Employing Family Members

Woman with her older mother sitting on the couch together at home smiling to the camera

It is possible to employ a family member as a Personal Assistant (PA) to provide care and support. However, this is still seen as an ‘exceptional circumstance’, which means it would not normally happen unless it is for specific reasons.

The law highlights the circumstances where it would be possible to employ a family member, provided the Local Authority (council) – usually the professional judgement of a Social Worker – also agrees to this. These circumstances are:

  • The family member, direct payment user and the Council all agree to the family member providing the support
  • The family member is capable of providing the support, and
  • There are specific reasons why a family member is best placed to provide the support.

When you might think about employing a family member

  • There is a limited choice of service providers who could provide the support
  • The person needing care and support has specific communication needs which mean it will be difficult for another person to provide the support
  • The support is required at times at which the family member will be available to provide it and where other people would not reasonably be able to
  • The intimate nature of the support required makes it preferable for a family member to provide this
  • The person needing support has religious or cultural beliefs which it preferable for support to be provided by a family member
  • The person needing support requires palliative care
  • The person needing support has an emergency or short-term need for care
  • There are other factors in place which make it appropriate, in the opinion of the Council, for that family member to provide the support.

Who counts as a family member?

The law defines who counts as a family member when it comes to the rules around employing them as a Personal Assistant:

  1. the spouse or civil partner of the supported person
  2. a person who lives with the supported person as their spouse or civil partner
  3. the supported person’s parent, child, brother or sister, aunt or uncle, nephew or niece, cousin,
    grandparent, grandchild
  4. the spouse or civil partner of any person listed in (3)
  5. a person who lives with any person listed in (3) as if their spouse or civil partner.

Employing a family member and Guardianship/ Power of Attorney

There are some circumstances when you may wish to employ a family member, but they already hold a Guardianship or Power of Attorney for the supported person. This can create difficulties as it means the person who is legally responsible for making some decisions on the person’s behalf would essentially be employing themselves.

If this is the case, your council should still take the wishes of the supported person into consideration and be creative in finding solutions that manage and mitigate risk.

It may also be possible to explore options around changing a Guardianship to enable a family member to become a Personal Assistant. For example, if the family member holds a Financial Guardianship to enable them to manage a Direct Payment, they may ask a different family member to take on this responsibility and relinquish the Financial Guardianship to enable them to become employed as a Personal Assistant. It is worthwhile speaking to an Independent SDS Support Organisation or Carer’s Centre if you are considering this option. Find your local organisation using the Find Help search tool.

Questions to think about before employing a family member

  • Is the family member willing and able to provide the support needed?
  • Would employing the family member change the relationship with them?
  • What if something went wrong, would you be able to raise any issues with the family member?
  • If the family member was not able to provide the support needed, will you be able to end their employment if you want to do this?

Steps you can take

  • Check with your council and ensure they would agree to employment of family members
  • Speak to your local Independent Support organisation for guidance
  • Ensure a contingency plan, a plan to manage unexpected changes, and budget is in place.

Next steps

Take a look at the resources available below to guide you in more detail.

Part of
Last Updated
20 February 2024
First Published
28 March 2022
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Resources

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View this resource - SDS Direct Payments Legislation
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View this resource - Part 3 of Direct Payment Legislation on Employing Family Members
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View this resource - Statutory Guidance for the Social Care (Self-directed Support) (Scotland) Act 2013: November 2022

Disclaimer

Please note that the information contained in this Handbook is provided for guidance purposes only. Every reasonable effort is made to make the information accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by Self Directed Support Scotland or any other contributing party.

The information does not, and is not intended to, amount to legal advice. You are strongly advised to obtain specific, personal and professional advice from a lawyer about employment law matters, or an accountant/ tax specialist about taxation matters, and from HMRC and your insurers. You should not rely solely on the information in this Handbook. Support organisations listed in this Handbook can help you find appropriate sources of advice.

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