Posted on 20/07/2017 by

LONDON – Charities that help care for vulnerable and disabled people are facing a funding crisis if a ruling to pay overnight workers the National Minimum Wage is upheld, charity Mencap has warned.

In April the charity lost an appeal against a ruling that it had been wrong to pay a support worker £29.05 for a nine-hour sleep-in shift.

Carers have traditionally been paid a flat rate for overnight shifts, but the judgment ruled that support workers should be paid the hourly minimum wage, with up to six years of back pay.

HMRC says the back pay is due by September, which Mencap says could amount to £400 million across all the organisations effected. It says this would be devastating for a sector that is already chronically underfunded, and is appealing the ruling.

"We all recognise that our social care colleagues do some outstanding work and are some of the lowest paid, but we cannot pay them if we do not have the money and we only receive money from government sources," said Jan Tregelles, chief executive of Mencap. "178,000 of the most vulnerable people in our society need this help and may lose it," she said.

A number of support workers took their employers to tribunals to challenge how they are paid for sleep-in shifts. Carers are generally expected to sleep during these shifts, but are on call if the person they are caring for needs assistance. Mencap's research shows 99.7% of carers slept peacefully over the last three years.

"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," said Director of Services at Mencap John Cowman  in a blog post from April , after the initial judgement.

Earlier this year, Former Health Minister David Mowat described the potential cost of this ruling to care providers as "enormous."

Critics have argued the ruling has caused confusion: the Employment Appeal Tribunal's (EAT) judgement, based on three cases, said the hours during sleep-in shifts can, "in certain circumstances," be taken into account in calculating how much a carer should be paid. But it said this decision needed to be made on a case-by-case basis, and that it "could not provide the 'bright line' clarity" sought by employers.

Mencap is now calling on the government to suspend HMRC's enforcement action immediately, until the law is clarified. It says the government should also give a public undertaking to fund back pay if the Court of Appeal upholds the decision.

Similarly, in March a Commons Select Committee report on Adult Social Care recommended the government take steps to resolve this uncertainty, and find a solution to the payment of back pay for sleep-ins to avoid "severe financial consequences" on care providers.

The National Minimum Wage for those over 25 is now £7.50 per hour, but is set to rise to £9 per hour by 2020. Mencap says it is not trying to avoid paying carers fairly, and that its actions have been in line with the law, which recognises sleep-ins as distinct from conventional work.

Mencap currently employs around 5,500 carers to do overnight shifts. But it says many of the charitable providers and local authorities that provide social care may go bust if they are forced to pay HMRC's enormous bill — meaning that additional care will need to be provided by the NHS.

Statistics released earlier this month show unpaid carers in the UK are providing an estimated £57 billion-worth of social care every year.

Matt Cardy / Getty

Source: BusinessInsider