William Eichler 20 February 2018

Care England wins right to intervene in sleep-in care case

Care England has been granted the right to intervene in the Court of Appeal’s sleep-in-shift case raising hopes the care sector’s impending £400m financial crisis can be averted.

A court ruling last year in the Royal Mencap Society vs Tomlinson-Blake Employment Appeal Tribunal (EAT) case found care providers must pay the National Minumum Wage (NMW) throughout a sleep-in-shift rather than just for the hours the carer is awake.

This has triggered fears private care providers will have to pay £400m to carers in six years worth of back payments, as well as face a £200m increase in yearly costs from 2020 onwards.

In an attempt to soften the impact of the court ruling, the Government launched a new compliance scheme for social care providers last November which would give them up to a year to identify what they owe to workers.

Employers who sign up to the Social Care Compliance Scheme (SCCS) and identify arrears at the end of the self-review period will have up to three months to pay workers.

This was criticised at the time by the Voluntary Organisations Disability Group (VODG) which said the scheme ‘fails’ to tackle the funding of sleep-in care because it offers no assurances of how to fund the retrospective costs.

Care England, the largest representative body for independent providers of adult social care, will now be able to appear before the Court of Appeal in March to propose new measures for resolving the sleep-in care crisis.

‘I cannot stress the magnitude of this opportunity for our members and the care industry as a whole,’ said Professor Martin Green, chief executive at Care England.

‘If the existing decision of the Employment Appeal Tribunal is upheld it would be a watershed moment for the sector, with profound affects for the viability of residential domiciliary and supported care which supports 1.2 million vulnerable people across the country.

‘We argue for a comprehensible, predictable, and workable interpretation of the sleep-in-shift regulations that do not give rise to the potentially crippling multi-million pound consequences for the sector.

‘They should enable providers and their workers to deliver the best care possible.’

Matthew Wort, partner at Anthony Collins Solicitors who will represent Care England, added: 'Surveys have shown that, in practice, on average only 1% of time in sleep-in-shifts is spent working.'

'The intervention by Care England introduces other arguments that have not been considered in the case to date.

'The intention of Parliament from the introduction of the National Minimum Wage Regulations was always that people carrying out sleep-ins would only be paid when they are awake and working and we are hopeful that the Court of Appeal will be persuaded to interpret the legislation in that way.'

Read our feature exploring the impact backdated payments for sleep-in shifts could have on the future of social care.

SIGN UP
For your free daily news bulletin
Highways jobs

Residential Support Worker - Development Programme

Durham County Council
£26,403 - £28,598
Residential Support Workers – Temporary 12 Month development opportunity Salary
Recuriter: Durham County Council

Service Improvement Support Officer

Durham County Council
Grade 10 £38,220 - £41,771
Applications are invited for a Service Improvement Support Officer within the Adult and Health Services Development and Learning Team. The position is Spennymoor
Recuriter: Durham County Council

Residential Worker

Durham County Council
Grade 7 £30,024 - £33,699 p.a.
Residential Workers – Pioneering New Project Supporting Young People’s Transition to Independence County Durham Area Salary
Recuriter: Durham County Council

Specialist Support Interpreter

Durham County Council
Grade 6 - £28,142- £31,022 hourly rate on a pro-rata basis
The ESOL department is a busy area of DurhamLearn (part of Durham County Council’s Education and Skills department) delivering a range of educational Durham
Recuriter: Durham County Council

Accountant

The Royal Borough of Windsor & Maidenhead
£37,526 - £41,613 per annum (Up to £48,446 for exceptional candidates.)
We have an exciting opportunity for Accountant to join us! Maidenhead, Berkshire
Recuriter: The Royal Borough of Windsor & Maidenhead
Linkedin Banner