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Direct Payments ? Employing Anyone For Sleepovers ? BEWARE : Court Case : Ruling / Fallout / Changes ! - Page 3 - Carers UK Forum

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

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More on this one from today's Guardian :

https://www.theguardian.com/social-care ... ers-mencap

Disabled people may be liable for back pay of sleep-in care workers

The row over six years of back pay has led to one man being warned he could face a bill of up to £45,000

Disabled people who employ their own care workers have begun to receive claims for back pay as the crisis over wages for sleep-in shifts forces intervention by the prime minister’s right-hand man.

Damian Green, first secretary of state, has stepped into the wages row and ordered an urgent assessment by government officials of the costs of meeting up to six years’ back pay for care workers who sleep at the homes of the people they support, in case they need help during the night.

Publicity generated by the row is triggering claims by workers employed directly as personal assistants (PAs) by some of the 65,000 disabled people in England who have personal budgets in the form of direct payments.

In one case, a disabled man has been warned he could be liable for as much as £45,000 back pay. His family has asked for help from the local council, which funds his care, but say they have had no response despite making “a variety different approaches” over “a number of months”.

The case illustrates the complexity of the sleep-in pay issue, which stems from a change last year in official guidance to HMRC wages inspectors on payment of the full hourly minimum wage – now the “national living wage” – to care workers whether they are awake or asleep.

Traditional practice in the care sector has been payment of a flat sum for each sleep-in shift, perhaps £25 or £30, plus the hourly minimum for any time they spend delivering support. But HMRC is now enforcing the full £7.50 hourly minimum wage for workers aged 25 or over and is asking employers to calculate back pay for up to six years.

The chief executive of one care charity, which puts its liability for back pay at £6m and says it might have to sell 30 of its homes for learning disabled people to foot such a bill, says: “It’s been like reducing the speed limit from 30 to 20 and then issuing speeding tickets to everyone who has gone over 20 for the past six years.”

Ministers acted at the end of July to waive any fines for not paying the full hourly rate in the past and to suspend HMRC’s enforcement of back pay until the start of October. But the threat of back-pay bills, estimated by care employers to total between £400m and £600m, still hangs over the sector.

Separately, employers are still trying to persuade some councils that they need to increase what they pay for care costs to cover the hourly rate in future. This could soak up £800m over the next three years, or 40% of the emergency £2bn extra promised for social care as a whole in March.

Green is understood to have ordered civil servants to work over the summer on definitive costings to take to the Treasury, to avoid reliance on care employers’ figures and to include the liabilities of disabled people who employ PAs.

Learning disability charity Mencap, which describes the crisis as the worst it has faced in its 70-year history and says it could even be forced to close, is highlighting the case of the disabled man – named only as Lloyd – who faces a potential £45,000 back-pay bill for care workers who support him to live independently in his own home.

His mother Shirley, who does not wish to be fully identified, says: “Lloyd’s staff have informed me that they have taken legal advice. As Lloyd is classed as the employer he will be expected to pay this back-pay bill and his personal budget does not cover these costs. I am most concerned.

“The government and the local authority need to sort this out. I and Lloyd should not have been placed in this position.”

Comments section towards the bottom ... always of some interest !


Direct Payments have been with us for a decade ... debated extensively on CarerWatch at that time.

Only now , a decade later , has the problem of " Sleepovers " reared it's head.

Trouble is , it was there in the beginning ... a ticking time bomb for some !

Every one of our carees using DPs , in theory , became an expert in Employment Law overnight ... according to the legislation behind the Act !

Oh dear , was this aspect never made crystal clear by every LA / Social Worker involved ?

" Not our problem , we are not lawyers. Find someone else to blame ! "

And yet , a few of us on CarerWatch saw it coming .... was anyone listening ?

Shades of the Care Act .... someone did not do their homework first !!!
A little history on DPs from the CarerWatch archives ... 5 February 2008.

Authoress ? Well known to many of us inmates on 'ere .... at least it's in English and not Geordie ?
I attended a meeting locally this week regarding Direct Payments.

Here are a few points raised....

