On 17 September 2018 HMRC produced their updated guidance on approaching the self-review under the Social Care Compliance Scheme. 

The headlines are:

  1. The guidance highlights that in determining whether someone carrying out a sleep-in is working the key issue identified by the Court of Appeal is to determine whether a worker is available for work rather than actually working. The guidance says the position is different depending on whether the worker is:
    - Expected to sleep for all or most of the shift; or
    - Expected to work for most of the shift.
  2. The guidance gives three worked examples, the third of which is an example of someone being entitled to the NMW for the whole shift. That example is of a worker who is “permitted to sleep when there are no tasks to be performed” but is regularly disturbed. The example includes seven disturbances, which in our view would clearly be a shift that should be paid at the normal hourly rate.
  3. The guide is clear that: “in all cases, it is important to consider what happens in practice”.

    It goes on to say that you need to determine whether workers have been paid for all their working time in each pay reference period (and it appears the assumption is that a provider will do this having reviewed matters on a case-by-case basis).  Our view, therefore, is that a Provider who wants to submit a nil declaration is likely to be required to demonstrate that it has reviewed sleep-ins undertaken over the previous three years by each worker to be confident that no-one fell into the “expected to work for most of the shift” category.
  1. Providers are required to tell HMRC the outcome of the review by completing and submitting a declaration form. The guidance indicates that you must keep records to demonstrate how you have arrived at your decision including in respect of nil declarations and, where appropriate, how you calculated what you owe to workers.
  2. The guidance is clear that HMRC will undertake checks on nil declarations, so it is important that you keep documentary evidence to support your review over the period of three years regardless of whether arrears have been identified or not.

BEIS haven’t yet updated their guidance on calculating the NMW, but we expect it will include similar wording to the updated SCCS guide.

Next steps for Providers

We consider it is clear that HMRC are expecting a level of detail in respect of any nil declarations in order to be satisfied that the declaration should be accepted.  Providers will now want to weigh up the pros and cons of remaining in the scheme.  We consider either option could ultimately still lead to the serving of a Notice of Underpayments if the Mencap case proceeds to be considered by the Supreme Court and the Supreme Court find that every hour of a sleep-in should count.   

We consider that providers will want to wait to see whether the Supreme Court give leave to Unison for the appeal to continue before deciding on their next steps. Providers will then want their Boards to consider the pros and cons carefully before deciding on their course of action.

Further information

If you are a client of the firm and would like a summary note of the pros and cons of remaining in the scheme, please email regena.hodgson@anthonycollins.com.

If you would like to discuss your approach in more detail, please email regena.hodgson@anthonycollins.com to set up a meeting or call with one of our team.