Direct payments are made to allow people to organise and buy their own social care services.

Direct payments are a way you can have all or a part of your personal budget. They can be used in a variety of ways to pay for services such as personal care, respite and day services, minor home adaptations and specialist equipment. Direct payments enable you to have more choice and control over the support you receive and how your social care needs are met.

Direct payments are not seen as income and have no effect on tax or benefits. Direct payments should not be confused with Direct Payment from the Department for Work and Pensions. This is a way of paying pensions and other benefits direct into bank accounts.

Who is eligible?

To be eligible for direct payments, you must be:

  • A person aged 16 or over that has been assessed as needing and being eligible for services, or
  • A carer with an agreed assessment of need that is eligible for direct carer support; or
  • The parent of a disabled child who has been assessed as needing and being eligible for services;

and

  • Be able to take responsibility for arranging (with support if required) and managing your own care;
  • Be willing to use direct payments; and
  • You must also be able and willing to consent to a direct payment and be able to manage the payment.

You can always choose whether to receive direct payments or to receive services arranged by us. You cannot be made to accept direct payments if you don't want them. If you do use direct payments and later decide not to, you can revert to the local authority providing the services.

Receiving the service

If you think you might be eligible to receive direct payments, please contact us to arrange for an assessment of your needs.

Further reading

Additional information from NHS Choices

See the NHS Choices page below for more information on direct payments:

Direct payment factsheets

We have produced a list of factsheets for people using direct payments:

You may have been offered a personal budget by us and are considering taking a direct payment to manage the budget. This factsheet will help get your started.

What are direct payments?

Direct payments are one way you can manage your personal budget. They are a cash payment based on the amount agreed in your personal budget so that you can arrange and pay for social care support instead of the council arranging services for you. Direct payments offer greater flexibility, choice and control than support being arranged for you by the council.

It is your choice if you want to have a direct payment. We must be satisfied that you understand what it involves and that the way you choose to use the cash will meet your needs and achieve the agreed outcomes. The way you use them must be legal and keep you safe and well. For example, you may want to employ your own personal assistant, providing you with the support at the times you want.

Alternatively, you may decide you want to use money to buy support from a care agency. Or you may want to find an alternative to the types of respite support we could arrange for you.

Direct payments can be used in a wide range of creative ways as long as it is safe and legal to do so. There are some exceptions which we will explain to you on request.

Who can have direct payments?

You can only have a direct payment once you have had a needs assessment and we agree that you are eligible for certain social care services.

If you are eligible and:

  • A disabled person aged 16 years and above;
  • A parent of (or people with parental responsibility for) disabled children, to pay for services for the family;
  • A carer aged 16 years and above, for services to meet the carers own assessed needs;
  • A disabled person with parental responsibilities for a child, for services to support their parenting role; or
  • An appointed suitable person for someone who lacks capacity (we must agree who the suitable person is).

In most cases we will offer direct payments but for some people who are subject to some mental health legislation or aspects of criminal justice legislation, we have the power to offer alternative support. Please ask us for more information about this.

Some people who are placed under certain conditions by courts in relation to drug/alcohol dependencies are also excluded from receiving direct payments.

You may have been asked to open a separate bank account but please do not open your account until you have decided that you would like to try direct payments.

We have a duty to offer direct payments to people who lack the mental capacity to consent to them, where there is a 'suitable person' to receive and manage such payments on their behalf and where it would be in their best interests to have a direct payment.

Being appointed as a suitable person

You cannot just become a suitable person. We must follow legislation and guidance on how to appoint a suitable person. Please discuss with your social care co-ordinator what the conditions are. In particular:

  • You must meet all the criteria as set out in our policy and the checklist for appointing a suitable person;
  • You will act as the suitable person on behalf of an adult who lacks mental capacity to consent to receive direct payments; and
  • You must be willing and want to act as a suitable person.

You can have support to manage the direct payment. The direct payments support service is a free service and can provide support with all aspects of a direct payment. They can support you with using direct payments, payroll services, recruiting and managing personal assistants, and undertaking disclosure and barring service (DBS) checks, amongst other services.

Your role as a suitable person

  • You will sign an agreement with us relating to the use of the direct payments, and you must keep to its terms;
  • You must open a separate direct payments bank account and provide us with the details on the bank mandate form given to you;
  • When making these arrangements it may involve legal responsibilities, employing staff for example;
  • You agree to use the direct payments to purchase and obtain the services necessary to meet the needs of the person who lacks capacity;
  • You may not use the direct payment to employ the spouse, civil partner or partner of the individual you are acting as a suitable person for without our permission;
  • You may not use the direct payment to employ your spouse, civil partner or partner living in the same household without our permission; and
  • There may be occasions when we decide that it is necessary for the suitable person to use direct payments to secure such services, however these situations are likely to be exceptional and an exceptions policy is adopted.

Please note that the Fraud Act 2006 created an offence of 'abuse of position'. This applies when someone is expected to safeguard the interests of a person but instead acts against their financial interests. Such a person can be found guilty of a criminal offence.

