PA employers are facingprobes into ‘sleep-in’ minimum wage back-pay
Disabled people who employ personal assistants (PAs) are being investigated by the government for failing to pay their PAs the minimum wage during overnight “sleep-in” shifts.
HM Revenue and Customs (HMRC) has admitted to Disability News Service (DNS) that individual PA employershave been investigated,just like large service-providers such as Mencap.
The government has publicly warned – following a high-profile tribunal ruling involving the charity – that many care workers should have been paid at least the minimum wage for the hours when they were sleeping on an overnight shift.
Manyof them should now be able to claim forup to six years back-pay.
But the revelation that individual disabled people who use PAs are also being pursued by HMRC for years of back-pay is now beginning to cause alarm in the independent living movement.
In April, the employment appeal tribunal ruled against Mencap and said the charity should have been paying care workers at least the minimum wage for “sleep-ins”.
Mencap is now appealing against the ruling.
The government took some action to try to calm fears about the impact on the care industry of the rulingyesterday (Wednesday) by temporarily suspending enforcement activity by HMRC – until 2 October – and scrapping fines for those who failed to pay sleep-in staff the minimum wage before 26 July 2017.
But the government statement also made it clear that it was committed to ensuring that “workers in this sector” would receive the back-pay “they are legally entitled to”.
And HMRC has today (Thursday) confirmed to DNS that it has been taking enforcement action against some individual disabled employers for allegedly failing to pay their PAs the minimum wage on overnight sleep-in shifts.
One such employer has contacted DNS to say she is being investigated by HMRC because of a complaint from a PA about back-pay dating back three years, although she has not yet provided any further details.
Sue Bott, deputy chief executive of Disability Rights UK (DR UK), said she had heard from two other disabled people who employ PAs and have beenunder investigation by HMRC.
She was contacted after raising concerns through the DR UK websitethat PA employers couldbe caught by the tribunal ruling.
She said the tribunal appeal ruling could have “far-reaching consequences” if it was confirmed by the court of appeal.
Bott said: “You can imagine the difficulty it will cause individual employers.
“I do think it’s right that PAs are paid the national minimum wage for each hour.
“In principle, I do think that’s right, but obviously I am concerned given the lack of resources in health and social care and how difficult it would be for individual employers to respond to a retrospective demand.”
She believes the problem of PA employers not paying the minimum wage for sleep-in hours was “pretty common”.
She said: “People just don’t receive enough money in their personal budgets to be able to pay national minimum wage for every overnight hour.”
A government spokesman said today: “HMRC enforces the National Minimum Wage and National Living Wage in line with the policy and guidance set out by the Department for Business, Energy and Industrial Strategy.
“The government is aware that people who have used their direct payments to fund sleep-in shifts could be personally liable for back-pay.
“These people are themselves extremely vulnerable, and the government is committed to doing all it can to prevent those individuals from suffering financial difficulties as a result of this issue.
“We can confirm that the pause in HMRC investigations will apply to these individuals as well as to businesses, and that HMRC will not be applying penalties.
“The particular needs of this group will also be the subject of government considerations over summer.
“The government will continue to look at this issue extremely carefully alongside industry representatives to see how it might be possible to minimise any impact on provision of social care, and ensure that action taken to protect workers is fair and proportionate.”
There is so far no agreement among independent living experts as to whether PA employers themselves would ultimately be liable legally for any back-pay.
Anne Pridmore, director ofBeing the Boss, a user-led organisation which supports disabled people who employ PAs, and who employs overnight PAs herself, said she was deeply concerned by the tribunal ruling and the government statement.
She said she believed that “the buck stops with us” as employers of PAs, even if local authorities or clinical commissioning groups have not been paying enough in care packages to afford to pay minimum wage for overnight hours.
She should be safe herself from any action by HMRC, as her current package allows her to pay more than minimum wage as an average hourly payment across her PAs’ 24-hour shifts.
But she fears that when the national minimum wage rises again in October, she will no longer be able to do so. Her care package has not been increased in nine years.
She said: “At the moment I am within the law, but from October I won’t be. There are many of us in the same position.”
Tracey Jannaway, director of the PA services social enterprise Independent Living Alternatives, said she believed the responsibility for meeting the back-pay would probably fall on the council or NHS body that funded the personal assistance, rather than the PA employer.
