Care sector leaders have criticised the government’s latest plans to deal with the dispute over backpay for sleep-in shift workers.
Derek Lewis, the chair of Mencap, said he was “dismayed” by the government’s announcement yesterday of the Social Care Compliance Scheme (SCCS), under which employers will have 12 months to review and identify what they owe to workers. He and other leaders called on the government to provide funding to help providers deal with back payments.
Under the new scheme, drawn up by the Department for Business, Energy and Industrial Strategy (BEIS), care providers who identify arrears will have three months to pay up, following the expiry of the year’s review period, after which they will be subject to enforcement action.
A final deadline of 31 March 2019 has also been set by which employers must settle outstanding backpay, regardless of when they enter the SCCS.
A guidance note issued yesterday said that providers not entering into the SCCS would be offered no concessions.
“They will be subject to the full HMRC investigative process – including financial penalties (except for sleeping time arrears accrued before 26th July 2017), public naming and possible prosecution where appropriate,” the note said.
‘No commitment to accept responsibility’
Mencap was the subject of an employment tribunal in May which ruled that workers were entitled to the national minimum wage for sleep-in hours, rather than the fixed rate that most had historically been paid.
Following this, the government announced in July that it would waive fines related to backdated pay owed to workers for sleep-in shifts, and would temporarily suspend all enforcement activity relating to pay for sleep-in shifts.
However, Lewis said that, three months on from this commitment to “seek a solution to the devastating £400 million liability” facing the sector, “there is only the promise of further delay and no commitment, even in principle, to accept responsibility for a liability created by government changing the rules”.
National minimum wage legislation published in 2015 says that a worker can only be considered to be “available” when “awake for the purposes of working”, appearing to contradict the tribunal ruling as well as historical guidance published by BEIS.
Lewis added that many providers, particularly smaller ones, could be reluctant to take part in the SCCS in the absence of any funding assurance, concerned that they would be “writing their own suicide note”.
Ann Mackay, director of policy at care provider body Care England, echoed Lewis’s calls for greater government accountability.
“The government needs to accept the responsibility for meeting the substantial costs of backdating sleep in costs and take full account of the reality that the sector has been operating for years within very contradictory guidance,” she said. “We are still no further forward with this latest announcement after years of alerting the government to this issue.”
‘Helping no one’
Izzi Seccombe, chair of the Local Government Association’s community wellbeing board, welcomed the grace period on settling arrears. But she warned that the sector would continue to face severe problems if the government did not provide “genuinely new” funding to deal with back payments.
“Councils already face a £2.3 billion annual social care funding gap by 2020 and pressures across the sector – particularly on providers – are acute,” Seccombe said. “If the Government does not fund the historic liability then we are likely to see more care providers going bust, more contracts being handed back to councils, and care workers being made unemployed.”
Christina McAnea, assistant general secretary of Unison, said that the SCCS “helped no one”.
“The care system is creaking at the seams, and no-one wants to see it plunged further into crisis, but without sufficient numbers of care workers and a substantial injection of cash from the government that’s exactly what will happen,” she said.
“Care workers who have been paid illegally low wages over many years shouldn’t have to go months and months before getting back what they’re rightfully owed. Ministers knew for years that sleep-in workers were not being paid properly. If they’d stepped in sooner, this mess could have been avoided.”
Seccombe added that the government “cannot ignore” the additional costs of sleep-ins in the here and now, and into the future, as well as looking at backpay. “It is wrong to assume the Spring Budget £2 billion for social care can cover this additional burden,” she said. “The forthcoming Budget needs to inject new money into social care to meet this pressure.”