The government has been accused of forcing care providers into a “state of fear” after suspending then reinstating a scheme to assess backdated liabilities for sleep-in shift pay within a matter of weeks.
The Social Care Compliance Scheme, which was launched in November last year, requires those who join to declare how much they owe staff paid less than the national minimum wage, with specific reference to sleep-in shifts.
A tribunal ruling that social care staff should be paid the national living wage for sleep-in shifts backdated over six years, which would have cost providers an estimated £400m for backdated wages, was overturned by the Court of Appeal last month following a challenge by Mencap.
Her Majesty’s Revenue & Customs then informed providers that the compliance scheme had been suspended following instruction from the Department for Business, Energy & Industrial Strategy (BEIS), which is responsible for the policy.
However, HMRC has within the last two weeks contacted providers to say the scheme had been reinstated without explanation.
The deadline for applicants to join the scheme is 31 December, ahead of when the Supreme Court is expected to rule on a challenge to the Court of Appeal’s July decision by Unison.
Anna Dabek, partner for employment and health and social care at Anthony Collins Solicitors, which represented Care England in the Mencap case, said the U-turn has added further confusion over sleep-in shifts. She said it showed “clear evidence of the disconnect between government and those carrying out vital care services on the frontline”.
Ms Dabek added: “By continuing with the scheme and providing little guidance to how these reviews should take place, HMRC has again forced the sector into a state of fear.
“Adding to the continuing uncertainty is the self-certification timeframe, the original 31 December 2018, putting additional pressure on providers. This… comes at a time when disruption should be limited. Further clarification is needed, and we hope that this arrives soon.”
A BEIS spokesperson did not explain why the scheme had been suspended and reinstated so quickly. They said: “We are updating guidance to provide clarity for workers and employers, following the judgment made by independent judges in the Court of Appeal case.
“Any worker who is unsure if they are being paid correctly should speak to their employer or contact Acas for independent advice and support.”
The High Court ruled that sleep-in shifts fall into an exception from the national minimum wage as staff are only available for work. This means the minimum wage would only be payable when the person was awake and working and not while asleep.
Experts have warned there could be a short-term failure of the social care provider market if providers are forced to pay the national minimum wage for sleep-in shifts.