The purpose of this article is to provide a high level overview of factors to be considered by a person with disability (PWD) when structuring an employment contract with a Personal Care Attendant in order to provide the PCA with optimal conditions of service and maximum tax relief to the employer.

The nature of work of a PCA is such that persons without the emotional fortitude and mental capacity to deal with the intensely personal and emotionally draining nature of the work, do not last. When a PCA with all the required attributes is found and there is a strong compatibility between the PCA and the PWD, everything possible must be done to ensure a lasting employment that is optimally beneficial to both.

The best foundation for achieving this is a solid Employment Agreement that will not only formalise expectations and commitments but will also serve to optimise tax relief for the PWD. However it must be pointed out at the outset that there is no tax benefit if the PCA is perceived to be primarily a domestic worker that largely assists the PWD with routine household tasks. (Neither is there tax relief for a spouse or family member that serves as a PCA.)

For this reason the Employment Agreement must, as an addendum, include a job description that clearly documents and emphasises the specific PCA-related duties. These must be stipulated explicitly and in detail in order to clearly differentiate it from domestic worker tasks, including frequency per activity. E.g.: “Turn client every three hours at night”, “assist client to obtain a bowel movement daily”, “intermittent urinary catheterisation every four hours” etc. (If the PCA also performs general household duties, these can be mentioned in general; preparing meals, housekeeping, etc.)

Although the legislation on basic conditions of employment covers much of the following, it is a good idea to also tie down the following in the Employment Agreement; The PCA’s salary, the PWD’s contributions to a pension fund and/or medical aid for the SCA, UIF contribution, sick leave and vacation leave, etc. (It is recommended that the PWD only consider pension and medical aid contributions if the PCA desires it and is prepared to co-contribute.)

Also calculate and document the actual living-in expenses: Electricity, food and water incurred and paid by the taxpayer (PWD) in respect of the Personal Care Attendant. SARS would generally allow the living-in expenses incurred and paid by the taxpayer if the aggregate amount of such expenses does not exceed 10% of the annual salary payable to a care attendant, up to a limit of 50% of the annual domestic worker minimum wage. Please note that any other living-in expenses (other than food, electricity and water) in respect of a PCA are excluded as tax benefits. For example, the taxpayer cannot claim for the space (e.g. room) used by the person with a disability in the house.

The purpose of an Employment Agreement is to clearly document the nature of work of the PCA and quantify all the related costs. As each PWD’s circumstances are different, there is no standard Employment Agreement, but QASA can assist with pro forma guidelines.

Such an Employment Agreement is as pertinent to an Independent Living Center with a number of employed PCAs as it is for a PWD living alone or with a spouse and children. A well-structured remuneration package may seem beyond the means of many (most) PWDs but optimal tax relief with the support of a good tax consultant can assist to make it affordable.

There are two additional legal requirements in order to qualify for tax relief: Firstly, the person with a disability must complete the SARS “Confirmation of Diagnosis of Disability” form, including a medical certificate completed by your doctor. It has been my experience that this is not a once-off. SARS may request a new certificate with each tax return. Secondly, if you as a person with a disability plan to employ a personal care attendant on a full time basis, you need to register with SARS as an employer and pay over UIF and (if applicable) PAYE to SARS on a monthly basis.
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