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Direct Payments ? Employing Anyone For Sleepovers ? BEWARE : Court Case : Ruling / Fallout / Changes ! - Page 4 - Carers UK Forum

Direct Payments ? Employing Anyone For Sleepovers ? BEWARE : Court Case : Ruling / Fallout / Changes !

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67 posts
Just for the record , Unite's view on this Issue , from 2014 .... in PDF. format :

http://www.unitetheunion.org/uploaded/d ... -18599.pdf

Of interest with be the 4 Law cases sited before the latest one which started this thread.

How many of us do exactly the same for .... how much per hour ?

Still , we are carers , not careworkers ... and careworkers HAVE rights do they not ?

Silly me , thinking that carers have rights .... isn't there a Carers Rights Day ?

There's one " Right " ... the right to hold a day for them !!!

And our Lord Kitch smiles ....
BBC web site today .... Mencap :


Learning disability care 'hangs in the balance,

A leading provider of care for people with learning disabilities says it might have to pull out of some services if a row over back pay for staff is not settled soon.

Mencap says it might have to end its involvement in running more than 200 residential care homes and services affecting more than 2,000 people with serious learning disabilities. The services would have to be taken over by local authorities.

A government spokesman said further clarity would be provided in the coming weeks.

The issue was highlighted in July and ministers said then that enforcement action would be delayed until October while the issue was considered. But the charities say with less than a month to go, no solution has been proposed by the government and contingency plans have to be drawn up.

Mencap says its back pay liability is £20m, which is more than the cash it has in reserve. If the money has to be found for pay over the previous six years it would blight the charity for a decade.

Mencap chairman Derek Lewis said: "Learning disability care in the UK hangs in the balance - if government fails to fund or offers only partial funding, Mencap could be forced to take action to hand back services that do not cover costs."

Smaller care-providers say they might have to shut down completely.

The chief executive of a West Midlands charity said it would become insolvent which would be "a catastrophic step not only for the people we support, who are amongst the most vulnerable in society, but also for our staff and families".

A Department of Health spokesperson said: "As the public would rightly expect, we are working closely with representatives of the social care sector to see how it might be possible to minimise any impact on provision of social care as a result of historic underpayment of the national minimum wage.

"We have kept campaigners and charities up-to-date and hope to provide further clarity in the coming weeks."

Today's Guardian , a similar report :

https://www.theguardian.com/society/201 ... ies-sector

Back-pay bill 'could bankrupt learning disabilities sector.

HMRC’s pursuit of backdated payments for workers providing sleep-in care could cost sector £400m, says Royal Mencap Society
One chief executive of a medium-sized provider in the West Midlands, said the organisation employs 300 people, delivering 1,100 hours of support and 27 sleep-ins every day.

He estimates its back-pay liability to be £1.5m compared with reserves of £1.4m, which include two care homes. “We would have to stop trading straight away, our contracts with local authorities would be toxic,” he said.

A Department of Health spokesman referred the Guardian to a previous statement by the Department for Business, Energy and Industrial Strategy, which said the government has “worked closely with the sector in response to concerns”.
Care providers for people with learning disabilities are facing a £400m bill for back pay that could bankrupt the entire sector, the charity Royal Mencap Society has warned.

HMRC is pursuing providers for six years of wages after the government reversed its decision that “sleep-in support” – where carers are present overnight but rarely called upon – is exempt from minimum pay legislation.

It means all organisations – from Mencap at one end of the scale to family-led businesses at the other, which together provide sleep-in support care for 178,000 people with learning disabilities – are at risk of insolvency, the charity says.

Enforcement action to claim the money deemed to be owed was stayed in July after pleas from providers, but it is due to resume on 2 October.

Mencap says the sector will be thrown into chaos if that happens without a government commitment to cover the back-pay bill.

Derek Lewis, the charity’s chair, said: “There would be, for a substantial period of time, chaos in the sector and the people who would suffer are people with learning disabilities, their families who would be subjected to great stress and the staff who care for them, many of whom would become redundant.”

One chief executive of a medium-sized provider in the West Midlands, said the organisation employs 300 people, delivering 1,100 hours of support and 27 sleep-ins every day.

He estimates its back-pay liability to be £1.5m compared with reserves of £1.4m, which include two care homes. “We would have to stop trading straight away, our contracts with local authorities would be toxic,” he said.

