unison also hopes to develop its support for members who are PAs, and will shortly appoint a new member of staff to lead a project that aims to identify the needs of PAs and create networks to share experiences. This will focus initially on work on the ground in five local authority areas in south-east England.

By the end of the year-long initial project, Pile hopes Unison will be able to provide support for PAs around the country.

The government is also aware of the challenges faced by PAs as the role develops, and, in last year’s adult social care vision, the Department of Health promised to publish a strategy for PAs in 2011.

But Nick Johnson, chief executive of the Social Care Association (which counts PAs as members), cautions that solutions must take into account the unique relationship that exists between PAs and their employers.

“There’s a dilemma that is not present in any other type of working relationship,” he says. “The employer is probably dependent on the PA at one time of the day and that’s not the case in any other type of employee-employer relationship.

“Either the disabled person, who is the boss, doesn’t feel like the boss, or the worker feels unduly powerful because of this.

“We need to do the best for PAs but in a way that doesn’t disempower their employers. We can’t simply say to disabled people ‘this is your responsibility’. They need training too.”

THE RIGHTS OF PAs

PAs should be classed as an employee if they:

● Are usually required to work at set times each week, rather than do the work at times of their own choosing.

● Take instructions from their employer about how to do their work

● Have to carry out the work in person, and cannot decide to send a substitute of their choice.

They have the right to:

● An itemised pay statement.

● At least the national minimum wage (£5.93 an hour for workers aged 21 and over, or £4.92 for those aged 18-20).

● At least 5.6 weeks holiday a year (including public holidays).

● Work no more than 48 hours a week on average.

● Protection from discrimination, harassment and victimisation.

● Protection from dismissal because of pregnancy or whistleblowing.

● Maternity leave (right to pay depends on service).

Subject to length of service, they should also be entitled to:

● A written statement of the terms of employment, after two months.

● Statutory maternity pay, after six months.

● Unpaid parental leave, after one year.

● Claim unfair dismissal, after one year.

● Redundancy payment, after two years.

They should also ask whether their employer has:

● Employers’ liability insurance, which is a legal requirement and covers the employer if the employee is ill or injured in the course of their work

● Access to employment information and advice via the local authority, NHS or a user organisation.

● Assessed health and safety risks in the home and other places they may go, which is also a legal requirement.

● Money to provide training.

Source: Rights at work for personal assistants, UNISON

More information

Being the Boss

Government resources

PA Net

Skills for Care, PA toolkit

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