Your responsibilities as a suitable person

  • You must follow good practice in making decisions on behalf of the person who lacks capacity and act in their best interests;
  • As the suitable person you are accountable for the way the direct payments are used;
  • You should involve the person who lacks capacity as far as reasonably practicable and give them as much control and independence as possible;
  • You agree to inform us of any changes or difficulties, or as soon as you believe the person has regained capacity;
  • If you employ personal assistants, you must ensure you act lawfully as an employer;
  • If you use an agency, please be aware of the guidance about using agencies and keeping safe;
  • If you decide to give up acting as the suitable person, you must contact us as soon as you no longer want to carry on in this role;
  • If the person you represent has fluctuating capacity, during periods when they regain capacity, you must ensure that you involve them as much as practicable in decisions;
  • If you are a corporation or unincorporated body, you must ensure that the money can be shown as separate to any funds you may hold for any other person or body;
  • Whilst we do not want to discourage you from acting on behalf of an individual who lacks capacity, we must ensure that you are aware that anyone who acts as a suitable person may be guilty of fraud if they dishonestly abuse their position, intend to benefit themselves, or others, and cause loss or expose the person to risk or loss; and
  • If you are a corporation or unincorporated body you must undertake disclosure and barring service record checks for any workers you use to provide to the person who lacks capacity.

Keeping safe

  • We need to be satisfied that you will undertake disclosure and barring service records checks for anyone employed to provide services for an individual. The direct payments support service can provide access to a check when you request one;
  • You must speak with the worker from the direct payments support service who will advise when a check must be undertaken for anyone you engage in providing services;
  • If you are a corporation or unincorporated body you must undertake criminal record checks for any workers you use to provide to the person who lacks capacity;
  • We will request you undertake a check if you wish to be an appointed suitable person and you are not a family member, spouse, or a friend involved in the provision of care (please discuss with your social care co-ordinator for criteria). For example, an independent care broker or solicitor not previously known to the person who lacks capacity. You cannot be appointed until this check has been completed; and
  • As the suitable person, you are only responsible for making decisions about direct payments, but there are other ways support can be provided for the person without capacity. Direct payments are just one option. Please discuss the alternatives with your social care co-ordinator.

We do not expect you to keep detailed accounts but there are some records you must keep. We ask that you retain these as we will request them. A worker from the direct payments support service will discuss this with you and explain what you need to retain and when they will need to see your records.

The following information is for your guidance only, which you may wish to check with HM Revenue and Customs who can provide further guidance on employer records. Alternatively, our direct payments support service can advise you on this. The examples shown below have been extracted from information and guidance provided by CIPFA (Chartered Institute of Public Finance and Accountancy).

Record category Examples Suggested retention period
Major financial records Bank statements, cheque books, paying in books, bank account interest details as well as summaries of expenditure. Current year plus six years
Everyday supplies and services

Invoices, receipts for direct payments items, agency fees, personal assistant wage slips, time sheets, domestic help, special supplies, leisure activities, and courses etc. Also receipts for equipment such as a raised toilet seat.

Note that these act as supporting documents for any queries regarding the above records in the major financial records category.

Current year plus one year
Major equipment and non-permanent adaptations Expenditure on major equipment or major non-permanent adaptations paid via the direct payment. Also records of warranties, maintenance agreements etc. Life of the equipment plus one year
Employer records Employer records - advice on this is part of the role of the direct payments support service or you can receive advice from HM Revenue and Customs. Contact HM Revenue and Customs for advice or the direct payments support 

You may be thinking about employing your own personal assistant. It is important to take certain steps to try and make sure that there isn't any threat to you from other people who may harm you.

We believe that it would be better for you to have help and advice from direct payments support service if you decide to employ your own staff. This service is free to you. The direct payments support service will give you all the support you need and signpost you to specialist expert advice at each stage of employing your own staff.

The direct payments support service will help you to carry out a disclosure and barring check on the person you want to employ (if you are a parent seeking to employ a personal assistant you must speak to your social care co-ordinator about these checks). We ask that you seriously think about this when you employ your own staff. We will pay for this on your behalf.

There are a number of important things we would ask you to think about to keep yourself safe when you advertise and meet possible staff to see if they are suitable.

Follow this process to keep yourself safe:

  1. Do not put your home address, telephone number, or details about yourself on the job advert. You could ask the Job Centre to advertise for you - they have their own process which will help you to stay safe or you can perhaps use a mail box number;
  2. Make sure you ask for two written job references from the people you interview and follow them up;
  3. When you interview people do it away from your home address if you can and have someone with you to support you;
  4. You must comply with employment legislation. The direct payments support service will help you to do this; and
  5. When the personal assistant starts working with you it is advised that you arrange for a friend, parent or someone you trust to spend some time with you when s/he first starts work.

If you still choose to recruit staff without support please talk to your direct payments advisor about it so that they can give you information on how to do this safely.

If you choose to use an agency the law says that care agencies must be registered with the Care Quality Commission. Please discuss this with your direct payments advisor who will advise you how to do this. We strongly advise you only use an agency that is registered.

Remember - always ask for help if you think you need it.

