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Sleepy & Wakey

July 20, 2017

Yesterday, the BBC reported on the plight of care providers who, following a tribunal ruling, are being told by HMRC that they have to pay the hourly national minimum wage for support workers who carry out a sleep-in night shift. The report also states that HMRC are demanding that this arrangement goes back six years so therefore agencies will have six years of back pay dues to its workers.

Mencap lost an appeal against this ruling and are planning a further appeal later this year. Here is their statement on the matter:

As usual, the cry from the care providers is that this will be the tipping point that pushes them into insolvency. Possibly. What tipped a long time ago is the ethical and moral positions of the key players. None of them come out of this very well.

Mencap’s statement is appalling. It cast’s its own workers as the money grabbing villians. It tries to scare the shit out of its own service users. And it paints itself as the victim of the piece.

That doesn’t wash at all. They have been aware of this ruling (as have other providers) for ages. They have chosen not to act on it but to use their funds to fight it. At the same time, they have chosen to pay their staff £29.05 for working a night shift. A night shift is usually defined as 9 hours, so at £29.05 for 9 hours work, that is way way below the minimum wage.

The one piece of information that Mencap is holding back is how much they are paid by the commissioning body for providing a night service. Whatever that figure is, you can bet it is more than £29.05. But revealing what they get paid doesn’t fit in with the victim narrative. Unfortunately, their appeal for support on the Mencap Facebook page has backfired, with many posters critical of their pay rates:

What this sorry story shows once again is how hopelessly compromised Mencap are. How can they be “the voice of learning disability” and a major care provider at the same time? Their statement (above) demonstrates that their customers and their staff are pretty low in the pecking order in their priorities.

At the same time, the commissioners have got shit on their shoes too. They have continued to pay set rates for night shifts, buried their heads in the sand and tried to shift liability onto the care providers or the direct payment recipients.

In Hillingdon, they only changed their rates from 1st April 2017. They now pay an hourly direct payment rate of £10.73, regardless of whether the person is working a day or a night shift. However, they haven’t actually paid the new rates yet. We’re four months into the current financial year and they are still paying the old rates. I keep chasing it up and am told they are waiting for “brokerage approval”.

Back in 2012, I was effectively bullied into accepting a Personal Budget. The LA told me they were unwilling to continue paying the agency rates and I’d have to take over the running of the budget at the lower direct payment rates. It was only then that I discovered what the agency had been charging. For a night shift, they were charging the council £125 but only paying the workers £35. They were making a £90 profit for every night. I did a deal with the workers paying them directly at £65 a night. They were happy because they were getting paid £30 more and the LA were happy because they were saving £60. That arrangement has continued, although the rate has increased to £70, which thankfully is more than the minimum wage.

I don’t think there should be a differential between a sleeping night and a waking night. The person is still at work. If they do get some sleep, they are still sleeping at their workplace.

In our house, Steven takes himself off to bed when News At Ten starts. The support worker may sit up watching the telly or he may lay down on the sofa bed. Invariably, Steven will be up and down for the next four hours. The support worker may just be needed to answer the occasional question about Duran Duran or he may be required to clean up a mess in the toilet. The bottom line is he will really only get some sleep when Steven goes to sleep.

This issue has brought about the usual cry that social care is being starved of funds. That is true. But what is also true is that LAS, Mencap and other care providers have choices how they spend their money.

And often it is pursuit of a political ideology or more basic self interest greed that accounts for a large part of these sparse funds.


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  1. weary mother permalink

    Mencap’s attitude is appalling.

    If one is at work as a support worker (or any other kind of work) during the night – away from home in a work location – responsible for vulnerable people – this is work. It should be paid as such. And perhaps should be paid at an enhanced rate.

    Vulnerable people – can die – get sick or become very upset at night. I did waking nights, with adolescents in residential care before my training in SW and I felt like zombie all the next day.

    it is shameful that Mencap believes that their workers can have a normal life far less a night’s sleep at work. The loss to be rewarded in cash should be for not just a night’s work – but for the next day also ?

    Mencap fighting this – reflects very badly on their marketing Brand and their publicly claimed attitudes towards the vulnerable people who raise them vast sums of cash. As a charity they exist only – to champion those rights.

    I wonder if the CEO slices off similar chunks of her salary on the nights she is away from the office on Mencap business ?

    Thought not ?

  2. Genuinely puzzled as to why an organisation committed to the welfare of its learning-disabled clients wouldn’t be in there *supporting* its staff against service commissioners. If these are the skilled, dedicated staff that the CEO (pay rates somewhat above minimum wage) waxes so lyrical about, why isn’t their time worth at least minimum wage?

    There is also the peculiar statement (I went digging into the detail) that if a person on a sleepover shift is woken and has to get up, their hourly rate then kicks in. Cannot for one minute see how that one is supposed to work. Do you get paid for the minutes you are out of bed? For those minutes plus an estimated go-back-to-sleep time? An hour’s pay for each by-the-clock hour that you are awake in? Or your hourly rate for the whole of the disturbed shift? How are hourly-rate claims made, approved and audited, without infringing the privacy of the wakeful clients? What happens if a client starts waking more frequently (that must throw the contract financial planning for a loop nearly as much as this ruling does)? Are staff told it’s up to them to persuade clients not to wake? Are clients told that if they wake, they must not disturb the worker more than x times per month? None of it makes any sense.

    Incidentally, the European Working Time Directive, which governs this stuff, came into force in the UK in *1998*. There’s a European case in 2002 called the SiMAP case, which says that doctors who are available on-call at their workplace are working even when they are asleep. It’s a reasonable assumption that the principle should apply to other workers in required-to-sleep-at-work situations. Even more pertinently, there’s a 2003 case called Davies et al v LB Harrow, which said that being required to be on-call at one’s place of work, meant one was working for all those on-call hours whether one was awake or not. The workers in question were wardens at a residential complex. It’s not like all these support-commissioning and support-providing organisations, and their Government paymasters, haven’t had a lot more than 6 years of warnings that sleepover work, is work, full stop.

  3. Yes, organisations such as Mencap should reveal what they’re paid by commissioners, so we get the whole picture. Contracts must be more transparent in any financial argument to see how much the provider really will suffer.
    Commissioners pay well so service users should have a good life with good quality staff, so let’s see if that happens.

    My son’s sleep-in sleeps all night 99% of the time compared with the wake-in, but elsewhere other sleep-ins probably get up several times. Wake-ins will feel short changed, if they do night work only.

  4. weary mother permalink

    I read somewhere that Mencap…had one hundred and ninety millions plus, in donations 2015/16…is this true ?.

    And Mencap are paying HOW MUCH for a sleep in night ?

    Increasing this to living wage will drive – the learning disabled people Mencap are set up to champion…into institutional care.

    Surely this cant be true ?

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