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Direct Payments : Paying A Family Member To Care ? NO ... But The Jury Is Out And Showing No Sign Of Returning ! - Carers UK Forum

Direct Payments : Paying A Family Member To Care ? NO ... But The Jury Is Out And Showing No Sign Of Returning !

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First raised during my CarerWatch days , the ticking timebomb if ever DPs were to be used by a caree to " Employ " his / her partner / sibling to care :

http://www.youretheboss.org.uk/news/201 ... for-me/106

Can I pay a family member to care for me?
Posted on 19/08/2015

There are plenty of options when it comes to homecare, especially if you receive a personal budget, or you are self-funding, where you have the choice and control to hire a paid carer who suits your needs.

But what if you want to hire someone from your own family? It may be that you feel more comfortable having someone you know attend to your personal care needs and would rather use a family member, but they need to receive money in order to be able to commit the time to your care. It could be that the family member is already providing some care for you on a more casual basis and you want to formalise the arrangement.

It is a tricky area, as it is not as simple as saying yes or no as to whether you can pay a family member to care for you. Many family carers are unpaid and they contribute a huge amount to society – it is thought that unpaid carers save the country around £119 billion a year. We have an overview of using a family member for your care needs and the related considerations. There is some help available for these carers, including a Carers Allowance and again, this is covered in more detail on the website.

Choosing to hire a family member is very different – they will become your employee and that comes with it certain responsibilities for both of you.

If you receive a Direct Payment from your local authority to pay for your care, then the general rule is that you cannot usually hire a family member to provide your care if they live in the same house as you. Bear in mind that this is the ruling in England, so there could be national variations.

This is not a hard and fast rule, however. In some circumstances, you may be able to hire a family member who does live in the same house as you, but this would have to be approved and decided by your local authority depending on the circumstances. There was an interesting case reported in The Guardian recently, which looked at this issue in more detail.

Once you have received an assessment by your local authority, it will be determined what your care needs are and what sum of money you should receive for your care. By getting the money in this way, you will need to approve a care plan with them to determine what you plan on doing with the money and how it will meet your needs. If you want to hire a family member, then this can be discussed at this stage, especially if it is a circumstance where the person lives with you. You will need to explain why the family member living with you is the best person to provide your care and the reasons behind that (religion, language, communication, etc). You may also find that some authorities are more flexible with the rules than others.

If you are a self-funder, then you have more flexibility to pay who you wish to supply you with care. However you receive the money though, you should ensure that you follow the proper procedures for taking on an employee. This means registering with HMRC as an employer so that you can ensure that your family member is paying the correct tax and national insurance, for example. They will also be entitled to all of the same employee benefits as in any other job. Take a look at our dedicated section on employing a paid carer to find out more.

Bear in mind that if you employ a family member who was already acting as your carer on an unpaid basis, they may no longer receive any related benefits that they claimed, such as Carer’s Allowance. They would also lose access to any support services that they were receiving from their local authority as an unpaid carer.

Having your family member become an employee of yours can change the relationship that you have. It is sensible to have contracts and policies in place, just as with any other employee, but this can be a difficult change if you are used to being together on a more casual basis. You will need to determine working hours and respect those. There is no reason that you can’t have a trial period to see if it works out. If it doesn’t, then you could look for a new paid carer with your family member there to support you on a casual basis as it is needed.

In more complex circumstances, for example when a cared-for person lacks capacity but will be paying for care with their own money, then we advise taking on special advice before a family member is hired to ensure that it is in everyone’s best interests. This is also true if someone other than the cared-for person receives direct payments on their behalf.

Question .... if a family member is paid to care for their caree , is it not so that , in the eyes of the Law , said relationship is now that of a employer / employee ???

If the answer to that question is YES , what naturally would follow ???

See the potential minefield ???
We can give £3k a year to family and be death-duty exempt, so that's a start! (eg, by way of 'thanking' a family member for care.)

If our estates are below the IHT threshold anyway, presumably we can give more?

If you officially pay, keep the annual 'salary' below the income tax threshold (around £10k or so) BUT your family carer will still be done for national insurance (around 10%).