A Department of Health spokesman referred the Guardian to a previous statement by the Department for Business, Energy and Industrial Strategy, which said the government has “worked closely with the sector in response to concerns”.

No doubt , more news will follow as the fallout spreads.
Interesting letter from Professor Martin Green ( Care UK ) in today's Guardian :

https://www.theguardian.com/society/201 ... -nightmare

Sleep-in payments are becoming a nightmare.

The government should accept responsibility for meeting the substantial costs of backdating sleep-in costs up until the date of the announcement on 26 July, says Professor Martin Green of Care England

Care England, the largest representative body for independent providers of adult social care, remains deeply concerned about the unresolved threats to the existence of the learning disability sector posed by the retrospective liability and future funding proposals for sleep-ins (Crisis over sleep-in payments could force children’s homes to close, theguardian.com, 29 September). While the government has offered a one-month reprieve, it is vital that any decision the government reaches in relation to funding of sleep-ins being paid at the national living wage takes full account of the reality that the sector has been operating for years within very contradictory guidance; and that there is no blame for providers.

In these circumstances it must be right that the government should accept responsibility for meeting the substantial costs of backdating sleep-in costs up until the date of the announcement on 26 July. None of the additional funding announced for social care in 2017 has been allocated to meet the demand of retrospective liability.

Professor Martin Green
Chief executive, Care England

Employment Law .... has been in force for years.

Why have many of the service providers not done their homework ?

Ignorance of the law is no excuse.

Harsh on an individual but ... for many supporting agencies bringing in £ millions collectively , and then offering services which are essentially businesses run under a " Charity " banner ?

Whole paid management structure in most .... hardly any of which have any first hand experience as would a volunteer from the ranks serving the same function .... what do the actual beneficiaries make of that in a " Charity " ?

Some will have sympathy for the predicament of many.of these " Outfits ".

A charity or a business ?

Judge for yourselves.
The fallout continues .... today's Guardian :

https://www.theguardian.com/society/201 ... sleep-time

Children’s homes fear closure in face of back pay for carers’ sleep time.

Homes believe closure possible if they do not get help with bills after change in interpretation of wage rules for night staff.

A number of children’s homes fear they could face closure due to a change in the interpretation of the law on pay for overnight carers, ministers have been told.

The Independent Children’s Homes Association said a poll of 63 of its members – which include residential homes, residential children’s schools and short break or respite services – found a quarter believe their organisations could face closure if they do not get help with back pay for staff that have come about as a result of the change.

The association has joined forces with the learning disability charity Mencap to highlight its concerns.

Since 1999, care homes have operated under advice that the time care staff spent asleep in residential homes and supported living residences did not count as work time for the purposes of the national minimum wage, Mencap said.

The payment of a flat-rate “on call” allowance had been the norm across the sector ever since, it said. But following two employment tribunals, new guidance in October last year recognised that the previous guidance was wrong and the minimum wage should be paid for sleep time instead.

The back pay bill for sleep in the learning disability sector alone is estimated at about £400m, the charity said.

It has warned that many homes could face insolvency.

Mencap’s chair, Derek Lewis, said: “We already knew that the impact on learning disability care would be devastating but it is only now emerging that many of the country’s 2,000 specialist children’s homes would also be seriously affected.

“It is estimated that up to 25% could close almost immediately if the government fails to fully fund or only partially funds the sector’s sleep-in back pay bill.

“Like our own, these services would be some of the hardest to replace and once they are gone, they are gone. The government has created a perfect storm for providers from across the care sector.

“I urge government to recognise its responsibilities and commit to funding all ‘sleep-ins’ back payment liabilities.”

Jonathan Stanley, chief executive of the Independent Children’s Homes Association, added: “Sleep-in back payments, which will range from £40k to over £2m for each provider, depending on the size of the provider and number of homes they run, will be the final nail in the coffin for so many who have faced a zero increase in fees from local authorities, the only purchaser and income source, over a number of years.

“Without urgent government assistance, the residential child care sector faces profound change and one of the most important care options for vulnerable children will be lost for ever.”

In July the government announced that it would waive historical financial penalties owed by employers who underpaid their workers for overnight sleep-in shifts before 26 July this year and temporarily suspend HMRC enforcement activity concerning payment of sleep-in shifts by social care providers until 2 October.