By the disabled / ill health person themselves


Total flexibility when arranging care to suit their needs
More independence
Do the activities they like and not just council run ones
Build a relationship up with personal assistant whether it be family or agency


Paperwork a nightmare at first.
Lack of knowledge when interviewing staff
Agencies charging too much
Lack of support from Social services once up and running.
Being told to use toilet when paid carers there even if dont need it as assistants wont be back till a later time.

Comments from carers handling this for their loved ones


Freedom to choose who is more suitable to assist including family if more appropiate
A care package made to suit the individual,instead of being told they could not use a facility.
Employing family members was a bonus as trust and confidence in them already there.


Not enough time with agency workers to build up a real relationship.
Hours assessed as needing not being fully met, in that if an hour allowed on a morning some paid carers on their way out of the door after 30 mins.
Assessment procedures a nightmare and take so long from start to finish.
Those that employed family had no emergency backup if family paid assistant went sick or went on holidays.

Some suggestions made :

Charges for care should be set by Social services and not the agencies to create a competitive market wherein agencies had to fight to get your custom.

A ceiling charge to be set.

To have better communication between departments especially children to adults,at least a 12 month transition period ahead of the change so family not cast adrift.

More help with paper work

Explanation given regarding employment laws.

Service users (Thats the term used I believe ) to be allowed to go to bed at a reasonable time ,not at 6-7.30 pm when agencies send help in.

Eligibility criteria to be explained.

You will note some of the comments seem to contradict one another but this was views from approximately 30 different people so each ones experiences were different.

There was one person there for whom DP's had not worked at all,with agency or family but their needs were met by Social services.

Survey shows 75% of people negative about direct payments.

This is one of the findings of a new report and survey into direct payments by Sense, the national deafblind charity.

Direct payments allow disabled people, their carers or older people to directly purchase the care they need.

Yet as the Government seeks to increase opportunities for people to take control of their own care budgets in 2008, the findings of Sense’s report highlight several obstacles that need to be addressed.

Contrary to the DoH guidance on direct payments which has legal force Sense’s report found:

The hourly rate of direct payments given is often insufficient to pay specialist staff and meet individuals requirements.

A quarter of respondents felt they were not given an alternative of receiving a service from the council instead of receiving direct payments.

Only a third of respondents heard about direct payments from their local authority when all were meant to.

Simon Shaw, author of the report at Sense said :

“Our report has found the Department of Health’s guidance is not being properly implemented by many local authorities meaning people cannot afford appropriate support. A choice between personalised budgets that do not cover support costs and a council service is not really a choice.”

One respondent said “I was given only £6/hr to employ a carer for an epileptic deafblind child. When I said that wasn’t enough, the manager said to reduce the number of carer hours if I wanted to pay more.”

Sense’s report includes findings about who currently receives direct payments, what they are used for, obstacles encountered and recommendations.

March 2008 : The programme was set out as follows....

Welcome of the day...... our Mayor ( lovely woman )

Adult services - Our vision for the future

What we have learnt over the last four years - A Care Managers Perspective

Comfort break

Our experiences of Direct Payments - Service user and carer perspectives


Introduction to workshop session

Feedback from workshops

Question and answer panel

Closing remarks.

In attendance :

DP's managers and staff team
Majority was made up of those accessing the services and carers.
Adult services and childrens services.
Alzheimer groups and other local organisations
Inland revenue officers
Care agencies

Our borough in 2004 had 17 adults receiving DP's
March 2008 now 152

Children 2004 - 9
2008 - 32

What was discussed...............

Pilots of IB's
Resource allocation system
Borough signing up with voluntary sectors
Eligibility criteria
Transfer of care packages from childrens to adult services
Targets are set by government

Several people in receipt of DP's gave speeches about how much had transformed their lives and they answered many questions from carers who knew so little about them.

For me this was all building up to the main event after lunch....the workshops.However, after several voices were raised it was put to a vote,workshops round the tables or open debate.It was decided open debate but controlled in such a way anyone who wanted to speak was given a chance.

So to the question asked..............

