Live-in care - help and advice

[jugglingmum]

@sinkhole thanks for that. I didn't think seperate bathroom facilities were necessary. The bungalow is an odd layout, and there is a single toilet and then a toilet with a bath/shower in. MIL has never used the bath due to mobility issues and the shower I believe doesn't work, but would be easier to fix than install one.

OH thinks she is a long way off needing live in and favours thinking about getting care in initially but SIL wants to be prepared and get the toilet/bathroom facilities put in, and I suspect thinks it will add to value of property(it won't we both think). Given we are 3 hours away and OH has no inclination to supervise any works, and I think SIL thinks MIL is still capable of commissioning and supervising this ie trying to get ahead of things it is unlikely to happen so good to know not a barrier. SIL doesn't live in UK and is not that familiar with UK system.

I said to OH that TV and broadband would be needed and he wan't very convinced, hence my question. Where we live we have cable, MIL is in a very rural area so I don't know what broadband is available. Nearest reasonable supermarket is 40 odd minutes away.

MIL is still driving etc at the moment, and I suspect she shouldn't be so I think this is why SIL wants a live in carer, however we think just getting someone to take MIL shopping for now is what's needed (she will be self funding for a long time).

 

[sinkhole]

@sinkhole thanks for that. I didn't think seperate bathroom facilities were necessary. The bungalow is an odd layout, and there is a single toilet and then a toilet with a bath/shower in. MIL has never used the bath due to mobility issues and the shower I believe doesn't work, but would be easier to fix than install one.

OH thinks she is a long way off needing live in and favours thinking about getting care in initially but SIL wants to be prepared and get the toilet/bathroom facilities put in, and I suspect thinks it will add to value of property(it won't we both think). Given we are 3 hours away and OH has no inclination to supervise any works, and I think SIL thinks MIL is still capable of commissioning and supervising this ie trying to get ahead of things it is unlikely to happen so good to know not a barrier. SIL doesn't live in UK and is not that familiar with UK system.

I said to OH that TV and broadband would be needed and he wan't very convinced, hence my question. Where we live we have cable, MIL is in a very rural area so I don't know what broadband is available. Nearest reasonable supermarket is 40 odd minutes away.

MIL is still driving etc at the moment, and I suspect she shouldn't be so I think this is why SIL wants a live in carer, however we think just getting someone to take MIL shopping for now is what's needed (she will be self funding for a long time).

It would seem sensible to start off with carers coming in and build it up from there. It took years for my mum to accept she needed help and all she would agree to initially was cleaner coming in for 2 hours every fortnight! After a few falls she seemed to lose a lot of confidence and after that she was actually asking me to get more care in, which was a complete turn around, but it can change so quickly, so being prepared is key.

You can look up the broadband services available at her house by putting her postcode in here: https://www.bt.com/broadband/availability/

That isn't to say BT is the best choice though. Once you check on that site you can get broadband connection at a good enough speed to make it worthwhile, look around for the best deal.

If it's going to be difficult to get decent broadband from the phone line, there are other options such as using broadband from one of the mobile operators. You can buy a MiFi router which is essentially the same as a broadband router you put on a telephone line, but it works with a mobile data SIM. It doesn't necessarily end up a lot more expensive to go that route, but you may need to monitor usage and put some restrictions in place if a carer is going to be let loose on it.

I'd say the requirement to have good broadband and TV is going to be greater if anything as the location sounds quite isolated.

 

[MTM]

If the day care team choose who comes when I think you gain some comfort, certainly the substitution rule is satisfied, but the tests are based on direction by the employer as to what is done. For live in care I would be more cautious as whilst they rotate, one team is there for a whole week. At the moment I haven't read anything about HMRC cracking down in this area for the care industry, and based on previous practice there is a good chance they would give an opportunity to disclose first(ie an amnesty) which reduces the penalty level, they had a disclosure period for the building trade (the majority of subcontractors have become employees, and this is creating one week employments for some).

Thanks for that, I guess I will have to watch out when I employ people to do odd jobs, going forward my parents house is old and stuff is continuously breaking, but otherwise it looks as if we should be able to navigate our way through some of it!

;-) Many thanks.

 

[jugglingmum]

Thanks for that, I guess I will have to watch out when I employ people to do odd jobs, going forward my parents house is old and stuff is continuously breaking, but otherwise it looks as if we should be able to navigate our way through some of it!