The taxman likes his pound of flesh, whatever the situation.
Worth posting across from another thread to see this potential timebomb in actual action :

Under national guidance (pdf), councils may “where necessary” allow recipients of direct payments to employ a family member living in the same home as their personal assistant (PA). After a long wrangle, the council in this case, Cheshire East, has conceded the point but is balking at the payment of one individual for as many as 76 hours – twice the length of a typical working week and worth a weekly wage of almost £800.

The local government ombudsman (LGO) has now ruled that Cheshire East has been wrong to cite working time regulations, which limit the average working week to 48 hours but which offer the employee an opt-out. It has told the council to reconsider the matter, “balancing choice and risk”.

The family involved in the case is not being identified. The young man suffered a serious spinal injury while playing sport at university in September 2013. His mother, a lone parent, then gave up her job to become his carer.

A key incident in the case occurred soon after the young man was discharged from hospital three months later. On a night out with friends, he was highly embarrassed to run into a care worker who was giving him reablement support at home. After this, he became reluctant to have care workers attending to his needs.

Those needs were formally assessed by the council in May 2014 as requiring 56 hours a week care – including washing, dressing, help with continence and one hour of support during the night. In June, the assessment was amended to include a further 20 hours for sport and leisure activities.

It was not until August last year, by which time the family was struggling financially, that the council agreed that the mother could be employed as a PA. But it insisted she could not exceed the hours stipulated in the working time regulations. By this stage the family had complained to the LGO and it was only after repeated interventions by the ombudsman’s team that the first direct payments, based on a 48-hour week, were made in October

The last 2 paragraphs may interesting reading .... do they not ???

Strange world .... same tasks / duties / hours ... and yet , to physically pay someone to undertake them makes all in the difference ... in Law !

I assume the mother has now joined a union , and is in receipt of pension contributors now paid by her son ?

Every 4 hours or so , downing tools , and taking a statutory break ?

In addition , looking forward to paid holiday entitlement , and making notes of any potential Health and Safety violations that her " Employer " will need to observe ?

Farcical ?

No , the letter of the Law being observed .... if not by the Ombudsman ????


Perhaps a switch in direction ?

All carers able to claim Carers Allowance.

Now campaign to have said CA abolished in favour of being employees through Direct Payments to our carees ?

Assuming , of course , the actual level of one's DP was sufficent to employ the " Former " carer , now employee.

Just look at the advantages outlined above !!!

Hundreds of thousands of pension aged carers now to receive monies for actually caring !!!

Student carers now no longer subject to the absurd 21 Hour Rule.

Many carers knowing their caring are numbered can now take on further education to bolster their future job prospects.

No more caring duties outside your Union's remit. We don't want an inter union dispuye as to who does what .... do we ?

No more 24 / 7 caring ... minimum wage at least .... statutory breaks / holidays / pension / day's off ....

For far too many , it would be like winning the lottery ?

What are you all waiting for ... a chance of a lifetime ?

Hang on a mo ... aren't we all CARERS living in the real world ?

And the real world is something we can only dream of ... inside CarerLand ?

Even the Monty Python team would have had difficulty in demonstrating just how contradictory and absurd life in Carerland is for far too many ???


Bottom line ?

A carer and a caree ... a partnership .... no caree , no carer.

What's the point in improving the life of one at the expense of the other ?

Time for all thinking / planning / law to reflect this very relationship.
A little more on this " Interesting " question from the Citizen's Advice Bureau :

The local authority (LA) will not usually allow you to use direct payments to pay for services from your husband, wife or partner or from family members living with you. This means the following people:

parent or parent-in-law
son, daughter, son-in-law or daughter-in-law - except for children's services
stepson or stepdaughter
brother or sister
aunt or uncle
the husband, wife or partner of any of the relatives in this list
a person who lives with any of the relatives in this list as if they were that relative's spouse or civil partner.

The LA may allow payment to someone in the list above if it is satisfied that it is necessary to meet your needs, or, if the person needing care is a child and it is necessary to promote the child’s welfare.

