Today, 13th July, the court has ruled in favour of Mencap in the case over sleep-in back pay. This overturns an employment tribunal which ruled that workers were entitled to the National Minimum Wage (NMW) for every hour of a sleep-in shift.
Reacting to the decision, the #SolveSleepIns Alliance, a coalition formed to deal with the sleep-in crisis which represents providers for people with learning disabilities in the UK, is calling on the Government to legislate for all care workers to be entitled to the NMW for all shifts, including sleep-ins, and to raise the level of funding provided to Local Authorities (LAs) and care providers in line with new legislation.
The 2015 case resulted in HMRC pursuing care providers offering sleep-in services for six years of back pay for all staff who had performed sleep-in shifts. This bill was estimated to be around £400 million in total for the entire care sector. In 2017, HMRC set up the Social Care Compliance Scheme which gave care providers one year to self-assess their liability and a further three months to pay back workers. Notably, this scheme offered no assistance to providers in assessing their liability, locating their past staff of up to six years ago nor any information on how past and current employees would be paid. Government did not increase money going to LAs or care providers for the sleep-in shifts moving forward nor any new money to cover the back pay.
Public services to care for people with disabilities are funded by LAs. Central Government funding is then provided to LAs who often contract with care providers to deliver services.
The tactics being taken by Government’s revenue agency HMRC is taking a spectacular new turn in dealing with the sleep in crisis says VODG the group that represents disability charities.
Government’s recent announcement of a new Social Care Compliance Scheme raised more questions than answers. The lack of clarity has prompted VODG and other agencies to work together to compile a consolidated list of questions and concerns which have been shared with HMRC and other Government officials in writing.
Now in the latest turn of events the leaders of charities and their trustees are receiving ultimatum letters from HMRC. There are variations to the letters but all introduce the Social Care Compliance Scheme and “invite” the organisation to join. Some demand a telephone call with the recipient on a fixed date and time. So far all of the letters received give just 30 days to decide whether to take part in the scheme.
VODG chair Steve Scown said:
“There are too many unresolved questions for providers to make an informed decision as to whether to join Government’s compliance scheme. In the absence of answers, and funding to cover the back pay bill, HMRC’s approach and the timeframe they are imposing is unhelpful to a sector that is at full stretch financially.”
While the chief executive of a disability charity, who wished to remain anonymous, said:
“This appears to be a concerted and planned campaign by government to undermine the sector when a constructive not punitive approach is needed. At a time when we need more funding for social care, the sector is instead being hammered by the HRMC intent on taking away resources from the sector. As a charity working with thousands of people we are deeply concerned about the impact to services such as care and support for elderly relatives, families already struggling with disabled children and young disabled adults who may not only lose their services but the charities who have supported them over many years. The public should know that the very services who support them are being pulled apart. I am concerned and dismayed that our sector is being treated in this way.”
VODG is working with other sector bodies including Association for Real Change, Care England and Learning Disability Voices to demand that Government funds the mistaken back pay.
VODG chief executive Rhidian Hughes said:
“The unspoken cost pressures on social care employers continue to mount as Government drags on the sleep in crisis. The Treasury must find the money to remedy this situation to enable local authorities to contract with providers at a level that covers the full cost of legal requirements. The long-term chronic under-funding of social care must be reversed and we demand the Chancellor takes action in the Autumn Statement.”
New guidance means providers are being forced to pay for the government’s mistakes, and puts the future of the care industry at risk
By Matt Wort
The government’s latest policy update on sleep-in shift pay has once again put the future of the UK care industry at risk.
Some may be forgiven for hoping that given the level of opposition and the magnitude of a looming £400m back payment bill, this saga might come to a positive conclusion. However, what we are instead left with is a Social Care Compliance Scheme (SCCS) that encourages some already stretched care providers to calculate the extent of their own insolvency.
Policymakers assert that the scheme affords providers who may be liable for historic repayments for sleep-in workers more much-needed time to access the reserves needed to settle their debt, as the government calls it. Organisations have a year to identify what they owe, and those with arrears at the end of the self-review period have three months to pay up.
This is once again an ill-considered move by the government that could have dire consequences for vulnerable individuals needing care.
There is an alarming lack of clarity in the guidance – care providers are being instructed to self-assess their national minimum wage liability, with no indication of how far back these payments may stretch.
