Is Personalisation inadvertently criminalising carers?

A while back, whilst researching the requirements for registration as a domiciliary care provider with the Care Quality Commission (CQC), I became concerned that the definition they were applying might pick up carers who employed a personal assistant on behalf of a person who lacked capacity.  This would mean that those carers would be obliged to register with CQC as domiciliary care providers, or they would be guilty of a criminal offence.  As the Personalisation agenda is rolled out, more carers may use direct payments to employ a personal assistant to provide support for someone they care for who lacks the capacity to employ them directly themselves.  Under s10 Health and Social Care Act 2008 any person who carries on a regulated activity without registration is guilty of an offence, and could be liable for a fine of up to £50,000 or sentenced to a prison term of up to twelve months.  Is it possible that Personalisation could, therefore, be criminalising carers?

I've actually been thinking about posting on this for a while, but I didn't want to cause a panic in case I was incorrect, so I started off by contacting CQC themselves and In Control to ask if they were aware of this potential issue, and whether there were any regulations that I had missed that might mitigate it.  On June 7th In Control replied to my email:

The simple answer is that someone in receipt of Direct Payments is not operating as an organisation but as a sole employer. The sole employer is responsible for the support arrangement direct for themselves or a family member and therefore do not operate as a company or similar legal entity so the liability sits with themselves of which they should have have employers liability insurance. As you will read the CQC guidance it always refers to ‘the organisation’ or ‘body’ and as long as they are not operating as an entity to provide care to others then they do not need to be registered.

I responded that there was nothing in the CQC's guidance (The Scope of Registration) that or The Care Quality Commission (Registration) Regulations 2009 that mentioned 'sole employers'.  The only exemption seemed to be contained in Regulation 4, which related to user trusts.  I pointed out that some carers may employ personal assistants through user trusts, but not all will.  I asked In Control to help me locate the legal basis for the exemption they were referring to.  As yet I haven't received a reply to this email (sent 7 June).

I also contacted the CQC to seek their advice.  My initial email (7 June) went unanswered, but when I prompted them last week they pointed to this passage from The Scope of Registration:

"Individual user trusts, set up to make arrangements for nursing care or personal care on behalf of someone who lacks capacity to do it for themselves, are also exempt. This exemption is set out in a different set ofregulations to the other issues covered in this guidance. See regulation 4(4) of the Care Quality Commission (Registration) Regulations 2009."

I responded, again pointing out that this only applied to user trusts, and not to carers who were directly employing a PA.  They responded on 11 July that my email had been sent to the Regional Registration Manager, and I have not yet heard back [Edit: CQC responded on 19 July, advising 'The practical test is whether an individual or a company or a partnership are an employer who employ staff to give personal care to people in their own homes. I would see that someone acting of behalf of a person who lacks capacity then becomes representative of the individual responsible for making arrangements for that individual budget' - a sound practical approach, but perhaps not consistent with the law].

I began to wonder if I was imagining this entire issue... until today.  The Department of Health today opened up a consultation on various aspects of the CQC (not including, I notice, the important matter of minimum inspection frequencies).  I noticed these passages in the main consultation document:

60. Where care is arranged by a third party (including an independent user trust (IUT), parent or carer) the provider must be registered unless the care is provided by a friend or relative without payment.

61. In addition, the regulations do not specify whether parents or carers who employ an individual to provide personal care for someone should be considered to be a provider of a regulated activity.

62. We are concerned about the burden the current requirements create, in particular on the person arranging the care, the provider, and CQC.

I'll bet they are!  So, although the CQC have not responded to my emails this consultation does suggest they are aware of the issue I have raised.  So the answer to the question is this: yes, the CQC regulations are potentially criminalising carers who employ a personal assistant to care for someone who lacks capacity, but who do not register as a domiciliary care provider.  The reality, though, is that they are extremely unlikely to prosecute a carer on this basis (in fact, I would suggest that the public interest argument for doing so would be nil).  And it looks, in any case, as if they are planning to change the regulations.

What is more alarming, in my view, is that nobody appeared to spot this earlier on.  In a way it's just a legal pickle of little practical consequence; in another sense it seems to fit into a wider muddle between Personalisation and community care law.