Social care sector in ‘state of fear’ as government backtracks on backpay

Government has suspended the reinstating of a scheme to assess backdated liabilities for sleep-in shift pay backed at the Court of Appeal.

The government has backtracked on the Social Care Compliance Scheme and is accused of forcing care providers into a “state of fear.”

Within the past month, the government has suspended the reinstating a scheme to assess backdated liabilities for sleep-in shift pay.

The scheme, launched in November last year, requires those who join to declare how much they owe staff paid less than the national minimum wage – with specific reference to sleep-in shifts.

A tribunal ruling that social care staff should be paid the national living wage for sleep-in shifts backdated over six years, which would have cost providers an estimated £400m for backdated wages, was overturned by the Court of Appeal last month following a challenge by Mencap.

HMRC then told providers that the compliance scheme had been suspended following instruction from the Department for Business, Energy & Industrial Strategy (BEIS), which is responsible for the policy.

However, HMRC has within the last two weeks contacted providers to say the scheme had been reinstated without explanation.

The deadline for applicants to join the scheme is December 31, ahead of when the Supreme Court is expected to rule on a challenge to the Court of Appeal ruling.

Anna Dabek, partner for employment and health and social care at Anthony Collins Solicitors, which represented Care England in the Mencap case, said the U-turn has added further confusion over sleep-in shifts in showing “clear evidence of a disconnect” between government and care providers.

Ms Dabek added: “By continuing with the scheme and providing little guidance to how these reviews should take place, HMRC has again forced the sector into a state of fear.

“Adding to the continuing uncertainty is the self-certification timeframe, the original 31 December 2018, putting additional pressure on providers. This comes at a time when disruption should be limited – further clarification is needed, and we hope that this arrives soon,” she said.

A BEIS spokesperson said guidance was being updated to “provide clarity”.

HMRC is yet to respond to 24housing.

The High Court ruled that sleep-in shifts fall into an exception from the national minimum wage as staff are only available for work meaning the minimum wage would only be payable when the person was awake and working and not while asleep.

A short-term failure of the social care provider market is feared if providers are forced to pay the national minimum wage for sleep-in shifts.

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