At Mencap, the care of people with a learning disability is our utmost priority.
We are also hugely proud of the outstanding work that our colleagues in the social care sector do. However, we recognise that they are some of the lowest paid in our society.
How care works
Local Authorities have a duty to care for people who live in their areas. They pay organisations, like Mencap, to do this for them. They get the money to do this from the Government.
Some people need looking after 24 hours a day, and this means that carers sleep in their homes in case they need help in the night. This is called a sleep-in.
What's the problem?
The Government set out guidelines for how people should be paid. It said that people should be paid a flat rate for a sleep-in. Recently, a number of support workers have taken their employers to employment tribunals to challenge how they are paid for sleep-in shifts.
The tribunals ruled that support workers should be paid the hourly minimum wage for these shifts, with up to 6 years back pay.
This is good news for our support workers, but has created a problem for us and other organisations because we weren't given the money to pay them.
Therefore, since 1 April 2017, Mencap has ensured that all sleep-in staff are paid at least the National Minimum Wage, for the vital work they do. But we think the Government should pay for the 6 years back pay, because we weren't given the money and can't afford it.
Why we're campaigning
To be really clear, this is not because we don't want to pay our hardworking carers. We currently pay all our staff at least the National Minimum Wage, including sleep-ins, and are committed to paying that in future. This problem is the 6 years back pay.
This will cost care organisations around £400 million. The bill for Mencap alone is around £20 million.
This will mean that some care providers will go bust, with people losing their jobs or care. For charities like Mencap, it will mean that we won't be able to provide all the other services like employment support or help for families.
We think this is unfair. If the Government doesn't pay for this, people with a learning disability will be badly affected.
What can we do about it?
To find out more about how you can help to #StopSleepInCrisis, please sign up to email updates here.
We also created a petition to protect vital support for thousands of disabled people, and 18,762 people signed it. We closed the petition in April 2018 and are using it to call on the Government to fix the problem they have caused and #StopSleepInCrisis.
You can read the messaging from this petition by clicking the heading below:
Dear Prime Minister
Government changes to 'sleep-in' payments are threatening to take away vital support from thousands of disabled people. This support allows them to live a safe and independent life in the community.
The care sector has been landed with a massive £400 million bill and many providers now face bankruptcy. This could mean the end of social care as we know it.
We are asking the Government to commit urgently to paying this bill as the sector cannot afford it. Government caused this problem. Only they can fix it.
Signed: [names and postcodes will be added here]
Share your story
Do you or a loved one pay for care out of a personal budget or by direct payments? Or are you part of a service that provides care to people with a learning disability?
If you're worried about being liable for back pay and want to talk publicly about your concerns, please contact our Media Team on firstname.lastname@example.org, so we can help you get your voice heard.
Why we've joined the Social Care Compliance Scheme
In November 2017 the Government announced a new compliance scheme to work with care providers over 12 months to establish the cost of sleep-in back pay liabilities.
After careful consideration, Mencap has joined the scheme.
However, this does not change our campaign for the Government to accept full responsibility for funding the back pay. We are clear in our stance that we will leave the scheme if the Government does not commit to a fully funded solution to this crisis.
Why we've gone to the Court of Appeal
Mencap currently has an appeal being heard in the Court of Appeal in March, with a decision expected in June/July.
This is not because we don't want our colleagues to be paid the minimum wage for sleep-ins. It is because, unless we get the Government to pay, we have to do this, otherwise we will have to use charitable donations to pay nearly £20 million in back pay. This would have serious consequences for Mencap and the people we support.
We have already been paying top ups for sleep-ins since April 2017, even though we are not fully funded to do so, and we simply can't afford to pay up for the back pay. This also does not change our stance on payments going forward.
We have not taken this decision lightly. But, we have to do everything in our power to protect our future and get the best possible outcomes for people with a learning disability.
We have made it clear to the Government that we will drop the case if they provide a serious commitment to fund the back-pay bill.
#StopSleepInCrisis: The Stories
Hear from some of the people who will be affected by the Government's £400 million bill to the care sector. Want to tell your story? Contact us at email@example.com.
Frequently asked questions (FAQ)
We've given answers to some of your questions around sleep-ins.
Click each question below to reveal the answer.
What are sleep-ins?
Many support workers work both day shifts and what are called ‘sleep-in’ shifts, where a worker is on site but able and expected to sleep in a separate bedroom.
They are only on call if an emergency arises. Sleep-in shifts are funded and paid via a fixed allowance rather than per hour.
If the support worker is disturbed from their sleep they are paid at their normal hourly rate.
Why is Mencap in court?
Recently, there have a number of cases of support workers taking their employers to employment tribunals to challenge how they are paid for sleep-in shifts. The tribunals ruled that support workers should be paid the hourly minimum wage for sleep-in shifts.
These rulings have created unclarity and we have therefore, together with other care providers, decided to appeal with the rulings to get the clarity we, care workers and the people we support really need. The judgment we just got still does not give us that clarity which is why we are again appealing.
What exactly has been challenged?
If sleep-ins have to be paid at an hourly rate the sector is faced with a real and potentially overwhelming funding crisis. This crisis could affect 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 a fulfilled and independent life.
