In this guide you will find key information covering:

  • The employment status of a Self-employed Micro-provider
  • The legal and regulatory basis for Self-employed Micro-providers
  • Circumstances when a community Micro-provider should be offered
  • What checks have been made on Micro-providers in Somerset
  • Micro-providers for people in receipt of a Personal Health Budge
  • Best Practice: What you should be looking for in a Micro-provider
  • What are everyone’s responsibilities when using a Micro-provider

* For the purpose of this guide, we are using the term “Micro-provider” to describe a “self-employed care worker”. The Community Micro-enterprise programme (CMEP) in Somerset supports any enterprise that is independent, has under 8 people employed or volunteering.

* This guidance is written on the basis that you are engaging with a Micro-provider to support with the activity of ‘Personal Care’. Personal care is defined by The Care Quality Commission (CQC)as:

Physical assistance given to a person in connection with:

  • Eating or drinking (including the administration of parenteral nutrition)
  • Toileting (including in relation to menstruation)
  • Washing or bathing
  • Dressing
  • Oral Care
  • The care of skin, hair and nails (with the exception of nail care provided by a chiropodist or podiatrist)
  • the prompting and supervision of a person to do any of the activities listed above, where that person is unable to make a decision for themselves in relation to performing such an activity without prompting or supervision.

* Whilst every effort has been made to ensure that the information in this guide is accurate, Somerset County Council and Somerset Clinical Commissioning Group shall not be liable to any person or entity with respect to any loss or damage caused or alleged to be caused by the information contained in this guide.

For a printable copy please see: Guidance for people using the Services of Community Micro-providers in Somerset

Introduction

This guide is written to support people who are using the services of a Self-employed Micro-provider (Self-employed care worker) in Somerset. These people may be purchasing their services directly or funded through a Direct Payment or Personal Health Budget. Somerset County Council (SCC) and The Clinical Commissioning Group (CCG) recognise the value that independent Micro-providers offer in giving people flexibility, choice and control in their care and support.

There are however important legal and regulatory differences between self-employed micro-providers and services that are registered by the care regulator ‘The Care Quality Commission (CQC)’.

This guide is created to help you or your legal representative better understand the risks, responsibilities and best practice when using the services of a community Micro-provider.

Using a self-employed Micro-provider

A significant number of Micro-providers operate on a self-employed basis as sole traders. It is important not to assume a Micro-Provider is self-employed just because they have told you that they are. Being Self-employed is not a matter of choice but is determined by the particular terms and conditions under which they operate.

Therefore before engaging with the services of a “self-employed” Micro-provider we recommend that you take some steps to ensure that you know they are genuinely self-employed. Two basic checks to complete are:

  1. See a completed and accurate HMRC: Employment Status Indicator Check confirming the employment status of the Micro-provider for that specific engagement. If not in place this can be completed by the Micro-provider using the link https://www.gov.uk/guidance/check-employment-status-for-tax [1]
  2. See proof that they are registered with (Her Majesty’s Revenues and Customs) HMRC for Tax purposes. This may be a letter from the HMRC with the Micro-providers name and Unique Tax Reference Number (UTR) number.

As a rule, to meet the criteria for self-employment a Micro-provider:

  • Will provide or intend to provide a service for more than one person.
  • With agreement can send another person to do their work if they are sick, on holiday or have a personal emergency.
  • Will send invoices for the work they have done. These invoices should quote their HRMC registration (UTR) number and specify the services they have provided and their cost.
  • Have a written service contract with each of their customers agreeing the terms and conditions of the support provided, prices charged/cost of service, which would be mutually agreed with their clients, including when and where the work is to be undertaken.
  • Will have completed the HMRC Employment Status Indicator accurately for that specific engagement and the conclusion is they are self-employed. They will have a hard-copy version of the form and its conclusion and they will provide clients with this.
  • Will be responsible for arranging tax, national insurance payments and general business accounts.
  • Will be responsible for their own generic training, equipment, insurance, advertising and other business costs.
  • They will provide their own public liability insurance and business insurance for the use of their vehicle.
  • They will not get paid unless they work.

A self-employed worker would not:

  • Claim or receive expenses including for travel costs, materials, equipment etc
  • Hire, dismiss, appraise or determine pay for others supporting you
  • Receive benefits such as holiday pay, sickness pay, pension contributions or funding for generic training costs

If you have any questions surrounding employment status you can telephone the HMRC on 0300 123 2326 to check if your care provider is classed as employed or self-employed. Alternatively you can contact the Community Micro-enterprise Programme on communityenterprise@somerset.gov.uk and we can advise further.

[1] Providers are not to use pre-existing or generic results. HMRC won’t stand by results achieved through contrived arrangements designed to get a particular outcome from the service. This would be treated as evidence of deliberate non-compliance with associated higher penalties. If your Micro-provider is not self-employed they will be considered your employee.

