The survival of scores of care providers is at risk 

Royal Mencap Society, one of the country’s leading learning disability charities, has today (19 July) made known that essential care for some of the country’s most vulnerable people – those with serious learning disabilities – is threatened because of a Government failure to grasp the nettle on a critical funding issue.

Many of the organisations providing this support are charities, whose very survival is now at risk.

Derek Lewis, Chairman of Royal Mencap Society, indicated that a volte-face in Government guidance on National Minimum Wage (NMW)1 payments payable to care staff who sleep at the workplace, together with the precipitate action of HMRC, demanding 6 years back pay, has brought the sector to the brink of disaster. One capable of creating Southern Cross type failures on a multiple scale right across the country.

With high politics and Brexit taking centre-stage all attempts to get top levels of Government to take the issue seriously and take urgent action have so far failed.

 Commenting on the looming crisis, Derek Lewis, Chairman of Royal Mencap Society said:

“Sleep-ins are widely used in the learning disability sector to provide care for some of our most vulnerable adults, in their own homes in the communities they live in.

“The carer is only there ‘just in case’ to provide safety and reassurance and is rarely disturbed. Recent research which looked at the last three years showed that 99.7%2 of carers slept peacefully.

“When the NMW was introduced in 1999, BIS advised that time spent asleep by care staff in residential homes and supported living residences didn’t count as work time for the purposes of the NMW. So the payment of a flat rate ‘on call’ allowance has been the norm across the sector ever since.

“Following two Employment Tribunal decisions BEIS3 published definitive new guidance in October 2016 recognising that the previous guidance was wrong and the NMW should be paid for sleep-time instead.”

Turning to the impact that the change in legal interpretation and Government advice has had, Derek Lewis added:

“The unintended consequences have been disastrous as HMRC have begun enforcement action demanding 6 years back pay.

“Estimates of the costs to the Learning Disability sector are in the region of £400 million4 and Royal Mencap Society will be severely affected.

“There will be a major impact on the 5,500 people we support and some may even end up losing that support all together.

“For many smaller care providers across the country the financial impact will be devastating. The resulting multiple insolvencies will be more serious than Southern Cross because there will be no alternative providers available, as local authorities are already finding. We know that the Care Quality Commission is very concerned.

“HMRC pay back orders have already been issued and the clock is ticking.

“Many providers, who are all Government funded, are reluctant to go public. One large provider has been ordered to pay 6 years back pay by September, even though the new interpretation could be overturned at the Court of Appeal in March 2018.”

Focusing on the impact on Royal Mencap Society staff, CEO Jan Tregelles emphasised that this was so not a question of an employer not wanting to increase employee pay.

 Jan Tregelles, chief executive of Royal Mencap Society, said:

“We all recognise that our social care colleagues do some outstanding work and are some of the lowest paid, but we cannot pay them if we do not have the money and we only receive money from Government sources.

“For someone with serious learning disabilities having someone stay overnight ‘at home’ makes the vital difference between ‘living a life’ and spending the rest of their life in a hospital setting.

“178,000 of the most vulnerable people in our society5 need this help and may lose it.

“I am deeply saddened that the Government is putting at risk the very heart of care and support in this vital social care sector”.

Royal Mencap Society Chairman, Derek Lewis, acknowledged all of the efforts made across the sector to resolve the situation but stated that having caused the problem only Government can fix it.

Mr Lewis concluded:

“We are urging the Government to avert a crisis in the Learning Disability sector.

“HMRC enforcement action needs to be stopped immediately until the law is clarified and a definitive decision is made on back pay.

“It is time for Government to give a public undertaking to fund back-pay should the Court of Appeal uphold the Tribunal Decision.

“High politics, Brexit or the Parliamentary Recess must not be allowed to get in the way. The future of some of the most vulnerable in our society needs to be protected.”