The best advice is often from other people's own experience.

When considering setting up a direct payment, ask yourself these questions:

  • Would you like to talk to someone who uses a direct payment?
  • Are you managing a direct payment for someone else?
  • Are you thinking about direct payments but have questions you would like answered?

If the answer is 'yes' then it is important to know that you will not be on your own if you choose to have a direct payment. There are people who have experience of using and managing direct payments and you could talk to them or decide to set up a meeting.

If you would like to set up a meeting with people who use direct payments, the direct payments support service can help you. This could help you to keep up to date with information about direct payments and self-directed support.

For information and advice on setting up a direct payment peer support network please contact the direct payments support service on 0845 034 8410 or email directpayments@northyorks.gov.uk.

Occasionally things will happen or changes occur and you will need to talk to someone about what to do.

Some issues might be:

Your needs are not being met

We have a responsibility to step in and help you. A review or reassessment of your needs may need to take place. We may have to arrange services for a period of time or support you to enable you to carry on using direct payments. If you are assisting with managing direct payments for someone please contact us about the change as soon as possible.

The emergency plans you have in place do not work

You will have discussed a plan about what you will do if your personal assistant goes off sick, takes annual leave or doesn't show up for work. Sometimes the best plans do not always work. We have a responsibility to step in and assist you to meet your identified needs as discussed in your care/support plan.

A problem with the service bought from an agency

If something happens and you are not happy with the service from the agency, you must first contact them and discuss your concerns with them direct, as you are the customer. You can also contact us and discuss your concerns. See the using an agency page for guidance when arranging your support from an agency.

Issues with personal assistants you employ

If you employ a personal assistant you will become their employer. As an employer you must follow employment legislation. The direct payment support service can support you if you have concerns about the person you are employing.

If your personal assistant threatens to take you to an industrial tribunal

It is rare, but if this happens please contact the direct payment support service who can support you with this situation.

You have to go into hospital

Let us know if you have to go into hospital for any reason. If possible inform your personal assistant or arrange for someone else to do that on your behalf so that the personal assistant is kept informed.

You get into any other difficulty

Mistakes can happen when people are using direct payments. Please contact us and speak to the direct payment support service who will support you with your problem.

You have a compliment, comment or complaint about the direct payments service

If you have any compliments, comments or complaints about our services, please let us know. Any member of staff will be pleased to help you, or you can contact our complaints and quality standards team on 0800 515875 or email social.complaints@northyorks.gov.uk.

We have a direct payment support service so that you can access information, support and advice about using direct payments.

The service can advise and assist you with all the things you need to consider when recruiting your own staff. If you choose not to have this support then you must consider the following:

Employment law will apply to you as an employer and you must ensure that your process stays within the law.

You should think about:

  • Writing job descriptions, job specifications, job adverts and preparing job application packs;
  • The personal assistant's conditions of service (rates of pay, hours, breaks etc.);
  • What they will do, how and when;
  • What training is needed;
  • What you will do when your personal assistant takes annual leave, is sick or needs other unplanned time off work; and
  • How to keep safe when advertising, interviewing and recruiting.

We would recommend that you:

  • Do not put your home address, telephone number, or details about yourself on the job advert. You could ask the Job Centre to advertise for you - they have their own process which will help you to stay safe or you can perhaps use a mail box number;
  • Make sure you ask for two written job references from the people you interview and follow them up;
  • When you interview people do it away from your home address if you can and have someone with you to support you;
  • You must comply with employment legislation and we strongly advise you have support to do this; and
  • When the personal assistant starts working with you it is advised that you arrange for a friend parent or someone you trust to spend some time with you when your personal assistant first starts work.

If you still choose to recruit staff without this help please talk to your social care co-ordinator about it so that the direct payment support service can give you information on how to do this safely or you can speak with a safeguarding officer who will give you advice.

If you choose to use an agency the law says that care agencies must be registered with the Care Quality Commission. Please discuss this with a direct payments advisor who will advise you how to do this. We strongly advise that you only use an agency that is registered.

Remember - always ask for help if you think you need it.

You may choose to employ your own personal assistant. If you do, the direct payments support service can give you as much support as you need to help you use direct payments. We specialise in this advice and can provide support and information on all aspects of direct payments and how to be a good employer.

We can also keep you up to date with changes in employment legislation and developments within independent living that may be of benefit to you when choosing to use your own staff. We strongly recommend that you use the support of the service when using your direct payment to employ personal assistants.

Should you choose not to use the direct payments support service you must inform the social care co-ordinator who is supporting you. They will provide you with a factsheet pack to give you some guidance on being a good employer and how to keep safe and use direct payments.

We strongly recommend that if you choose to use a personal assistant to provide your support, that you employ the staff and not use people who offer a service as self-employed personal assistants.

When you choose to employ people you take on significant responsibilities. You must think about all the aspects of employing your own staff to ensure you are a good employer.