Paying sleep-ins at an hourly rate would be a change from decades of practice and guidance which has advised that support workers should be paid a fixed allowance for a sleep-in shift. If the ruling is upheld then this will affect all care providers and local authorities that commission care services, and will result in an increase in the cost of the care. If it is found that sleep-in shifts must be paid at the current minimum wage, already chronically-underfunded care providers and local authorities will have to find additional money that simply isn’t there currently.
Are Mencap trying to get away with paying less than the minimum wage?
No, we are not.
We pay the minimum wage according to the letter of the Minimum Wage Regulations.
Why do Mencap not want to pay its staff who undertake sleep-ins the National Minimum Wage?
We pay the minimum wage according to the letter of the Minimum Wage Regulations and Mencap and the sector has faithfully followed the wording of the legislation and the BEIS guidance by paying the allowance for such sleep-ins.
We are not trying to avoid paying our support workers the minimum wage. We are taking a leadership role in trying to get legal clarity on this law because it remains unclear. There is conflicting case law which has made it impossible for employers to know whether they are truly compliant.
The consequences of not being compliant are huge for Mencap and the sector as a whole. HMRC the enforcement body for minimum wage can order employers to pay 6 year’s back pay for all staff and impose penalties on top of that. For the sector as a whole, this is estimated to cost £600m. For Mencap this would be c£40m and would place the charity into insolvency.
HMRC appears to have the power to order 6 years back pay and penalties even if the guidance was only changed a year ago.
If we do not fight this, we may be insolvent and then our colleagues will all be redundant and the people we support will be left without any familiar faces/continuity of support.
Why doesn't Mencap recognise or support union membership?
Union membership is always a matter for individuals.
Mencap recognises the good work that many unions, including Unison, do on behalf of their members.
Can't Mencap fund the 6 years back pay?
Mencap would not survive the worst case scenario from HMRC, back pay and penalties. In the case of just back pay, our reserves would be wiped out, causing Mencap to reduce service provision, investment in projects and activity supporting people with learning disabilities and sell assets. The reserves have been built up by the donations to Mencap, people who would understandably be outraged to see reserves built up by their donations used to fund the consequences of erroneous government guidance.
Declaring such a liability in our accounts would make the charity a less attractive prospect for funders and further decrease our ability to find the money and resources to fulfil our charitable objects.
How much are Mencap paid for sleep-ins?
The amount we receive from Local Authorities for sleep-in varies. Some Local Authorities do not recognise that the National Living Wage (NLW) should apply, and only fund sufficient for a payment of £29.85 per sleep-in. Some Local Authorities accept that the NLW should be paid and are now funding sufficient to pay the averaging calculation.
Mencap pay the National Living Wage for all sleep-ins. National Living Wage regulations specify the National Living Wage is calculated by the averaging calculation. Local Authorities are aware of this and do not want to pay any more than what they believe they are legally required to do. Paying £7.50 for all hours would not be funded by Local Authorities and would be unaffordable for Mencap.
Are you fighting to stop sleep-ins being paid at the minimum wage?
Mencap support the Nation Minimum Wage (NMW) and pay our support workers above the minimum wage where possible.
Since April 2017 we have been paying the NMW for all sleep-ins.
Our appeal to the Court of Appeal will bring clarity to the law and will enable providers to ensure that local Authorities fund sleep ins appropriately going forward.
It will also address whether the law has been correctly interpreted with regards back pay. Mencap will of course abide by the Court of Appeal decision whichever way it goes.
What's the difference between the National Living Wage and the National Minimum Wage?
In April 2016 the Government introduced a new rate of the National Minimum Wage, referred to as the "national living wage", for workers aged 25 or over.
The National Minimum Wage (Amendment) Regulations 2016 (SI 2016/68) came into force on 1 April 2016 and amended the National Minimum Wage Regulations 2015 (SI 2015/621) to bring the new rate into effect.
The National Living Wage applies in relation to pay reference periods starting on or after 1 April 2016. Where the pay reference period started prior to 1 April 2016, the rate of the national minimum wage in force at the time for workers aged 21 or over, applied to workers aged 25 or over, for the whole of that pay reference period.
Still have questions?
Or, you can email our dedicated helpline on firstname.lastname@example.org.
In the media
This section shows the media coverage we have received around the launch of our sleep-ins campaign.
Click the "Our press releases" title below to reveal the links to the press releases Mencap has put out around the sleep-ins case.
Our press releases
Read the press releases Mencap has put out around the sleep-ins case:
- 1 November: Mencap dismayed by Government indecision on funding for sleep-ins
- 25 October: Mencap joins the dots on the impact of sleep-in care back pay
- 28 September: Mencap deeply disappointed by Government delay on sleep-in funding
- 25 September: Government must not be allowed to duck it's responsibility for statutory social care
- 6 September: Future of learning disability care in the UK hangs in the balance
- 6 September: Joanna Lumley and Kit Harington join video appeal to protect future care of people with a learning disability
- 11 August: Mencap speaks up for families facing HMRC demands of up to £50k for essential overnight care and shines a light on what learning disability care means to parents
- 2 August: Kit Harington stands behind Mencap's campaign to save learning disability care
- 26 July: Mencap reacts to Government announcement on sleep-ins
- 26 July: Jo Whiley helps launch national petition to save her disabled sister's support and thousands of others
- 21 July: Crisis in the learning disability sector
- 19 July: Royal Mencap Society Chief urges Government to avert crisis in the learning disability sector