[phpBB Debug] PHP Warning: in file [ROOT]/phpbb/session.php on line 585: sizeof(): Parameter must be an array or an object that implements Countable
[phpBB Debug] PHP Warning: in file [ROOT]/phpbb/session.php on line 641: sizeof(): Parameter must be an array or an object that implements Countable
Direct Payments ? Employing Anyone For Sleepovers ? BEWARE : Court Case : Ruling / Fallout / Changes ! - Carers UK Forum

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

Share information, support and advice on all aspects of caring.
67 posts
In essence , carers employed for sleepover shifts may well be entitled to the minimum wage. Anyone employing such carers through Direct Payments should take note of us. Questions as to back pay over a six year period have also been muted.

https://www.theguardian.com/society/201 ... iving-wage

A quote from the article :
The issue hinges on whether sleep-in workers should be entitled to the minimum wage, now the “national living wage” (NLW), for hours when they are not awake and are not roused to help a person they support. One estimate is that staff are woken just 1% of the time.

Traditionally, workers have been paid a flat sum for each period of presumed rest, plus an hourly rate for any time they are woken. This appeared to be allowed by minimum pay regulations issued as recently as 2015, which stated that “hours when a worker is ‘available’ only include hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping”.

‘Traditionally, workers have been paid a flat sum for each period of presumed rest ... now they are entitles to the living wage for the entire time they are at work.’

In contrast, guidance issued by the Department for Business, Energy and Industrial Strategy (BEIS) in October states: “A worker who is found to be working, even though they are asleep, is entitled to the national minimum or NLW for the entire time they are at work.” As an example, it cites a worker in a care home where the provider is required legally to have someone on the premises for health and safety reasons – and where they would be disciplined if they left the premises at any point.

This revision reflects a 2014 employment appeal tribunal ruling – taken to be the “court case” referred to by Mowat – which held that a care worker supporting three disabled adults in their home at night was entitled to the full minimum wage while asleep because she “could not, for instance, slip out for a late-night movie or for fish and chips”.

Although other tribunal rulings could be held to contradict this, and legal experts caution that each case must be taken on its merits, HMRC admits it is applying the BEIS guidance. So providers are being told they should be paying the NLW for sleep-ins and are being required to go through their payroll records for up to the maximum six years allowed in law to calculate past liability, a complex undertaking in a sector with staff turnover rates of more than 20%. It is not known if any mass backdating has yet been enforced.

For those who may be affected , worth keeping tabs on future developments.
Related article in today's Guardian :

https://www.theguardian.com/society/201 ... nimum-wage

Disability charity says it will face crisis if forced to pay minimum wage

Mencap loses appeal against ruling that it was wrong to have paid a support worker £29.05 for nine-hour sleep-in shift

A taster :

The charity lost an appeal against a ruling that it was wrong to have paid a support worker £29.05 for a nine-hour sleep-in shift, or just under £3.23 an hour. The statutory minimum is £7.50 an hour.

Mencap said it was not against paying its care workers “properly”, and was seeking to raise their rates in the longer term, but that it was not paid enough by the councils and NHS bodies that commission it to support disabled people.

Minimum wage ?

No excuses ... all must comply ... carers ? ... Carers allowance is NOT a wage.

So far , purely HM Inspector of Taxes interpretation of the current guidelines.

It will need to be tested in a Court of Law for a definitive answer.

Then , probably a second case to test the validity of the first case.

Let's hope that no carer is the Defendant in either !
More problems ..... today's Guardian :

https://www.theguardian.com/social-care ... worker-pay

Minimum wage ruling creates uncertainty over care worker pay

Employment tribunal decision will have serious consequences for social care - but local authorities say they can’t afford to pay more

Some tasters :

This decision will have serious consequences for social care. Wage costs may increase for many providers and there could be claims for back pay dating back up to six years. Failure to pay carries criminal penalties and fines, including the potential for doubling back pay arrears.

The Care Act requires local authorities to “promote the efficient and effective operation of a market in care and support services”. Its statutory guidance states local authorities should seek evidence that “service providers deliver services through staff remunerated so as to retain an effective workforce” and that “remuneration must be at least sufficient to comply with the national minimum wage legislation for hourly pay or equivalent salary”. Providers may decide to ask for a judicial review of any local authority’s decision not to meet the costs.

