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Direct Payments ? Employing Anyone For Sleepovers ? BEWARE : Court Case : Ruling / Fallout / Changes ! - Page 7 - Carers UK Forum

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

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An interesting article on the aftermath :

http://thirdforcenews.org.uk/blogs/slee ... s-millions
Sleepover case could save employers millions,

But you won’t hear many champagne corks popping.

A recent court case has been described as a watershed for social care charities, freeing them from the threat of £400 million worth of legal claims.

But while social care employers are hugely relieved about the decision, their celebrations are muted to say the least. There are no winners here, according to one chief executive in the charity sector.

The case concerns the issue of sleepovers, and the pay of care workers who do sleep-in shifts (where they stay overnight in case they are needed to help out but are generally expected to get a good night’s sleep).

A number of previous employment tribunal cases and appeals had ruled that care workers were entitled to National Minimum Wage (NMW) for each hour of a sleep-in shift because, despite being asleep, they were doing time work and not just available for work. Employers who had commonly paid staff a flat fee of £25-£30 for sleepovers were facing thousands of backpay claims, and didn’t have the reserves or revenues to pay them
.


But this month, the Court of Appeal reversed this position in respect of sleep-in workers who are expected to sleep, saying that they are available for working rather than actually working.

This means that only when such workers are required to be awake for the purposes of working are they eligible for NMW.

The ruling in Royal Mencap Society v Tomlinson-Blake defuses the threat of the backpay claims by sleep-in workers, and removes an existential threat to providers’ financial sustainability and ability to support vulnerable service users.

Why, then, aren’t the champagne corks popping in the social care sector?

Because as well as the legal liabilities, the sleepovers issue involves questions around government policy, public-sector finances, the funding of social care, and, for employers, HR and employee relations.

In Scotland, the Scottish Government has previously committed the payment of Scottish Living Wage (ie, a higher rate than NMW) to workers in the social care sector. Following the earlier employment appeal tribunal decision that sleepovers were eligible for NMW, the Scottish Government said this commitment covered all hours worked, including sleepover hours.

It is yet to be seen whether further announcements from the Scottish Government will follow the Court of Appeal ruling, and what the ramifications of any announcement would be for social care providers, local authorities or other organisations whose contract arrangements include sleepovers.

For example, if an organisation is no longer legally required to pay NMW or Living Wage for sleepovers, but is still contractually obliged to pay it, they may well have reason to fear whether their future commitments will be funded.


Another issue here is that many social care charities still want to pay NMW for sleepovers. Following the Court of Appeal ruling, a coalition of care providers for people with learning disabilities, the #SolveSleepIns Alliance, immediately called on the UK government to legislate for care workers to be entitled to NMW for all sleep-in shifts, and for the government to fund this and ensure a fair deal for employees.

And there’s also another major uncertainty – unions appealing this to the Supreme Court. A successful appeal could re-open the backpay liabilities, and while the UK or Scottish governments may fund future payment of NMW / Living Wage for sleepovers, they’ve not made assurances about funding the backpay claims.


So, it’s understandable why the sleepovers issue is still causing long faces, and, dare we say it, sleepless nights.

Even if a further appeal is ruled out and other uncertainties resolved, it’s essential that charities take on board the wider lesson of all this: that they operate in a context where the sands of law and policy are ever-shifting.

With employment law, this means charities (and other employers) should regularly review their practices, procedures and contracts. As well as ensuring they’re compliant with current law, they must horizon-scan for future liabilities, reputational risk or areas that might affect their ability to attract and retain good staff.

The contracts they negotiate should also allow them flexibility and resilience to navigate changes to their costs or obligations.

For now, the sleepover decision has given huge relief to the social care sector, and also the people it cares for. But risks remain, and vigilance is a better response than joy.



An Appeal ?

Possible ...
Dealing with another thread gave me the insight to look again at the Judgement arising out of this case.

In essence , and if applied to us ?

24 / 7 , 168 carers do NOT exist under law.

In it's place , new definition ... " 168 less time spent sleeping " ... equals the new " 24 / 7 , 168 " definition.

As many will appreciate , don't our sleep patterns mirror image those of our caree ?

Mine did during my 10 stretch ... during the bad times .. when my mother slept , I could sleep.

So , is not said Judgement a little out of kilter with actual reality ?

Let's hope an Appeal succeeds ... even if certain charities pay the price ... of stepping into the private sector to provide
such facilities in the first place.

