Self-Employed vs. Directly Employed Assistants
Being employed or self-employed is not just a choice to be made an employer or a PA; there are legal criteria that must be met. In most circumstances it is likely that an assistant will need to be employed rather than self-employed. The person engaging the assistant could still be legally liable as their employer if they have not checked together that someone declaring themselves self-employed is legally entitled to that status. Both the assistant and the person engaging them should check the assistant’s employment status using the HMRC’s on-line checking tool and phone advice line. This will establish whether the assistant’s working arrangements make them eligible for employed or self-employed work.
If the employer and the assistant establish together through HMRC that someone can legitimately provide support on a self-employed basis, the Skills for Care toolkits will still be of value, but the employment sections will not apply. Go to www.gov.uk/topic/business-tax/self-employed for guidance. If the employer and assistant take joint advice from HMRC and establish that self-employment is appropriate, the employer should ensure that the assistant shows them proof of their own liability insurance – public liability cover is a minimum; the employer should keep a copy of this their records.
Employers should ensure that there is something in writing that states the nature of the service being supplied by the assistant, including the fact that the assistant will be responsible for invoicing the employer for their support costs (i.e. their wages and their own tax and national insurance). They should also have a Unique Taxpayers reference for tax self-assessment. We advise that the assistant shows the employer evidence of this.
Anyone acting as an assistant who employs another person to help them will need to register with the Care Quality Commission.
If an assistant is to be directly employed, then all aspects of the Skills for Care toolkits will apply, including the employment sections.
We recommend that a contract is signed by both the employer and assistant, which outlines all aspects of Pay & Conditions. A template contract can be found int he Skills for Care 'Employing Personal Assistants Toolkit'.