Carers UK :

It is sometimes possible for the person you are looking after to pay you or another family member or friend to meet their needs (see “If the person I am looking after gets a direct payment can they use this to employ a family member?” for further information on employing family members).


In some situations, employing a family member to provide care or administrative support may be an option. However, the council needs to agree it is necessary for you to use direct payments to employ a spouse or partner, or a close relative you live with.

For example, during the care planning process, you may explain that only the family member could fulfil the role – for example, for religious or cultural reasons.

Seems pretty clear ... employ a family member subject to the criteria detailed above.

Now , does employing a family member override Employment Law ?

If that answer is NO , it raises a whole menagerie of problems , both for the carer and the caree in that situation.

Some of those problems have already been raised in an earlier post on this thread.

If " Employed " by one's careee , does that not mean that the carer will lose CA ( Assuming he / she is able to claim it ) as he / she is now in receive of a wage ?

If the carer and caree had a disagreement with no solution , could the carer have recourse to Employment Law ... obviously , an extreme case but ..... there is bound to be a first given the numbers involved.

The whole concept seems " Messy " to say the very least.

Surely our supporting organisations are aware of the implications .... what is their view ?

After all , PURELY from a carer's perspective , being employed by one's caree is financially more rewarding and , as such , should be persued as an alternative ?

I am sure that many carers can " Convince " their LAs that they , and they alone , have the necessary skills to care for their caree when compared with any outside candidate ???

Also , the potential advantages to the combined income of the carer and caree .... DPs come in , caree pays carer the going rate , carer gifts back some to the caree .... whose's to know ???

Even carers swopping carees with similar needs just to reap the benefits of DPs ... ???

Certainly would be a tangible solution for any carer caught out by the abhorrent 21 Hour Rule ???

It would not surprise me in the slightest if some in the DWP think tank are pushing for the abolition of CA in favour of payment through DPs .... it would fit into their existing policy of shifting State responsibility onto the individual as we have seen across the whole social care sector.

What do other readers make of this .... I cannot see that I'm heading into a blind alley ... ?
More on this Issue .... this time from Community Care :

http://www.communitycare.co.uk/2017/09/ ... t-payment/

When and how should relatives be paid through a direct payment ?

Family members are delivering unpaid care to loved-ones because direct payments are insufficient to hire staff, writes Belinda Schwehr

Paying a relative through a direct payment

If one looks at the Care Act direct payment regulations, one finds that there is no rule against a parent not living in the same household, being paid to do the care. There is a presumption against any spouse or cohabitee or other specified close relative living in the same household, including a parent, doing the care, but even then, a discretion may be exercised to permit it, if it is necessary.

The rules in the NHS

When the regulations on direct payments in the NHS were issued in 2013, there were, at first, no rules about close relatives doing the work at all, and being paid out of the budget, but this was by mistake.

The regulations were then amended in the same year to say that a health body may only permit an individual living in the same household as the patient, a family member or friend being paid out of the budget, if this was necessary. However, this was interpreted by some clinical commissioning groups as placing a restriction on paying family members or friends who were not living in the same household as the patient, contrary to the government’s intention.

So the regulations were amended again in 2017 to ban paying a connected person to meet the needs, unless it was necessary. However, a presumptively banned connected person is defined only as one who is living in the same household, meaning that if a person is not living in the same household, it does not matter that they are close relatives, or even spouses.

The guidance on direct payments in healthcare, dated 2014, reflects the position prior to the 2017 amendment to the regulations and implies that living in the same household is not the determinative key part of the test for the prohibition (see paragraph 153 of the guidance). But the explanatory memorandum to the 2017 amendment strongly suggests that the 2014 guidance requires urgent amendment as well.

Legal principles

Public law principles require a council refusing permission to a person to spend the DP on a prohibited person, to state its reasons, and to make sure that they are rational reasons, after taking all relevant considerations into account.

To my mind, if a council’s award of a budget has been set on the basis of the formula in the Supreme Court’s judgment in R(KM) v Cambridgeshire [2012] – a rational nexus between the eligible needs and RAS points, between the points and the pounds allocated to the points, and as between the pounds and the actual going rate for that type of care in the rough amount in which it is going to be needed – then it’s not feasibly defensible to refuse permission to the relative to meet the needs, if the evidence is cogent that staff cannot be found for the amount being paid.

