Direct Employment Of Carers: Managing The Risks

Austin Thornton discusses regulation and risk management in the direct employment of care staff focussing on CQC registration and insurance problems.

On 7th March 2018, Wrigleys are holding a conference which will look at the regulatory structure underpinning the direct employment of carers to look after persons who are privately funding that care.

The conference will be of interest to:

Litigators claiming care costs in personal injury cases. Experts providing evidence in care cases Case managers delivering direct employment arrangements Professional deputies responsible for implementing direct employment arrangements The following article introduces the issues that this conference will address.

The regulation of direct employment

The requirement to register with the regulator

It is an offence to provide personal care without registering with the Care Quality Commission (CQC), unless the care arrangement is exempt from registration.i

The circumstances in which a provider of care must register with CQC are covered in regulations (the regulations).ii

Care provided by friends and relatives is exempt from registration. This exemption does not extend to friends or relatives who are the employers of staff.

Also potentially exempt are the following:

The person being cared for (the adult) The parents of a minor child being cared for Attorneys and deputies who are individuals and whose power extends to commissioning care arrangements. Individuals who have other legal authority. The trustees of an Independent User Trust. It is important to note that there is no exemption for any of the above potentially exempt persons, unless they meet the following conditions:

1.1 The management of the care package is wholly under their direction and control. This means that care packages involving a case manager will not be exempt unless the role of the case manager is advisory only. 1.2 There is no involvement of an employment agency or an employment business. An employment agency supplies staff to be employed by the employer. An employment business recruits staff to be employed by its own business and deployed to the care package. A case manager that assists with the recruitment of staff is an employment agency for these purposes. 1.3 There is no exemption for relatives generally. This means that husbands and wives, brothers and sisters and others who employ carers in direct employment arrangements are not exempt from registration in consequence of their relationship with the adult. 1.4 Attorneys and deputies who are trust corporations, and companies generally, cannot be exempt because they are not real individuals. Deputies and attorneys who are trust corporations and employing staff must register with CQC unless the responsibility to register with CQC falls to another person.

Registration of direct employment arrangements

In consequence of the regulations, the most common arrangement of care packages funded by personal injury compensation and which involves the use of a case manager to provide management assistance, must be registered with the CQC.

Who must register as the provider of the service? There seem to be 3 possibilities:

The employer The staff The case manager Wrigleys have obtained...