The Voluntary Organisations Disability Group has said that new government guidance on pay for sleep-in carers "does not go far enough" to protect care services.
The government changed its guidance on the issue yesterday after a case brought by Mencap in July saw the Court of Appeal rule that social care providers, including many charities, did not have to pay significant sums in back pay to sleep-in care workers.
That court ruling also said that sleep-in care workers were not necessarily entitled to the minimum wage for hours they spent asleep at the homes of patients.
The new guidance from the Department for Business, Energy & Industrial Strategy says that "if the employer provides suitable facilities for sleeping, minimum wage must be paid for time when the worker is required to be awake for the purpose of working, but not for time the worker is permitted to sleep".
The guidance says that if suitable sleeping facilities are not provided, the minimum wage must be paid for the entire shift.
But the VODG has called on the government to legislate to clarify the pay rates expected for sleep-in care workers and to state that HM Revenue & Customs would not continue action to recover back pay for underpayment of the minimum wage for sleep-in care workers.
Social care charities had faced paying significant sums to sleep-in care workers after an employment tribunal ruling in 2015 found that 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.
The government set up the Social Care Compliance Scheme for social care providers to calculate and pay back pay owed to their care workers, which could have cost the sector an estimated £400m.
The new guidance reflects the Court of Appeal’s verdict that overturned the tribunal’s ruling, but the guidance warns that the Supreme Court could yet decide to allow an appeal, which would be unlikely to be heard before 2019 and possibly not until 2020.
An application to appeal the most recent ruling has been submitted by the trade union Unison and is being considered by the Supreme Court.
Steve Scown, chair of the VODG, said: "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."