I would be asking, rhetorically, as follows: how could any human rights public authority, in making that decision, suggest that it promotes the wellbeing of the client, for it to refuse permission? All the more so, it seems to me, if it has not secured the means, itself, to commission for sustainability, diversity and quality, as per the section 5 Care Act commissioning and market shaping duties, and where it cannot seem to stimulate the local market for DP purchasers, either.

The above are just sections of the whole article ... worth a few minutes of any reader's time.

Confused ?

Allied with my own deductions ... even more confused ?

Shades of the Care Act .... should / could / would ... as opposed to a clear yes or no ... or depends on which way the wind is blowing at the time ?

Time for " The Legal Eagles " to takeover ?

Come out , come out wherever you are ... no fee on this one , just your take on this Issue ... pretty please !
A little surprised that no reader has picked up on the real implications of this one .... ?

Only in special circumstances ... words echoing through the advice given by several organisations.

What do they REALLY mean in plain English ?

The Ombudsman clearly took advice before reaching his decision ... be nice to know what precisely it was given the implications !!!

A post code lottery in their understanding ?

Risks for a family member taking on a PAID caring role ?

Certainly pays more than CA even if there is an " Understanding " between carer and caree that the Employment Laws are not to be observed ... which would be a clear breach if anyone found out !!!

Interestingly , the leading trade union , Unison , have yet to comment on it's implications.

After all , if more family carers " Take advantage " of this loophole , less work for paid care workers ???

Anyone preparing anything legal to clarify this issue ?

So many questions and ... as of posting this ... NO answers.

A potential timebomb ... some unsuspecting carer will probably set it off ...

What then ?
Your right Chris, there are more questions than answers. No Government could ever afford to pay full market rates to family carers, but they can't afford to pay it to paid Carers either. Employment law and tax law has no special provisions for such a situations. Social services would not want to give up authority over caree.
It's a mine field that will take years to sort, if ever
.... and yet , a perfect opportunity for hundreds of thousands of carers to kiss goodbye to CA ( Or none at all ) and say hello to a wage paid their caree on receipt of DPs paid to them.

All now perfectly legal until the Law changes to reflect the new situation.

" Only in special circumstances " .... no legal deinition ?

Would need a Legal Judgement to interpret ... a whole army of carers on horseback heading out to new financial pastures as someone left the stable door open ?

Just a few " White lies " ( If at all ? ) is all that's needed ... a chance in a lifetime !

The System constantly works against us ... time to turn that around , all above board and no washing through offshore entities or commission to a third party ( The odd pouch of baccy won't go amiss ! ) to boot ... a carers' dream come true ???

Trussells will be happy .... slight reduction in the record numbers expected over the weeks / months ahead.

How many of our fellow carers near to / at / below the official poverty line aware of this ?

1.5 million at the last count ... Joseph Rowntree Foundation report.

Far TOO easy ... where's the catch ???

Anyone ... feel free to correct me if I'm wrong !!!


As an aside , just how long has this Ruling been out there ?

Nobody else ... including academics / trade unions / supporting organisations / LAs / The Government . ... seen the same implications ?

Obviously , my deductions must be wrong ... aren't they ???
Try as I may , this Issue becomes even more confusing when one looks at the precise legislation as laid down in the Care Act , 2014.

Here it is in all it's glory ... the revelevant provisions :

The Care and Support (Direct Payments) Regulations 2014

Conditions which must apply to the making of direct payments

3.—(1) Direct payments must be made subject to the condition that they must not be used to pay any person mentioned in paragraph (3) to meet the needs of the adult in respect of whose needs the direct payment is made.

(2) Except that, if the local authority considers it is necessary to do so, direct payments may be used to pay a person mentioned in paragraph (3)—

(a)to meet the care needs of the adult; or

(b)to provide administrative and management support or services for the purpose of enabling a person to whom the direct payments are made to—

(i)comply with legal obligations arising from the making of and use of the direct payment, or

(ii)monitor the receipt and expenditure of the direct payment.

