Guidance on Domiciliary Care and Section 51 of the Health and Safety at Work etc Act (HSWA)

SIM 07/2011/05

OG Status:

Fully open

Issue date

01 October 2011

Review date

01 October 2015

Author Section:

Health and Social Care Services Unit (HSCSU)

Target Audience

HSE operational inspectors, specialist group inspectors, visiting officers and local authority health and safety enforcement managers / officers.

Introduction

1.1 Section 51 of HSWA - Exclusion of application to domestic employment.

“Nothing in this Part shall apply in relation to a person by reason only that he employs another, or is himself employed, as a domestic servant in a private household.”

1.2  Section 51 restricts the application of HSWA within private homes and the Act is dis-applied in many situations involving domestic employment, for example HSWA is unlikely to apply to au pairs or housekeepers.

1.3  However it may not be immediately clear if a worker's employment does amount to domestic service. One such area is Domiciliary Care where an individual is being cared for in a home/domestic dwelling. The purpose of this guidance is to assist Inspectors decide whether section 51 applies to their investigation. In the absence of certain definitions or decisive case law it is important that the facts of each case are carefully considered on their own merits. This guidance sets out some factors which should be taken into account.

Guidance

2.1  To determine whether or not section 51 will take effect and dis-apply HSWA, it is necessary to ask if both of the key definitions are met, namely “domestic servant” and “private household”. These are questions of fact not law.

2.2. Domestic Servant

2.2.1 What amounts to domestic service will be dependent on the nature of the work and so it is important to carefully consider the employee's duties (including the terms of any employment contract). An employee is likely to be considered a domestic servant if their job roles and responsibilities are exclusively domestic in nature.  Employees whose role extends beyond domestic duties are not considered to be employed exclusively as domestic servants and section 51 is not likely to apply.  Domestic service is likely to include the wide range of personal services of a kind ordinarily offered to and in a household.

2.2.2 Although there is no certain definition and each case has to be considered on its own merits, domestic service is likely to include the provision of basic personal care, personal services or other domestic help provided to support an individuals needs including home care and other domestic tasks.

2.2.3 Factors which would tend to suggest an employee is not a domestic servant include;

• Where at least in part their employment involves tasks that are not ordinary domestic services such as complex healthcare activities (e.g. operation of life support or palliative care equipment).
• Where the task(s) require specialist training including qualified trained healthcare professionals. Examples of specialist training may include, for example, training in people handling tasks or dealing with behavioural issues.

2.3  Private Household

2.3.1  What amounts to a private household will be dependent on the nature of the home.  Again there is no certain definition and so each situation needs to be carefully considered. It may be that the person who is receiving domestic services either owns, rents or leases their domestic dwelling. The presence of a property right is in itself not definitive but it is likely that domestic dwellings which are owned rented or leased by the individual receiving care are private households.

2.3.2  A dwelling which shares facilities with other domestic dwellings is less likely to be a private household.

2.3.3 Multi-occupancy accommodation such as hostels, hospices, care homes or other similar premises are unlikely to be private households. A carer employed as a carer to each of a number of single persons occupying bed–sit or accommodation with shared facilities is unlikely to be employed in a private household.

NHS, Local Authorities, Employment Agencies and suppliers of medical equipment

3.1  These organisations will almost certainly employ workers in roles other than as domestic servants. Consequently, these employers will owe duties under HSWA to those receiving domestic services in a private household.  Their employees may also carry out other duties as well as domestic service meaning that they are not employed solely as domestic servants and therefore are not subject to section 51.

Points for Inspectors

4.1  In order to consider how section 51 might affect an investigation, it will be necessary to take into account evidence relating to:

• The employer/employee's relationship
• The employee's roles and responsibilities.
• The nature of the employer's undertaking (if there is one).
• The nature of the domestic dwelling.

4.2  Queries relating to this guidance should be referred to HSCSU at publicservicessector@hse.gsi.gov.uk copying in Legal Advisers Office at Legal.Advisers.Office2@hse.gsi.gov.uk.