Employed personal assistants

If you employ staff this means that you become an employer. If you become an employer you must register with . There are a number of things you must ensure you have in place when employing staff:

  • Payroll;
  • Fair rates of pay - you must adhere to the minimum wage;
  • Writing job description/job specification;
  • Contracts of employment;
  • Employee rights and responsibilities must be adhered to i.e. ensuring correct income tax, national insurance contributions, holiday pay, sickness pay (SSP), maternity pay, paternity pay; and
  • Managing risk.

We can support you with all this and make employing staff easier for you. When you recruit your own staff you may have to apply a selection process that involves advertising and interviewing staff. We can help you to stay safe during this recruitment process. If you choose not to make use of this support, we advise that you follow a number of steps to ensure you keep safe. You must also inform us that you will not be using the direct payments support service.

Some things that you will be responsible for when recruiting personal assistants:

  • Advertising/job description/job specification;
  • Short listing and interviewing your staff;
  • Job references, appointing staff;
  • Criminal records check;
  • Employing people legally; and
  • Employer's liability insurance.

The direct payments support service can provide all or part of this support.

Self-employed

Some people will tell you that they are self-employed; however, it is the responsibility of the person who engages a personal assistant to operate PAYE and to account for National Insurance Contributions (NIC) unless the personal assistant is engaged through an agency.

You can find guidance on employment status on the  website but the quickest way of getting HMRC's view if a personal assistant is employed or self-employed is to use their employment status indicator tool. If you are unable to use the employment status indicator tool and are unsure of the personal assistant's employment status you can telephone the HMRC status customer service team on 0300 052 7450 or you can contact your direct payments advisor.

If the personal assistant is recognised as self-employed by HMRC you will not become the employer. They must provide you with insurance cover and they can choose if and when they work for you. You must decide if this will work for you. You should always ask for references from other people they have worked for.

We can provide you with support to ensure you keep safe when using self-employed personal assistants. However, we strongly recommend that you do not use people who are self-employed to support you as a personal assistant.

As an employer you are required by law to make basic checks with every person you are considering employing to confirm that they can legally work in the United Kingdom.

The law says that you must do some document checks and failure to do this may result in a fine. We can provide you with advice and support to do this.

If you want to manage this yourself instead, the Home Office guide for employers on preventing illegal working in the UK will guide you with what you must do.

You must complete these checks before anyone starts working for you. You can offer them employment once the checks are completed and you are satisfied they can work in the United Kingdom. You must not employ anyone who is not legally able to work in the United Kingdom.

You need to know that using a self-employed personal assistant may not be straightforward. HM Revenue & Customs have advised they would consider almost all personal assistants to be employed rather than self-employed for tax purposes. We can provide you with further advice before proceeding with this option.

If you use a registered domiciliary agency this law does not apply to you. We recommend that you ask the agency if they carry out these employment checks.

Direct payments offer you the opportunity to have support that fits with the way you want to live your life. If you are going to employ your own staff you must do this in keeping with the law.

You should be aware that:

  • By law you must provide your personal assistant with a written contract of employment that defines their terms and conditions of employment;
  • As an employer you must pay PAYE, tax and National Insurance contributions. This is easier to manage when you use a payroll service and we advise that you consider doing this;
  • You must ;
  • You must pay your personal assistant no less than the minimum wage. You will also need to keep up to date with any changes to this rate;
  • There will be occasions when your personal assistant is unable to work because of sickness and they may be eligible for statutory sick pay. You will need to ;
  • You must be aware of working time regulationsOpens new window and your responsibilities as an employer;
  • As an employer you will need to be aware that your personal assistant is entitled to annual leave. It is advisable that you check the current entitlement and make sure you keep up to date with changes; and
  • A number of new employer duties have been introduced that will give personal assistants access to pension provision:
    • From October 2012 under the Provisions of Pensions Act 2008 as an employer you may be subject to the automatic enrolment duty and will be required to automatically enrol your personal assistants into a pension scheme;
    • A key requirement is to automatically enrol certain workers, known as eligible jobholders, into a pension scheme that meets specific conditions to be an 'automatic enrolment scheme'. We can provide you with information on the conditions to be an automatic enrolment scheme. However, automatic enrolment is only one of the duties; and
    • As an employer compliance with the new employer duties and safeguards is compulsory. If you fail to comply with your employer duties, HM Revenue & Customs may take enforcement action and issue a notice and/or a penalty.

We strongly recommend that you seek advice from the direct payment support service or another organisation specialising in employment. We can help you with any of the requirements above for free.

You may want to use a home care (sometimes known as domiciliary care) agency to provide your care. If you choose to use an agency the staff who will work with you will usually be employed by the agency. In this case you will not be the employer and the agency will be responsible for managing the staff and will pay their wages.

You will still maintain choice and control as you will make arrangements directly with them and will be able to say how, when and where your support will be provided.

You will pay the agency invoice when you receive it from your direct payments bank account. Always check that you have discussed all of your arrangements with the agency and have an agreement in writing. Ensure that the agency has given you a breakdown of all their costs in writing. You do not want to have any unexpected costs, such as additional charges for mileage, bank holidays etc. that you have not previously agreed to pay.

