Council adult social care staff in England should be excluded from the sector fair pay agreements that will be introduced in 2028, local government leaders have urged.
Including local authority staff, including adult social workers, risked exposing councils to more equal pay claims, said the Association of Directors of Adult Social Services (ADASS) and Local Government Association, while the LGA also raised concerns about it exacerbating retention issues.
Their concerns were set out in the associations' responses to a Department of Health and Social Care (DHSC) consultation on the process for determining annual agreements and the remit and make-up of the Adult Social Care Negotiating Body (ASCNB) that will set them.
Plan for social care pay agreements
The recently passed Employment Rights Act 2025 provides for the government to create the ASCNB - a body that must have representation from employers and unions - to negotiate fair pay agreements, in order to raise terms and conditions across adult social care.
Under the legislation, any agreement made by the body would have to be signed off by ministers and then set out in regulations, which would be binding on employers and enforced by a new Fair Work Agency.
The DHSC envisages agreements taking place annually and has allocated £500m to councils to meet the additional costs to them them, in provider fees, of the first deal, in 2028-29. The sum has been widely condemned as inadequate by sector bodies.
DHSC seeks views on council and NHS staff
One of the questions posed in the consultation was whether council and NHS adult social care staff should be within the ASCNB's remit, or whether agreements should purely cover independent sector staff and personal assistants (PAs) employed by direct payment users.
The DHSC said that including council and NHS staff could support the unification of the workforce and the standardisation of training.
However, against this, it said that, with finite resources available to implement agreements, it may be preferable to limit them, at least initially, to staff not already covered by national agreements on their terms and conditions.
NHS social care staff are covered by Agenda for Change contracts, changes to which are typically negotiated by employers and unions through the NHS Staff Council, with annual pay settlements set by the DHSC on the advice of the NHS Pay Review Body.
And terms and conditions for the vast majority of council care staff are determined by the National Joint Council for Local Government Services (NJC) 'green book', with annual pay settlements negotiated by employers and unions through the NJC.
Pay inequalities across sector
No such agreements cover the approximately 1.35m adult social care staff working for independent sector organisations or the estimated 100,000 PAs, which is illustrated by the lower pay they receive.
In 2023-24, the mean average hourly pay for a local authority care worker was £12.43, compared with £11.23 for an independent sector 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.
In their responses to the consultation, ADASS and the LGA came firmly down on the side of excluding the approximately 120,000 adult social care staff employed by councils from the ASCNB's remit, though the LGA said this could be revisited in future.
Equal pay claims warning
Both warned that including council staff risked exposing local authorities to equal pay claims. These are based on women and men not receiving equal pay for equal work, which is defined as work that is similar, equivalent or of equal value, for example, requiring similar levels of skill, training and responsibility.
The LGA referenced a scenario where council adult social care staff were covered by the ASCNB and received a lower pay award than local authority staff bound by the NJC.
It said this could lead to social care staff mounting an equal pay claim on the basis that fellow council employees doing work of equal value were getting paid more.
Concerns over costs and staff retention
"The potential scale of these issues in the local government workforce, which is already dealing with historic equal pay claims, is considerable," the LGA warned.
"The cost of local authorities’ evaluating, defending and - in cases found against them - compensating for cases of equal pay will have a significant adverse effect on their finances and resources."
The LGA also warned that including adult social care staff within the ASCNB's remit was "highly likely to raise concerns in relation to differential rates of pay/pay rises being applicable to adults’ and children’s social care staff exacerbating the recruitment and retention issues relating to both workforces".
Exclude council staff from pay body remit, urge sector heads
For these reasons, the association said it "strongly" believed that council adult social care staff should be excluded from the ASCNB's scope and remain within the NJC, at least initially.
ADASS said that the remit of the ASCNB should be focused on frontline staff delivering direct care and support to people, including PAs, to support career progression and retention by improving terms and conditions for staff who are largely lowly paid.
However, despite wanting council staff to be excluded from the ASCNB's remit, the two associations said it was vital that local government was represented on the body itself, given its statutory and financial responsibility for adult social care.
Pay body to consult - but not involve - local government
Under the DHSC's proposals, the ASCNB will be made up of representatives of adult social care employers and unions representing sector staff, with the two groups having an equal number of seats on the body.
The LGA would form part of the employers' side if council staff were included in its remit, but if they were not, local government would not be represented.
In acknowledgement of councils' statutory role and responsibility for commissioning the majority of care, the DHSC proposed requiring the ASCNB consult with local government representatives and consider their views in reaching an agreement. Council bodies would also be able to provide the health and social care secretary with a written assessment of each fair pay agreement, which he or she would have to give due regard to in deciding whether to ratify the agreement.
Concerns over lack of council representation
However, ADASS and the LGA said this did not go nearly far enough in involving local government.
"Failure to include councils appropriately within the ASCNB... means councils would have little control over decisions that would have potentially significant implications for their overall finances," said the LGA. "The impact of fair pay agreements on local government budgets will be significant and, if the views of councils are not adequately considered, this could have consequences for other staff employed by councils and the provision of other council services."
For its part, ADASS said that, if councils were not represented, "there were risks of funding implications being underestimated, with councils needing to absorb fee rates which are not realistic unless there is central funding".
It called for council representatives to have voting rights on ASCNB, with representative directors of adult social services sitting as non-voting members.
The LGA's preferred model is for the employers' side of the body to comprise elected councillors, supported by an advisory forum of provider representatives. However, this has been rejected by the DHSC.
Pay funding 'dependent on council tax hikes'
Both associations also raised broader concerns about the impact of fair pay agreements on councils' coffers.
The DHSC has said that the ASCNB will be required to ensure that the costs to councils of its proposed agreements do not exceed the money allocated to local authorities to implement them.
However, both ADASS and the LGA stressed that the £500m allocated in 2028-29 was, at least in part, dependent on money raised by authorities through council tax, meaning it was not guaranteed.
They also warned that the sector was likely to face costs from implementing fair pay agreements that the DHSC had not taken account of, including due to the impact on self-funders of higher fees.
Impact on self-funders 'risks increased council costs'
The DHSC has calculated that, if providers pass on the full costs of fair pay agreements to those who fund care, a third of the bill will fall on self-funders.
The LGA and ADASS warned that this could lead some to buy less care, leading to their needs escalating and greater pressures being put on family carers, with knock-on costs for health and social care services. Others would deplete their assets more quickly, making them eligible for council-funded support more quickly, placing increased pressure on authorities' budgets.
The LGA also stressed that funding would be needed to support sector employers - of which there are about 19,000 - to engage in the collective bargaining process and support them to implement fair pay agreements within the six-month timeframe proposed by the DHSC. It said ongoing government funding needed to be provided to resource this work.
Concerns over ongoing funding
In its response, ADASS pointed out that fair pay agreements would require recurrent annual funding, uprated annually at least by inflation, to ensure employers could maintain improved pay and conditions.
However, it warned: "There is a lot of uncertainty about future fair pay agreements with no clarity on what future funding allocations will look like or how they will be announced. "
