The government has been aware of the funding crisis for learning disability charities employing overnight sleep-in shift workers for at least 18 months, newly revealed documents show.
Letters published following a Freedom of Information request by Civil Society News show a disability charity wrote to the government in April 2016 warning it would be “unable to meet” National Minimum Wage (NMW) payments for sleep-in shift employees.
In response, a letter from former business minister Nick Boles says that the introduction of the Better Care Fund in April 2017 would help providers meet the cost of the introduction of the NLW. But it fails to mention how they should fund payment for sleep-in shifts.
The letter from the care organisation reads: “If we were to pay all staff the equivalent of the NMW for sleep-ins it will cost us in this current year an additional £132.75 and approximately another £15,000 each year afterwards until 2020.
“Without the cost being met by local authority purchasers we will be unable to meet these costs. If we don’t address this we run the risk of our employees taking us to tribunal, where if we lost we would be fined £20,000 per case.”
Another letter from January 2016 shows a different care organisation warning about the “fragile state” of the sector and it lobbies for the NMW not to apply to overnight shift work.
It says: “Many local councils do not currently pay care providers and disability organisations sufficiently to ensure the National Living Wage can be paid for every hour of a sleep in and have not indicated any intention to change their approach in light of the introduction of the NLW."
The letter goes on to say: “The market is in an extremely fragile state and we believe it is vitally important at this time for all parties to work together to ensure providers have the best advice and are able to ensure high quality care for people using their services.”
But in response Boles rejects the call for sleep-in shift workers to be paid a flat rate, saying “amending the regulations as you have proposed would restrict entitlement to the NMW/NLW and prevent care workers from receiving the pay to which they should be entitled”.
This position was later reaffirmed in guidance published by the Department for Business, Energy & Industrial Strategy in October 2016.
Charities are currently facing demands for back pay for sleep-in shifts going back several years. Mencap estimates these could cost the sector £400m.
The government has currently paused HMRC’s enforcement of back-pay demands as it discusses with care providers how to fund sleep-in shift care.