Oh dear , the circus known as social care continues to perform ... badly.

When will it all end in tears ... and devastation for those dependent on it ?
Hello, please note that the national minimum wage law is 17 years old. Perhaps, when written, it was unclear about whether ‘sleep ins’ met the legal definition of ‘Time Work’ but It has since been clarified. It is now so specific on pay for 'sleep ins' that the government’s own Department for Business, Innovation and Skills (BIS) guidance document ‘Calculating the Minimum Wage’ published on 22/4/13, includes the following direct quote:-

Example 1 – where the minimum wage is likely to apply.
A person works in a care home and is required to work overnight shifts where they sleep on the premises. The person’s employer is required by statute to have someone on premises for health and safety purposes. The person would be disciplined if they left
the premises at any stage during the night.
It is likely that the person would be considered to be ‘working’ for the whole of the overnight shift even when they are sleeping.

Therefore organisations paying sleep in staff below the minimum wage (dependant on responsibilities) should have reassessed staff’s pay AT LEAST 4 YEARS AGO, then should have approached local authorities, who in turn should have approached government with a legal argument for more funding.
This has been known about for years by organisations, local authorities and government, but ignored because this form of modern slavery (an average of £3.23 per hour wage?) affects so many staff. If the people being paid illegally were people with disabilities who are being supported, the country would quite rightly be up in arms about it.

The sleepover case mentioned has already been through 2 courts (the employment tribunal, and employment appeals tribunal)
and is heading to a 3rd court for 'clarification', though quite what the motive is for claiming the court decisions and the law appear 'unclear' is up for interesting debate. Also, despite misquotes in the Guardian newspaper, the decisions are directly from the courts: HMRC have not been involved in this case yet. (though I suspect they will be very interested the outcome)

Now is the time to take direct action and raise these issues through the courts, therefore ultimately forcing the government to put more money into health and social care, and recognising the dedication and hard work of often undervalued care staff.
More on the fallout following the Ruling ... BBC report :


Smaller care charities were on the brink of disaster as a result of the changes, said Derek Lewis, Chairman of Mencap.

The charity lost an appeal in April this year, against a ruling that it was wrong to have paid a support worker £29.05 for a nine-hour sleep-in shift.

Mr Lewis said: "The carer is only there 'just in case' to provide safety and reassurance and is rarely disturbed.

"There will be a major impact on the 5,500 people we support and some may even end up losing that support all together.

"For many smaller care providers across the country the financial impact will be devastating."

Mencap employ around 5,500 carers on an overnight basis, and says it plans to appeal further next year.

This one will simmer on for sometime.
A little more on this topic , today's Independent :

http://www.independent.co.uk/news/uk/ho ... 48911.html
Dozens of leading charities could face insolvency within weeks after the Government ruled they must pay millions of pounds in back payments to overnight carers.

Around 200 disability charities, including Mencap, are said to face a bill of around £400m in back payments after new guidance was issued stating overnight carers must be paid the national minimum wage (NMW) for all hours.

Vulnerable people with learning difficulties face losing “vital” care as a result of the bills, charities have warned, with around 5,500 supported by Mencap alone set to be “majorly impacted”, while some may end up losing that support all together.

Some very interesting comments at the bottom.

The words POT / KETTLE / BLACK also spring to mind in the context of the salaries paid by these " Charities " to their own executives , and the payments made to those providing the sleepover service.

Perhaps something good will come out of this .... " Market rate " salaries to Charities' staff being the bone of contention ?

Tell that to Trussells ... no half a can of beans before the recipient receives his / her share ... the other half disappearing to cover salaries and expenses ?

Charities ... now an industry ?
However many charitable organisations deliver a much higher standard of service to vulnerable people than Local Government is capable of delivering.
Note to Chris. Guide Dogs love a bone of contentment
When " Charities " step into the void left by Government , they do so as businesses and not as charities.

As such , separate entities should be formed to undertake such work thus avoiding the confusion as to which hat they are wearing.

A clear distinction should be made , and enforced by changes to legislation relating to charities.

When people donate to " Charities " , there should be no doubts in their mind as to how much in each £ reaches the beneficiaries , and not swallowed up by business ventures.
Chris, you are being unfair to most charities with those comments.
67 posts