But Mencap said neither move addressed the impact of the back pay bill across the sector.

On 28 September the government announced that enforcement action was suspended for a further month.

A number of celebrities have backed Mencap’s campaign, including Game of Thrones star Kit Harington and Doctor Who’s Jodie Whittaker.

So far , attention has been focused on the " Big boys ".

However , anyone employing a carer at less than the minimum wage may also be caught up in this.

Another bottle of snake oil , fine for most , but lethal for a few ?

Clawback ? 6 years ... 2011 onwards ... oh dear , your caree now caught up in all this ?

Fast forward to 2023 ... for many carees , they can finally breathe a sigh of relief ???

The old " 'ow 'bout £ 40 ? Make it £ 50. Okay , done " will be back in fashion ... for cash in 'and ... of course ???

Now , would that come as a surprise ??????

Nice little earner all round ... between a willing buyer and seller ... been done since the stone age !

Those that make the Rules don't have to live in the real world ... at street level !

Yet another that will run ... and run.
Still simmering ... today's Guardian :

https://www.theguardian.com/social-care ... ences-care

Policy on sleep-in pay could have dire consequences for people needing care.

New guidance means providers are being forced to pay for the government’s mistakes, and puts the future of the care industry at risk.

The government’s latest policy update on sleep-in shift pay has once again put the future of the UK care industry at risk.

Some may be forgiven for hoping that given the level of opposition and the magnitude of a looming £400m back payment bill, this saga might come to a positive conclusion. However, what we are instead left with is a Social Care Compliance Scheme (SCCS) that encourages some already stretched care providers to calculate the extent of their own insolvency.

Policymakers assert that the scheme affords providers who may be liable for historic repayments for sleep-in workers more much-needed time to access the reserves needed to settle their debt, as the government calls it. Organisations have a year to identify what they owe, and those with arrears at the end of the self-review period have three months to pay up.

This is once again an ill-considered move by the government that could have dire consequences for vulnerable individuals needing care.

There is an alarming lack of clarity in the guidance – care providers are being instructed to self-assess their national minimum wage liability, with no indication of how far back these payments may stretch.

Despite this confusion, which may still see providers liable to top up what has been paid for sleep-in shifts dating back six years, the government admits that until February 2015 its guidance was “potentially misleading”. In fact, data uncovered via a Freedom of Information request shows that as late as February 2016, HMRC was issuing guidance to its own staff that stated care workers were not entitled to the national minimum wage while asleep, other than in exceptional circumstances. This inconsistency must be resolved.

For the majority of the back-payment period, local authority and NHS commissioners won’t have funded providers sufficiently for the shifts in question to compensate this shortfall. Forcing care providers to pay for the government’s own mistakes and leaving essential services at the mercy of HMRC is both unethical and nonsensical.

As well as potentially putting hundreds of care services out of business, the government has stated that individuals who pay for their own care are liable for back payment – leaving thousands of vulnerable individuals, many with complex disabilities, at risk of bankruptcy. Again, it is highly unlikely that in many of these cases, local authority-funded personal care budgets were sufficient to cover this additional cost.

In a climate of such uncertainty, it is vital that businesses and individuals do not sign up to the self-assessment scheme until they have further clarity. Not only are they lacking essential details relating to the scope of back payment, but Mencap’s upcoming court of appeal case due to be heard in March 2018 could change the position as to whether sleep-in care workers are entitled to the minimum wage.

This latest announcement aside, the government must take a long hard look at the inherent unfairness in the way social care is paid and legislated for, ensuring budgets reflect the increased cost of sleep-in care and the wider estimated shortfall in funding of £1.3bn for residential care.

Furthermore, while sleep-in workers are entitled to the national minimum wage while asleep, this is not the case for live-in care staff, as this is classed as “unmeasured work”. There is no difference in the level of care provided, so the courts and HMRC must consider taking the same approach to sleep-in shifts that it does to live-in care.

What care providers need now is clarity, consistency and common sense from the government, and quickly. Those affected by the latest announcement would be well advised to seek further information before taking action; in such a pressurised financial environment, doing so could prove vital.

Needless to say , there will be casaulties !

I hope no reader is one for the future ???
An interesting development ?