At present Direct payments are made every four weeks.How would you feel about receiving a total years budget in one payment??

If we had discussed at tables the idea was to list 3 postive points and 3 negatives but as was open, way more than the 3 came about.Participating and taking notes was hard so the following in no particular order.


More flexibility
Less administration
Greater choice to do with money
More individual control
Easier to plan ahead
Looking at assistance on a National level


Open to abuse,spent incorrectly
Once money given, what happens if needs change within the 12 months period.
DP criteria hard to achieve and so many cutbacks/tightening of budgets so why would IB's be any different.
How many audits a year as many would be needed to ensure money was spent correctly.
Far too much responsibilty for family members/carers to take on
Increased stress with large amounts of money in bank accounts.
Brokers would be needed at times and once again fees would be incurred.
More administration
If money spent too soon, is care continued
More people accessing DP's and IB's mean fewer attending day centres so in time more would close.


The following only my own thoughts but would welcome comments from others.

I am actually in support of DP's when set up correctly BUT as long as there always remains a choice.It works great for the couple I am employed by and I know several other members here have benefited from them. Neither DP's or IB's would be suitable for Robert though.

Examples given tended to cover mostly young disabled adults or fairly mobile pensioners though.

Not sure if I can list all my concerns as so many but will try,feel free to add to them or disagree as we all have different circumstances so our outlook will differ.

Again for me the main category would be the 24/7 carer especially those where only a spouse or other family member cares.

Criteria - we still have a post code lottery so depending on where you live as to whether once again you can access a service.

Budgets - as more and more people access these services where is all this money coming from and what happens if it dries up.

Financial assessments - as IB's is money from various pots inc ILF how long before more benefits become means tested.

IB's will be same as DP's in that payment to family members living in same household will not be allowed unless really extreme circumstances and will be at discretion of the relevant LA

Who accepts responsibilty - I feel its so unfair to families.It seems both government and LA's involvement getting less and less.

And I have saved the best to last.....what about carers and CA. What affect will all this have.

I have more thoughts but you must be sick of my typing by now.I will leave it to the rest of you to add your own thoughts whether they be positive or negative.

Didn't she do well !!!

How do these views reflect on DPs some 10+ years on ????
I have spoken to my council about this for the last 18 months with no reply. I feel it is laughable the way it is being worked out to calculate the sleep in rates for previous years which nobody appears to of picked up on. When you work out the calculations of sleep ins it appears any shortfall in the flat rate night payment can be added to the day time rate then all of it divided by the NMW. Which equates to we will pay staff X amount for days but if you call a sleep in its Y. Now to cover the rules of sleep ins just divide your week by the hours and the NMW at the time. So if you had staff doing sleep ins and staff not on sleep ins the staff not on sleep in got paid X but the staff doing sleep ins got paid X+Y ÷ NMW.
So the people who do sleep ins have not been getting the same hourly rate in the daytime as it's used to offset the sleep ins. I have tried to keep up-to-date date on the issue of sleep ins and it appears to me that the councils and agency's etc are looking at the employment tribunal rulings and it appears to me that HMRC are looking only at the sleep in hours and the amounts paid for them. If anyone has found a clearer way to work this out please let me know. Reading the new HMRC rulings I believe the penalities or fines are only being waived until Oct 2nd then the fines will be reinforced after that date.
An interesting article by Tom Draper ( Taylor & Emmet , solicitors ) on the case in question , Whittlestone v BJP Home Support Limited :

http://www.tayloremmet.co.uk/blogsite/s ... -to-sleep/
The findings

The EAT held that the entire sleepover shift was “working time” for the purposes of the National Minimum Wage Regulations 1999. The EAT observed that there was an agreement in place with the care provider that the employee would work and that had Mrs Whittlestone not been present at any time during a sleepover shift, she would have been disciplined.

In these circumstances, the EAT observed that it did not matter whether Mrs Whittlestone was asleep or actually performing duties during sleepover hours. The key point was that it was her job to be at the service user’s home and for that reason, Mrs Whittlestone was entitled to be paid the NMW for the duration of her shift.