;-) Many thanks.

One off jobs are fine, but coming every Tuesday for 2 hours at 2pm is where the grey area starts

 

[Katrine]

I didn’t intend to write a long post, but it’s a complicated situation. I write from the experience of employing live-in carers (about 70 different individuals in total over 10 years) ceasing 16 months ago when my mum died. I appreciate that the law may be changing, but I stand by my description of how our agency live-in carers worked for multiple clients and justified their self-employed status. I accept that not all carers are truly self-employed, but ours were.

I know that some of our carers had to argue their case with HMRC, with the assistance of their accountants’ records, to prove that being employed rather than self-employed was not appropriate or practical for them. A carer can have 20-40 separate bookings in a year. Currently, it is perfectly lawful for someone to actively choose to be self-employed provided that they comply with the tax requirements for this. HMRC should not go unchallenged in waging war on genuine self-employment. They aren't worried about the poverty and suffering in the gig economy. They just want to crack down on tax dodging.​

The agency we used acted as an introductions agency, matching the client needs to the carer skills, experience and temperament. Although the rates of pay and other terms and conditions were set by the agency, the booking engagement was always entered into voluntarily by client and carer. Both parties had the right to refuse or to terminate the booking early if things were going badly. As the client’s representative, I paid each self-employed carer gross for the days they had worked and it was then their responsibility to deal with NI and tax.

After a few years I hit a stumbling block when HMRC put pressure on the local authority (who were providing my mum with some Direct Payments funding). They had thoroughly frightened the Direct Payments Team at the LA by coming in all guns blazing to a training seminar. I don’t deny that for many carers and clients the relationship was indeed one of quasi-employment. HMRC was right to recommend that those in receipt of Direct Payments funding should be assisted by the LA to become employers where appropriate. However, HMRC’s training team had told the LA that ALL carers were employees and could NEVER be self-employed.

This is an OPINION not a fact in law, and it can be challenged! Otherwise, there would never be anyone who could be self-employed if they offer a personal service to clients. What about the podiatrist, or the hairdresser? There must be circumstances where HMRC will accept that a person has a portfolio of clients, whether regular or not, and IS self-employed. As with other self-employed people, our carers were responsible for their own professional development, undertaking regular training courses via the agency or elsewhere, which they paid for themselves. The client benefited from the training but was not involved in organising it or deciding what was needed.

I was eventually able to argue successfully that I was not the employer, with the assistance of a letter from the agency. They confirmed that the contracts of both clients and carers with the agency expressly forbade the employment of carers by the clients to whom they had been introduced by the agency. Any breach of these terms incurs a hefty penalty fee from the agency.

Then the LA said, in further effort to cover their backsides with HMRC, that although they were satisfied that my mum’s carers were self-employed in our case, I was now being required to scrutinise the tax records of all the carers in advance to prove that they had been paying their taxes! I argued that the proposed requirement would be highly inappropriate because I would have had to ask for sight of ALL their confidential earnings information including details of their other clients, who were by definition vulnerable adults. The proposed requirement was also impossible to achieve on practical grounds. Here are some of the reasons for this:-

• Carers keep their personal papers at their home address, or with their accountant. They don’t carry them around in their suitcase from client to client.
• Even if I had managed to get sight of this information from regular carers, our bookings frequently changed at short notice due to substitution of a booked person for someone else.
• Some carers lived in EU countries not in the UK so flew in and out for their bookings, and some worked for several months of their year in the UK but were permanently resident in South Africa. These carers are entitled to opt to pay tax in their country of residence, not in the UK.

It’s not a straightforward one size fits all situation, whatever HMRC would have liked to insist. My compromise with the LA was that I would only engage carers who provided me in advance with their UTR and written confirmation of being registered with HMRC as self-employed for tax purposes. Without this compromise my mum would have lost £14K per annum in funding. I could not absolutely prove that the carers were paying the right amount of tax, but by supplying the LA with the UTRs they would be able to show HMRC that they had done as much due diligence as was possible in the circumstances.

 

[MTM]

I didn’t intend to write a long post, but it’s a complicated situation. I write from the experience of employing live-in carers (about 70 different individuals in total over 10 years) ceasing 16 months ago when my mum died. I appreciate that the law may be changing, but I stand by my description of how our agency live-in carers worked for multiple clients and justified their self-employed status. I accept that not all carers are truly self-employed, but ours were.

