In a guest blog for Nuffield Trust, Jan Tregelles, Chief Executive of Mencap, discusses the issue of payments for ‘sleep-in’ care and says that not reaching an equitable solution on it leaves the sector facing an impossible quandary
The first week in November saw fireworks of a different kind for the learning disability sector. After a year of indecision, the Government failed to find a solution to the question of whether or not it would pick up the bill for past statutory ‘sleep-in’ care, and instead introduced a ‘voluntary’ new social care compliance scheme, which has been met by care providers with deep concern.
It may sound dramatic, but the learning disability sector is hanging by a thread. It is the worst crisis in Mencap’s proud 70-year history, and the threat of multiple insolvencies, job losses and thousands of people with learning disabilities losing their homes in the community is sadly very real.
So, what has brought us to this? A retrospective HMRC bill caused by a government change in the rules over how the national minimum wage should apply to ‘sleep-in’ overnight care, used widely across our sector.
When the national minimum wage was introduced in 1999, government interpretation and guidance said time spent asleep did not count as ‘work time’. Instead care workers were paid a flat rate ‘on-call’ allowance, which became the norm across the sector. Local authorities with the statutory duty to assess, and commission essential care, funded this care accordingly. Care workers would only be paid their full wage if woken during the night.
This was the case for around 16 years until two employment tribunal cases challenged that interpretation. Then in October last year, new guidance was issued stating that time spent asleep during a ‘sleep-in’ shift did in fact qualify for the national minimum wage payment. This volte-face triggered HMRC enforcement action demanding six years’ worth of back pay for staff, at an estimated cost of £400 million.
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