Independent report published on care sector challenges

The care sector is facing many challenges; a rising demand for services, high turnover rates, poor terms and conditions, and low pay, all largely stemming from a lack of public funding. These issues have been compounded by the pandemic straining the sector further. Vacancies in the adult social care sector hit 10% in March 2022, up from 5.9% in May 2021, and waiting lists for home care are at an all-time high.

Background

The Migration Advisory Committee (MAC) was set up following a commitment by the government to the House of Lords as part of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, which ended Freedom of Movement and introduced a new points-based immigration system for the UK.

Therefore, on 6 July 2021, the Minister for Future Borders and Immigration commissioned the MAC to “… undertake an independent review of adult social care, and the impact the ending freedom of movement has had on the sector”.

On 27 April 2022, the MAC published its report urging the government to action its 19 recommendations to ease the pressure and challenges faced across the social care sector.

The MAC’s recommendations

Persistent underfunding of the care sector by successive governments is identified as the central issue impacting the workforce problems in social care. As such, the MAC has recommended that the UK Government should immediately introduce a minimum rate of £10.50 per hour for adult social care workers in England. It is anticipated that the care sector will need at least £2 billion a year to improve pay in England. At present, the national living wage is £9.50 and is now worth 87% of median hourly care worker pay.

As well as improving pay rates, the MAC has urged that care staff need to be paid their hourly rate for travel time and sleep-in shifts. The report states that not paying them their full rate for these hours “presents the potential for employees to be exploited and underpaid”.

Following Brexit, the ending of freedom of movement has restricted access to European workers who could previously move to the UK with no immigration restrictions. The MAC has recommended further action to ease immigration requirements, including making permanent the availability of health and care work visas for care workers, and removing ongoing charges for employers using this route.

Whilst the MAC acknowledges that a more transparent immigration policy could alleviate some of the staffing problems that the sector is facing, this is by no means the main solution. Rather, the MAC clearly states that that the real solution lies beyond its remit in the design and funding of the system itself.

Comment

It will be interesting to see whether any of the MAC’s recommendations are implemented by the government, and how this might impact on the costs of care, recruitment and retention.

The MAC’s proposal to pay staff their full rate for sleep-in shifts is contrary to the decision in Royal Mencap Society v Tomlinson-Blake [2021], in which the Supreme Court held that care staff were not entitled to the minimum wage - or national living wage - as relevant, for ‘sleeping in time’. The decision was very much based on the language used in both the 1999 and 2015 National Minimum Wage Regulations, and the Low Pay Commission Reports. From a legal perspective, it will be particularly interesting to see how the government accepts the MAC’s recommendation and if so, how it moves forward in light of the current framework.

Related item: Care workers who ‘sleep in’ are not entitled to the national minimum wage for the duration of their shift