Integrated Care Boards (ICBs), as supporting organisations for those in receipt of a Personal Health Budget (PHB), will usually be involved in discussions with service users in order to identify the care, support and services their PHB will be spent on.

PHBs can be used to meet a variety of needs, including for ongoing care and support and/or health and wellbeing needs at home, they can even be used to directly employ a personal assistant (PA) or carer to look after someone at home. Consequently, in most cases, the service user or “PHB recipient” is effectively an individual employer.

Individual Employers

It is important to emphasise that in most cases the ICB doesn’t employ the PA. In fact, the PA will usually be employed by an agency or directly employed by the PHB recipient. However, this is where the situation can become problematic as when difficulties arise, it can fall on the ICB to help resolve the issues.

Following a report published by Skills for Care in March 2022, it was estimated that around 25,000 people in receipt of PHBs in the UK were individual employers and that they were employing around 75,000 PAs. These figures have continued to increase. At the same time, individual employers in receipt of a PHB had on average, 3.21 PAs each and the average turnover rate of PAs employed by people in receipt of PHBs was 23.1%. This means that increasing numbers of PHB recipients are individually employing carers directly to work for them which also increases the chance of something going wrong. For example: Does an individual employer know how many days’ annual leave to give their PA/carer? Would they know what to do if their PA/carer was unhappy at work and raised a grievance?

A number of our ICB clients have come to us for advice on more complex matters such as in relation to TUPE transfers. In such cases, there is a risk that liability could revert to the ICB, so advice needs to be obtained at an early stage. In addition, many of our ICB clients seek advice in situations whereby a PHB recipient directly employs a PA and is unaware of their legal obligations. This in turn leads to various problems between the employee (PA) and the employer (individual). In the worst case scenario, a PA may wish to bring an Employment Tribunal claim against their employer (in some cases erroneously implicating the ICB) and it can become convoluted very quickly.

How can Capsticks help?

We acknowledge that PAs and carers employed by individual employers (in receipt of PHBs, direct payments from their local authority and/or self-funding) have different roles and ways of working.

Capsticks can provide expert advice and assistance to ICBs supporting service users with the employment issues that can arise when individuals employ PAs or carers directly.

1. We can help ICBs to support individual employers to understand their legal responsibilities including dealing with grievances/disciplinaries; complaints of discrimination; sickness absence and recruitment and termination.
2. We can also provide advice directly to ICBs in relation to any direct liability that may arise. For example in TUPE transfers where it may be alleged that a carer/PA should transfer to the ICB. In addition, we can advise ICBs in respect of defending any employment claims brought against the organisation by a PA/carer directly employed by a service user. We find that in most cases, the ICB will not be liable for such claims, but this does not stop service users from advancing claims against ICBs which can be costly and time consuming.

In our experience, if service users receive the correct advice/guidance at an early stage and have adequate processes in place to work with their employees, it can avoid problems/legal claims materialising later on.

We can also provide bespoke legal solutions and training on any of the above areas. For example, we can provide a tailor made Employment Guide for individual employers on their rights and obligations under employment legislation.

If you would like access to advice, training or if you need further guidance on any of the issues raised above (either generally or in relation to a specific case) please contact Marsha Thompson or Sian Bond.