After months of unsuccessful efforts to get the government to take the issue of sleep-in shifts seriously, last week Mencap began a public campaign to try to avert a looming crisis in the learning disability sector, and prevent Southern Cross type failures on a multiple scale across the country.
Wednesday saw an acknowledgment from government on the scale of the problem, but did not tackle the mayhem its failure to address the problems funding the £400m sleep-in support back payment bill will have on the sector, or the 178,000 people with a learning disability who rely on this care, not to mention the dedicated care workers who provide it.
Sleep-in support is not simply a comfort for people with a learning disability and their families – it allows people with learning disabilities to live independently, in their own homes and their own communities. It is the vital difference between “living a life” and spending the rest of their life in a hospital setting.
But sleep-in support, which is widely used across the sector, is under threat because of government’s failure to grasp the nettle on this critical funding issue and provide clarity on a changed interpretation of the law.
When the national minimum wage was introduced in 1999, government guidance said time spent asleep by care workers providing sleep-in support in the homes of people with a learning disability did not count as work time. Instead, staff were paid a flat rate on-call allowance, which became the norm across the sector.
That was challenged during two recent employment tribunal cases, so government issued new guidance last autumn saying that time spent asleep did in fact qualify for national minimum wage payments. This was followed by HMRC enforcement action demanding that care providers paid six years’ back pay, which would cost an estimated £400m across the sector. It is a bill providers cannot meet.
There are also 100,000 families that hold personal budgets for the care of a loved one, who similarly will be hit with back pay demands. And families, like providers, only receive money for sleep-in support from government, paid via the local authority.
Although deferring enforcement action until October is welcome, the threat of the sector imploding and thousands of people with a learning disability losing the support they desperately need remains. Only a government commitment to fund the back pay in full will remove that threat.
Care workers who have built up lasting relationships will see the people they support lose this essential care, with the prospect of families that hold personal budgets also being affected.
It really isn’t a question of employers like Mencap not wanting to pay hard-working care staff who do a fantastic job. We are committed to pay our staff fairly and have been complying with the new guidance on the “national living wage” since April. But we cannot give our colleagues back pay if we do not have the money to do so and it is government and local authorities that have a legal obligation to fund this care.
We have reinforced our call to government to accept its responsibility and stop this avoidable crisis by urgently making a public commitment to fund the £400m back pay bill to protect the future of some of the most vulnerable people in society.
Time is running out. We cannot let the care of 178,000 people simply disappear, with all the inevitable strain this could place on the NHS.
Government has created this problem and it is in its gift to solve it.
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