Direct Payments ? Employing Anyone For Sleepovers ? BEWARE : Court Case

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Fine ... what about a lone caree / carer employing a care worker through Direct Payments.

Would the same apply for that lone caree / carer ?

Would he / she have the same training and reference manuals / books available if needed ?

That's my concern ... for sleepovers funded through Direct Payments , that caree IS the employer !

And yet , if they did NOT pay the care worker the minimum wage , they would be demned just as guilty as , say , MENCAP !!!
Chris From The Gulag wrote:
Wed Apr 11, 2018 12:44 pm
Fine ... what about a lone caree / carer employing a care worker through Direct Payments.

Would the same apply for that lone caree / carer ?

Would he / she have the same training and reference manuals / books available if needed ?

That's my concern ... for sleepovers funded through Direct Payments , that caree IS the employer !

And yet , if they did NOT pay the care worker the minimum wage , they would be demned just as guilty as , say , MENCAP !!!
Yes if you underpay your employee(s) you are in breach of the law. Individal or no. HMRC will only find out if that employee squeals.

https://www.bristol.gov.uk/social-care- ... t-payments

Every council has websites and info like this. There are loads of other websites detailing the ins and out of DPs.

https://www.bristol.gov.uk/social-care- ... assistants
I am sure that every family carer and caree have sought out those links after being offered Direct Payments through their local LAs / SSs.

Ignorance of the law is no excuse ... technically correct ... same apply to , say , an elderly person in their 90s " Employing " a care worker through the DP scheme ... the caree being also in their 90s ... husband and wife ?

One of the major disadvantages outlined a decade ago when DPs were still on the drawing board.

In CarerLand , there has never been an " One size fits all " policy that has worked !
Chris From The Gulag wrote:
Wed Apr 11, 2018 1:29 pm
I am sure that every family carer and caree have sought out those links after being offered Direct Payments through their local LAs / SSs.

Ignorance of the law is no excuse ... technically correct ... same apply to , say , an elderly person in their 90s " Employing " a care worker through the DP scheme ... the caree being also in their 90s ... husband and wife ?

One of the major disadvantages outlined a decade ago when DPs were still on the drawing board.

In CarerLand , there has never been an " One size fits all " policy that has worked !
Information prior to accepting direct payments is available not just online. I am in the "employed by an individual" case category, which was investigated by hmrc.

I am employed by one person in a couple who have separate care packages, yet we still do stuff for her husband even though we are not part of his care package or employ UNPAID. Yet when we bring this up we are uncaring or mercenary. One policy does does not fit all and that goes both ways. I could go on and on about what goes on but as I am paid and part of a group employed by an individual who pays us via direct payments I do not count! I am an individual who signed a contract of employment who was underpaid for thousands of hours I worked in the employ of a disabled individual. I have waited 6 years for my money, yet my disabled employer can make a single two-minute phonecall for her benefits or direct payments and have the amount corrected instantaneously no hiccups, no wait.... Do you want me to go on?!
Chris besides there is loads on info on this very site as well. No need for ignorance in this day and age:

https://www.carersuk.org/help-and-advic ... ments#sec2
Said guidance does not cover the legal obligations placed on the carer and / or caree when employing anyone through Direct Payments.

LAs do not assist either ... many are not pointing out the legal position to recipients of Direct Payments.

Thousands of individuals have been in receipt of Direct Payments over the past ten years.

How many know their obligations ... as employers ?

Straight answer ?

Very few ... and where does the blame for that lie ?

As for being underpaid for a number of years , I can envisage 6.5+ million family carers agreeing with that statement !

In our case , and for some , for 42 years when it was first introduced ... for those , now , 1 in 12 who are fortunate enough to be able to claim the pittance known as Carers Allowance.
WOW !

Unexpected decision ... here it is :


https://www.independent.co.uk/news/uk/h ... 45391.html



Carers denied millions in back wages as court overturns decision that sleep-in shifts should attract minimum wage.

Significant victory for struggling care sector which warned two-thirds of employers faced bankruptcy if decision was not reversed.


Low-paid carers are no longer entitled to a £400m settlement from the charities and care homes they work for after the Court of Appeal overturned a decision that those on sleep-in shifts should earn minimum wage.

The court said only hours spent awake counted as work, ruling in favour of an appeal by the social care sector, which is already predicting a £2bn funding deficit by 2020 in the face of growing demand.

Unions were considering going to the Supreme Court after the “disgraceful” ruling which reversed government guidance that meant care sector employers owed six years back pay to staff.


Carers had previously been paid a flat rate when staying overnight with the people they support, but recent tribunals had ruled staff were entitled to minimum wage instead – doubling the current rate.