Sometimes the agency may charge an hourly rate which is more than the direct payment hourly rate paid to you. It is likely you will have to pay the difference from your own personal funds. We will advise you to discuss any additional costs with your social care co-ordinator when your direct payments are arranged.

Agencies providing personal care are required by law to be registered with the Care Quality Commission. You can ask the agency staff to show you details of its registration. We can also provide support with making these arrangements.

Buying a service from a particular agency

Before you decide to buy a service from a particular agency we recommend that you ask the agency:

  • About their registration with the Care Quality Commission;
  • To see a copy of their insurance policy;
  • If all their staff have had a disclosure and barring service check;
  • How it manages its staff and how often someone will come and check you are happy with its service;
  • If they employ the staff and meet all their tax and national insurance payments;
  • How they would deal with any complaint you may have with the agency's service;
  • How they arrange for staff cover during holiday time or through absence due to sickness and if a member of the agency staff will discuss this with you when cover for regular staff needs to be made;
  • What training they provide for their staff and what qualifications and experience do they have;
  • How you can you tell them if you are not happy with their service;
  • If they carry out a risk assessment for you and the staff;
  • If you will be given copies of the hours the staff work so that you can pay the correct amount; and
  • How much it will cost you to use their service and how to pay the money to them.

Once you have been working with individual members of staff for some time you may think you could employ them direct as a personal assistant and not use the agency.

We strongly recommend that you talk to us before you do this. Some agency agreements allow you to employ their staff directly but may charge you a fee as part of their conditions for providing the service for you. If you want to do this please contact the direct payment support service on 0845 034 9410.

We have only given you a few suggestions of the type of questions you may want to ask. Please think about the information you want and what questions you need to ask the agency to help you to choose the right agency for you.

If the agency tells you they will not be able to continue providing care for you, please contact us as soon as possible.

There are certain insurance considerations you should take into account when employing people using a direct payment. We can provide support and guidance to ensure you have all the insurance cover you will need.

Employed personal assistants

You are legally required as a person who employs staff to have insurance. We can provide support for you to do this.

Accidents can happen in a number of ways, for example the personal assistant may trip, fall or be involved in a car accident. It could be that the personal assistant thinks you as the employer is to blame for this and may hold you responsible.

Sometimes employer's liability insurance and public liability Insurance can be included in a comprehensive household policy but most policies don't. You must check with your own insurance company and not assume that it does for these purposes.

This insurance must be in place before your personal assistant can start work:

Employer liability insurance

If your employee is injured whilst working for you and you are held legally liable you will be protected to cover legal costs and compensation. By law most employers must have employer's liability insurance.

Public liability insurance

This will insure you against any damages or injury caused to someone else by you or your personal assistant while working for you.

We will fund the cost of this insurance as part of your direct payment. We do not recommend who you use to provide your insurance cover but we will provide you information on where to go.

We advise you take out a policy that covers you in the event that your personal assistant takes you to an industrial tribunal or you need to make someone redundant. There are terms and conditions you must adhere to and these will be explained by the insurance company.

Self-employed personal assistants

It is extremely unlikely that HM Revenue & Customs would consider anyone who works as a personal assistant in your home as self-employed, but if you have had this confirmed (see the employing people legally page for details) it is the responsibility of the personal assistant who is self-employed to provide their own insurance cover to offer their services. You must ask to see a copy of the policy before you agree they can provide you with their service. You would not pay for the insurance for someone who is self-employed.

Agency

It is the responsibility of the agency to have the correct insurance cover before offering their services. You must ask to see a copy of this before buying their service with your direct payment.

Using a vehicle

If your personal assistant is providing transport for you in their own vehicle they will need to ensure they take out the appropriate insurance cover. You must advise the personal assistant to contact their insurance company and request business cover and show you a copy.

If the personal assistant is driving your vehicle you must ensure they are added onto your insurance cover.

Information about direct payments for people acting as carers.

What are direct payments?

If you are eligible for social care support from us then you can choose to have direct payments so that you can organise and buy services yourself instead of the council arranging services for you. Carers can receive direct payments instead of receiving carers' services.

Why would I want direct payments?

Direct payments allow you to make more of the decisions that affect your life. You can decide how your support needs are met. You can make arrangements directly so that any staff you employ report directly to you. If you use an agency, the agency deals with you, not the council.

How could I get direct payments?

To get direct payments as a carer you need first to have a carer's needs assessment. You can request an assessment by contacting us or talking to your doctor, health visitor, district nurse or community psychiatric nurse as they could make a referral on your behalf if you would like them to.

If the person you care for is in hospital, speak to a nurse and ask to be put in touch with a hospital social worker. If you are eligible for support because of all you do as a carer your assessor will explain what the options are - this will include how direct payments could work for you.

If you already receive carers' services arranged by us and want to talk about having direct payments instead please contact us on 0845 034 9410. Direct payments are one of many options available to you. We will explain what these are and you can then decide what will work best for you.

Young carers

If you are aged 16 or 17 years old and are undertaking a substantial caring role for an adult, direct payments might be an option for you. You can request a carer's needs assessment by contacting us.

