Councils to receive statutory guidance to ensure home care providers pay staff minimum wage

Councils will be given statutory guidance to ensure that home care providers they contract with pay their staff the national minimum wage (NMW), including travel time.

The guidance, which councils will be required to follow, will refer to NMW regulations that require payment of travel time and more existing government advice on what counts as working time when calculating the minimum wage.

The statutory guidance would complement “targeted enforcement activity” carried out against care providers not paying the NMW by Her Majesty’s Revenue and Customs (HMRC). There are relatively high levels of non-compliance with the NMW in the social care sector, found a government investigation into 90 large residential and domiciliary care providers earlier this year.

“Non-compliance with the law on this is unacceptable,” said the Department of Health today, in its official response to Robert Francis’s inquiry into the Mid-Staffordshire NHS Foundation Trust scandal, published today. It said the statutory guidance would help councils “assure themselves that the care companies they contract with comply with national minimum wage regulations”.

The move was welcomed by the United Kingdom Homecare Association, but it warned that it would be ineffective without councils paying providers more to deliver services.

“For government and councils to underfund care while wagging a finger at homecare providers will not improve compliance with the law, nor improve the conditions of the social care workforce, so urgently needed,” said UKHCA chair Mike Padgham.

Review of 12-hour shifts in social care

The DH also announced a review of the impact of 12-hour shifts on social care staff and service users, in response to concerns raised by Camilla Cavendish in her DH-commissioned report into the work of healthcare assistants (HCA) and social care staff earlier this year. The review will be carried out by Skills for Care and built into its programme of work for 2014-15, said today’s DH report.

As already announced, the government has accepted Cavendish’s recommendation to introduce a care certificate for all HCAs and social care staff, which they would have to obtain before they began working unsupervised. Employers will be given guidance saying that staff whose standards fall below those required by the certificate should not be allowed to work supervised until their practice improves.

However, the government has maintained its opposition to Francis’s recommendation to introduce a statutory register of health and social care support workers, which would enable staff to be barred for sub-standard practice. The Department of Health said regulation could be costly and there was no “solid evidence” that it would prevent poor care.

In his response to today’s report, shadow health secretary Andy Burnham questioned whether a care certificate could work without a statutory register that included the sanction of “removing people whose who fall short” of practice standards. Health secretary Jeremy Hunt said that the care certificate itself would ensure that unsuitable staff could not work unsupervised.

Currently, the Health and Care Professions Council is working up plans to create a “negative register” of adult social care staff, which would only record the names of people whose practice had been found to have fallen short of standards, preventing them from being re-employed. However, there was no reference to this work in the government’s response to the Francis inquiry.

New offence of wilful neglect of patients

The DH also said it planned to legislate to create a new offence of wilful neglect by staff to punish those guilty of “the worst failures in care”. This responds to a recommendation from Don Berwick, a former adviser to US President Barack Obama, in a separate DH-commissioned review on improving patient safety that reported in August.

The government will follow Berwick’s recommendation and apply the offence to NHS patients but it is not clear which settings it will apply to and whether, for example, people receiving NHS continuing care or NHS-funded nursing care in a care home. The Department of Health said it would consult on the details shortly.

Currently, offences of wilful neglect and ill-treatment apply to people caring for patients in mental health hospitals or those subject to guardianship, and to those caring for people who lack capacity to take relevant decisions for themselves. Organisations including Action for Elder Abuse have argued strongly that a similar offence should be introduced to protect other users of social care services, but this has been rejected by government.