(3) The persons referred to in paragraph (1) are—

(a)the spouse or civil partner of the adult;

(b)a person who lives with the adult as if their spouse or civil partner;

(c)a person living in the same household as the adult who is the adult’s—

(i)parent or parent-in-law,

(ii)son or daughter,

(iii)son-in-law or daughter-in-law,

(iv)stepson or stepdaughter,

(v)brother or sister,

(vi)aunt or uncle, or


(d)the spouse or civil partner of any person specified in sub-paragraph (c) who lives in the same household as the adult; and

(e)a person who lives with any person specified in sub-paragraph (c) as if that person’s spouse or civil partner.

(4) A direct payment made under section 32 must be made subject to the condition that the authorised person(1) must—

(a)notify the local authority if the authorised person reasonably believes that the adult no longer lacks the capacity to request the making of direct payments; and

(b)if paragraph (5) applies, obtain—

(i)an enhanced criminal record certificate issued under section 113B (enhanced criminal record certificate) of the Police Act 1997(2), or

(ii)verification that a satisfactory certificate of that type under that Act has been obtained,

in respect of any person from whom a service in respect of which a direct payment is made is secured.

(5) This paragraph applies if the authorised person is—

(a)a body corporate;

(b)an unincorporated body of persons;

(c)an individual who is not a person mentioned in paragraph (3); or

(d)an individual who is not a friend of the adult who is involved in the provision of care for the adult.

Conditions which may apply to the making of direct payments

4.—(1) A local authority may make a direct payment subject to other conditions.

(2) The conditions referred to in paragraph (1) may, in particular, require that—

(a)the needs may not be met by a particular person;

(b)the adult or authorised person (in the case of direct payments made under section 32 of the Act) must provide information to the authority.

(3) The conditions referred to in paragraph (1) may not require—

(a)the needs of the adult to be met by any particular person; or

(b)information to be provided to the authority—

(i)more frequently and in more detail than is reasonably required by the authority for the purpose of enabling it to ascertain that—

(aa)making direct payments is an appropriate way to meet the needs in question, or

(bb)the conditions upon which it is made are complied with, or

(ii)in a format which is not reasonably practicable for the adult or authorised person to provide.

Seems to be an exclusion in the first bit , a loophole in the second ... which may have been read as such by the Ombudsman..

The confusion continues .....

High time our supporting organisations , both ours and those of our carees , went into a huddle to decide the gameplan.

No rush ... DPs are being awarded / paid out daily ( Well , Mondays to Fridays at least ) ... some carees maybe employing family members " Illegally " ... others who may " Qualify " for a family member paying out to agency carers instead , and be using food banks to survive on what monies are left.

Yet another ticking time bomb .... ???


The Ghost of CarerWatch , January 2009 :

Having both accessed and work under Direct Payments I can see both sides.

They can work but will NOT suit everyone and therein lies the problem.

There has to remain a choice on how the individual accesses care.

Too many are now reliant on care from agencies who can literally charge the earth.

Individual Budgets are supposed to give more freedom of choice BUT like everything they depend on the pot of money available.

Already we have the minefield of eligibility criterias and these are bound to re-assessments too.

What guarantee is in a care contract to say that a package permenantly in place...none.

What guarantee is in place to say care would not be cut in future and therein amount of money given is reduced...none.

As much as I wish the lady well who spent some of her money on the air conditioning , for me the money given for care should remain that ..... for care needs.Items like air conditioning should come under grants.

All the emphasis that is being placed on DP's and Individual Budgets just now takes away from the fact that they do not directly help carers.

Yes , they will enable us to access outside help but that is not going to benefit the bulk of carers esp those at the heavy end caring 24/7.

Those just a few of my thoughts anyways.

Almost verbatum as to what we have all seen happen ... down to the last comma.

Thoughts that echo through time ... 8 years and counting ....
One Issue that I will not allow to be left gathering dust !!!

Any reader receiving payments from their caree originating from DPs ?

Permission received ?

Informal arrangement ?

Jury still out on this one.

Yet another potential minefield ... with no map ?
68 posts