Sleep-in Pay and CQC Inspections Mei-Ling Huang and James Sage, Royds Withy King Health & Social Care team

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Sleep-ins 2010-2013, HMRC started targeting the sector. 2013, Whittlestone case – Sleeping time is working time so subject to NMW. 2014, Esparon case – Sleeping time is working time in care homes. February 2015, HMRC changed its guidance: sleep-in time was working time.

Sleep-ins 2016, Mencap case in the ET. Sleep-in time was working time. 2017, Mencap case in the EAT. Sleep-in time was working time. March 20-21, 2018, Mencap case in the Court of Appeal.

Sleep-ins NMW calculation total pay total hours worked = NMW (including sleep-in time)  

Sleep-ins Penalties: unlawful deduction of wages claims in ET for two years’ back pay HMRC enforcement: 6 years’ back pay financial penalties of 200% potential criminal liabilities (rare)

Sleep-ins Current position No 200% penalties prior to 26/07/17 Enforcement was stayed through Nov. 2017 Social Care Compliance Scheme (SCCS) introduced on 01/11/17

SCCS Opt in to SCCS by 31/12/18. Send declaration of non-compliance to HMRC within 12 months or by 31/12/18. 3 months from the date of your declaration of non-compliance or until 31 March 2019 (whichever sooner) to repay your staff. There are pros and cons to opting in. For advice on an individual basis, contact us.

Possible solutions? Mitigating past liability Ensuring future compliance Develop your strategy – we can help.

CQC Inspections: Overview How to show (objectively) that your service is good or outstanding How to put your best foot forward How to prepare for an inspection What to do during an inspection How to follow up on an inspection Factual accuracy challenges

KLOE’s Well-led W1: “Is there a clear vision and credible strategy to deliver high-quality care and support, and promote a positive culture that is person-centred, open, inclusive and empowering, which achieves good outcomes for people?”

Prompts W1 W1.1 “Are managers aware of, and do they keep under review, the day-to-day culture in the service, including the attitudes, values and behaviour of staff and whether they feel positive and proud to work in the organisation?”   W1.2 “How does the service promote and support fairness, transparency and an open culture for staff?”

Prompts W1 W1.3 “How do managers make sure that staff are supported, respected and valued; have their rights and wellbeing protected; and are motivated, caring and open?”

KLOE’s, prompts, evidence CQC guidance on social care: http://www.cqc.org.uk/guidance-providers/adult-social-care New KLOE’s, prompts, sources of evidence (Nov. 2017): https://www.cqc.org.uk/sites/default/files/20171220_ASC_assessment_framework_with_sources_of_evidence_v4_0_0.pdf x

Evidence sources Feedback from SU’s and relatives about the culture of the service. Feedback from relatives about the managers. How person-centred the managers are. How managers support the staff. Share your experience forms (from CQC) “information of concern” enquiries (whistle blowing or complaints or reported concerns on their radar) Feedback from staff about the visions and values of the service

Evidence sources 2 The culture at the service. Whether staff know how to blow the whistle Staff experiences of raising concerns. Feedback from the managers about how they promote equality. How managers make sure staff are aware of equality policies and follow them. How equality issues at the service are tackled.

Evidence sources 3 Observations of how people are referred to by staff and whether it is appropriate. How staff interact with each other. How staff speak to and involve people in their care. Records and policies, such as: Written material on the service’s vision and values. Minutes of meetings. Social activity calendars. Quality audits.

Evidence Wide range of evidence examined. If you know what they look at, you can be ready.

Characteristics of outstanding Exceptional and distinctive Innovative People at the heart of the service Proud, positive staff Strong organisational culture

Inspection practicalities Before – PIR, evidence During – dealing with issues on the day After – factual accuracy

Questions?