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

2. Our services for care providers
CQC inspections and enforcement
litigation
HR and employment
safeguarding and inquests
mental capacity and DOLS
service user contracts
contract negotiations and disputes
business sales and acquisitions
property development, construction and finance
immigration law

3. 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.

4. 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.

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

6. 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)

7. 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

8. 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.

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

10. 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

11. 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?”

12. 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?”

13. 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?”

14. KLOE’s, prompts, evidence
CQC guidance on social care:
New KLOE’s, prompts, sources of evidence (Nov. 2017): x

15. 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

16. 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.

17. 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.

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

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

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

21. Questions?