Articles

Are Live-In Carers entitled to 24 hour pay?

29/09/2016

There have been a few discussions claiming that Live-In Carers may be entitled to 24-hour pay. This may be because of recent news coverage about a group of carers who are taking an employer (Sevacare) to court over alleged National Minimum Wage breaches. While we cannot provide 100% clarity on this issue, as there is no clear recognition of Live In Care as a job specifically in the law. We can only really express the status quo and the likely success of a National Minimum Wage claim from an “employed” Live In Carer against a Live In Care Provider.

Sevacare Proceedings

The case has not faced a Tribunal as of yet, therefore no decisions have been made that can be used to support similar claims. The alleged facts of this specific case may tip Sevacare into losing their legal battle with the carers. Specifically, it has been reported in the media that Sevacare issued payslips showing wages of £3.27 an hour. The carers also reported being forced to sleep in the same room as the service user. Sevacare stated to the media that their carers were paid over the minimum wage, as they only worked set hours per day.  This is under what is known as Daily Average Hour Agreements(DAE’s). More about DAE’s later in this article.

Sevacare could lose the case if their Daily Average Hour Agreements were unrealistic, once again this would not change anything for Live-In Carers. This is because the validity of DAE’s would not come into question, it would be the conduct of Sevacare.

The rules on National Minimum Wage (NMW) can be seen here -

https://www.gov.uk/national-minimum-wage-rates

You are entitled to NMW for every hour you work. However, if you are a Self Employed Carer, then you essentially act as the service provider and you fall outside of the remit of the National Minimum Wage scope as you are not “employed”

What are Daily Average Hour Agreements (DAE’s)?

Live In Care is treated as unmeasured work by care providers. This is because the employers only expect the carers to be working at certain points of the day.  When starting a Live-In Care contract if you are an “employed” carer then it is highly likely you will be asked to sign a Daily Average Hours Agreement. This will state clearly what tasks you are expected to complete and how much time that is expected to take. Just to be clear we are not saying unrealistic DAE’s are ok. Some care providers have been creating unrealistic DAE’s and have used this as a workaround and have made unrealistic demands of their carers. This is100% wrong.

Further guidance on DAE’s can be found below.

https://www.gov.uk/minimum-wage-different-types-work/paid-in-other-ways-unmeasured-work

The main takeaway is that DAE’s need to be realistic otherwise employers could be liable for a potential NMW claim. For example, if your DAE is for six hours and you work for 14 hours then that is a breach of NMW rules.

All Care Quality Commission (CQC) registered Care providers are frequently inspected by HRMC and CQC. Many Live In Care providers have passed these inspections confirming the validity of DAE’s in the eyes of the regulators. IF DAE’s are a breach of NMW then these providers would not pass providers for inspection. They simply would not be able to.

As stated at the start of the article  this does not serve as 100% clarity on the issue. Care providers are not immune from a claim similar to the Sevacare case. The law does not cover every eventuality, however, given that inspections from HRMC and CQC support the current position Live In Care Providers take, then it seems unlikely the courts will deviate from this.

What if I am expected to be onsite ? Am I on “call” for 24 hours and therefore DAE’s don’t apply right?

There have been a lot of legal cases where carers have been paid for sleep-ins, or where they were “on call”. On paper that should be applied to Live In Care Arrangements, right? The most similar case pertaining to Live In Carers would be the cases of:-

Shannon v Rampersad & Rampersad – the details can be read here http://www.employmentcasesupdate.co.uk/site.aspx?i=ed27539

“The ET concluded that he was not working throughout each night shift; only on those rare occasions when he was called upon to do so by the night care worker on duty. He was paid the NMW for those limited occasions, hence this claim failed”

Walton v Independent Living Organisation

https://en.wikipedia.org/wiki/Walton_v_Independent_Living_Organisation

“Tribunal held her time was unmeasured”

So as far as case law goes the Courts have not favoured similar cases where the facts could be related to a Live In Care arrangements. This may be because the Courts attempt to be realistic about such arrangements and do not want to apply a one size fits all rule for everyone.

Summary of current legal position on this issue

The Sevacare case raises some interesting questions. However, this case seems more a breach of pay and conditions for workers, rather than questioning the model of Live In Care in the UK. Currently, the case law and Inspection bodies seem to support the idea that Live-In Care is not 24-hour pay. Indeed from the regulatory bodies perspective DAE’s are accepted and valid. It goes without saying if providers issue payslips, paperwork and ask more of their workers then what is mutually agreed in the DAE then they will be tipping themselves into a NMW claim.  

What if my DAE is Unrealistic?

If someone has complex needs and requires a lot of support beyond the hours you are working, then perhaps two carers are needed? It would simply be unsafe for the carer to be working for 24 hours. What human can work for 24 hours?

The Future of Live In Care

There is also an Elephant in the room here. If you want to earn good wages, the care sector is unlikely to offer that due to the sheer shortage of money available. The government is not going to plough more money in anytime soon. If Live In Care arrangements ever went to 24-hour pay, then we would just see more people take the cheapest available option. We would then see a huge shortage of Live In Care offered across the board. It would not be financially viable for a lot of people.

Of course, carers should be paid more, and conditions should be fair. There are bad providers out there as well as good. If you are not being treated well then have a look at www.liveincarejobs.co.uk we have lots of good employers on there.

Live In Care is unique in that it has and continues to prolong quality of life for service users. Let’s make sure we improve standards, pay and support for Live In Carers. 24-hour pay would be great, but a step too far in our opinion.

Asif Yusuf is the publisher of www.liveincarejobs.co.uk and the founder of the UK Live In Care Association