Personal care: ongoing role, introductory agencies and individual care workers

This guidance explains ‘ongoing direction or control’ for care workers and providers. It will help you understand when you need to register.

The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 defines what personal care is and when it is regulated. The regulations also describe any exemptions. Please read the guidance on the legal definition of ‘personal care’.

Agencies

Key characteristics of the ‘ongoing role’ of regulated care at home agencies

Regulated care at home agency providers (sometimes called ‘domiciliary care’ or ‘home care’ agencies) supply paid care workers to people living in their own homes as well as managing these care workers. Providers normally directly employ their paid care workers, or they may hire them directly from an employment agency. The regulated provider has a variety of legal responsibilities. These include making sure the service that they and their staff provide is carried on in accordance with relevant legal requirements.

For example, the requirements cover:

• selecting workers who are suitable
• induction, training, support and/or supervision
• management of the agency’s work
• monitoring and continuously improving the quality and safety of the service provided.

In contrast, introductory agencies do not need to register with CQC as they do not have any ongoing role in the personal care that care workers provide to people after they are introduced.

The following are some examples of activities that may constitute an ‘ongoing role’ in providing personal care that would require registration with CQC:

• Monitoring the service provided to people by the care workers they have introduced. This includes gathering feedback about the service from care workers and using feedback to advise or direct changes to how personal care is carried out. For example, the frequency of visits, type of care provided, and the way in which the care worker gives personal care.
• Arranging rotas of care workers on behalf of people who receive care.
• Being responsible for managing the replacement of a care worker. For example, by taking the initiative for providing absence cover in a way that goes beyond simply introducing another care worker, and in a way that does not need the person receiving care to make a decision.
• Continuing to charge for the service being provided by a care worker after paying a one-off introduction fee. This does not include one-off fees paid in instalments and fees for payroll services.
• Continuously reviewing and updating people's care needs when a person hasn’t asked for this.
• Making changes to active care plans, whether consulting with the person receiving care or not.
• Requiring care workers to:
  • attend professional supervision, coaching and mentoring that the agency provider supplies in relation to the personal care being provided to people
  • wear a specific uniform, identity badge or logo
  • use specific paperwork, tools, equipment or services.

Activity that does not amount to an ‘ongoing role’ in providing the regulated activity of Personal care includes:

• Checking and vetting the suitability, qualifications, skills and experience of care workers before accepting them onto the agency’s books. This is accreditation activity.
• Helping people, or a related third party on their behalf, to clarify their care and support requirements in assessments of their needs and preferences. This also helps the agency to understand the qualifications, skills and knowledge that the person's care workers will need. It also helps the agency understand practicalities such as the times they will need them. Assessments can be carried out by agency staff or third parties. Care workers can use these assessments to help them plan their work in discussion with people receiving care – not the agency. Agencies must not monitor related outcomes or the care worker’s performance.
• Organising or pointing to general (not person-specific) training opportunities.
• Providing advice on taxation, health and safety, the role and function of the job, and explaining about regulation.
• Charging people a 'one-off' fee for introductions.
• Contacting the person receiving care to make sure they are satisfied with the introductory service provided. This does not include gathering information about the service being provided by the care worker. It does not include using any information clients offered to direct the care worker.
• Introducing additional or replacement care workers where a person receiving care asks for this.
• Carrying out a purely payroll function for people who employ introduced workers. This would be an additional, separately charged administrative/business service.
• Helping a person receiving care, or a related third party on their behalf, to clarify their care and support requirements.

When does the law exempt agencies and individual care workers from the need to register with CQC?

Three types of personal care activity are exempt from regulation by CQC, and do not need to register:

• Supplying care workers to other organisations by acting as an employment agency or employment business that provides personal care.
• Introducing care workers to people and having no ‘ongoing role’ in the direction or control of the personal care provided. This means introductory agencies.
• Providing personal care where a person, or a related third party on their behalf, makes their own arrangement for personal care and the care worker works directly for them and under their control without an agency or business involved in managing or directing the care provided.

What is an exempted, individual care worker for regulatory purposes

The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (Schedule 1, paragraph 1(3)) says that a care worker does not need to register if they are:

• directly employed by an individual or related third party without the involvement of an employment agency, and
• they work wholly under the direction and control of that individual or related third party to meet their personal care requirements.

The meaning of a ‘related third party’ is defined in the regulations. We explain this in the Scope of Registration.

To be exempted, care workers must work as individuals, not in partnership with other workers. Introductory agencies must have no ongoing involvement in how the care workers provide personal care to the people they have been introduced to.

There are different ways to refer to individual care workers that meet the above criteria. They are sometimes called ‘personal assistants’, but in this guidance we refer to them as ‘individual care workers’.

What activity amounts to working as a partnership when working with other individual care workers?

If two or more people work together, they are almost certainly in a partnership if they share:

• profits (each partner pays tax on their share).
• losses
• costs, for things like equipment, work clothing and training
• ‘joint and several liability’ (this means that the partners accept and share responsibility for the work of the partnership, individually and collectively)
• responsibility for making decisions such as care planning or absence cover arrangements.

They should set out detailed arrangements in a partnership agreement.

GOV.UK provides guidance on business partnerships. It also provides advice about tax arrangements and partnership agreements.

The law says that only care workers working as individuals can be exempted from the requirement to register. Partnerships providing the regulated activity ‘personal care’ must apply for registration with CQC.

What activity does not amount to working as a partnership when working with other individual care workers?

It is possible for two or more individual care workers to provide care to a shared person receiving care by coordinating with each other without this being classed as a legal partnership. ‘Coordination’ means a group of care workers all working under the separate instruction of their client. For example, jointly agreeing when they attend and what they will do.

Each worker must have a separate contract with the person receiving care. The person receiving care must still control arrangements to cover absence when a care worker cannot attend. They must also clearly set out their care requirements that are provided by each care worker they employ.

Providers that deliver regulated activity as well as exempt activity

Some providers carry on regulated activity and also provide activity that is exempt from registration. Where this is the case, we only regulate and inspect the regulated activity.

Make sure you understand which of your activities are regulated and which are not. It’s important to keep your business records in a way that clearly separates the two types of activities. You need to be able to show your records about regulated activity and clearly identify records about exempt activity when we ask to see them.

Further advice

If you are unsure whether you need to register with CQC you can think about taking professional or legal advice, or contact us.