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VODG raises concerns as HMRC “jumped the gun” ahead of official guidance on sleep in payments

VODG-LogoFollowing the Royal Mencap Society v Tomlinson-Blake Court of Appeal judgement on sleep in payments VODG, and wider sector bodies, have called on government to make a decision and to be clear about what changes it is proposing ahead of wider consultation. The latest communication from HMRC, which VODG understands is reaching a large number of social care providers, is adding confusion and raising more unanswered questions.

Commenting on the latest developments VODG chair Steve Scown said:

“The sector is waiting for official guidance from the Department of Business, Energy and Industrial Strategy. We have worked with officials to inform the development of policy options yet are today surprised to learn that providers are opening a confusing communication from HMRC. Providers expect clarity not uncertainty from HMRC. We are calling on government to explain why HMRC have jumped the gun and acted before BEIS have issued official guidance.”

A HRMC communication seen by VODG includes the following points:

“HMRC have decided that it is appropriate to continue to operate the Social Care Compliance Scheme (SCCS) allowing participating employers to complete a self-review, taking the judgement into consideration, and make a declaration to HMRC.

All original timeframes and requirements of the scheme remain in place:

  • employers must complete their self-review and submit their declarations to HMRC by no later than 12 months of their application to the SCCS or 31 December 2018, whichever is sooner
  • all non-sleeping time arrears must be paid before employers return their declaration
  • any sleeping time arrears must be paid to workers within 3 months of returning the declaration or by 31 March 2019, whichever is sooner.

Failure to adhere to the terms or timeframes of the SCCS, or withdrawing from the SCCS may result in HMRC opening an investigation into your pay practices.

Department for Business, Energy & industrial Strategy (BEIS) are currently reviewing their guidance in Calculating the Minimum Wage and this will be published in due course. Employers will be issued with an updated SCCS Employer guide once the revised Calculating the Minimum Wage is available.

If, during the course of your review you assess there has been an underpayment of National Minimum Wage, either for any sleep-in-shifts or for other reasons, HMRC will continue to allow Social Care sector employers to deal with the tax implications of these arrears using the Alternative PAYE Arrangement (APA).”

HMRC had earlier committed to a further communication by 17 August 2018 so it has done what it said it – despite knowing BEIS is developing its new guidance.

Anna Dabek, Partner for Employment and Health and Social Care at Anthony Collins Solicitors, said:

“Today’s notification from HMRC on the Social Care Compliance Scheme adds further confusion to the long-running sleep-in care issue. This u-turn appears to require care providers to continue assessing ‘sleeping time arrears’ and is clear evidence of the disconnect between Government and those carrying out vital care services on the frontline.

“By continuing with the Scheme and providing little guidance to how these reviews should take place, HMRC has again forced the sector into a state of fear.

“Adding to the continuing uncertainty is the self-certification timeframe, the original 31 December 2018, putting additional pressure on providers. This date arrives before a decision from the Supreme Court about Unison’s appeal is likely, and comes at a time when disruption should be limited. Further clarification is needed and we hope that this arrives soon.”

Following the Royal Mencap Society v Tomlinson-Blake Court of Appeal judgement VODG has amended its campaign page which can be accessed here.

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