Update: Read our official press release in response to the Government's announcement of the launch of a voluntary compliance scheme to help HMRC assess how much individual care providers owe for sleep-ins back pay.
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.
What is the sleep-ins case?
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.
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.
Why are we campaigning?
The change in Government guidance around sleep-in shifts, and a 6 year back pay bill, will cost £400 million to the already chronically underfunded care sector; affecting not only disability care, but children's homes, elder and residential care, too.
In July, the Government announced a 2 month suspension of HMRC’s enforcement action. But this did not address the catastrophic impact of the back payments on the sector.
In September, the Government announced a further delay in making a decision on the funding of sleep-in care, for another month.
This has been deeply disappointing, but it is also nonetheless encouraging that the Government appears to accept the need to support the sector. You can read our official press release on this announcement here.
What could happen when the bill is enforced?
The massive £400 million bill means many care providers will face bankruptcy, which could mean the end of social care as we know it.
The sector is faced with a real and potentially overwhelming funding crisis as care providers and local authorities have to find additional money. Money which, is many cases, simply isn't there.
At Mencap, plans to improve the lives of people with a learning disability could be set back by a decade or more, as we struggle to repair the financial damage. We may also be forced to take emergency action to hand back care services that do not cover costs, to local authorities.
This would also mean the potential termination of care in a number of residential homes, directly affecting people with a learning disability. Many of our dedicated care workers could also face displacement or redundancy.
This stark outcome would apply to many other care service providers, including children's homes, elder and residential care, with many potentially facing serious cuts to their services, or having to shut down completely.
It is clear that years of dedicated care could begin to unravel very quickly once the HMRC action is enforced.
What we want
We have created a petition, which calls on the Government to avert a crisis in the care sector.
We are urging the Government to fix the problem they have caused by making an urgent, public commitment to fund the back pay bill.
The future care of the most vulnerable people in our society must be protected.Sign the petition
How you can help
Sign our petition
We've created a petition to protect vital support for thousands of disabled people.
Our petition aims to #StopSleepInCrisis by calling on the Government to fix the problem that they have caused.
Sign the petition now to help us keep vulnerable people safe.
Take a look at how many signatures we've got so far:
Spread the word on social media
You can show your support and help spread awareness by sharing our posts about sleep-ins on social media.
Watch and share the videos
You can also take a look at our YouTube channel for further views on the sleep-ins case, from Jan Tregelles, our CEO, and Derek Lewis, our Chairman.
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 email@example.com, so we can help you get your voice heard.
Celebrities for #StopSleepInCrisis
Joanna Lumley, Kit Harington, Jodie Whittaker, Jo Whiley, Mathew Horne and Kate Spicer have joined our appeal to protect the future care of people with a learning disability.
Hear what they have to say about the #StopSleepInCrisis campaign and how you can show your support.
#StopSleepInCrisis: The Stories
Hear from some of the people who will be affected by the Government's £400 million bill to the care sector.
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.
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
Click the "Media coverage" title below to reveal the links to some of the online coverage we have received.
- OT Magazine: ot-magazine.co.uk/crisis-in-the-learning-disability-sector
- Charity Today: www.charitytoday.co.uk/crisis-in-the-learning-disability-sector
- Care Appointments: www.careappointments.co.uk/care-news/england/item/42154-ministers-urged-to-act-to-prevent-the-collapse-of-care-providers-over-hmrc-back-pay-bill
- Enable: enablemagazine.co.uk/crisis-learning-disability-sector
- The World News: www.theworldnews.net/uk-news/pay-row-threatens-overnight-care-for-vulnerable.html
- Third Sector: www.thirdsector.co.uk/government-must-help-charities-sleep-in-shift-back-pay-bill/policy-and-politics/article/1440063
- The Real News: therealnews.website/pay-row-threatens-in-a-single-day-take-care-of-weak
- homecare.co.uk: www.homecare.co.uk/news/article.cfm/id/1586529/Care-providers-fear-theyll-go-under-with-six-year-backdated-wage-bill-for-night-sleepers
- WiredGov: www.wired-gov.net/wg/news.nsf/articles/LGA+responds+to+MENCAP+care+crisis+warning+20072017114000?open
- DisabledGo: www.disabledgo.com/blog/2017/07/pay-row-threatens-overnight-care-for-vulnerable/#.WXDAc9PytBx
- The Carer: thecareruk.com/lga-responds-to-mencap-care-crisis-warning/
- Nursing Standard: https://rcni.com/nursing-standard/newsroom/news/charity-warns-of-devastating-impact-of-%C2%A3400-million-back-pay-bill-sleep-carers-91726
- Care Management Matters: https://www.caremanagementmatters.co.uk/sleep-in-back-pay-collapse/
- Pos'ability: posabilitymagazine.co.uk/royal-mencap-society-chief-urges-government-to-avert-crisis-in-learning-disability-sector/
- Public Finance: www.publicfinance.co.uk/news/2017/07/hmrc-demand-could-bankrupt-learning-disability-care-providers
- CCH Daily: www.cchdaily.co.uk/charity-warns-ps400m-nmw-backpay-shock
- The Canary: www.thecanary.co/2017/07/19/listen-bbc-presenter-six-figure-salary-question-whether-carers-get-minimum-wage-audio/
- The Independent: www.independent.co.uk/news/uk/home-news/charities-insolvency-threat-warning-night-carers-back-pay-mencap-hmrc-a7848911.html
- Third Sector: www.thirdsector.co.uk/back-pay-demand-learning-disability-charities-might-unlawful/finance/article/1439961
- Civil Society: www.civilsociety.co.uk/news/mencap-warns-of-multiple-insolvencies-as-care-providers-hit-with-400m-bill.html
- CareInfo.org: www.careinfo.org/care-providers-call-for-clarity-on-sleep-in-shifts-and-suspension-of-enforcement/
- LocalGov: www.localgov.co.uk/Back-pay-ruling-could-lead-to-social-care-crisis-warns-charity/43468
- Learning Disability Today: www.learningdisabilitytoday.co.uk/learning-disability-sector-unite
- Business Insider UK: uk.businessinsider.com/sleep-in-shifts-mencap-social-care-charities-facing-400m-bill-2017
- United Response: www.unitedresponse.org.uk/news/united-response-statement-on-sleep-ins
- The Mirror: www.mirror.co.uk/news/politics/care-disabled-people-faces-collapse
- BBC News: www.bbc.co.uk/news/health-40648952
- The Sun: www.thesun.co.uk/news/politics/4047697/thousands-of-vulnerable-brits-could-lose-their-carers-as-government-leaves-charities-facing-a-400-million-bill/
- The Times: www.thetimes.co.uk/article/social-care-will-implode-in-months-as-charities-including-mencap-face-back-pay-demand-ws06m50zs
An Early day motion has been tabled in Parliament to encourage the Government to take action on their decision for sleep-ins and HRMC enforcement on back pay.