I know that some of our carers had to argue their case with HMRC, with the assistance of their accountants’ records, to prove that being employed rather than self-employed was not appropriate or practical for them. A carer can have 20-40 separate bookings in a year. Currently, it is perfectly lawful for someone to actively choose to be self-employed provided that they comply with the tax requirements for this. HMRC should go unchallenged in waging war on genuine self-employment. They aren't worried about the poverty and suffering in the gig economy. They just want to crack down on tax dodging.​

The agency we used acted as an introductions agency, matching the client needs to the carer skills, experience and temperament. Although the rates of pay and other terms and conditions were set by the agency, the booking engagement was always entered into voluntarily by client and carer. Both parties had the right to refuse or to terminate the booking early if things were going badly. As the client’s representative, I paid each self-employed carer gross for the days they had worked and it was then their responsibility to deal with NI and tax.

After a few years I hit a stumbling block when HMRC put pressure on the local authority (who were providing my mum with some Direct Payments funding). They had thoroughly frightened the Direct Payments Team at the LA by coming in all guns blazing to a training seminar. I don’t deny that for many carers and clients the relationship was indeed one of quasi-employment. HMRC was right to recommend that those in receipt of Direct Payments funding should be assisted by the LA to become employers where appropriate. However, HMRC’s training team had told the LA that ALL carers were employees and could NEVER be self-employed.

This is an OPINION not a fact in law, and it can be challenged! Otherwise, there would never be anyone who could be self-employed if they offer a personal service to clients. What about the podiatrist, or the hairdresser? There must be circumstances where HMRC will accept that a person has a portfolio of clients, whether regular or not, and IS self-employed. As with other self-employed people, our carers were responsible for their own professional development, undertaking regular training courses via the agency or elsewhere, which they paid for themselves. The client benefited from the training but was not involved in organising it or deciding what was needed.

I was eventually able to argue successfully that I was not the employer, with the assistance of a letter from the agency. They confirmed that the contracts of both clients and carers with the agency expressly forbade the employment of carers by the clients to whom they had been introduced by the agency. Any breach of these terms incurs a hefty penalty fee from the agency.

Then the LA said, in further effort to cover their backsides with HMRC, that although they were satisfied that my mum’s carers were self-employed in our case, I was now being required to scrutinise the tax records of all the carers in advance to prove that they had been paying their taxes! I argued that the proposed requirement would be highly inappropriate because I would have had to ask for sight of ALL their confidential earnings information including details of their other clients, who were by definition vulnerable adults. The proposed requirement was also impossible to achieve on practical grounds. Here are some of the reasons for this:-

• Carers keep their personal papers at their home address, or with their accountant. They don’t carry them around in their suitcase from client to client.
• Even if I had managed to get sight of this information from regular carers, our bookings frequently changed at short notice due to substitution of a booked person for someone else.
• Some carers lived in EU countries not in the UK so flew in and out for their bookings, and some worked for several months of their year in the UK but were permanently resident in South Africa. These carers are entitled to opt to pay tax in their country of residence, not in the UK.

It’s not a straightforward one size fits all situation, whatever HMRC would have liked to insist. My compromise with the LA was that I would only engage carers who provided me in advance with their UTR and written confirmation of being registered with HMRC as self-employed for tax purposes. Without this compromise my mum would have lost £14K per annum in funding. I could not absolutely prove that the carers were paying the right amount of tax, but by supplying the LA with the UTRs they would be able to show HMRC that they had done as much due diligence as was possible in the circumstances.

This is also extremely helpful as my dad's savings are now below 23k and will, presumably, be faced with the same question. I'm new here but I can only really go on what my lawyer and tax advisors tell me so I have collected the information given in all the responses on here and will put it to them along with the words, 'help'.

As I understand it, I can't ask for tax records or accounts from my carers because ... GDPR. I have their UTR numbers and that's it.

Sheesh! It's complicated.

Cheers

MTM

 

[jugglingmum]

I note all your comments, and there is validity in some of in them.

I don't doubt for a second that chiropodist or hairdresser who visits a person at home is self employed and there is nothing in tax law to even suggest someone with this pattern of work is self employed.