Today's Guardian :

https://www.theguardian.com/society/201 ... ckbay-bill

Tory MPs demand bailout for care agencies in £400m backpay crisis.

Services hit by massive bill may face closure without state aid, say campaigners.

Our monies used to bail out " Charities " who broke the Employment laws ????

Senior Tory MPs have joined calls for a government bailout of social care providers, after warnings that some will go bust as a result of a crisis over a £400m bill for back pay. Former cabinet ministers are among those concerned about the government’s failure last week to guarantee financial aid to those affected. It comes at a time when the social care sector is already under extraordinary financial pressure.

The crisis arose after a court ruled that carers staying overnight, known as sleep-in shifts, were entitled to the minimum wage, rather than a flat-rate £30 which had been paid by care providers. Charities say they had been wrongly advised by government guidance. It means some face bills for back pay covering up to six years, with many saying they will simply fold without a bailout.

After months of delay, the government announced a scheme that would give providers 15 months to calculate the amount they think they owe their workers. However, it did not give any guarantees that state support would be available to help them pay it. The concession has been criticised as inadequate by councils and charities facing big bills, while Tory MPs are also concerned. Some are demanding urgent action in the chancellor’s budget later this month. Sarah Wollaston, chairwoman of the health select committee, said: “Unless there is government funding for the backpay bill, many providers will go to the wall, and there is also a huge issue here for those individuals who receive direct payments. I hope this will be addressed in the budget.”

Peter Aldous, Tory MP for Waveney, said ministers had “not addressed the problem” and called for financial help: “The government’s announcement just adds to the uncertainty overhanging the sector,” he said. “I’m minded that the government has said they wanted to work with the sector and providers to find a solution, and I do think they need to get back to that discussion. So far, we are not at that point. To be fair to this government, it is an issue that has landed on their watch so I have some sympathy. But the parties have to sit round the table, and there may need to be a financial package put down,” he added.

Kevin Hollinrake, Tory MP for Thirsk and Malton, said: “This needs resolving. Charities and other providers thought they were applying the rules correctly and now find they weren’t, so it is very unfortunate and puts them in a very difficult situation. This could cost the sector, to their reckoning, £400m, which would put some of them out of the work of providing care. It’s horrendous. We need a permanent solution.” Labour is also pushing the government to draw up a financial package to ensure that social care providers are not forced out of business.

Government officials say that ministers are still considering what action to take and whether financial aid should be made available. They said that EU state aid rules need to be investigated to determine whether any support, if deemed necessary, would be allowed.

Tim Cooper, co-chair of the LD Voices coalition of care providers, said no providers would “come out unscathed”.

“One charity supporting 85 people have calculated that if they have to fund the liability, that comes to £1.5m,” he said. “Their reserves total £1.4m, including properties and cash. Unless they get assistance, it is the end of the road. That is just one example of a number of charities in that position.This is not about employers trying to avoid paying staff. We are fully committed to paying staff, but it is difficult to do that when charities have not set money aside. We don’t know if we’re about to plunge over a precipice.”

Derek Lewis, chair of the charity Mencap, said: “The government has also kicked into the long grass the decision over whether or not it will give financial support for the sector. It is having immense consequences. At Royal Mencap, as one of the stronger organisations, we have had to put a stop on investment in new programmes, IT and employment. Staff are concerned. Some are sitting there in uncertainty. It is a massively destabilising situation to be in.”

A government spokesman said: “This scheme helps get workers the wages they are owed, while maintaining vital social care services for people in our communities. We have listened to the concerns of care providers and this scheme gives them clear time-scales and support to identify what they owe and need to pay their workers.”

Interesting ... one can see the reasons why ... Government would be faced with a financial crisis inside several supporting organisations.

At the same time , the supporting organisations stepped in to provide facilites no longer made available BUT ... without doing their homework first ... a theme all to offer seen in the social care sector.

No right answer beyond yet another crisis brought on by two factors ... lack of finance and stepping in blindly to fill the gap.

Seems to be that , in some sectors , it has not matter if one makes errors , someone else will bail you out ???

In the public interest ?

I will assume that no care providers caught up in all this are connected to certain mps ... ??????

Usual comments section buzzing ... just one to end ... for now :

It's clear that the model does not work, that it is open to abuse and lack of accountability, financially and operationally. The plethora of providers does not help, neither does the chronic underfunding and dwindling contract payments.

