Memorandum by English Courtyard
1. The English Courtyard Association (ECA)
is a private housing management organisation, set up on "not
for profit" principles and owns and manages retirement housing
built under the English Courtyard brand.
2. Retirement housing is leasehold residential
property, with specific design features and sold to people of
retirement age, or with a disability. The sale is combined with
estate management services, which often include an emergency alarm
and a residential manager, who acts to administer the day-to-day
activities of the estate and provide good neighbourly assistance
to residents of the scheme. It may also be known as private sheltered
housing.
3. There are currently 102,000 retirement
properties in the UK, operated by a range of private and public
bodies. The ECA was established in 1979 and was a forerunner in
the development of retirement housing. It now operates 34 schemes,
with over 800 individual properties in management.
4. The ECA has a particular philosophy,
dedicated to service to the residents of each scheme. Retirement
housing is primarily for the independent elderly and as a consequence,
nursing care or domestic assistance is not provided, except in
short term emergencies. From its earliest days, the ECA has fulfilled
the service obligations by appointing residential managers. In
our case, they are a married couple, supported by a non residential
Relief Manager living close to the scheme. Our residential managers
are known as Courtyard Managers.
5. Courtyard Managers are required to work
a shared 40 hour week, plus management of the grounds and be on
emergency call at all other times, when on duty. When transferring
the duty, the Relief Manager is also required to be available
for emergency calls. In all cases, the residential managers are
provided with suitable accommodation, usually two bedroomed flats,
which they can live in on a permanent basis, cost free. During
the times that they are on duty on emergency cover, they may pursue
their own activities and are able to leave the site, subject to
a maximum of 10-15 minutes distance. However, as two people are
employed; only one at any time is required to be on site.
6. Given the nature of the working practices
detailed above, the ECA has watched with both interest and trepidation,
the results of various test cases on working hours. The ECJ decision
in "SiMAP" had direct implications for the retirement
sector, in that it held that all of the time a worker is required
to be at his workplace, this is working time for the purposes
of minimum wage, even if the worker is allowed to sleep when his
services are not required.
7. It would appear that the UK courts have
interpreted working time in a similar way, as demonstrated in
two leading cases. The first of these, Wright v Scottbridge
Construction Ltd. concerned a night watchman who claimed that
he was required to sleep on the premises of his employer to carry
out his duties and should therefore be paid the minimum wage to
do so. The Employment Appeals Tribunal (EAT) upheld this decision.
8. In The Inland Revenue v The British
Nursing Association, the EAT also held that nurses were required
to take telephone calls through the night and that they could
not pick and choose when to work. They were therefore working
for the purposes of minimum wage.
9. Whilst SiMAP and the above cases
were not directly relevant to residential managers in retirement
housing, a further case was. In Walton v Independent Living
Organisation Ltd. a care worker was required to reside in
the home of her client for 24 hours, even though only working
for an average of seven hours per day. Her claim for 24 hour payment
was rejected and the judge remarked that to rule otherwise would
probably call to an end this type of care work.
10. The common sense approach above was
in some contradiction to the previous cases and did not serve
to fully clarify the situation affecting retirement housing. Nevertheless,
many retirement housing organisations saw an inevitability to
the direction of the legislation and began changing methods of
operation to nine to five working only and some went away from
residential managers or wardens.
11. This pessimism seemed to be well founded
with a more recent case, known as the "Harrow Wardens",
where seven residential Wardens working for the Harrow local authority,
won a case based on 24 hour working. This case is currently being
appealed and a final decision may take some time to be handed
down.
12. There has been some recognition of the
impact these above cases have had on the residential sector. The
Inland Revenue issued the following advice in July 2003. The Government
is aware that there has been some uncertainty on the issue of
"sleeping time" following some recent tribunal decisions.
We believe the position to be as follows. Provided the employment
contract clearly sets out the period when the worker is permitted
to sleep and the employer provides suitable sleeping facilities,
the worker need not be paid the national minimum wage in respect
of that period if he is not actually working. He must however,
be paid the minimum wage in respect of any time during the period
when he is working or awake for the purpose of working. In cases
where the employment contract does not clearly specify any sleeping
time however, tribunals seem likely to conclude that the minimum
wage should be paid for the full time when the worker is at work.
13. At best, the situation with "on
call time" for residential wardens is confused. This confusion
is making it difficult for organisations such as the ECA to maintain
a service that has operated so successfully for almost 25 years
and is well known within the retirement industry.
14. It is the contention of the ECA that
the legislation was not framed in order to sound the death knell
of on call working. However there is a clear danger that this
will be the effect. It is also of concern that if Wardens are
not required to be on call, then there is little point in them
being residential. This is of equal concern to those who perform
Warden type rolls and to whom the accommodation is a significant
part of the employment package.
15. Whilst there remains uncertainty about
the future of on call residential working, it becomes more difficult
for the ECA and similar organisations to provide the service it
has set out up to the current time. Many organisations have simply
decided to avoid any possible complications of moving away from
on call or residential working. This is an understandable reaction,
but the consequence is that the service levels of the retirement
sector are changing, to the detriment of the residents who occupy
the schemes.
16. In management terms, lack of clarity
poses problems in recruitment, discontent in existing staff and
uncertainty for residents.
17. In financial terms, the structure for
residential Wardens has traditionally been a modest salary, but
with the provision of good quality, free accommodation. The current
minimum wage legislation allows for only £1,185 per annum
to be counted for minimum wage calculations in respect of accommodation.
However, the true value in respect of ECA Managers flats is much
greater. Rental equivalent value is of the general order of £6,000
per annum, together with council tax payment, heat and light and
other benefits totalling some £2,000.
18. It is perhaps not surprising that some
organisations have now found a way round this position, by increasing
salaries and then charging Wardens realistic rents and other service
costs.
19. The use of "devices" to circumvent
the complexities of the legislation only serve to confuse the
issues and the purpose, identity and philosophy of the retirement
sector. In the end, those that suffer most will be the elderly
residents, for whom the retirement sector was established.
20. The ECA set out a service designed to
give residents maximum opportunity to remain in their own homes,
throughout the changes in older age. These opportunities are provided
in the form of the facilities within the dwellings, together with
the knowledge that there are "professional good neighbours"
available at all times. This has to benefit the community as a
whole by reducing the need for social care and welfare.
23 February 2004
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