For more information see: https://www.gov.uk/guidance/check-employment-status-for-tax

Are self-employed micro-providers registered with the Care Quality Commission (CQC)?

If community micro-providers provide personal care (such as bathing, dressing, using the toilet, assisting with medication) in a person’s home, they may need to be registered with the Care Quality Commission (CQC).[1]

There is however an exemption from registration if the provider is an individual, contracted directly by you or your legal representative working under your control and direction. [2] Many of the Self-employed Micro-providers in Somerset operate under this exemption and work for people who are happy, able and willing to self-manage or self-direct their care support, or have a representative that can do this on their behalf.

This means that a self-employed care worker is often a good option if you are struggling to get the services or support you want and would like more or better flexible local options.

The disadvantage is that the usual checks that come with CQC registration (training, references, qualifications, insurances etc) may not have happened. Micro-providers operating under this exemption operate in a different way than CQC registered care providers. The most notable differences that you need to be aware of are that unregulated Micro-providers are legally unable to:

  • Make decisions about your care and support
  • Co-ordinate the work of other micro-providers or create a rota of care on your behalf
  • Monitor or take responsibility for the performance or duties of another micro-providers
  • Hire, dismiss or determine pay for other Micro-providers

It is therefore it is really important that before making the decision to use a self-employed Micro-providers you or your representative need to clearly answer yes to the questions below:

  • I (or my legal representative) know what support or care I want and need
  • I (or my legal representative) are willing and able to engage directly with a Micro-provider and tell them what is needed
  • I (or my legal representative) know how to check the suitability of a micro-provider and make a good choice of a provider who will meet my needs
  • I (or my legal representative) are willing and able to check the suitability of a micro-provider and decide whether to engage their services
  • I (or my legal representative) have the capacity, as defined under the Mental Capacity Act 2005[3], to control, direct and co-ordinate the care needed and are willing and able to do so.

If this is not the case then using a unregulated service provider, operating under this exemption will not be right for you.

For further details please see: Skills for Care: PAs working and CQC registration 

If you are unsure of the legal or regulatory status of a community micro-provider you should take advice from the Care Quality Commission CQC on 03000 61 61 61 or visit: http://www.cqc.org.uk/content/what-registration#accordion-1 or contact Somerset Community Micro-enterprise Programme at communityenterprise@somerset.gov.uk

People operating an unregulated care service that should be regulated are open to prosecution by the Care Quality Commission.

[1] For the Care Quality Commission definition of personal care. See: https://www.cqc.org.uk/guidance-providers/registration/personal-care

[2]For further clarifications and for the definition of related third party please see page 14 of the CQC: The Scope of Registration document.

[3] https://www.scie.org.uk/mca/introduction/mental-capacity-act-2005-at-a-glance

What checks have been made as part of the Micro-enterprise Programme?

The Community Micro-enterprise Programme make all reasonable efforts to give you confidence when looking for a local support or service.

To join the Micro-enterprise Programme all providers must attend a “Start Up Surgery” where they will be given help, advice and specialist signposting to set up their service according to best practice. All micro-providers that are included on online and paper directories have agreed and committed to our Community Micro-enterprise Programme ‘Doing it Right’ Quality Standards

If Micro-providers are offering the activity of ‘Personal Care’ they will provide us evidence of:

  • Enhanced DBS check (within 3 years old)
  • Public Liability Insurance
  • Terms of Service (or Contract/Service Agreement)
  • Care or support plan template
  • Complaints Procedure

To find a list of providers who have achieved this ‘quality mark’ and are listed as being able to provide the activity of personal care, please visit look for the ‘approved provider’ page on www.somersetcommunityconnect.org.uk website.

What is my responsibility when using a self-employed Micro provider?

Whilst the programme offers some assurances, we are unable to guarantee the quality or satisfaction of Community Micro-providers who are part of the programme. It is also important to note that the Somerset Community Micro-enterprise Programme does not check the identity, qualifications, training, employment history or references of the providers who join the programme.

We recommend that before you use the services of a Community Micro-provider you meet them first. You are purchasing services or support directly from them so you need to be sure they will do what you want in the way that you want it.

At an initial meeting or interview we would advise that you:

  • Make an assessment as to the skills, and experience of the Micro-provider to provide the tasks required.
  • See a completed and accurate HMRC: Employment Status Indicator Check (ESI) confirming the employment status of the Micro-provider for their work with you. If not in place this can be completed by the Micro-provider using this link. Along with a printout of this outcome, letter from the HMRC with their Unique Tax Reference (UTR) number is another good source of evidence.
  • Ask for references from other people they have supported? Have they the right training and qualifications?
  • Check how the provider ensures the safety of the people that they support? Has the provider had a criminal records (DBS) check? Have they suitable public liability insurance? Do they have policies on things like health and safety, confidentiality and safeguarding?
  • Is there a contract or a support plan that you’ll both have to sign that will clearly set out who will do what, when, where and how? How much will you have to pay and how will this happen in practice?