Rather than pay £400m to shore up a government created problem, I'd like to see a ring fenced social care system with clear budgets, managed by councils and run by non profits. Large care agencies owned by hedge funds have no place in delivering care to vulnerable people.

The government and councils need to get back to grant funding. Paying people the minimum wage to care for the elderly is offensive.
This one through Carers Radio ... always worth checking from time to time :

https://www.thirdsector.co.uk/mps-quiz- ... le/1449658

MPs quiz government on social care back-pay bill.

Social care charities have been given 15 months to repay an estimated £400m in back-pay for sleep-in providers.

Conservative and Labour MPs have questioned the government’s position on the 15-month deadline for social care charities to repay approximately £400m in back-pay to sleep-in care workers.

Speaking in the House of Commons on Tuesday, Rebecca Long-Bailey, the shadow business secretary, asked Greg Clark, the business secretary, whether the government would commit funding to social care providers to pay sleep-in care workers back-pay of up to six years.

Sleep-in care workers were originally paid a flat-rate, but two employment tribunal decisions last year forced the government to change its policy and make the workers eligible for the minimum wage.

This led to HM Revenue & Customs pursuing charities for back-pay, which Mencap claimed could cost the sector as much as £400m, and led to a new government initiative, the Social Care Compliance Scheme, being announced last week to address the problem.

The SCCS gives social care organisations a year to work with HMRC to identify the amount of back-pay they owe, and an additional three months to settle any outstanding sums with their workers.

Long-Bailey told parliament that the government’s proposals had been branded "inadequate" and many charities felt they were "writing their own suicide notes" if they took part.

She asked Clark whether the government would "commit the necessary funding in the Budget to avert a crisis in the care sector, which could see many businesses struggle to survive, impacting on already fragile care services, and leave thousands of care staff without the wages they are owed".

Clark responded that the interim proposal had been made to ensure a "robust" solution to the issue of back-pay could be formed by the government.

The government’s statement announcing the SCCS confirmed that it was talking with the European Commission to see if government support for the social care sector would contravene EU state-aid rules.

In questions to the business department, which also took place in the Commons on Tuesday, Peter Aldous, the Conservative MP for Waveney, said the SCCS "unfortunately adds to the uncertainty facing the social care sector" and urged the government to "get back round the table with the sector to find an acceptable long-term solution".

Margot James, a business minister, said in response that the department was working with the Department of Health and the Department for Communities and Local Government to put pressure on the Treasury to provide a long-term solution to the back-pay issue.

Kevin Hollinrake, the Conservative MP for Thirsk and Malton, asked whether it would be sensible "to consider revisiting the legislation in this place simply to return to the pre-tribunal position".

James said even if the government changed the law, which she said it certainly would not, "it would not have any impact on workers’ eligibility for historical back-pay liabilities".

Does raise an interesting conumdum ?

What do the people relying on these charities make of all this ?

Money diverted purely because they did NOT do their homework ?

Donations made in " Good faith ? "

Their next agm will be rather " Entertaining " ... I wonder if a motion for P45's might be seconded ?

Will be interesting to continue to monitor the fallout.
Interesting article ... Third Force News , a Scottish Voice ... the inpact of independent living for those needing a sleepover carer :

http://thirdforcenews.org.uk/blogs/inde ... -sleepover

Independent living “only if you don’t require a sleepover”.

We should celebrate the Scottish Governments commitment to the Scottish Living Wage but without due consideration there is a real danger we could see the erosion of the quality of life for disabled people and reduction in fulfilling jobs in the social care sector.

Support workers have long been underpaid in the UK, the monetary value of their wage by no means matching the important role they undertake in helping people live their lives. Pay increases are warranted and welcomed.

However, while some senior figures in the third sector have written on the impact to their organisation, the impact to the people these organisations support seem largely underplayed. Language such as "redesigning’"can be indicative of a cutting of provision – disabled people forced into group home conditions as living independently is deemed economically unviable especially if a sleepover is required. Assistive technology has a role to play but for some particularly those with more complex disabilities technological solutions are limited, alternatives to a sleepover are difficult to envisage. Do we want to have independent living ‘only if you don’t require a sleepover ’approach.