No one ... or entity ... is above the law !
Dead post !

Only update is one of waiting for news from the Unions ... to appeal or not to appeal ?
It's taken a little while but ... the dawn of a new age ? ... Clitheroe Adevertiser for this one :

Cut in fee for Lancashire care workers allowed to sleep on shift.

Overnight " Sleep-in " carers in Lancashire are likely to face a wage cut after Lancashire County Council responded to a court ruling which found that they are entitled to a flat fee rather than an hourly rate.


The shift workers provide support to more than a thousand disabled residents who require “occasional” assistance during the night.

Last year, a Court of Appeal judgement concluded that such staff are “available for work rather than actually working” – and so are not entitled to the national minimum wage for the full duration of their shift.

That decision overturned a previous ruling in 2016 which obliged providers across the country to pay overnight care workers by the hour – increasing the bill to Lancashire County Council by almost £7m.

Following the latest judgement, County Hall has consulted with the 61 care providers which supply the service across the region about returning to a flat fee.

In agreeing the new rate which the authority will pay to care companies, Conservative council leader Geoff Driver said that he wanted to make it “a firm condition” that a fixed proportion of it is passed on to their staff.

Cabinet members agreed that providers will be paid just over £61 per shift from October, on the basis that £45 of it goes to the care worker. A top-up payment will be made until March 2020, meaning the new rate can be phased in and staff will therefore receive £55 per shift until then.

But under the current arrangements, staff are paid an average of £67 per shift – and care providers have previously expressed concern that any reduction will make it more difficult to retain workers.

The county council is one of the first authorities in the North West to react to last year’s court ruling and deputy leader of the Labour opposition group, John Fillis, said it would be wise to await the outcome of a further appeal against the decision by trades unions next year.

“[The staff] can’t go anywhere else – they can’t go out for the evening or down to the shops. They have to be there at that place – and I think that should be understood,” he said.

But County Cllr Driver said the authority had to reflect the law “as it is”.

“They can’t go [anywhere else], because they’re asleep – that’s the point. If they are awakened, because the client needs some attention – and most of them don’t – then of course they’ll get paid [by the hour] if they’re having to work rather than sleep,” he said.

County Hall had initially proposed a lower flat fee last December, prompting a call from care providers for a formal consultation.

“What we’re proposing doesn’t change anything for the service user, they will still get the service,” cabinet member for adult services, Graham Gooch, said.

“We know there are difficulties [in the sector], which is why we’ve consulted with the providers – they’re the people who employ the carers and we’ve done what they told us would resolve their problems.”

Lancashire County Council spends £70m per year on supported living services for disabled people.



Since that ruling , the concept , if transfered across to us , means that the term " 24/7 " carer is now consigned to history.

24/7 ... less hours one's caree sleeps for ... being the new one.

Rest assured ... we have not heard the last from this issue ... yet.
A long-running battle over care-workers' pay will reach the Supreme Court on Wednesday.

https://www.bbc.co.uk/news/uk-51446151

Been following this one since first announced in 2017. It affects several people I know from both sides of the fence and will affect S in the future.

Since councils won’t willingly increase funding in line with living wage and increased pension contributions for daytime care, no way will they increase packages to cover waking night care.

They used to offer the ‘option’ of residential care instead but since care homes are full (and not geared nor suitable for the young - then will the new ‘option’ be telecare?!

This could also have implications for Carers in terms of owing back pay if they employ night Carers privately or through direct payments.

Melly1
I was discussing this today with a friend at lunchtime. I have not been paying close attention but this is a issue that could potentially affect my LB (little brother) when he is a adult. I have no idea what to do either. It seems that this is a national crisis. Should I start to prepare myself for the worst now or not? I kind of dread the day when I have to start relying on the kindness of total random strangers.
Shocking. Every time I read a depressing news article on a bad care worker I actually panic a little inside. What if the next innocent victim was my brother? This is why I have opted not to use a care company yet until he is four years old and able to communicate properly with them. Maybe I am being silly however I doubt that slightly. We need to raise care industry standards. Provide proper training and all that.
Having mentioned SLEEPOVERS on another thread , has ANY reader been in correspondence with their LA or Inland Revenue since the court ruling ?

Problems with employed care workers previously caught up in this debacle ?

If so , care to mention what exactly happened ?

Would be of benefit to any readers who may be still sweating on this issue.
67 posts