Frequently asked questions (FAQ)
We've tried to answer some questions to provide clarity around sleep-ins and the Court of Appeal outcome.
What is a 'sleep-in'?
A 'sleep-in' is where a care worker sleeps in the home of someone they support so that they are on hand in case of an emergency or any other problem in the night.
What is the problem?
When the National Minimum Wage (NMW) was introduced back in 1999, the Low Pay Commission advice and the regulations said that ‘sleep-ins’ do not count as ‘work-time’ for the purposes of the new law because people were asleep and not working. Instead care workers were paid a flat rate ‘on-call’ allowance which had been the norm across the sector for decades.
There have been a number of tribunal cases which have challenged this, and in October 2016, Government (BEIS) issued new guidance saying that time spent asleep did in fact qualify for NMW payments. This was followed by aggressive HMRC enforcement action demanding care providers paid six years back pay. This is estimated to cost at least £400 million across the sector.
This was followed by HMRC enforcement action demanding care providers paid six years back pay, which was estimated to cost the care sector £400 million.
Paying six years’ back pay for sleep-ins at an hourly National Minimum Wage rate would mean the sector was faced with a real and potentially overwhelming funding crisis. This would have affected the wellbeing of hundreds of thousands of disabled people who rely on the personal support provided by organisations like Mencap to be able to live an independent life. This would also affect all care providers and local authorities that commission care services, and result in an increase in the cost of the care. Already chronically-underfunded care providers and local authorities would have had to find additional money that simply isn’t there currently.
Although the guidance changed in 2016, the legislation did not change and most Local Authorities were still paying providers only the flat rate for sleep-ins. This is why we brought our case to the Court of Appeal – to get clarity between the legislation and the guidance.
Since April 2017, we have ensured that all our support workers carrying out sleep-ins are paid in line with the National Living Wage requirements and despite this ruling, we plan to continue this payment.
Why did Mencap end up in court?
Unison originally took us to court and then we appealed against the verdict at the Court of Appeal, which was heard in March earlier this year. We did not want to do this, but we could not afford to pay the back pay liability.
A charity and a union shouldn’t have had to resort to this - the Government failed to take any action on this critical funding issue and provide clarity on a changed interpretation of the law.
Are Mencap paying the National Living Wage (NLW) for sleep-ins now?
Yes. We are paying according to the most recent Government guidance and we’re going to continue even though we are not legally obliged to pay it now.
We would like the Government to legislate so that all care workers are entitled to this and so that Local Authorities cannot refuse to pay.
Why doesn't Mencap use reserves to pay the sleep-ins back pay bill?
Our reserves are mainly property assets including housing for people with a learning disability across the country.
Would the Government have bailed you out of the back pay bill?
We certainly asked them to, and if Government had said that they would be prepared to fund the back pay, we would have halted the court action immediately.
Does Mencap not want support workers to be better paid?
Of course we do. To be really clear, we have been paying for sleep-ins for Mencap support workers at a higher rate since last April and have no plans to stop.
We did not want to go to court about back pay but we had no choice – we simply could not afford it and the law was so unclear. We are hugely proud of the outstanding work that our colleagues in the social care sector do and we recognise that they are some of the lowest paid in our society. They deserve to be paid more, but for that to happen, the Government needs to put more funding into social care – paying the sleep-in back pay is not a long term solution.
Why did you sign up to the Social Care Compliance Scheme (SCCS) and will you stay in it?
In November 2017 the Government announced a new compliance scheme – the Social Care Compliance Scheme (SCCS) - to work with care providers to establish the cost of sleep-in back pay liabilities. We reluctantly joined the scheme, otherwise, we would be liable for fines.
We’ll need to see what the Government’s next steps are before we can answer whether we will stay in it, although there doesn’t seem to be much point to the scheme now.
Hasn’t the Government just injected £2 billion into social care and another £150 million?
The £2 billion was to bolster the whole social care system to cope with an increase in people needing elderly care. The £150 million was specifically for rural areas where social care is more expensive.
It’s worth noting too that elderly people often have assets and saving and are more able to pay for care privately. People with severe learning disabilities often rely on the state; statistically, families with disabled children are more likely to be in poverty.
We are also calling on Government to ensure that social care is properly funded – and that means that care workers are properly paid.
What does this mean for the six years’ back pay?
This means that no back pay for sleep-in shifts is owed.
Will this mean that Local Authorities stop funding sleeps-ins at the higher rate?
We hope not – and this is why we want Government to legislate about this.
Information for support workers
The following information is for support workers who are looking to find out more information about the Court of Appeal outcome.
I am a Mencap support worker and I have read the FAQs but I still have more questions, what should I do?
If you have questions about your personal situation or further questions on sleep-ins, you can either approach your line manager or use Yammer to contact teams directly.
You can also e-mail any queries to firstname.lastname@example.org and someone will get back to you.