An individual’s support being reduced when they have increased independence is a fantastic milestone for many, and a proud moment for people in their lives. Research supported by the Scottish Government in our recently published paper No Place Like Home – The Economics of Independent Living show how living independently does not necessarily cost more but leads to much better independence and outcomes.

In our organisation and I suspect many others, support workers argue for a pay rate above the Scottish Living Wage for waking support and recognise sleepovers although work could be the national living wage rate. Thereby still improving pay but not creating further incentive for organisations to corral people in institutions who need sleepover support.

If this move towards the Scottish Living Wage is not funded properly, we will inevitably witness cost cutting exercises in support provision, which means that disabled people will have choice and control removed from their lives to fit a service and budget. This we believe was not the intention of the Self Directed Support Act.

Support work is a rewarding role for all involved, and the relationship between an individual and their worker is an important one. If done properly, good support can allow individuals to live the life they want to lead, and support workers to go on that journey with them. The relationship above all should, and can, be mutually beneficial.

For too long we have heard support workers asking for better conditions being put down as uncaring, which is a complete fallacy, and disabled people rarely get to have a voice on the matter. The debate must not be around support worker versus disabled person over funding, wages, and services – this is a race to the bottom. The interests of disabled people and the people who support them are not mutually exclusive, and they have far more in common than what separates them.

Scottish in origin but valid across the whole UK.

Same problem , different perspective.
The ticking time bomb shows 5 minutes to detonation ?

https://www.theguardian.com/society/201 ... t-back-pay

Social care at ‘tipping point’ as back pay crisis grows, warn councils.

In a letter to the Observer, ministers have been urged to plug the £400m hole created by new rules on overnight care.

A crisis in social care will lead to the imminent closure of providers across the country unless ministers step in to fill a £400m black hole in back pay, councils have warned today.

Senior Tories are among those angry that the government has failed to plug the hole created by new rules forcing care providers to pay wages retrospectively to staff who work night shifts. In a letter to the Observer (page 52), Tory councillors and care providers say a failure to act has put social care at a tipping point by creating a “significant financial risk” that is causing “widespread anxiety for carers and those who use care services”.

The rule change means anyone carrying out “sleep-in shifts” is now entitled to the minimum wage, rather than a flat-rate £30 per shift. It has left some providers facing bankruptcy as a result of bills covering up to six years. It comes on top of a social care funding crisis that requires an immediate £1.3bn to fix.

“We fully support care workers being paid fairly for the work they do and we urge government to fund the cost of sleep-in payments with genuinely new money, to prevent more care providers going out of business, contracts being handed back to councils, care workers losing their jobs and less investment in prevention,” write the signatories, who include Izzi Seccombe, leader of Warwickshire county council, Margaret Willcox, president of the Association of Directors of Adult Social Services, and Bridget Warr, head of the UK Homecare Association.

“Without this it will put further strain on informal carers and negatively affect those who rely on social care, impacting on people’s wellbeing and outcomes and leading to a decreased ability of social care to help mitigate demand pressures on the NHS.”

A government spokeswoman said: “The compliance scheme announced last year aims to help ensure workers are paid what they are owed, while maintaining services for people who access social care. The government is exploring options and engaging with stakeholders to minimise any impact on the sector, including opening discussions with the European commission to determine whether any support, if deemed necessary, would be subject to EU state aid rules.”

Ignorance of the Law is no excuse.

Responsibility falls on the employers.

In turn , Joe Public might ask why so many ignored basic Employment Law ?

A few charity trustees will be having sleepness nights if a bill arrives for back payments from those who have been under paid ???
I remember going to a meeting in Winchester, many, many years ago, so we could have a presentation about "supported living" where anyone could do whatever they wanted and it would be funded. My immediate reaction was "this is unaffordable, where's the money coming from?". In the years that followed my son was moved from a large residential home to a smaller one, then when that closed down, into supported living, first funded by the Independent Living Fund, now the LA. His hours have been cut, cut and cut again. It's not really "supported living" at times, with a care plan that says it's OK for someone fit and well and 38, but a mental age of just 3 years, to be left alone in his flat for 19 hours a day. The real answer to the "Wnterbourne View" scandal was to fix Winterbourne View! People with SLD struggle to be part of the community. My son may live in the community, but is not any part of it!
67 posts