Today Mencap received judgment in a legal case we had taken to the employment tribunal appeal courts in order to get clarity on how those who support disabled people are paid for so-called ‘sleep-ins’. Unfortunately the judgment went against us and we will be appealing.
We did not take on this case lightly and our decision to pursue it is based on the need for clarity as the government does not currently fund sleep-ins at the minimum wage. If sleep-ins have to be paid at the minimum wage the sector is faced with a real and potentially overwhelming funding crisis that will affect the well-being of hundreds of thousands of disabled people who rely on the personal support provided by organisations like Mencap to be able to live a fulfilled and independent life.
The estimated cost of sleep-ins to the sector is £800 million over three years and this is an additional cost to the £2 billion the Government pledged to social care in the Budget, which was a drop in the ocean anyway given the chronic under funding social care has received over decades. This will mean that we have no other choice than to ask already cash-strapped local authorities who contract us to provide these services to make up the shortfall.
The tribunals have in short called into question the flat rate that has been paid to support workers who spend the night in the homes of disabled people who because of their complex learning disabilities need to have a support worker in their home overnight, in case there is an emergency. There is the expectation that the support worker goes to sleep in a bedroom with very little chance of being woken. The law has always recognised sleep-ins as substantially different to time spent awake and working but the recent tribunals rulings have given a different view.
Clarity is needed not just for us, but for other providers, for our colleagues and as importantly for the disabled people we support.
It is really important to understand that we have not brought this case because we don’t want to pay our support colleagues properly. Far from it. We know they are carrying out some of the most challenging and important work in our society and we are committed to working with others to increase their pay over the longer term.