Disability services group issues fresh demand on government to resolve confusion in overnight support

Long-running uncertainty about payments and funding for sleep in staff has created huge uncertainty in social care for many years. Current social care funding fails to fully recognise the contribution that staff make to improving people’s lives.

The Voluntary Organisations Disability Group (VODG) representing charities that provide services for disabled people, today publishes a new position statement on the issue.

The statement outlines the national association’s “grave concerns” over the lack of clear regulations for the payment of overnight support. VODG warns that this will drive the social care market to move in uncoordinated ways and lead to “inconsistent commissioning and provision.”

VODG also calls for the government to set a new rate for sleep in payments, after full consultation with workers, employers, commissioners and other stakeholders.

The latest impasse on sleep in payments relates to a Court of Appeal judgment last year (the joined cases of Mencap v Tomlinson-Blake and Shannon v Rampersad in July 2018) that overturned a previous decision. The latest judgment meant that sleep in workers do not have to be paid the national minimum wage throughout the night. However, this could change now the Supreme Court has granted Unison leave to appeal the Court of Appeal judgment.

VODG has consistently warned the government that case law is at odds with how sleep in support care is commissioned. The group is adamant that commissioners must not use the recent Court of Appeal judgment to cut fees for overnight support, particularly given the existing fragility of social care services.

VODG makes several recommendations to resolve the sleep in confusion, including:

  • the government must consult widely with workers, employers, commissioners and other stakeholders and clarify what hard working staff are entitled to, and precisely how it, and commissioners, will fund this
  • commissioners and providers must work together
  • a confirm from government that the current legal position means employers will not face potential HMRC retrospective action to recover underpayment of national minimum wage for sleep in work.

Commenting on VODG’s position statement Steve Scown, chair of the group said:

“We recognise the uncertainty facing our members and the care workforce in the commissioning and provision of essential overnight support. We are sharing our position statement with ministers and senior officials with whom we have been working with on this matters for many years. Our asks are straightforward and we urge government to be decisive and adopt a position so that a regulated rate of pay is established, and reviewed annually, for time spent asleep. Our solution will give staff and employers, including those that self-direct their own support through personal budgets, much needed clarity.

In the meantime VODG will continue to monitor the market including commissioning trends and patterns because, as we have set out, an unmanaged market risks putting essential overnight support services at risk.”

Read the full position statement here.