Retained EU Law (Revocation and Reform) Bill

Written evidence submitted by the Social Care Institute for Excellence (SCIE) ( REULB26)

Parliamentary Briefing

Key Points

· At the Social Care Institute for Excellence, we are concerned about the unintended consequences of the Repeal EU Law (REUL) Bill on the social care sector of nearly 1.8 million workers. The REUL Bill, if passed, has the potential to exacerbate the social care workforce crisis, particularly the falling trends in care worker retention and recruitment. Recent data from Skills for Care confirms the sector is currently short of 165,000 care workers, up 52% since 2020/2021 with demand expected to continue growing and remain unmet (Skills for Care 2022).

· The REUL Bill would sunset workers’ rights and employment protections that disproportionately affect the social care workforce, which is 80% women, consists of 50% part-time workers, and 24% zero-contract workers. Within the social care workforce 23% of the workforce has black, Asian, and minority ethnicity and 16% are a nationality other than British (Skills for Care 2022).

· Many people who draw on social care and the people who care for them are also directly affected by the REUL Bill’s provisions that sunset workers’ rights and employment protections. The 2011 Census showed that 1 million carers work part-time and that they are more likely to work part-time than non-carers (Graham 2019). Disabled workers–who are likely to utilize social care–are also more likely to work part-time at 32.5% compared to non-disabled workers at 21.8% (Mehan and Uddin 2022).

· We urge Members of Parliament to seek clarity from the Government about its plans for replacing or reaffirming existing workforce protections, such as maternity and paternity leave, rights for part-time and zero-hour contract workers, and equal pay, among others. We also urge the government to produce a robust analysis describing how the provisions in the Bill do not weaken workplace protections in the Equality Act of 2010.

· We are especially concerned about the REUL Bill allowing the Government to replace existing EU workers’ protections with new laws that lack full Parliamentary scrutiny. Instead, the Bill should require that replacement laws be subject to regular Parliamentary debate ensuring the views of people affected by the new laws set to replace existing protections are taken into account.

· By passing this Bill without understanding its full consequences, Parliament risks further destabilising an already vulnerable social care workforce affecting people who draw on care, their informal carers, and the professional care workforce.

About the Social Care Institute for Excellence

The Social Care Institute for Excellence (SCIE) is an independent charity that supports innovation and improvement in social care policy and practice. We undertake research, support policy development and work with social care leaders and practitioners to deliver better care and safeguarding for children and adults who draw on care. Co-production with people with lived experiences of care is at the heart of all our work.

Overview

The Retained EU Law (Revocation and Reform) Bill (Bill 156) was presented to the House of Commons for its first reading on Thursday 22 September 2022. The Bill would completely overhaul a body of UK domestic law known as "retained EU law" (REUL) [1] . The Bill encompasses all retained EU law contained in domestic secondary legislation and retained direct EU legislation. Under the terms of the Bill, any retained EU law that remains in force after the sunset date of 31 December 2023 will be assimilated in the domestic statute book, by the removal of the special EU law features previously attached to it.

While there are provisions to uphold, reform, or repeal the policies set to end, there is no plan currently in place on how to review each law in such a short amount of time. This creates uncertainty for the social care sector, since many of the laws expected to sunset relate to workforce protections and workers’ rights.

The social care sector is not immune to this Bill. While it does not reference social care issues directly, by having a nearly 1.8 million strong workforce made up of approximate 80% women, the workers’ rights at stake directly impact the already vulnerable social care employment rates (Skills for Care 2022). In an August 2020 opinion piece assessing the impact of Coronavirus on the social care sector, the King’s Fund pointed to a growing climate of workplace precarity amongst staff and in workplaces (Bottery 2020). In light of COVID-19 and the looming cost-of-living crisis, the already unstable social care workforce will be at a greater risk with the passage of REUL Bill.

