Health and Safety
Executive / Commission
Local government
Fostering is a fast changing environment and roles and employment status may be evolving, relationships, which exist today, may be very different from past experiences of this activity. Foster carers are deemed to be self employed for tax purposes (as defined by DfES who oversee the Fostering Regs). Foster carers have to be registered with a fostering service whether it's LA, independent or voluntary and go through rigorous amount of assessments to ensure their suitability to foster children, trained, and followed by monitoring and supervision. Under the Care Standards Act 2000 enforcement can be taken against a fostering service. From HSE's point of view, the employment status of individual foster carers has to be determined on individual case to determine whether there are responsibilities under health and safey legislation. However, as this area of work is already regulated by other enforcement bodies it is not an activity that HSE would become involved in on a regular basis.
HSE recognises the problems associated with the manual lifting and handling of people and that a balance has to be struck between ensuring the safety of the employee performing the task and meeting the needs of the client, whilst respecting the human rights of both the carer and the client. However, HSE believes that if the risks are managed properly, such a balance can be achieved without exposing employees to an unacceptable level of risk from the manual lifting of persons.
HSE believes that following the advice in Handling Home Care guidance, which it published in 2002 and which the court referred to as being 'up to date and relevant', will help resolve these issues, as it:
HSE has worked closely with the Disability Rights Commission, Department of Health and others on this issue and will continue to do so.
Local authorities' duties in respect of the health and safety of persons not in their employment, arising out of or in connection with the conduct of their undertaking are laid down in Section 3(1)(b) of the Health and Safety at Work etc Act 1974 and Regulation 3 of the Management of Health and Safety at Work Regulations 1999. http://www.opsi.gov.uk
In order to discharge their duties under health and safety legislation, local authorities should ensure that the health and safety of recipients and potential recipients of direct payments is not put at risk. Neither should the health and safety of the care worker employed under the direct payment scheme be compromised. A balance has to be struck between ensuring the safety of the employee performing the task and meeting the needs of the client, so that care workers are not required to perform tasks that put them and clients at risk unreasonably; clients' personal wishes on mobility assistance are respected wherever possible; and clients' independence and autonomy is supported as fully as possible.
Councils should satisfy themselves that recipients and potential recipients are aware of health and safety issues that affect them as individuals, anyone they employ, and anyone else affected by the manner in which their support is delivered. As part of this process, councils should give the recipients and potential recipients the results of risk assessments, which were carried out as part of the care assessment. (The purpose behind these risk assessments, and where necessary, re-assessment, is to ensure that health and safety issues can be taken into account, and adequate resources provided to fund the required support, irrespective of whether the council or the individual commissions the service.) This allows the individual to share the assessment with the care agency or the employee who provides the service, and therefore take reasonable steps to minimise the risks to the health and safety of any staff they employ. (The recipient or potential recipient has a common law duty of care towards the person they employ.)
Councils should avoid laying down health and safety policies for individual direct payment users. However, they should encourage users to be responsible for the management of risks, both for themselves and their carers. Councils can refer users to the guidance from the Health and Safety Executive on lifting and handling in home care settings 1 to help them achieve this.
1 'Handling Home Care: achieving safe, efficient and positive outcomes for care workers and clients' HSG225, ISBN 0 7176 2228 2 price £9.50 available from HSE Books, PO Box 1999, Sudbury Suffolk CO10 2WA. Tel 01787 881165 Fax 01787 313995.