Employment tribunal finds that Shared Lives carer was self-employed

After reviewing the evidence put forward by both the former Shared Lives carer and the Shared Lives scheme, Judge Tsamados laid out the reasons why he had made this judgement, which are outlined below.

Self-direction over daily work

According to Judge Tsamados the first and ‘most important single factor’ as to whether the former Shared Lives carer was in fact employed is;

• Did the Shared Lives scheme have an obligation to provide work, and did the Shared Lives carer have to carry it out according to a contract?

The judge found that the answer to this question was no, therefore the Shared Lives carer was not an employee.

The judge stated that whilst the Shared Lives carer was ‘controlled’ in their daily work by the need to meet CQC standards (which was enforced by the Shared Lives scheme) this did was not mean that the Shared Lives scheme was controlling how the Shared Lives carer worked on a daily basis. Instead, the Judge found that the Shared Lives carer had a high level of choice about how they worked with the people they supported, without being directed by the Shared Lives scheme.

Original agreement

Secondly, the judge pointed out that there was evidence that the Shared Lives carer had originally agreed to create a self-employed relationship with the Shared Lives scheme. The judge also highlighted that the former Shared Lives carer had only challenged their self-employed status after they were no longer working with Shared Lives and no longer benefitting from the tax allowances associated with their self-employed status.

Pay

The judge stated clearly the Shared Lives carer was not paid wages when working with Shared Lives. This is because;

• “The fee is not [the same as] a payment of wages for work done. It is not linked to time or productivity. Shared Lives Carers are not paid by the hour and do not work to a fixed schedule. They are not under any obligation to agree to any care or support arrangement offered to them.”
• In this case, the fee consisted of;
  • a flat rate care and support element which was paid by the Shared Lives scheme from the care placement budget
  • an accommodation element paid by Housing Benefits
  • food and utilities element paid by the person being supported by Shared Lives
• “The payments do not fall for taxation under PAYE.” Rather, the Shared Lives carer was entitled to Qualifying Care Relief which was an additional allowance from income tax of £10,000.
• The judge also stated that respite payments which the former Shared Lives carer had received were not the same as holiday pay and were therefore not evidence that the Shared Lives carer was employed by the Shared Lives scheme.

For further resources on the employment status of Shared Lives carers please see section 2 of our guidance.