What can direct payments be used for?

Direct payments must be used to meet the needs that have been agreed through your carer's needs assessment so that you are supported in your caring role and helped to keep well and healthy.

Direct payments can be used to buy goods and services or to directly employ someone. There are some things you cannot use direct payments for:

  • To pay yourself as a carer for the care you provide;
  • To employ someone who lives in the same household as you or in the household the person you care for (unless it is agreed this is necessary); or
  • Services of an intimate nature (e.g. bathing) or respite care for the person you care for (if we agree following their assessment that they need such support, they could have their own direct payments or have their services arranged by a social care co-ordinator).

Will I need to pay anything myself?

We do not charge for services for carers. You will not be financially assessed. Direct payments do not affect any benefits you may be receiving. However they will affect the benefits of anybody you choose to employ.

Could the person I care for receive direct payments?

Most people who have social care support at home from us could now receive direct payments:

  • Older people who have been assessed as needing community care services;
  • Disabled people aged 16 and over, including those with short as well as long-term needs;
  • Carers, in place of receiving carers' services;
  • Families with disabled children for children's services;
  • Disabled parents for children's services; and
  • People receiving a direct payment on behalf of someone else who lacks capacity.

Sometimes a person who needs social care support is not able to make the necessary decisions about direct payments. This is described as lacking capacity. It is possible for someone to receive direct payments on their behalf and to use them to meet the person's needs. If you are the carer of someone who would benefit from direct payments and either you or someone you know would be willing to act as the 'suitable person' to receive the direct payments for them, please get in touch with the direct payment support service.

There are only very limited circumstances when direct payments could not be offered and the reasons would be explained.

If you choose to employ your own personal assistants, the person assisting you with drawing up your support plan and/or your direct payment advisor can help you be more specific about what you need to do to become a responsible employer. This will include thinking through any training you/your staff will need to undertake.

You need to make sure any staff you employ are able to carry out the tasks you expect of them and do not put you or themselves at risk of being injured. It is, therefore, particularly important that you and your staff understand the implications of any moving and handling tasks expected of them.

Insurance companies state that they will only pay out if the personal assistant is trained in moving and handling by an appropriate trainer. In the event of a claim it is important you understand the implications.

Employers are required to provide their staff with instruction, information, training and supervision. In particular, health and safety legislation applies to employers of five or more staff who are then legally required to provide training. We strongly recommend that you identify your own training needs so you can provide some formal guidance/training to your personal assistants. We may be able to advise on this and also provide information about suitable, available training.

We also recommend that they/you access the training courses you have identified. This may mean attending some courses together. Some training is also available in the home.

If your personal assistant has not already undertaken training, and depending on the tasks they will be asked to undertake, the sorts of courses you may need to consider could be:

  • Moving and handling - if your personal assistant supports you with any moving and handling tasks, then they will need to have moving and handling training;
  • First aid;
  • Infection control;
  • Food hygiene;
  • Administration of medication; or
  • Health and safety.

You may also want to consider other specialist courses, such as dementia awareness, autism, diabetes, etc.

Some useful information is also available from Skills for Care for the training of personal assistants:

When someone in receipt of a direct payment dies, we need to be informed so that we can stop the arrangements that are in place.

Please contact us on 01609 780780. You will be asked for the name of the executor or the person who will be dealing with the affairs of the deceased (the executor will be named in the deceased's will as the person who will deal with their affairs after their death). We will also ask you if there is a solicitor. If there is a solicitor involved please give their name and contact details, e.g. address and telephone number. We need this information so we know where to send correspondence.

We will contact the care management team who will close the direct payment and payments will cease. They will write to the executor/solicitor to explain and support you regarding the direct payment account and fulfilling all the legal requirements.

The direct payment support service will also be involved during this time to ensure all the employer responsibilities are completed correctly.

The direct payment account

The money has been provided to buy services for someone who needed social care support. It does not form part of the person's estate and cannot be used for any other purpose other than direct payment contractual obligations that need to be met. It cannot be used for such things as funeral expenses.

Any money left in the direct payment account once all the contractual and legally required sums have been paid must be returned to us. We will advise you on how this can be done.

If you are the executor of the will

You will need to find out if there are any contractual obligations or payments that need to be made from the dedicated direct payment account. For example, if the deceased had been employing a personal assistant, this person will need to be paid for the work that they have already completed and any redundancy/annual leave pay that is due to them. The direct payment support service can assist you to do this (the redundancy payment due to each employee under the statutory redundancy payment scheme depends on the individual's age and length of service).

If you are not the executor of the will

It is very important that you explain the direct payments scheme to the executor. They may not know how direct payments work. They need to be made aware that the bank account is a dedicated direct payment account and that the remaining money in it, after all contractual and legally required sums have been paid out, needs to be returned to the council.

If there is no will

The individual is said to have died 'intestate'. Usually a close relative like a spouse, child or parent will be able to apply for the legal right to sort out the estate of the person who has died. In order to be able to administer someone's estate you (or the friend or relative) will need to apply to the Probate Registry for a 'Grant of letters of administration'. See GOV.UK - wills, probate and inheritance for more guidance.

