Last Updated on July 20, 2017

Amid warnings that the care sector could collapse over sleep-in back pay, three care organisations – Learning Disability Voices, the Voluntary Organisations Disability Group and Care England – have supported calls from Mencap to clarify rules on overnight care sector ‘sleep-in’ shifts.

Sleep-in shifts are delivered regularly for people with learning disabilities requiring round-the-clock care. Care workers sleep through the night but are present on site to respond to emergency requests for care and support.

For years, these shifts have been paid at a flat rate of £35 to £45, with workers receiving National Minimum Wage or National Living Wage (NLW), for the hours they spend providing care.

However, Government guidance on the NLW’s application to sleep-ins has recently changed, prompted by Employment Tribunals. The Court of Appeal will now consider the re-interpretation of the law next year.

This has left providers liable for sleep-in back pay which amounts to up to six years of back payments. This is actively being pursued by HM Revenue and Customs (HMRC). Sector-wide liabilities could amount to £400m, at conservative estimates.

The three bodies representing providers in the sector have called on the Government to immediately suspend HMRC’s enforcement activity until the law is clarified, and publicly-fund back pay liabilities, if the Court of Appeal upholds the re-interpretation.

Andrew Cannon, Co-Chair of Learning Disability Voices and Chief Executive of Voyage Care, said, 'Our sector is currently facing a funding crisis and Government inaction over sleep-ins could be catastrophic. Services relied on by some of the most vulnerable people in society are at risk and will potentially fail unless the Government swiftly applies a solution.'

Tim Cooper, Co-Chair of Learning Disability Voices and Chief Executive of United Response, said, 'At a stroke, the Government can provide breathing space for organisations in the sector by temporarily halting enforcement activity over sleep-in back pay liabilities. We currently lack time and clarity, so this requires an immediate response from ministers.'

Professor Martin Green OBE, Chief Executive of Care England, said, 'The lack of clarity over sleep-ins is an enormous challenge facing providers across the country. The Government’s recovery of sleep-ins must be suspended immediately, with a clear and definitive position on back payments put forward.'

Dr Rhidian Hughes, Chief Executive of the Voluntary Organisations Disability Group, said, 'Like our colleagues across the sector, we have welcomed the National Living Wage and have fully supported its implementation. However, the sector is now approaching a crunch over sleep-ins and we urgently require Government to clarify its position.'

Responding to the warning by the Royal Mencap Society that the survival of care providers is at risk due to a dispute over sleep-in pay for care workers, Cllr Izzi Seccombe, Chairman of the Local Government Association’s Community Wellbeing Board, said, 'The Government needs to make the law clear about whether the National Living Wage should apply for sleep-in shifts and stop HMRC’s six-year retrospective action to seek costs and penalties from providers of social care until it does this.

'The current uncertainty is causing worry for care workers, the people they care for and their families. It risks care providers going bust, contracts being handed back to councils and care workers being made unemployed. People who pay for their own care or employ a personal assistant could also be forced to meet back pay claims.

'Councils face a £2.3bn annual social care funding gap by 2020. If the Government decides the NLW or a new rate should apply for sleep-ins, it must provide councils with genuinely new money to cover the cost. Individuals paying for their own care and hard working families who face the risk of having to pay back benefits they have received over the past six years will also need to be protected.'