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.
Despite this confusion, which may still see providers liable to top up what has been paid for sleep-in shifts dating back six years, the government admits that until February 2015 its guidance was “potentially misleading”. In fact, data uncovered via a Freedom of Information request shows that as late as February 2016, HMRC was issuing guidance to its own staff that stated care workers were not entitled to the national minimum wage while asleep, other than in exceptional circumstances. This inconsistency must be resolved.
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
Source : Policy on sleep-in pay could have dire consequences for people needing care : The Guardian