Group warns of uncoordinated response to sleep-in care workers judgment

The Voluntary Organisations Disability Group says the government should be clear about what changes it is proposing after the Appeal Court found in favour of Mencap over back pay

Sleep-in care (Photograph: Shutterstock)
Sleep-in care (Photograph: Shutterstock)

The government’s failure to clarify the situation around sleep-in care back-pay liabilities could lead to "knee-jerk reactions" from local commissioners and damage social care providers, the Voluntary Organisations Disability Group has warned.

The VODG’s statement came as HM Revenue & Customs began writing to social care providers to inform them that they could stop calculating the amount they owe in back pay to sleep-in care workers after a Court of Appeal ruling earlier this month.

The Court of Appeal judgment, in a case brought by the learning disability charity Mencap, said social care providers, including many charities, did not have to pay significant sums in back pay to sleep-in care workers.

The court’s decision overturned an employment tribunal ruling in 2015 that found a former Mencap care worker, Claire Tomlinson-Blake, was entitled to receive the national minimum wage for each hour of sleep-in shifts completed, plus six years of back payments.

Charities had previously typically paid sleep-ins a flat rate of between £35 and £45, plus an hourly rate for any time spent providing care rather than being asleep.

Mencap estimated the tribunal ruling would have cost it £20m and the wider care sector £400m if it had not been challenged.

Before the Court of Appeal’s ruling, HMRC had set up the Social Care Compliance Scheme to enable social care providers to identify what they owed in back pay and pay off the arrears before February 2019.

But in a letter to social care providers, HMRC says that employers participating in the SCCS should now either suspend their self-review pending further advice or continue their self-review, taking into account the Court of Appeal’s judgment.

HMRC has also withdrawn a section of its guidance on how to inform it that an organisation has underpaid the National Minimum Wage.

That section of the guidance was about how organisations could decide if sleep-in shifts were counted as work.

HMRC’s letter says the department will issue a further communication to employers by Friday 17 August.

A statement from the VODG said: "We are calling on government to now make a decision and be clear about what changes it is proposing ahead of wider consultation.

"Without this clarity, government needs to be aware that local commissioners and provider markets will react in ad hoc and uncoordinated ways and this situation could lead to irretrievable developments by the time MPs return after recess.

"The Department of Health and Social Care needs also to urgently signal to commissioners that knee-jerk reactions to pricing the provision of overnight support risks destabilising the market."

A spokesman for HMRC said: "HMRC is presently considering the implications of the Mencap Court of Appeal judgement. Further information will be provided to social care employers that have entered the Social Care Compliance Scheme in due course."

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