Social care groups had warned that as many as two-thirds of employers in the already struggling sector faced insolvency if they had been required to pay the bill – due by the end of March 2019.

Both unions and care groups criticised the government for the lack of clarity, which threatened to cause “mayhem” and gave “false expectations” to workers who would now be, rightly, disappointed.

A joint ruling, handed down by lord justices Ernest Ryder, Nicholas Underhill and Rabinder Singh, said: “I believe that sleepers-in… are to be characterised for the purpose of the regulations as available for work… rather than actually working… and so fall within the terms of the sleep-in exception in regulation.”

The appeal was brought by the learning disabilities charity Mencap, supported by the umbrella group Care England, and roughly 200 local and national charities were set to be liable for the back pay ruling.

Under guidance issued by the government in 1999, when the minimum wage was introduced, disability charities, which sent a carer overnight to look after someone with learning difficulties, were required to pay a flat rate “on call” allowance of £25 or £35 to cover the period when they were asleep.

But, following two tribunal cases in 2015 and last year, the Department for Business, Energy and Industrial Strategy (BEIS) changed the guidance in October to state that these organisations must now pay the minimum wage throughout the shift, meaning overnight carers would earn £60 for eight hours of sleep.

In the wake of the decision, HM Revenue and Customs (HMRC) had begun demanding six years worth of missing payments and had started enforcement actions.

While a number of employers, including Mencap, have increased the flat rate for their carers from April 2017, this is not mandatory. The charity estimated the cost of minimum wage back pay in the learning disabilities sector alone would be £400m, with no additional funding from the government.

In the wake of the verdict, Mencap called for the government to legislate quickly so all carers would receive an increase rate for overnight shifts, and to increase social care budgets accordingly.

“We did not want to bring this case,” said Derek Lewis, chair of the Royal Mencap Society.

“We had to do so because of the mayhem throughout the sector that would have been caused by previous court decisions and government enforcement action, including serious damage to Mencap’s work in supporting people with learning disabilities.

“What is clear though, is that dedicated care workers deserve a better deal.”

Trade union Unison supported the initial tribunal against sleep-in rates and said it was a “disgrace” that carers would continue to be “paid a pittance” for the significant responsibilities of the role.

“The blame for this sorry state of affairs that’s hitting some of the country’s lowest paid workers must be laid at the government’s door,” said the union’s general secretary Dave Prentis.

“Ministers are so consumed by Brexit that they’re ignoring huge problems around them. Social care is in crisis, and this situation wouldn’t have arisen if the government had put enough money into the system and enforced minimum wage laws properly.”

BEIS has been approached for comment but had not responded at time of publication.



I have every sympathy for the care workers in this instance !

In short , the 24 / 7 family carer is now a myth ... only caring when the caree is awake ???

I hope this one goes all the way ... to the Law Lords.

Many charities operating as businesses in this sector have dodged a bullet ... for now ?


https://www.carersuk.org/forum/news-and ... businesses

Still ... potential penalty shoot out in the House of Lords to come ???
Extract from an article by PollyToynbee in this morinings Guardian following the sleepover court ruling :


https://www.theguardian.com/commentisfr ... m-quitting

A heavy blow fell on care workers last Friday.

The court of appeal overturned a previous ruling on the pay of care staff at night, at a stroke cutting their meagre pay by £30 a night. Those who sleep in for night shifts will no longer be regarded as working, no longer entitled to the £7.83 an hour minimum wage.

This extraordinarily unjust ruling suggests judges have no idea of life in a care home, looking after people with dementia and severe mental disabilities. They should spend a night sleeping in on duty, to see if it feels like “work”.


Yesterday I talked to Adam as he was about to start a care home shift at 3pm. It was not due to end until 5pm today.

Caring for people with severe mental impairments, he works until 10pm and then “sleeps” in the home until 7am, when his next shift starts. Those he cares for don’t sleep much. “They can be up all night, talking, shouting, slamming doors, going to the toilet on the floor,” he says.

On his baby monitor, he listens for people getting up or making loud noises and one woman who laughs all night, setting monitors beeping. “The man I look after mostly often comes and knocks on my door. I struggle to sleep much.” The original judgment, doubling his per-night earnings to £60, “made all the difference” to someone who was on £15,000 a year. Adam was also expecting £6,000 in back pay. But on Friday that too was withdrawn.

Most people would regard having to sleep in your place of work – let alone in a care home with heavy responsibilities, ever watchful and being woken constantly – as part of a paid job. Mothers working sleeping-in shifts often have to find babysitters for their own children, or carers for their own elderly relatives. But the judges think sleeping in is not really work: they characterised it as “available for work”, not “actually working”. Well, let the judges try it.


