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PHB Funding. Has anyone been through this process and managed to keep their self employed PA team?

knewstead

Hi, I’m Katie.

I have been accepted for full PHB funding, has anyone been through this process and managed to keep their self employed PA team?

Have there been any changes to your home/lifestyle/package that impacted you in a negative way?

I’m having trouble finding out definitive answers from any professionals and I’m being told by PHB that I cannot keep a self employed team 😩

Send help 😂

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Tori_Scope

Welcome to the community @knewstead

This isn't something I have personal experience of, I'm afraid. I found the following information on the FAQs on the NHS England website, but I'm not sure that it answers your question entirely:

What can a personal health budget be spent on?

A personal health budget can potentially be spent on a broader range of care and support than would routinely be commissioned by the NHS, if it is agreed as being appropriate to meet someone’s identified needs. This could include funding for a personal assistant to help with personal care at home, and equipment such as a wheelchair. There are a small number of exclusions that are outlined in regulation and further outlined below.

Everyone who has a personal health budget should be supported by a suitable professional to think through how they would like to use their budget in order to meet their health and wellbeing needs. It is the responsibility of local NHS teams to advise people or refer someone to a relevant local organisation who can offer the necessary support. This is often described as brokerage.

What a personal health budget will be spent on, as outlined in their personalised care and support plan, must be agreed between the person or their representative, the local NHS team and where necessary the ICS.

I hope that another member with experience of this will find and respond to your post soon.

forgoodnesssake

Our CCG (or whatever it is now!) have in their Terms and conditions that you can't use self employed workers, but then a few paragraphs down they say that if you do then they should be properly registered as self employed and paying tax. ( There was quite a lot actually in our terms that I refused to sign as they were unlawful...but no-one ever got back to me so we've never signed anything!)

I don't think they can legally insist on no self employed workers, but they can certainly try, though I am not sure why or what their reasoning is. And I have seen discussion of this very thing recently on another site that is PHB related, so it does seem to be an issue that crops up quite a lot.

Our CCG have no idea who we employ as i do all the personnel etc myself on behalf of my son!

Cher_Alumni

@knewstead Hello there and welcome to our online community. It sounds like you're in a perplexing situation!

I've done a little research and found this 'Understanding the employment status of PA's guide (see page 22 in-particular) from the Skills for Care organisation. Bearing in mind it was published in 2017, so things may have changed, it offers lots of information on the issue of self-employed PA's and perhaps frustratingly for you(!), reinforces to liaise with your local authority and/or Clinical Commissioning Group for clarity:

If you want to pay for the PAs services via a social care direct payment or personal health budget, then there may be things to consider before engaging a self-employed PA.

■ You need to find out whether or not social care or health funding can be used to pay for a self employed PA. This is because under direct payment legislation and guidance, funding authorities (in health and social care) must ensure that a direct payment is being used in a lawful and appropriate way and may take the view that PAs should not be self-employed.

■ Local Authorities and Clinical Commissioning Groups should provide advice and guidance and conduct their own checks to validate employment status. For example they might ask to see the results of an employment status check for tax, ask for evidence of registration with HMRC and check national insurance numbers.

■ If an employment status is determined as wrong (by HMRC), individuals and their employers may have to pay unpaid tax and penalties, or lose entitlement to benefits.

Do you have a social worker or anyone you can speak with again, to stress that you want to get your PA team's employment status sorted?

I hope you get some answers soon, please keep us updated.

knewstead

Hi. No I don’t have a Social Worker 🫤 Now that I’ve been assessed as eligible for NHS funding, it’s unlawful for the Local Authority to pay for my care.

I’m really worried that PHB won’t allow my PAs to retain their self-employed status, and that I’ll lose my whole team.

knewstead

@forgoodnesssake hi! That’s quite helpful. So you’ve kept your self-employed staff, & just refused to sign stuff? Or just withheld stuff?

forgoodnesssake

It's really important for people to understand that, crazily, once you are assessed as fully funded CHC, you lose all access to a social worker and the support they can provide. It's ridiculous. You are still eligible for things like household adaptations (hand rails etc) via the local authority, but everything else is meant to be provided by health...

At the moment we do not have any self employed PAs...but we have had in the past and may well do in the future. I did not actually refuse or withold signing anything from the CCG re the PHB conditions but I queried 2 or 3 things that were completely against the guidance (not about self employment) and as no-one has never responded I have never signed! Also ours did say that if you employed someone who was self employed you needed to make sure they were doing it legitimately; so it does allow it...but no-one has checked anything at all in years ...! I do have all the necessary paperwork, HMRC stuff etc for when someone eventually decides they want to see it...

knewstead

@forgoodnesssake ok! So is there a response I can give, then, to hold CCG at bay? I.e that all my PAs are self-employed?

forgoodnesssake

First of all ask to see in writing their policy on not allowing self employed PAs (you may already have done this) and then if there are no exceptions, ask them exactly what their reasoning is and to provide it in writing.

Our (unsigned, from Sept '21...but had PHB for much longer) "contract" says this:

"I understand that I can only use self-employed PA’s if they are not providing personal care or hands on care. NHS MBCCG would not normally allow the use of self-employed PA’s to support any individual through a PHB. The only exceptional circumstance where NHS MBCCG will allow the use of self-employed PA’s is to maintain an existing Social Care Direct Payment, or where an individual has been Fast-tracked, and for a maximum of three months. If the package continues beyond three months, NHS MBCCG will support you to transition your self-employed PA’s to become employees.

If I choose to purchase services from a self-employed care worker then I understand that I must confirm that they are registered for business and tax purposes with HMRC, and that they have the necessary insurances required to operate as a bona fide business"

So in the first paragraph they say you can't and then go on to say what you need to do if you do! The whole document is riddled with stuff like that.

It may be that the health authority think they can pay less if you directly employ rather than self employed; but that's a bit of a miss think cos they need to give you enough for NI, pension, sick, holidays etc and none of these apply if someone is self employed (though of course you do have some legal responsibilities re health and safety, but you are not technically an employer and the PA is not your employee, they are a contractor)

There is of course another issue to be careful about and that is to be sure that all the PAs are actually legally "self employed" and this means basically that they, rather than you, tell you when they can work and in most cases would be expected to work for more than one person. if they only work for you on a set shift pattern then it is highly likely that HMRC would view them as actually employees and not self employed (IR 35 https://www.gov.uk/guidance/understanding-off-payroll-working-ir35)

However this does not actually directly affect the NHS/CCG, though they may be worried that they might be held responsible in some way if the employment situation is not legally correct. But in my experience they have never checked and even then the people checking have little or no knowledge of the ins and outs of employment law!

forgoodnesssake

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Cher_Alumni

@forgoodnesssake Whoops, apologies about that! It got picked up by our spam filter gremlins which I've kicked into touch. Your helpful post is now above