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Latest sleep in shifts guidance does not go far enough to protect essential care services

FOLLOWING months of campaigning and nearly four months after the Court of Appeal judgement, the Government has revised its guidance on sleep in payments. The announcement follows a cross-sector letter signed by care, health and education organisations urging the government to clarify how sleep-ins should be remunerated.

This week’s guidance reflects the law in paying for sleep in work as determined by the Court of Appeal’s judgment in the joined cases of Mencap v Tomlinson-Blake and Shannon v Rampersad. The guidance clarifies that the Court of Appeal overturned a previous decision which would have resulted in sleep in staff being paid the national minimum wage while asleep.

But Wednesday’s guidance does not help anyone nor go far enough says VODG (the Voluntary Organisations Disability Group) which has been calling on the government to resolve these issues since 2014. The official guidance notes that further court judgements may again change the circumstances under which the national minimum wage is paid. Unison has already lodged an appeal creating renewed uncertainty for employers over retrospective and ongoing costs. According to VODG, the Government is, therefore, ‘sitting on its hands and doing nothing until this potential legal action concludes.’ adding ‘This imposes a state of uncertainty probably until 2020.’

Steve Scown, VODG chair told Charity Today:

“Government has the opportunity to use a statutory instrument to legislate once, and for so all parties are clear on what the rate of pay should be for sleep in shifts. As things stand this type of work is totally unregulated. That leaves staff, commissioners and employers in limbo. We are already seeing hard-pressed local authorities introducing cuts to previously agreed rates of pay for sleep-ins. It is inevitable that without government action we will see a postcode lottery of pay rates for overnight support.”

It is clear that in the absence of government action commissioners and providers will move in ad hoc ways in relation to the provision of a vital night time support. Just last week VODG highlighted how one local authority has stepped forward and proposed reducing pay for sleep in work to around £4 per hour (once tax and national insurance contributions have been accounted for).

The ongoing lack of clarity affects not only care provider organisations but also individuals using personal budgets or direct payments to employ and manage support staff.

VODG is calling on the government to:

  • Act decisively and introduce through a statutory instrument regulatory clarity on pay rates for sleep-in shifts.
  • Work with providers and local government on a sustainable funding solution that will ensure care workers are valued and fairly paid.
  • Provide clarity on its controversial Social Care Compliance Scheme (SCCS) in the light of new guidance.
  • Confirm that the current legal position means employers will not face potential HMRC retrospective action to recover underpayment of national minimum wage for sleep in work – now or in the future.
  • Work with organisations to produce information so that people who use services and their families, the workforce, employers and commissioners understand how sleep-in shifts should be remunerated.
Steve Scown, VODG chair said:

“We know that when one local authority makes cuts to its rates of pay, others may soon follow. Cutting workforce pay is a false economy as this will only serve to reduce retention within the sector, increase the sector’s already very large recruitment bill and make it harder to provide high-quality, consistent support.”

The Chancellor’s Autumn Budget gave the workforce a welcome boost by raising the minimum wage to £7.83 to £8.21 from April next year. However, with the unit cost of care provision increasing, and the average hourly rate paid by local authorities to providers already not fully covering these costs, there is a significant threat to social care market stability.

This week the Care Quality Commission regulator has notified local authorities that Allied Healthcare is at ‘credible risk’ to service disruption. CQC’s emergency processes have triggered contingency plans to ensure continuity of care for more than 13,000 people.

VODG chief executive Rhidian Hughes said:

“The financial pressures are mounting, and the government must step up and act decisively to provide adequate funding for the sector. Last week’s Autumn Budget monies for social care were a drop in the ocean. The Association of Directors of Social Services has estimated that over £2 billion is required in 2019/20 to protect essential services. Social care needs to be properly funded to protect vital local services and for the workforce to be properly rewarded for the valuable contributions they make to society.”