She said the legal system had previously foundthe funding body responsible for ensuring that PA employers hadthe resourcesnecessary to meet all their legal obligations, such as the minimum wage, national insurance, pension payments and insurance.
Jannaway said it was “highly probable” that this would apply to PA employers and sleep-ins, but that it would probably take a legal test case to confirm this.
She said years of conflicting rulings on night-time pay had left many people with their “heads in the sand”.
And she said if the ruling was extended to “all people doing sleep-ins or indeed all live-in workers the implications will be far reaching and hard hitting” because “very few” people receive the necessary funding to pay for hour-by-hour overnight personal assistance.
Even if local authorities and NHS bodies are found responsible for the night shift back-pay of PA employers, the financial implications will be “colossal” and probably “result in people having their hours reduced” because of the existing social care funding crisis.
Jannaway added: “It does seem unreasonable to pay someone an hourly rate if they are genuinely doing a sleep-in where they are only ever woken in an emergency – say once or twice a year.
“It would be better for HMRC to agree what is the reasonable sum for this work. However, those people who really do work the sleep-in are entitled to be paid.
“At ILA, we argue for the hourly rate for night cover. However, some local authorities simply will not/cannot fund it.”
27 July 2017
CQC figures reveal hundreds of care homes have gone two years since last inspection
More than 300 residential care homes for younger disabled adults have not been inspected by the care watchdog for more than two years, according to official figures obtained by Disability News Service (DNS).
The figures, released by the Care Quality Commission (CQC) in response to a freedom of information request, also show that 87 care homes in England have not had an inspection since 2014.
And 10 homes have not had an inspection for between three and four years.
In all, the CQC figures show that, on 1 June 2017, there were 311 care homes for adults under 65 (out of a total of 5,358 homes across England) that had not had an inspection by the regulator in the previous two years.
Despite DNS alerting CQC to the figures on Monday, the commission failed to respond to requests for a comment by noon today (Thursday).
The commission’s press office claimed today that its “team of analysts” were not clear how the figures were compiled, even though the press office has been told that they were simply taken from a spreadsheet – provided by CQC – which showed the “latest inspection review date” of all “active” care homes for “younger adults” that were described by CQC as offering “residential social care”.
Another CQC press officer claimed yesterday that she had been unable to respond to the DNS request because she was dealing instead with a story from The Times newspaper.
Instead of commenting on the figures, CQC issued the following statement: “We have inspected and rated every adult social care service that was registered on or before October 2014, many more than once.
“In particular, we have prioritised our re-inspections on where we have the greatest concerns about quality and safety.
“Our strategy signals how we intend to do this further, as part of our wider plans for the regulation of this sector in England.
“This is so that we can ensure that people receive safe, high-quality and compassionate care and so that we can encourage improvement.”
It is just the latest in a series of concerns to be raised about the commission’s inspection regime.
In May, documents obtained by DNS following a freedom of information request showed that disabled people helping to deliver a vital part of CQC’s inspection programme – contracted out to the former government-owned disability employment business Remploy – had been refused support workers, while one had been bullied into resigning.
Last year, an NHS whistleblower found that the watchdog was failing to order urgent inspections of care homes, despite coroners warning that action must be taken to prevent further deaths of the disabled and older people who lived there.
And last summer, figures obtained through another DNS freedom of information request found that the number of inspections of adult social care services that had been cancelled or rescheduled every month had risen by more than 360 per cent in just one year.
27 July 2017
Scope’s ‘radical’ plans ‘will see it compete with DPOs’
An announcement by disability charity Scope that it will sell all its residential homes and special schools, and re-position itself as a “social change organisation”, is an attempt to invade the ground occupied by disabled people’s organisations (DPOs), say critics.
The shake-up appears to be designed to distance the non-user-led charity from its roots as a provider of segregated services for disabled people.
But one disabled activist said the decision would mean Scope would “hoover up some of the money” currently going to DPOs, and probably put the futures of many of them at risk.
Another said the move was just an attempt by Scope to “reposition itself in the marketplace”, and compared the charity to “an old pig wearing new lipstick”.
