‘No winners’ in sleep-in shift case, as care sector calls for urgent reform

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Social care leaders have today welcomed clarity provided by the Supreme Court on sleep-in shift payments, but called for an urgent need to address the “broken system” of funding the sector.

The court has upheld a 2018 Court of Appeal decision that social care workers who sleep during night shifts are entitled to the national minimum wage (NMW) only when they are awake and supporting people who require overnight support services. 

The Supreme Court is the highest court in civil cases in the UK and there is therefore no further route of appeal. 

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The decision means UK care providers no longer face the financial toll of significant back-pay liabilities, which would have potentially forced many employers in the sector into insolvency.

But social care leaders have made it clear that the ruling is “not a victory” for employers and have called for the government to instruct the Low Pay Commission to establish a fair rate of pay for social care workers who provide overnight support.

Dr Rhidian Hughes, chief executive of the Voluntary Organisations Disability Group (VODG), said: “Clearly, there are no winners or losers in this case. While the judgement provides some welcome clarity to this issue, there is still significant uncertainty that can only be resolved by the Low Pay Commission carrying out a consultation and review, and for the Department of Health and Social Care to bring forward a workforce strategy for the social care sector.”

The VODG is concerned of potential “knee jerk reactions” of local authority commissioners up and down the country which could see funding reduced, and therefore the pay of staff affected. 

Dr Hughes added: “The coronavirus (COVID-19) pandemic has highlighted the extent to which social care is a vital part of a civilised society. We need to value those who care for disabled people, including when they are available at night, and that includes a fair rate of pay.

“Now the sector has some clarity on this issue, there is an opportunity to introduce a system that enables government, commissioners, and providers to place proper value on the work of social care professionals, and on the vital care and support they provide to disabled people.”

Mark Milton, chief executive of Ambient Support, said: “There would have been a severe impact on our ability to continue to deliver quality care and support if the ruling had gone the other way – but this is not a victory for employers like us.

“We support any move to deliver fair and equitable pay for social care staff for the brilliant work they do. But local authorities and the NHS have to give us the funding for that pay – and government has to give them the means for that funding.”

Colin Angel, policy director at United Kingdom Homecare Association (UKHCA), said the Supreme Court judgement will be “hugely disappointing” for members of the social care workforce, but stressed that now a case-law in this area has been decided, there remains an urgent need for reform.

“Everyone agrees that the care workforce deserves fair recognition and reward for the valuable and skilled roles they perform,” he said.

“UKHCA calls on central government to provide statutory guidance to councils and the NHS on funding care work, including sleep-in duties, at a level which shows the true value that society should give to members of the social care workforce.

“In the meantime, we urge those local councils and NHS organisations who have so far taken the responsible position of funding sleep-in duties at or above the statutory minimum to continue to do so.”

Professor Martin Green OBE, chief executive of Care England, agreed, adding: “After a lot of uncertainty it is useful to have this ruling from the Supreme Court. Our staff are our best resource and need to be valued as such.  This is all part of the broader picture of the much needed reform of the adult social care sector which we will continue to press the Government on.
“Care England continues to call for a ten year plan for adult social a key part of which is a workforce plan, akin to that of the NHS, where career progression, pay and rewards are identified. We hope that the Government will take account of this issue and the sector’s economic fragility in its forthcoming Spending Review.”

Matthew Wort, partner at Anthony Collins Solicitors, said that while judgment removes a serious risk for providers, the long-term stability of the UK social care sector “hangs in the balance”.

“The judgement puts an end to many years of uncertainty. It should be seen as a line in the sand, with the focus now on ensuring changes are made in how workers are remunerated to ensure appropriate pay for time asleep.

“At the least, a regulated minimum rate for time spent sleeping must be set. The rate could be decided by the Low Pay Commission to make it fair for care providers and employees. A more effective alternative would be establishing a national pay framework for the social care sector – providing clarity on what a care worker should be paid in all settings.”

Wort added: “The disparity in pay between social care and healthcare also needs to end, with social care no longer being the poor relation. It is clear that the government is failing the sector – once again missing an opportunity in its March Budget to properly address the issue of social care funding. This is despite care providers continuing to operate high-quality services during one of the most challenging periods ever experienced by the sector.”

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Sarah Clarke

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