Adam works in a Mencap home, the charity that fought the case against the edict that care homes should pay the minimum wage for every hour during the night.

The government was reluctantly obeying tribunal judgments won by Unison that said sleeping in was “work”; care homes were also ordered to pay their staff six years’ back pay. That came as a financial shock to charities and private care homes, landing them with a thumping great £400m bill.

Many were already barely solvent. Some councils pay as little as £2.24 an hour per state-financed resident, barely enough to warehouse people, let alone care for them well.

No wonder almost a thousand care homes have closed in the past decade.


I am sure that Unison will challenge the recent Court of Appeal ruling ... given the number involved.

As family carers , we can appreciate some of the inconsistencies in this one ... many lone carers sleep when their caree sleeps for starters.

I would add that , in Scotland , the minimum wage applies to sleepovers as well !

One most definately worth following.
Sleepovers ... a post motem ... of sorts ... from the Guardian :




Back pay ruling hands care providers a lifeline, but what happens next ?

The decision on sleep-in shifts has averted a crisis but an appeal could reignite uncertainty about the viability of the sector.


The court of appeal handed care providers a lifeline last week, ruling that they do not have to pay staff the national minimum wage (NMW) for sleep-in shifts.

This decision overturns a significant body of case law, and rules that the NMW is payable only when staff are awake and working, not when they are asleep and classed as “available for work”.


It provides huge relief for care providers, which faced the prospect of having to fund substantial back pay.

A crisis has been averted, at least for now. But what happens next ?

Will there be an appeal ?

It is understood that the court refused permission to appeal. However, an application can be made directly to the supreme court, usually within 28 days. If an appeal is pursued, it will reignite uncertainty about the viability of the sector.
Are all sleep-in shifts covered by the ruling?

Not necessarily. The judgment was limited to the facts of the case where sleep-in staff were “expected to sleep for all or most of the period but may be woken if required to undertake some specific activity”. Staff were only available for work and did not need to be paid the NMW when asleep.

It is not clear exactly where the line is drawn and each case will need to be assessed on its facts.


For example, what if:

Sleep-in staff are required to carry out regular checks on service users during the shift?

The complex needs of service users mean that staff have to get up and provide support a number of times through the night?

How will care providers react to the ruling ?

Some, predominantly larger, organisations have already increased pay for sleep-in shifts to the NMW.

While the cost implications are considerable, it seems unlikely that these providers will revert to paying only an allowance for sleep-in shifts. They have budgeted for the increased costs and reversing their decision would create negative publicity, damage staff morale and remove their competitive advantage in recruiting staff. Any such change may also be restricted by contractual or employment law obligations.

Providers that haven’t increased the sleep-in rate are unlikely to do so now. However, they will be at a competitive disadvantage to providers that have increased rates, and the pressure of recruitment and retention challenges may force them to increase sleep-in rates. Many will need additional funding from local authorities to do this.

What happens to providers that joined the Social Care Compliance Scheme ?

After an earlier ruling that sleep-in shifts were subject to the NMW, the government set up a Social Care Compliance Scheme.

This is a voluntary scheme that gives providers up to a year to identify what they owe to workers, supported by advice from HM Revenue and Customs (HMRC). Employers who identify arrears at the end of the self-review period will have up to three months to pay workers. HMRC has not yet responded to the judgment so it is unclear what will happen to providers that joined the scheme.


A number of questions remain unanswered:

Will it now close the SCCS or wait for the outcome of any appeal?

Will providers that are nearing the deadline for declaration still be required to submit it? Will HMRC provide written confirmation that this is not necessary?

Will HMRC compensate providers it previously required to back pay staff for sleep-in shifts?

Will local authorities reduce sleep-in rates ?

Will local authorities that have increased sleep-in rates now reduce them in light of the court of appeal ruling? It is sincerely hoped not. It would be a retrograde step given the significant underfunding in the sector.

Ultimately, there must be a proper funding solution for social care. More funding would enable higher pay for staff, improved recruitment and retention and, importantly, more great care and support for service users.


Sort that lot out !!!

Ambiguity before , still ambiguity after !

Let the free market decide ?

Individual carees holding an auction for sleepovers with an audience of interested care workers ... " Sold to the lowest bidder ! "

Madness ... compounded by the sleep as your caree sleeps element.

For once , I hope UNISON take this one all the way ... they have my support ... on this one occasion.

Too much to expect that a higher ruling will lead to another law case ?

Said case to sort out ... once and for all ... exactly what are charities , and what are businesses ... separate thread on that one.

No more wolves in sheep's clothing ?