This case can be distinguished from cases where a worker is “on call” overnight. Where a worker is “on call” and the night-time work is not the essential nature of the worker’s job, any time spent not actually responding to a call (ie sleep )is usually regarded as “non-working time” for which they are not entitled to be paid. During this time the worker is at liberty to go about their activities as they wish (including sleeping) and will only be entitled to be paid where time is actually spent responding to a “call”. The key difference then between such “on call” working and Mrs Whittlestone’s case, which was emphasised by the EAT, is the fact that Mrs Whittlestone’s duty during the sleepover shift was to be physically present at the service user’s home. Her activities during sleepover hours were limited and in the words of the Judge, Mrs Whittlestone was not able to “slip out for a late night movie or fish and chips”.

This is not to say that the practice of paying flat rate for sleepovers is wrong. Indeed, it is commonplace within the care industry. However, if carers are paid little more than the NMW for non-sleepover hours worked, paying a low flat rate for long sleepovers may result in them being paid less than the NMW.

This decision is likely to affect many residential care workers across the country and is not a welcome decision for care providers. Whilst it is accepted that there is already significant financial pressures placed upon care providers who will no doubt find it difficult to withstand a pay increase for its staff, these factors will not provide a defence for flouting the NMW. Given the recent announcement of an increase in the maximum penalty for failing to pay the NMW (it is expected to increase from £5,000 to £20,000) and the new policy of naming and shaming businesses that breach their obligations, it is therefore more important than ever for care providers to review and possibly change working practices to make sure they don’t fall foul of the law.

Comments section at the bottom is " Entertaining " to say the least.

Note : the case involved a care worker and the employer ... if a care worker receives a DP from our caree , then our caree will be demned to be the " Employer ".

Therein lies the danger for any caree.
Daily Mirror this time :

http://www.mirror.co.uk/news/politics/g ... r-11006487

One case study and repeating the knock on effects on sleepover providers.

This one will roll on and on.
Chris From The Gulag wrote:
Mon Aug 21, 2017 8:14 am
Daily Mirror this time :

http://www.mirror.co.uk/news/politics/g ... r-11006487

One case study and repeating the knock on effects on sleepover providers.

This one will roll on and on.
There is no way that many families will be able to afford this if it is enforced.
£75 for one sleepover, yet family carers get less than that for a whole WEEK. This is the real injustice.
The ticking time bomb was present in the original DP legislation as inferred in the CarerWatch take on DPs almost a decade ago.... posted earlier on this thread.

Classic case of someone NOT considering the ramifications ( Minimum wage this time ) from the end user's point of view at that time.

Now , a decade on , and just how many of our fellow carers are " Sweating " ... . possibility of back pay needing to be paid / hours cut down to meet " New " cost of sleepovers.

Carers are NOT at fault for this one and yet , they will suffer as a result.

Shades of the Care Act again ... someone did not do their homework or consult with carers before going ahead.

Was that the intention of the legislators ?
On the subject of " Employing " family members with DPs , consider the following :

From the Guardian , 15 March 2017 :

MPs to be banned from using public money to hire relatives

Expenses watchdog’s ban to take effect after 2020 election, but family members who are already employed will be allowed to stay on

The very people who can change the Law for our benefit .... ???
A rather interesting article from April , 2015 .... 2+ years ago ... which highlighted the problem :

https://www.civilsociety.co.uk/news/cha ... -hour.html

Charity criticised over allegations it pays ‘sleepover shift’ carers £2.50 an hour

A disability charity is in negotiations with trade unions after being accused of paying some carers just £2.50 an hour while on “sleepover shifts”.

Fast forward to 2017 and .... something has finally been resolved ... of sorts ?

Oh dear , same old problem ... of simply ignoring the Issue thereby increasing the likely casaulty count ?

One consequence of all this is rather inevitable ... cash in hand payments ... below the minimum wage but acceptable to the potential sleepover person.

A fact of life given the economic circumstances for far too many ?

On par with a " Donation " to a baby sitter so mum and dad can go out at night ... I assume that practice still goes on in today's Sad New World ?

Condone it ?

Inevitable !
67 posts