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23 January 2017

Adult Social Care: The Brexit Challenge

Brexit and the end of freedom of movement risks pushing the social care sector past the ‘tipping point’, warns Charles Russell Speechlys

  • Already under serious strain, with financial headwinds and high staff turnover creating uncertainty, an end to freedom of movement represents the next threat to the industry
  • 84% of care businesses surveyed by Charles Russell Speechlys suggest Brexit likely to have detrimental impact on ability of providers to offer care
  • Research notes recognition by industry of the need to change perceptions of care sector employees as skilled workers to attract talent in UK
  • Charles Russell Speechlys identifies four point plan for care sector post-Brexit

Download the research report


The scale of the challenges facing the adult social care sector is only set to increase with an end to freedom of movement following Brexit, research from law firm Charles Russell Speechlys suggests. The firm identifies three possible changes to the immigration framework to avoid the sector falling over the ‘tipping point’ as previously warned by the Care Quality Commission.

With more than 1 in 10 (15%) of the UK’s social care workforce non-UK citizens, and about half of those originating from EU member states, it is unsurprising that 84% of those surveyed feel an end to freedom of movement and an uncertain picture of immigration beyond Brexit will pose a possibly insurmountable challenge to the care sector.

The research conducted for Charles Russell Speechlys identified three in four (74%) would want freedom of movement to continue, while none said they wouldn’t. It indicated that the industry feels a ‘social care visa scheme’ could be a workable alternative to prevent a staffing shortfall that would likely be significantly detrimental to the sector.  The South of England was judged to be the most significantly exposed region.

However, the research also acknowledged that a perception shift would help address recruitment challenges in the domestic workforce. Classing care workers as ‘unskilled’ was regarded as sending out the wrong message, making the profession appear an unattractive career path.

In addition, it found that respondents noted the potential effectiveness of the Scottish Carers Living Wage as a means to incentivise workers into the sector, valued at £8.25 an hour – more than a pound higher than the National Living Wage. However, this would need to be funded by increased fees paid by local authorities to avoid further unacceptable pressure on margins.

The research was based on interviews with a representative sample of leaders in the adult social care sector, including three of the country’s largest care providers as well as smaller providers across the country.

Charles Russell Speechlys’ research found that the continuation of free movement of EU nationals was the preferred option for most providers interviewed as it would allow for a large pool of talent with no additional immigration compliance costs. The research identified four proposals to underpin a strategy for alleviating the pressure that would come from the end of freedom of movement.

  1. Existing EU nationals working in the sector could be allowed to remain after Brexit.
  2. A sector-specific permit scheme available to all foreign nationals with job offers in the social care sector could be introduced that is not as cumbersome, restrictive and expensive as the current Tier 2 (skilled workers) scheme.
  3. The Scottish Carers Living Wage could be introduced in England and Wales as long as this is matched by increased public funding.
  4. A sector-wide initiative to “professionalise” care work to encourage more of our own workforce into a career in care.

Charles Russell Speechlys’ analysis identified three workable solutions for adapting the current immigration system:

  1. Including care workers on the Tier 2 skills shortage occupation list
    Until 2011, skilled senior care workers were listed in Tier 2 as a shortage occupation and this could be re-introduced. Nurses were added back to the list in October 2015 and this has been a welcome decision. Expanding the current skills shortage list would be the quickest and most straight forward of all the options because it would not require any new Immigration Rules to be created. However, if the financial and compliance costs (including healthcare and training surcharges) of the current Tier 2 system are applied to unskilled care workers then the cost and compliance burden would become prohibitive given the greater number of applicants likely to be involved.

  2. Opening of Tier 3 for specific sectors
    Opening the Tier 3 system for unskilled workers was deemed unnecessary when the PBS was introduced in 2008 because of EU freedom of movement and so the Tier was suspended indefinitely. By opening Tier 3 for specific sectors, such as social care work, the government can introduce a system that is responsive to UK business needs, whilst limiting the number of applicants and the roles they can fill. However, the government has already signalled that a PBS may not be the way forward for the UK immigration system and, in any case, there is a legacy of financial and compliance costs associated with the PBS.

  3. A sector specific shortage occupation scheme
    Given the likely financial costs and bureaucratic complexities of an extended Tier 2 system or an opening of a Tier 3 system, an alternative would be a sector-specific shortage occupation scheme for certain roles currently deemed unskilled. This would be open to all nationalities who wish to come to the UK to practise in specific roles for a pre-determined time, job or salary. Once the foundation of the scheme is settled, it could be used by different sectors where there are identifiable shortages in labour deemed unskilled and of strategic importance to the country as a whole. Conditions could include a level of English language and a commitment to the sector in the country of origin and could be coupled with quotas. One benefit of this option is that the requirements could be determined through consultation with care providers and sector representatives so that employers would have a say in how it would work in practice.

Michael Lingens, Partner (Healthcare), Charles Russell Speechlys argues;

“The crisis in social care is only set to get worse as government continues to fail to acknowledge the impact an end to freedom of movement poses to the social care sector.  The Prime Minister’s Lancaster House speech emphasised skilled workers but many sectors of the UK economy rely in part on “unskilled” workers from abroad.

“The Government seems willing to listen to the financial services, agricultural and food sectors who have been vocal about making arrangements for some so-called “unskilled” workers to be allowed to work in the UK.  Social care now needs to be seen as a priority alongside them.  

“We have identified three available solutions that could be implemented quickly without a major overhaul of the current immigration system. Firstly, restoring care workers to the Tier 2 skills shortage occupation list would be an efficient and effective resolution, but could prove costly. Second, opening the Tier 3 system for the care sector could also prove effective, but would require the government to adopt a points-based structure, something it has said it will not do.

“The most effective method may be to adopt a sector-specific shortage occupation scheme for certain roles in social care, open to all nationalities who wish to come to the UK to work.”


For more information please contact Michael Lingens on +44 (0)20 7427 6503 or at michael.lingens@crsblaw.com.

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