Scope’s new strategy will cut its income by 40 per cent – it was £99.5 million in 2015-16 – and reduce its workforce by two-thirds, by selling off 50 services across England and Wales, including care homes, and special schools and colleges, to other service-providers.
The money from these sales will be re-invested in new services and products, which it says will “help support disabled people and their families from an early age, to live independently and to get and stay in employment”.
Mark Atkinson, Scope’s chief executive, announced the strategy in an article published by the think tank New Philanthropy Capital (NPC).
Atkinson said the world had “moved on” since the charity was founded in 1952 – as The Spastics Society – by three parents of children with cerebral palsy and a social worker, and that Scope had been left with “a patchwork of different services that had been established over seven decades” and now reached just a few thousand people.
He said the charity needed to take “radical” steps if it wanted to “become relevant to a far larger proportion of the 13 million disabled people in the UK”.
Its services will now focus on providing information, advice and support, mostly delivered online, while it would also concentrate on campaigning and seeking to influence public policy.
A Scope spokesperson said services would be paid for by“a broad base of funders, including corporate partners, trusts and foundations, individual donors and our network of shops”, as well as “tens of thousands of very committed supporters who we are confident will continue to support our work in the future”.
Although Scope said it would not seek any employment contracts under the government’s new Work and Health Programme, it “may still seek and receive government funding for some specific areas of work, like research, on a case by case basis”.
And instead of taking part in the Work and Health Programme, Scope said it would build on its “current range of independent, specialist, personalised employment support services”.
Last October, Scope backed the government’s new work, health and disability green paper, with Atkinson praising it for setting out “bold ideas for reform” in the Department for Work and Pensions’ own press release.
This allowed work and pensions secretary Damian Greento claim in the House of Commonsthat criticism of the green paper – which has been heavily-criticised by disabled activists – was “completely out of touch with those who represent disabled people”.
Atkinson said in the article that he wanted the charity to “focus on the areas in which disabled people face the greatest barriers and move away from being a charity that ‘does’ to one that ‘facilitates’”, creating a platform “that allows disabled people, through Scope, to drive change” and so move “ever closer to everyday equality”.
These words are similar to the slogan used by the DPO Disability Rights UK (DR UK), which describes itself as “disabled people leading change, working for equal participation for all”.
Atkinson’s article has raised concerns among some disabled activists that Scope wants to establish itself as the leading voice on disability, and will crowd out disabled people’s user-led organisations with far fewer resources.
When asked if there was an argument for saying that there was no reason for Scope to continue to exist at all, and that it should pass all its resources to DPOs, the spokesperson said: “As our strategy, developed with disabled people and their families, makes clear, life is still too tough for many disabled people.
“We believe that disabled people should have the same opportunities as everyone else. Until then, we’ll be here.
“Scope will continue to work closely with disabled people and disabled people’s organisations and continue to put disabled people at the heart of everything that we do.
“We believe that we can achieve more by working together than we can alone.”
Prominent disabled activists have so far delivered a mixed response to Scope’s announcement.
Dr Theo Blackmore, an independent researcher, welcomed Scope’s move away from segregated provision, but he said its latest rebrand was “a clear attempt to move yet further into the ground that is occupied by the many much smaller DPOs that exist across the country.
“Scope, as a consequence, will undoubtedly hoover up some of the money that is currently going to these much smaller groups, and will probably imperil many of them.”
He said there was still a place for an organisation to work with and support families of disabled children, according to Scope’s original purpose.
But he said there was also a place for organisations run and controlled by and employing disabled people.
He said Scope and other large disability charities had often fought hard for government and council contracts, often against DPOs, “depriving these much smaller organisations of disabled people of much needed funding” and leading many of them to close.
He said the latest changes would “again see Scope in competition with DPOs” but that nowhere in its announcement did it say that it would increase the number of disabled people it employed or had on its board of directors.
He added: “Scope is an organisation with an annual income in the region of £100 million.
“With this much spending power and clout it is easy to see how much of a threat Scope, and other large disability charities, are to DPOs.
“If they, and the other major disability charities, really wanted to make a difference to the lives of we disabled people they could work out how they could better work with DPOs, to strengthen the voice of disabled people at the local level by shifting some of their enormous income to support these local organisations.”
Kamran Mallick, the new chief executive of DR UK, said he welcomed the Scope changes “and the principles that underlie them”.