Do I have any ongoing responsibilities, after this initial check?

Yes you do.

  • If personal care is involved as part of the service, either yourself or your legal representative have ongoing responsibility for the direction and control of this activity.
  • You need to agree and follow the terms and conditions set out in the Micro-provider contract/terms and conditions.
  • You need to provide a safe environment for the provider to work in.
  • You need to pay the agreed amounts in line with the providers terms and conditions.
  • You need to maintain clear communication with the provider.
  • You need to inform the provider as soon as possible if you are unable to receive the services of the provider.
  • You need to treat the provider with courtesy and respect.

What responsibilities do Micro-providers have?

The responsibilities of all Micro-providers who are part of the CMEP are all set out in the Community Micro-enterprise Programme ‘Doing it Right’ Quality Standards

In addition to these standards we would expect all Micro-providers to:

  • Work with you to create an agree a plan of support that will identify the outcomes important to you.
  • Work with you and your representative to identify and address any risks or health and safety concerns.
  • Respect your privacy and confidentiality at all times.
  • Treat you, your home and your family with respect.
  • Communicate clearly and regularly with regards to the services provided.
  • Keep up to date their training and qualifications for the roles required.
  • Provide a contract or agreement detailing the terms and conditions of their service. This would include but is not limited to length of the contract, payment arrangements, provider responsibilities and commitments, customer responsibilities and commitments, confidentiality, complaints, what happens when they are unable to provide the services, employment status, service termination, agreements and signatures.
  • Provide invoices and receipts in a timely manner. These invoices should quote their HMRC registration number (UTR number) and specify the services provide and their cost.
  • Provide a clear cost breakdown of their service.
  • Honouring commitments, agreements and arrangements to provide services and, where it is not possible to do so, explaining why.

What happens if a Micro-provider is sick or is unable to provide their service?

If a Micro-provider is self-employed and is unable to perform the agreed services due to circumstances beyond their control (sickness, holiday or personal emergency) the micro-provider is entitled to provide a substitute providing the substitute is suitable qualified and experienced.

You as the client always have the right to refuse the substitute, but in instances where the family agree to this arrangement.

The micro-provider should:

  • Give adequate notice if the absence relates to holiday or planned leave.
  • Notify the client that they wish to provide a substitute and gain consent for this to happen.
  • Introduce the worker prior to the engagement for the family to make their own assessment.
  • Pay the substitute or agree with the client to pay for the customer directly.
  • Ensure anyone covering for them has the appropriate training, assessment and competency sign off if undertaking delegated clinical tasks.

Please note: If an adequate replacement is unable to be sought, or the replacement is refused it is your responsibility to find an alternative.

What insurance should a self-employed Micro provider have in place?

All Micro-providers should have suitable Public Liability Insurance in place to protect themselves against any claim for alleged negligence during the course of their work.

You or your representative are advised to check that adequate liability cover is in place and the providers have sufficient training and qualifications for the tasks required. The providers insurance must cover carrying out personal care and if delegated clinical tasks are provided the providers insurance must also include for this.

*Note: If a provider does not have suitable training for the services provided (e.g. moving and handling, medication) then their insurance may be invalid.

All providers should have business insurance on their vehicle if they are travelling to and from your place of work.

For advice on accessing the correct insurance please email communityenterprise@somerset.gov.uk

What is a fair price for a Micro-provider?

All members of the Community Micro-enterprise Programme (CMEP) need to ensure they offer a clear, fair, consistent and transparent price for their services. Rates must be based on local market conditions and reflect the nature and level of service provided.

Somerset County Council currently have set rates for people who are eligible for council funded care. This is currently £18.56 per hour for CQC registered services that are directly commissioned by SCC, Adult Social Care. The Direct Payment rate is £17.22 for CQC registered services that are used by people with a direct payment. People wishing to use a direct payment to either employ a personal assistant or engage with an unregulated Micro-provider, will have a Direct Payment budget of £13.35 per hour.

These rates are not binding for Micro-providers but offer a useful benchmark against which small care providers can assess their own rates. Providers who do not meet CQC registration requirements are expected to charge a rate in line with the Direct Payment Budget (£13.35 per hour). If an unregulated provider charges on or above the Direct Payment rate for CQC registered services for any service, the CMEP would consider this to be excessive charging and would be a breach of the CMEP programme.

For NHS Somerset CCG funded Personal Health Budget (PHB) holders Micro-providers can charge up to £17 per hour where they are providing personal care involving carrying out delegated clinical tasks. NHS patients receive a service that is free at the point of delivery. This means patients must not contribute financially to the cost of their agreed care to meet their assessed care needs. If patients want to purchase additional care that is not part of what the CCG has agreed to fund in their PHB this will be a private arrangement between the micro-provider and the patient and not funded by The CCG.

