Council and NHS adult social care staff in England, including social workers, may be excluded from the government's planned fair pay agreements for the sector, the Department of Health and Social Care (DHSC) has said.
The DHSC is considering whether the planned agreements should be focused just on remainder of the workforce - who make up the vast majority and mostly work in the private sector - on the grounds that they are not currently covered by national pay deals, unlike NHS and local government counterparts.
In a consultation on implementing the policiy, launched last week, it said this may be preferable given that the resources available for the implementation of the agreements would be limited.
However, against that, it said that including all employed adult social care staff within the agreements could support the unification of the workforce and the standardisation of training.
This issue is one of a number on which the DHSC is seeking views through the consultation. Others include how the Adult Social Care Negotiating Body, which will determine the agreements, with ministerial sign-off, should be constituted and supported, and how to resolve disputes.
The consultation was launched alongside the DHSC's announcement that £500m of its funding for councils in 2028-29 will be earmarked for implementing the first fair pay agreement, which is due to cover that year. The sum has been widely criticised as inadequate by social care leaders.
Legislation to create social care pay negotiating body
The negotiating body for England will be created through regulations made under the current Employment Rights Bill, which will shortly become law. The bill also provides for Welsh and Scottish ministers to create similar bodies for their countries.The bill stipulates that the body must include trade unions representing social care workers and representatives of sector employers, and that its remit may cover matters relating to the remuneration, terms and conditions of relevant adult social care workers.
The remit will be specified in regulations by the government, and the bill also provides for ministers to set out how the body should operate and reach decisions.
Where ministers agree with the body’s proposals, the bill provides for them to make further regulations ratifying them, meaning the agreements would be binding on adult social care employers in England and would need to be reflected in social care workers’ contracts.
This would be enforceable in the same way as minimum wage legislation is, with such enforcement being the function of a new Fair Work Agency.
Under the bill, the government would also be able to ask the negotiating body to reconsider proposed agreements.
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Negotiating body to have 'funding envelope'
In its consultation, the DHSC proposed that negotiations would take place annually and be based on a remit set by ministers, outlining any government priorities for that particular pay round, timescales and a cost "envelope" for the resulting agreement.It said the envelope would be the maximum funding available to councils to cover increased costs, and that the negotiating body would need to ensure that its recommendations stayed within this limit.
While councils fund the majority of adult social care in England, mostly through commissioned services, a significant sum is funded by the NHS - through continuing healthcare, funded nursing care and the Better Care Fund - or by self-funders.
In relation to this, the DHSC said it wanted to hear views about how the implications of the agreements for the NHS and self-funders should be considered.
Existing national pay and conditions agreements for social care staff
The department added that the policy's intention was to give the "fragmented" adult social care sector "a much-needed national infrastructure, providing the opportunity to standardise existing best practice and formalise routes for the workforce to access better pay, terms and conditions, and career and development opportunities".However, it pointed out that council and NHS adult social care staff were already covered by agreements setting around their terms and conditions. For council staff, this was provided by the National Joint Council for Local Government Services, which sets terms and conditions, including annual pay settlements, negotiated by employers and unions, for most councils in England.
NHS staff are covered by Agenda for Change contracts, changes to which are typically negotiated by the NHS Staff Council, which comprises union and employer representatives, with annual pay settlements set by the government on the advice of the NHS Pay Review Body.
No such agreements cover staff working for the approximately 18,000 independent sector organisations providing adult social care in England or those employed as personal assistants (PAs) by people who need care and support.
Significant pay inequalities between sectors
This is reflected in the significant pay inequalities between council and independent sector staff in the same roles.In 2023-24, the mean average hourly pay for a local authority care worker was £12.43, compared with £11.23 for an equivalent, with a bigger gap among senior care workers - £15.04 for council staff, £12.04 for independent sector workers - according to Skills for Care data.
For PAs, the average wage was £11.87 an hour.
Dilemma over including or excluding council and NHS adult social care staff
The Employment Rights Bill provides for workers to be part of multiple agreements, benefiting from the more generous of these. However, the DHSC said such a scenario could add complexity and lead to a perceived two-tier system within the NHS and local government between those who were and were not covered by the Adult Social Care Negotiating Body.Given the fixed funding envelope that the negotiating body would have, the DHSC suggested it may be "preferable", at least in the medium-term, for its resources and efforts to be concentrated on those who were not covered by alternative agreements.
On the other hand, including the whole workforce "could support the unification of the workforce and the standardisation of training, standards and delivery of care across the country", the department added.
As well as seeking views on whether to include or exclude NHS and local authority staff through the consultation, the DHSC said it was exploring the effects, risks, and challenges that might arise from either option.
Negotiating body split between unions and employers
The negotiating body would have an equal number of union and employer seats, under the DHSC's proposals, with any other members being appointed in an advisory or observing capacity.UNISON, the GMB, Unite and the Royal College of Nursing (RCN), with support from the Trades Union Congress (TUC), has proposed establishing a group to represent workers on the negotiating body, which will be subject to DHSC verification.
The DHSC has proposed that the Care Provider Alliance (CPA), which includes the major provider representative bodies, will convene a similar group to represent employers.
Should NHS and local government staff be included within the body's remit, the employers' side will have to include the Local Government Association (LGA) and NHS Confederation, the department added.
The influence of local government on fair pay deals
Regardless of whether councils are represented on the employers' side, the DHSC said that, given their role in commissioning the majority of care, they would need to have a "clear role" in the fair pay agreement process.It proposed that this should include requiring the negotiating body to consult with local government representatives and consider their views in reaching an agreement, and enabling council bodies to provide the health and social care secretary with a written assessment of each fair pay agreement.
He or she would have to give this due regard in deciding whether to ratify the agreement, under the department's proposals.
Resolving disputes between employers and unions
The DHSC has also proposed that the negotiating body should be supported by a secretariat - staffed either by civil servants or an external body - and steered by a neutral chair, whose role would be to lead meetings and ensure all voices were heard.While the aim would be for the body to reach a consensus, the Employment Rights Bill provides for the government to make regulations establishing a mechanism for resolving disagreements.
In the consultation, it proposed a mechanism for triggering a dispute between employer and union representatives, based on the judgment of the chair or, if required, a vote, which would need to be carried by a majority of both sites.
At that point, an independent third party - a role the DHSC has earmarked for employment relations body the Advisory, Conciliation and Arbitration Service (ACAS) - would come in to help resolve the dispute.
This would likely start with conciliation - involving meetings overseen by the third party to try and find common ground - and potentially be followed by mediation, where a mediator works with the two sides to develop recommendations to resolve the dispute.
Should the process fail to result in an agreement, the bill allows for the health and social care secretary to impose one.
