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Govanhill Law Centre has been successful in persuading a local authority in Scotland to almost treble its rate of pay for overnight "sleepover care". A self-directed care funding package had made provision for £3.51 per hour gross pay for overnight care workers - £3.03 per hour net. That figure has now been revised to £9.38 per hour in a disabled person's care package. The funding package had previously made no provision for the cost of paying the National Minimum Wage (NMW) to carers providing overnight care. The requirement to pay the NMW is a statutory right is set out in the National Minimum Wage Act 1998, as amended, and the National Minimum Wage Regulations 2015. The NMW from April 2017 was £7.50 per hour (£8.54 gross), for those aged 25 and over. It will be £7.83 per hour net from April 2018.
The local authority's position was that funding for overnight care was being considered nationally by local authorities in discussion with the Scottish Government. In dismissing the client's complaint pursued by Govanhill Law Centre's senior solicitor Laura Simpson, the council argued that "it would not be fair or equitable to increase funding to your client alone".
A petition for judicial review was drafted in-house by Govan Law Centre's Principal Solicitor to challenge the local authority's decision in the Court of Session in relation to the relevant law. The petition sought reduction of the local authority's decision as ultra vires and illegal. However, the local authority chose to review and increase its rate of pay above the NMW rate while the petition was sisted at the Court of Session pending determination of a full civil legal application.
The petitioner's position was that overnight carers were entitled to the NMW having regard to Whittlestone v. BJP Home Support Limited [2014] I.C.R 275, and J Esparon t/a Middle West Residential Care Home v. Slavikovska [2014] I.C.R. 1037.; and Wright v Scottbridge Construction Ltd 2003 SC 520, where the Inner House of the Court of Session held that for the purpose of Regulation 3 of the National Minimum Wage Regulations 1999 where an employee was contractually required to be at a work throughout a shift, the entire period of the shift was “time work” for the purpose of Regulation 3.
