13th February 2017 at 1:59 pm #472
Here is some information on self employment status of Personal Assistants
Self Employment Status of PA’s
Heather mentions below that all PAs are self employed – are the PAs in Bracknell self employed? The issue of employment status has been raised with us again in the last few days and I need to clarify whether the PAs in our Hub can by default be self employed (Full Lives, who manages our SwC register do check the HMRC employment status indicator for each PA). You helpfully sent me some information from HMRC back in November. I have been given conflicting information about this issue, and the latest I have received is a note from Penderel’s Trust, which states:
We do not advocate the use of self-employed PAs, however, we would always suggest individuals check the status of their PA using the online HMRC checking facility.
As an experienced support organisation we have had in-depth discussions with HMRC on the matter of self-employed PAs. We believe their position is that very few PAs would be self-employed as by definition a PA is employed by someone. A spokesperson for HMRC told us (November 2014):
‘…a worker’s employment status; that is whether they are employed or self-employed, is not a matter of choice and is determined by the terms and conditions under which a person works. Broadly, people are self-employed if they are in business on their own account and bear the responsibility for the success or failure of that business, are not subject to control or supervision, and are not obliged to provide their services personally. They will be employed if they personally work under the control of their engager, have an obligation to provide their services personally, and do not run the risks of having a business themselves.’
In practice, common features of care engagements, such as the amount of control by the engager over what the care-worker does, when the care is provided and how it is provided, means that HMRC’s view is that the relationship is normally likely to be one of employment. Ultimately it is for the party engaging an individual to decide on the terms under which they engage that individual, and if those terms are employment terms, to account for income tax and National Insurance contributions (NICs) under the PAYE system.’
Would you please advise which of the SwC organisations use self-employed/ employed PAs? I know Bucks use self employed PAs and are happy with this arrangement (this was also set up by Full Lives, who manage our register) but other advice I received from DIPSU says “As the work conducted by a PA assisting a disabled person is, in our opinion, that of an employee. DiPSU recommend caution when using self employed people. The above is what is required by the local authority when your monitoring is completed by them every year”.
I’d be grateful for any advice or any contacts of local authorities other than Bucks (to whom I’ve already spoken) who use self employed PAs or who have looked into this and come to a conclusion.
SWC is a registration, monitoring and directory service. It provides members of the public with information about people who SWC believe are qualified to act as PA’s by virtue of the fact that SWC have background checked them, monitors them with regard to health and safety and training practices, and know they are insured to deliver services.
SWC provides information about PA’s via online directories, telephone information and may include the directory in publications. Inclusion by the PA on the directory indicates only that being so included the person is recognised as being qualified to act as a PA.
SWC is like any other directory service of professionals, it simply states that a person has qualified to be included as a professional or trades person and can provide proof of such status to any client or potential client of the PA. Inclusion in the directory does not indicate an employment status and neither can it be construed to do so.
SWC do not accept ‘jobs’ to be undertaken for ‘clients’ , which would make it an agency, but only offers a directory of PA’s who can perform services and who may be approached by a potential service user to perform a task. In other words there is never any ‘offer’ of employment made to a PA by SWC – the only ‘offer’ of engagement is made by a service user to the PA.
What is NOT clear under current employment/self-employment regulations is when a ‘service’ given by a PA to a service user becomes an ’employment’ rather that a delivery of a job under self-employed status.
No one expects to be seen as an ’employer’ of their window cleaner or general cleaner, even if they visit weekly. However, at what point does the engagement between a PA and a service user become a permanent ’employment’ for the purposes of PAYE, sick pay, maternity pay etc? This is not clear in legislation but in Bracknell Forest we advice our PA’s as follows: If the work they are delivering to a person equals or exceeds 10% of the working week of 37hrs then they should seek a contract of employment with the service user.
Whether the PA’s engage in such contracts should NOT be the concern of SWC which is ostensibly a registration and professional directory service. In Bracknell Forest we are extremely careful that any reports we ask the PA’s to complete support only the directory information and does not suggest that there is any higher relationship which entitles us to know who their clients are or how many hours they deliver for any particular client. However, of course we want to know at least how many hours are being delivered overall by each PA but we try and obtain such information via an informal chat on the phone or at a meeting once a quarter.
I believe the watch word is – do nothing that could be construed as being an agency. i.e. if someone rings up needing a cleaner the answer is NOT ‘Yes I’m sure we can help you!’
The proper response is ‘Yes I’m sure there are some PA’s on the directory who can help you – I will give you some names and numbers to contact’ or ‘shall I ask [Chris] to ring you as I believe s/he has some vacancies’.
Heather Hunter2nd June 2017 at 11:39 am #530
test7th October 2017 at 10:36 am #532
It was always my view that the status of self-employment was determned by the terms and & conditions of the contract, and by extension HMRC. HMRC do not like self-employment as it’s harder for them to track tax and NI contributions (see media coverage of ‘gig economy’). We put together the attached guidance for Oxfordshire PAs.
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