Social Care recipients are also at the mercy of the downsides that come with the REUL Bill. They are more likely to be employed part-time or on a zero-hour contract which is one of the protected rights at stake. While we do not know the exact employment status of people who draw on social care, according to the ONS 32.5% of disabled workers–many of whom likely draw on social care– work part-time which is about 10% more than non-disabled workers (Mehan and Uddin 2022). Similarly, they are also occasionally the employers of their own care workers. These new workforce policies can likely hurt them from both sides as the employee and the employer. This briefing delves into the workers’ rights at stake that impact the social care worker, the social care recipient, and the social care sector as a whole.

Repeal EU Law Bill Background

The Retained EU Law was created in the aftermath of Brexit to remove laws that were held over to create continuity. This was done under the guise of creating laws and only enforcing laws that are distinctly ‘UK’ in name. However, the Bill will affect some 2,400 laws that are currently being enforced, many of which provide vital protections to workers.

Many organizations are standing together in opposition of this Bill because of the immense toll it will take on the rights of workers, including organisations ranging from trade unions, environmental activists, and charities. We share others’ concerns about problems arising from the Bill, as outlined by the Hansard Society (Fox 2022):

· "Acceptance of the automatic expiry (sunset) of REUL will be an abdication of Parliament’s scrutiny and oversight role;

· It will introduce unnecessary uncertainty – legal, economic and political –into the REUL review process;

· The broad, ambiguous wording of powers will confer excessive discretion on Ministers;

· Parliamentary scrutiny of the exercise of the powers will be limited; and

· There are potentially serious implications for devolution and the future of the Union"

In the following sections, we will outline how these problems affect social care specifically.

Understanding the Social Care Sector

The social care workforce is significantly understaffed, underpaid, and overworked. The forces affecting the wider economy are affecting the stability of the nearly 1.8 million person and growing social care workforce (Skills for Care 2022). According to the Skills for Care ‘State of Social Care’ Report, the vacancy rate is up 52% since 2020/2021 with 165,000 vacant positions (Skills for Care 2022). While the vacancy rate is increasing because of difficulties in retention, recruitment has been exceedingly difficult since the UK left the European Union. Prior to Brexit, one-fifth of the social care workforce were not born in the UK (Women’s Budget Group 2022) and 7% were from the EU (Holmes 2021). Since Brexit, that number has declined in large part because social care workers are not eligible for the Health and Care Worker Visa thus making it more difficult to recruit EU social care workers (Holmes 2021). Also, due to COVID-19, burnout has increased significantly in this sector which is greatly affecting retention ("Workforce Stress and Burnout" 2022).

Not only are professional carers struggling but also the informal, unpaid carers–many of whom require greater assistance–are similarly experiencing difficulties. There has been a consistent increase in informal carers who need greater support and will need to draw on social care services to help assist their loved ones (Women’s Budget Group 2022). These factors highlight the ever-increasing need in the social care sector for a larger and better supported workforce as it is significantly understaffed resulting in existing workers feeling overworked. The passage of REUL will put further strain on this already buckling field as it will allow for potential exploitation and lack of protection. The already understaffed social care sector will likely be further depleted resulting in worsening outcomes for the NHS and the economy at large if the REUL Bill is passed (Charlesworth 2022).

Characteristics of the Social Care Workforce

Within the social care sector, the worker is in a particularly precarious position today. They are overworked due to overstaffing with a high chance of burnout ("Workforce Stress and Burnout" 2022). Similarly, they are much more likely to be in poverty due to social care workers being among "the lowest paid [workers] in the UK" with over 25% of residential care workers near poverty (Allen et al 2022).

The social care sector of about 1.8 million is also predominantly women at 80%. With the REUL Bill, worker’s rights, especially women worker’s rights will be particularly at risk. Women are more likely to utilize the laws up for debate such as maternity leave, working part-time and pay equity. If these rights are stripped away with no replacement, this predominantly women workforce might fall further below the poverty line. This does not only affect the women working but also their families; a recent report found that 1 in 8 children of residential care workers are ‘materially deprived’ or have to go without adequate seasonal clothing or health food options such as the more expensive fruits and vegetables (Allen et al 2022).