For the majority of the back-payment period, local authority and NHS commissioners won’t have funded providers sufficiently for the shifts in question to compensate this shortfall. Forcing care providers to pay for the government’s own mistakes and leaving essential services at the mercy of HMRC is both unethical and nonsensical.
As well as potentially putting hundreds of care services out of business, the government has stated that individuals who pay for their own care are liable for back payment – leaving thousands of vulnerable individuals, many with complex disabilities, at risk of bankruptcy. Again, it is highly unlikely that in many of these cases, local authority-funded personal care budgets were sufficient to cover this additional cost.
In a climate of such uncertainty, it is vital that businesses and individuals do not sign up to the self-assessment scheme until they have further clarity. Not only are they lacking essential details relating to the scope of back payment, but Mencap’s upcoming court of appeal case due to be heard in March 2018 could change the position as to whether sleep-in care workers are entitled to the minimum wage.
This latest announcement aside, the government must take a long hard look at the inherent unfairness in the way social care is paid and legislated for, ensuring budgets reflect the increased cost of sleep-in care and the wider estimated shortfall in funding of £1.3bn for residential care.
Furthermore, while sleep-in workers are entitled to the national minimum wage while asleep, this is not the case for live-in care staff, as this is classed as “unmeasured work”. There is no difference in the level of care provided, so the courts and HMRC must consider taking the same approach to sleep-in shifts that it does to live-in care.
What care providers need now is clarity, consistency and common sense from the government, and quickly. Those affected by the latest announcement would be well advised to seek further information before taking action; in such a pressurised financial environment, doing so could prove vital.
Matt Wort is a partner and health and social care expert at Anthony Collins Solicitors
It’s a common problem these days that people who either have their own direct payment (or hold one, as an authorised person, for a person lacking capacity to request one) are building up an underspend, through not being able to find the staff to meet the assessed need.
In some cases, of course, it will be because the holder or owner of the DP will have an entrenched view about the quality of worker they want to find; and the rate will not be enough to cover the market rate for such a worker, but the DP holder is willing to compromise on the number of hours they were supposed to be being funded for, if they can only find the right worker.
That’s a choice that they can probably take, without offending against any principle of the Care Act that would be held over them. If they take that choice, then they must take responsibility for it.
HM Revenue and Customs (HMRC) has admitted to Disability News Service (DNS) that individual PA employers have been investigated, just like large service-providers such as Mencap.
The government has publicly warned – following a high-profile tribunal ruling involving the charity – that many care workers should have been paid at least the minimum wage for the hours when they were sleeping on an overnight shift.
Many of them should now be able to claim for up to six years back-pay.
But the revelation that individual disabled people who use PAs are also being pursued by HMRC for years of back-pay is now beginning to cause alarm in the independent living movement.
THE SURVIVAL OF SCORES OF CARE PROVIDERS IS AT RISK Royal Mencap Society, one of the country’s leading learning disability charities, has today (19 July) made known that essential care for some of the country’s most vulnerable people – those with serious learning disabilities – is threatened because of a Government failure to grasp the nettle on a critical funding issue. Many of the organisations providing this support are charities, whose very survival is now at risk. Derek Lewis, Chairman of Royal Mencap Society, indicated that a volte-face in Government guidance on National Minimum Wage (NMW)1 payments payable to care staff who sleep at the workplace, together with the precipitate action of HMRC, demanding 6 years back pay, has brought the sector to the brink of disaster. One capable of creating Southern Cross type failures on a multiple scale right across the country. With high politics and Brexit taking centre-stage all attempts to get top levels of Government to take the issue
The perks of the middle classes appear to be the next area to be targeted. However, some of these perks have been granted in lieu of salary increases, so if the favourable tax treatment is to be curtailed, this could cause a substancial increase in salaries to be required. The perks of the higher paid and the self employed will also need to be considered.
So to the perks of MPs and Ministers for their allowances should be completely withdrawn, as this would then minimise the risk of fraudulent claims.
With regards to the poorly paid and those with long-term illnesses and disabilities, these are the people who suffer the most when changes occur and are the people who receive the least respected from many sectors of Society, especiallty the Government of any political party.
The whole concept of dealing with all sectors of the UK population needs to have urgent consideration so that it is equable to all, especially those who can least afford it.