There may be instances where providers may offer specialist services that can command a higher rate. If this is the case providers will need to notify the CMEP justifying the rate that they charge. Providers found to be charging in excess of £17 per hour for personal care services may be removed from the programme and associated online and paper directories.

Unfair practices such as double charging e.g. supporting two or more people at the same time and charging them both a full hourly rate is unacceptable and in breach of the CMEP ‘Doing it Right’ Quality Standards.

CMEP members must also ensure they understand and uphold competition and consumer protection laws that apply to all trading businesses. Practices such as working together to fix prices or carve up markets or discriminating against customers by charging different prices for the same service are illegal and breach the CMEP ‘Doing it Right’ Quality Standards.

Training and qualifications

The training requirements of a Micro-provider are dependent on the services that are offered. The Micro-enterprise Programme offers support and signposting to local training providers.

A Micro-provider is expected to source and pay for their own training and continuing professional development.

As a baseline we would expect Community Micro-providers to have in date training covering:

  • First Aid
  • Manual Handling
  • Safeguarding
  • Food Hygiene
  • Infection Control
  • Medication Administration

If a provider is unable to access training they can contact The Micro-enterprise Programme on communityenterprise@somerset.gov.uk

Medication

Community Micro-providers are able to assist with medicines under your or your representative’s direction providing you:

  • Put this request in writing.
  • Inform the GP or health professional (i.e. District Nurse) and check whether any specialist training is needed to deliver the medication.
  • Set down in writing exactly what they are asking a Micro-provider to do and sign that request to allow consent (e.g. take inhaler from fridge at 12 noon and assist in using the inhaler by pressing down the button while the person breathes in). This should be attached to the Service Agreement.

If you or your legal representative, ask a Micro-provider to administer invasive medication e.g. an insulin injection; Valium suppository: Micro-providers should follow the general guidance outlined above, and in addition, and even if a Micro-provider has been trained to administer invasive medication, they can only administer this medication under the supervision of a community health professional. This means that a community health professional has trained a Micro-provider in the use of this particular medication and is responsible for checking the correct administration. For further information please see: Delegation of healthcare tasks to personal assistants within personal health budgets and Integrated Personal Commissioning

A Micro-provider should talk to their insurance adviser about whether they will need extra cover because you are assisting with medication or any delegated clinical tasks.

For further information please see: Managing medicines for adults receiving social care in the community NICE guideline [NG67]

All Community Micro-providers are subject to guidance set out in the Somerset Clinical Tasks and Medication Policy (Currently in Draft 31/01/2020). To help you Somerset County Council and the Somerset Clinical Commissioning Group have offered templates to help you with your medication. This appendix covers:

Appendix 1: Administration of medicines patient/service user agreement form
Appendix 2: Somerset Clinical Tasks and Medication Training Record
Appendix 3: Example MAR Sheet
Appendix 4: Care Diary Template

Guidance for people with a Personal Health Budget paid by the NHS CCG (Clinical Commissioning Group)

If you have a Personal Health Budget and wish to engage with the services of a Micro-provider the CCG require you to:

  • Choose a Micro-provider who has achieved the ‘quality mark’ on the https://www.somersetcommunityconnect.org.uk/micro-providers/ directory of Micro-providers who is listed as being able to provide personal care.
  • Email your Care Manager at the CCG informing them that you have witnessed proof of self-employment in the form of an accurate Employment Status Indicator Tool. For a template email please see appendix 6 of this document.
  • Provide invoices to the CCG or the Brokerage & Support Service of the care provided. To be paid all invoices must quote the Micro-providers ten digit HRMC registration (UTR) number and specify the services they have provided and their cost.
  • Use your budget on the outcome or services agreed in your Support Plan
  • Ensure you meet the requirements of your budget holder agreement with the CCG

In addition to these requirements, we recommend Personal Health Budget (PHB) holders:

  • Ensure that their Micro-providers have adequate public liability insurance to include any ‘delegated clinical tasks’
  • Contact the CCG if any patient specific clinical tasks are required. The CCG will usually fund patient specific training for PHB holder.
  • Work with Micro-providers to keep daily care records, which where applicable could include; Incidents – falls, choking episodes, equipment failures, power failures etc, Seizure activity, Equipment use such as suctioning if this is not used regularly and the reason for using it, Calls to health care professionals, Adverse reactions to medications or topical creams and who this is reported to, Deterioration in physical condition, skin condition etc. and response, Any visits by healthcare professionals – DN, GP, OT, Physio, SaLT, Dietician etc

If you have any queries or would like to ask further questions about engaging with a community micro-provider please email communityenterprise@somerset.gov.uk