I also agree with you that the gig economy rules are completely separate from HMRC but both apply, and based on the multitude of employment tribunal cases being brought they are something that needs to be considered.

I don't think there is a 'choice' as to whether to be self employed but a matter of fact. The fact now turns on how the person works for the employer, what other work they do is irrelevant.

Completely different industry, but I came across someone with a 'self employed bookkeeper' who works for them every Monday 9 til 1, and has done for years. This person would clearly meets the definition of employed, and HMRC would come down on them heavily if they ever picked it up as an example of what is employment.

Just because the agency insists on this position in their contract doesn't make it correct. It looks like an anti poaching clause rather than a tax clause.

Post GAAR (general anti avoidance rules) and TAAR (targeted anti avoidance rules) legislation brought in around 2013 the whole landscape changed. If the agency is insisting on self employment (this is the sort of thing my reference to umbrella organisations encompasses) then there is a chance the position if incorrect would fall foul of TAAR with the significant deliberately deterrent penalties that this legislation carries.

Any agreements made with HMRC as to how things are treated prior to 2013 aren't worth much.

HMRC has also been significantly reorganised and local agreements with local inspectors aren't made anymore. Employment issues are dealt with centrally by inspectors who specialise in this area, and in my experience they are very hard nosed and have no sympathy for the individuals circumstances. They certainly wouldn't accept increased admin as a reason for someone being self employed, although at first tier tribunal I would expect them to be sympathetic to this argument. I don't think many carers would want to go to first tier tribunal over these issues. A lot of the positions HMRC accepted were local inspectors with lenient interpretations, hence some of the centralisation of HMRC.

The facts of the case will vary for each carer. Fixed regular hours on regular days have a strong indication of employment for carers coming regularly, even if a few hours a week.

For live in carers, if you have a team of say 4 carers who regularly rotate then this also has a strong indication of employment. It depends on what tasks they are expected to do, how they take their rest etc.

I also think that where direct payments are involved (always should be the case in Scotland where I know Katrine's mother was as rules are different to England), there is a chance based on the way that employment tribunals are going that the LA could be deemed to be the employer (again I agree completely separate from tax rules but nonetheless something to be wary of). These challenges arise to enable the person involved claim sick pay maternity pay or employers liability, and the ones going through are class actions but do apply to everyone.

I agree that you shouldn't be privy to someone else's tax affairs and HMRC regularly need reminding of what they can ask for.

There are several sectors of the economy where the practice has been there people are self employed or work through personal service companies, this has never been in line with the intention of the legislation.

Some of HMRC's practices and interpretations are over harsh, and incorrect but in general the legislation is being pushed through to tie in with how HMRC want it, and if people are prepared to take on a calculated risk fully aware of the issues, with the energy and enthusiasm to deal with an HMRC enquiry good luck.

I am also aware a lot of small firms of accountants give out of date advice based on the way things have always been done, if HMRC come across this sort of issue on one client by chance, they would then look at others to see if they were doing the same.

HMRC have a scoring system for advisors and target clients of those with poor scores.

 

[Lynmax]

Some really interesting and helpful information here which I need to get my head around quickly.

We have just begun looking for someone to help Mum for two hours a day, five days a week. We want them to either prepare a hot meal at lunch time or, if mum is out with one of use, to leave a ready made cold snack for tea. Also to tidy up the kitchen and help mum to empty the dishwasher etc, chat to mum and possibly go worth her for a walk to the shops. We are thinking of two hours a day, mum needs company and gentle support rather than nursing care.

An acquaintance of mine has just left the care agency she worked with after 17 years as they began changing their working practices which she felt put her and the clients in unsafe situations. So as of three weeks ago, she is now a self employed carer and already has three new clients. I know she still has some capacity so, although she has not spoken to me directly, I was thinking of asking her to take on Mum as a client. My friend says that she is responsible for paying her own tax and NI but that some clients want to take out extra third party insurance. She already has another business which she does at weekends so is familiar with being self employed.

However, from what I have read here, it looks as if her information is not correct and that in fact we would be employing her and so be responsible for paying her tax and NI. I thought the new style work place pensions were only compulsory for employers of more than one or two people ( or is it five people) so if we only use one carer does that mean we are OK?

I am really confused and I think I need to get professional advice!