Access to the direct payment account

It is advisable that you obtain a solicitor to help you through the process. On receipt of the grant, you or the individual will become the 'administrator' of the estate. The grant provides proof to banks, building societies and other organisations that you have authority to access and distribute funds that were held in the deceased's name. You will then be able to access the direct payment bank account and will be able to make any payments that need to be made. Once all payments have been made, you will need to return the remaining money to the council.

How can we meet the contractual responsibilities if we cannot access the money?

In the case where the account has been frozen or there is no access to the account, then we will, in certain circumstances, pay out some outstanding payments e.g. salaries on the individual's behalf. This money will then be recovered once the account has been reactivated and closed. To enable you to fulfil all your legal requirements please contact the direct payment support service for more information.

The Care Act 2014 focuses on people having control, therefore employing personal assistants can be very empowering for many disabled and older people. To optimise a person's control over their delivery of care and support, we offer direct payments to enable a person to become employers or to contract directly with a provider.

Unless we are satisfied that it is necessary to meet a person's or child's needs, people are advised not use direct payments to secure services from self-employed personal assistants.

We will retain the discretion to make an exception which must be approved in writing.

Where a person wishes to pursue to pay a self-employed personal assistant from the direct payment, an exception application must be completed.

What is a self-employed personal assistant?

The UK Government website clearly states where a person uses personal assistants, the user is an employer if they pay a personal assistant directly, even if you get money from your local council (direct payments) or the NHS (personal health budget) to pay for them. Your personal assistant is usually treated as an employee because in law there are certain conditions that must be met for someone to be viewed as self-employed.

You cannot just choose a self-employed personal assistant if you want to avoid your responsibilities as an employer in paying tax and insurance or because the role of employer seems daunting. HM Revenue & Customs decide upon the status of employment / self-employment based on various factors.

If your personal assistant is an employee, you have more control as you decide the working hours. You are also responsible to give the personal assistant pay slips, paid holiday, a contract of employment and sick pay. See the GOV.UK - employing someone to work in your home page for detailed advice on employment status for people you employ to work in your home.

What are the risks of paying a self-employed personal assistant?

Whether someone is employed or self-employed is referred to as their status. You are responsible for ensuring your personal assistant's status is correct. It is important that you check their status for tax, employment law and pension auto-enrolment purposes.

Remember, a personal assistant may be treated as self-employed by HM Revenue & Customs for tax purposes but still be considered an employee in employment law, or for auto-enrolment into a workplace pension.

The final decision on a personal assistant's status is not a matter of individual choice. It will be decided according to case law by either HM Revenue & Customs or an employment tribunal. If you get your personal assistant's employment status wrong there could be serious consequences:

  • If HM Revenue & Customs decide your personal assistant should have been treated as an employee, you may be liable for any tax, National Insurance contributions and possibly penalties due;
  • If an employment tribunal decides your personal assistant should have been treated as an employee, you may have to pay the personal assistant for unfair dismissal, which could be many thousands of pounds; and / or
  • If the Pensions Regulator decides your personal assistant should have come within the scope of auto-enrolment, they may also levy penalties on you as the employer.

It is important to remember that we will not pay these liabilities for you.

How can I check my personal assistant's status?

If your personal assistant claims to be self-employed, or you decide to treat your personal assistant as self-employed, there are some steps you can take to check that this is acceptable:

  • There is more information about working out a personal assistant's status on the GOV.UK - employment status page;
  • See the HM Revenue & Customs employment status indicator tool 
    This can be completed anonymously and will produce a 14 digit employment status indicator reference number on the outcome screen and the result can be downloaded or printed out;
  • You can telephone HM Revenue & Customs to talk to someone about your personal assistant's status on 0300 123 2326. See the GOV.UK employment status page for opening hours and other contact details;
  • You can telephone the Pensions Regulator helpline on 0345 600 1011;
  • You can telephone the ACAS helpline on 0300 123 1100; or
  • You can telephone the employment law helpline provided by your insurance company.

Remember, it is your responsibility to ensure you get your personal assistant's status right or there could be serious consequences.

There are some common things you need to know about direct payments.

  • Direct payments are not a benefit - the money comes from North Yorkshire County Council to meet your assessed social care needs and is an alternative to services which are organised for you.
     
  • Having direct payments will not affect your benefits or be counted as income.
     
  • Sometimes you may be able to employ someone who lives with you (this could be a family member) but you must talk to us about this first. There could be implications for any household benefits. Talk to your social care co-ordinator first.
     
  • You can take as long as you want to decide if you want to use direct payments. While you decide we will arrange interim services to meet your needs.
     
  • You can add your own money to top up a direct payment to make it even more flexible.
     
  • It may sound like a lot of work but don't worry, there is a lot of support to help you manage the scheme and succeed. The most important thing is you are in control but this doesn't mean doing everything on your own.
     
  • You can mix your care arrangements. For instance you could ask us to arrange some of your support and use a direct payment to arrange some of the support yourself - a mix and match of services that you choose.
     