Similarly, outside of the gendered component, zero-hour contract workers, which make up 24% of the social care workforce, are also at risk if the REUL Bill is passed as current laws provide protection and regulations for zero-hour contract workers (Skills for Care 2022). Part-time workers, which are half of the social care workforce, also have their rights at risk with the passage of the REUL Bill (ibid).

Overall, the workers in the social care sector have much to lose if the REUL Bill is passed without adequate and explicit commitments made for the worker’s rights provisions in new legislation.

Recognising the interests of people who draw on care

People who draw on social care are often left out when discussing the sector, as it is predominantly concerned with bolstering the struggling workforce to administer the best care. However, people who draw on care can be both employees and employers of their own carers. Many recipients of social care employ their own ‘personal assistants’ directly serving as an employer. The REUL Bill would negatively impact recipients not only because it would make it harder for them to receive the care they need because of the shrinking workforce but also because they themselves are workers and/or employers in the larger workforce. Many people who require care work part-time hours. For example, disabled workers are 10% more likely to work part-time than non-disabled workers (Mehan and Uddin 2022).

Similarly, people who draw on care have inordinate wait times to receive care due to the industry wide staffing shortage. According to the Care Quality Commission, "between January and March 2022, over 2.2 million hours of homecare could not be delivered because of insufficient workforce capacity" (Care Quality Commission 2022). Without a full assessment of how the REUL Bill will affect people who draw on care, passages of the Bill might worsen people’s access to care or limit their own opportunities to live independent and fulfilling lives.

Contact

References

Allen, Lucinda, et al. "The Cost of Caring: Poverty and Deprivation among Residential Care Workers in the UK." The Health Foundation, 11 Oct. 2022, https://www.health.org.uk/publications/long-reads/the-cost-of-caring.

Bottery, Simon. "How Covid-19 Has Magnified Some of Social Care's Key Problems." The King's Fund, 25 Aug. 2020, https://www.kingsfund.org.uk/publications/covid-19-magnified-social-care-problems.

Care Quality Commission, The state of health care and adult social care in England 2021/22, 21 October 2022. https://www.cqc.org.uk/publication/state-care-202122

Charlesworth, Aintia. "Economic Turmoil and Its Impact on Health and Care." The Health Foundation, 27 Oct. 2022, https://www.health.org.uk/news-and-comment/blogs/economic-turmoil-and-its-impact-on-health-and-care.

Fox, R. (2022) Five problems with the Retained EU Law (Revocation and Reform) Bill (Hansard Society: London)

Graham, Rachael. Facts About Carers, Carers UK, Aug. 2019, https://www.carersuk.org/news-and-campaigns/press-releases/facts-and-figures.

Holmes, Jonathon. "Brexit and the End of the Transition Period." The King's Fund, 11 Jan. 2021, https://www.kingsfund.org.uk/publications/articles/brexit-end-of-transition-period-impact-health-care-system.

Mehan, Arun, and Hasan Uddin. "The Employment of Disabled People 2021." GOV.UK, Office for National Statistics, 11 Feb. 2022, https://www.gov.uk/government/statistics/the-employment-of-disabled-people-2021/the-employment-of-disabled-people-2021#introduction.

Skills for Care, The state of the adult social care sector and workforce in England, 2022 (Leeds, 2022). Available at www.skillsforcare.org.uk/stateof.

Women’s Budget Group, Spring Budget 2021 Pre-Budget Briefings: Social care, gender, and COVID-19. https://wbg.org.uk/wp-content/uploads/2021/03/Social-care-gender-and-Covid-19.pdf.

"Workforce Stress and Burnout." Workforce Stress and Burnout - Care Quality Commission, 21 Oct. 2022, https://www.cqc.org.uk/publications/major-reports/soc202021_01g_stress-burnout.

November 2022