Personal injury lawyers handling clients with serious injuries will have one eye on the Supreme Court this week as the issue of care costs comes under scrutiny.
Judges today heard arguments in Shannon v Rampersad and another (T/A Clifton House Residential Home, on whether care workers who stay overnight on a ‘sleep-in’ shift with injured people should be entitled to the minimum wage. The High Court ruled that one such worker from the charity Mencap, who was paid £29.05 for a shift lasting from 10pm to 7am, was entitled to be paid the minimum wage. The decision was overturned in the Court of Appeal, which said that only time spent awake and working had to be counted.
Lawyers are required to factor in care costs when they negotiate settlements for clients who have suffered a serious injury. Although on the face of it the Supreme Court is deciding an employment law case, the case could be important for personal injury practitioners.
Daniel Herman, partner at national firm Stewarts Law, told the Gazette the issue of sleeping night care or waking night care is one of the key factors in catastrophic injury litigation.
‘Should [care worker] Ms Tomlinson-Blake’s appeal to the Supreme Court succeed, that will have significant implications in the personal injury sphere,’ said Herman.
‘Claimants who require care from sleep night carers will have to pay more for each night shift and, consequently, their care claims will inevitably increase.’
He added that, as a practice point, it may be worthwhile pleading any future care claim as two scenarios: one in which the status quo continues, and one in which the cost of sleeping night care increases.
Mencap says it now pays the minimum wage to all overnight workers, but has described government attempts pursue employers for six years’ worth of back pay as a ‘suicide note’ for the care sector.
James Sage, head of the social care team at south east firm Royds Withy King, said many providers will not have the resources to pay if the Supreme Court favours the High Court’s decision.
Sage said: ‘We expect the Supreme Court to agree with the Court of Appeal decision that it was not parliament’s intention for time spent asleep to be subject to the national minimum wage. If it doesn’t there will be a lot of work and sleepless nights ahead for providers before they can finally put the issue of sleep-ins to bed once and for all.’