  • You do not have to calculate tax and National Insurance if you employ someone - the direct payment support service will signpost you to a payroll service.
     
  • There are no difficult forms for you to fill in - on most occasions we only need a copy of your bank statements to check your fund is working properly.
     
  • If you are considering direct payments for someone who lacks capacity to consent to the direct payment please discuss with your social care co-ordinator.
     
  • If direct payments do not work for you we can arrange services for you instead.
     
  • Most people who use direct payments say they would not choose to have services arranged for them again. The most important thing is to be in control of your own life. Direct payments mean that you have freedom, choice, control and flexibility in your life to have the help you need by making your own arrangements.

Direct payments - frequently asked questions

The money you receive through direct payments enables you to arrange and be in control of the services you choose to meet your needs. There are a wide range of options available for using the money but there are also certain limitations.

The available options and limitations are explained below. You must also only spend your direct payments on things that your assessment shows that you need and that are reflected in your support plan.

You could use the money received through direct payments to:

  • Employ your own staff to provide personal care;
  • Set up a contract with an agency to provide staff and services for you;
  • Arrange your own transport to access services in the community;
  • Arrange activities to meet your social, leisure or occupational needs;
  • Purchase minor adaptations to your home and certain items of equipment to aid daily living;
  • Arrange for relief from the stress and demands of caring by arranging your own respite care to offer you or your carer a break;
  • Purchase a holiday or short break, provided this has been agreed with your assessor and is considered an appropriate way to meet your assessed needs; or
  • Get a practical service which will help you to stay living at home.

You can use the money to receive any combination of these options and any other services that are available. In this way you can create your own service that fits your choices and needs.
    
You cannot use the money received through direct payments to:

  • Buy services provided by the local authority, i.e. North Yorkshire County Council (but you can ask us to buy them on your behalf);
  • Buy permanent residential or nursing care;
  • Employ a spouse, partner or other close relative, if that person lives with you in the same household (exceptions can be made to this but only in exceptional circumstances as authorised by us);
  • Pay for a personal assistant's expenses such as food and drink or entry fees, except under specific, agreed circumstances (many places allow support workers and personal assistants a reduced entry fee or free entry and all these options must be explored prior to any agreement being sought for payment of entry fees);
  • Buy health-related services or equipment that should be provided by the NHS;
  • Pay household bills or buy clothes, food etc.; or
  • Buy anything that does not meet your agreed needs.

Once your support plan has been agreed the direct payments can only be used in the way indicated in this plan. If you want to change how your direct payments are used then a new plan will have to be agreed with your social care assessor.

Reviewing direct payments

We recognise that each case will be different and that costs for services will differ but agreements for direct payments must be subject to regular review. This is so that we can fulfil our duty to ensure that the services we arrange achieve the best value.

Help with managing direct payments

If you receive direct payments you will be personally responsible for how the money is used, but you can get help with how you manage it. We run a direct payments support service to provide help and support for people receiving direct payments.

Note that direct payments are not seen as income and have no effect upon tax or benefits.

No, you are financially assessed to determine how much you can afford to pay towards the cost of your support needs. The service user contribution must be used first to pay for your support prior to the direct payment being used.

If you decide to use less support, your care needs will be reassessed to determine the correct level of support and you will be financially reassessed to determine the service user contribution for your new package.

You should collect receipts for services bought using direct payments under certain circumstances. However, for some situations, this is not strictly necessary.

If the direct payment is under £400, for example, for a one-off direct carers grant, then it is not necessary for assessment staff to routinely collect receipts. Please note however, that upon the next visit, your social care worker may ask to either see the item purchased or have sight of the receipt.

If the direct payment is to purchase a regular service, for example, regular entrance to a club or venue as part of your assessed needs, then receipts are required as part of the monitoring process of the direct payment.

If you are unsure about collecting a receipt then it is always best to do so as this will prevent potential problems in the future. Your social care worker will be able to advise you about what to do in specific situations.

Note that direct payments are not seen as income and have no effect upon tax or benefits.

We offer comprehensive support for people receiving direct payments through our direct payments support service.

The direct payments legislation requires that people who are interested in receiving direct payments should have access to independent, good quality information, advice and support when considering or receiving direct payments.

We offer information; advice and support for:

  • Employing staff, including advertising, recruiting, contracts of employment, wages, tax and National Insurance (NI);
  • Contracting with other agencies, including using agencies approved by health and adult services, specifying the services you want and your rights as a contractor; and
  • Completing returns for the local authority.

Note that direct payments are not seen as income and have no effect upon tax or benefits. 

Contacting the direct payments support service

You can contact the direct payments support service at any time within office hours. Email them at directpayments@northyorks.gov.uk or telephone 01609 533621. They will work closely with your care co-ordinator to give you as much help as possible. Your discussions with the support service are completely confidential.

Charges you may have to pay for social care services

You will have to pay for some social care services you receive in the community or in social care housing, but others may be free or at a reduced level, depending on your financial circumstances.

The amount you have to pay is determined through a financial assessment. Information and advice is available to help you plan for the cost of your social care.


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