The LGA has a number of issues relating to different aspects of the establishment of the ASCNB. In brief, they are:
sufficient funding will be required to ensure that Fair Pay Agreements (FPAs) can be implemented without adversely impacting local government budgets, services and jobs
local government representation on the ASCNB both as an employer and in relation to its role as social care commissioners
equal pay risks to councils could increase as a result of creation of a different negotiating body for directly employed staff.
Detailed information on the LGA issues
More detailed information on the LGA issues are set out below using the same sequence of headings as in the consultation:
negotiating body
negotiation process
coverage and remit
dispute resolution
implementation
compliance and enforcement
equalities impact and equal pay.
The LGA will respond to the consultation, and we urge councils to submit their own responses too. The LGA has discussed the potential need for councils to submit consultation responses that go beyond the parameters of the online response form (which has limits in some sections of 250 words) and the DHSC has agreed that councils may use this email address [email protected] to submit views. To help us at the LGA, please copy submissions to [email protected]
LGA engagement with DHSC
The LGA has been engaging with the DHSC, and a working group from the sector including ADASS, provider bodies - such as the Care Providers Alliance, the TUC and trade unions, since November 2024. The SoS for Health and Social Care, as well as Minister for Care, Deputy Prime Minister and the Minister for Employment Rights have attended working group meetings.
The LGA made a significant number of comments and has raised issues both in these meetings and in writing, however we remain concerned on some significant points.
These matters, and concerns set out below, are ones that you may wish to consider in relation to your own council and the provision of adult social care in your communities.
We encourage you to use the consultation to set out your views and comments either through the online consultation form or through a direct submission.
LGA comments
Adult social care negotiating body
The ASCNB will need a secretariat to provide the necessary support to the body once it is established. The consultation suggests two options for delivering this support; either to be delivered by civil servants working in the DHSC, or to be delivered by an external partner. This would involve a procurement process to establish the provider of the secretariat.
The LGA believes that the secretariat should be provided by an independent organisation rather than by the DHSC to avoid a conflict of interest. This could arise as the SoS sets both the remit for the body and ratifies the FPA. The SoS can also set a determination if the ASCNB does not reach agreement. The secretariat will be responsible for working with the body to set agendas, taking minutes, writing annual reports and providing research/evidence. On this basis, questions could arise as to the impartiality of a secretariat provided directly by DHSC officials.
While trade unions naturally prioritise the issue of worker representation, employers and councils also have an important interest, particularly given the responsibility to mitigate service disruption, including any that may arise from industrial action. For this reason, it is important that the trade union side of the ASCNB has legitimacy. This makes it relevant for councils to consider which trade unions are currently active in the sector, and to what extent.
In this context, councils may therefore wish to consider: Which unions do we currently engage with in relation to the adult social care workforce? Are those unions included in the proposed list set out in the consultation?
The LGA has major concerns with the proposal set out in the consultation on employer representation. The proposed employer structure does not give sufficient representation to local government as substantial direct employers of adult social care staff.
The LGA is further concerned that the proposed structure will be unworkable as it fails to grasp the complexity of carrying out pay negotiations across such a large, fragmented and complex sector. The proposed model is not clear as to how consensus on the employers’ side could be achieved and how the employer side representatives will be held accountable to their constituents.
The LGA proposed an employer-side structure that would have included an ‘employer side’ comprising elected councillors. This would have been supported by an advisory forum involving as broad a provider engagement as possible to ensure sector and public legitimacy. As councils are responsible for overseeing commissioning of adult social care within their communities and for the care ‘market’, councillors are well placed to engage with the ASCNB to deliver FPAs. DHSC rejected this proposal.
The LGA strongly disagrees with the proposals set out in the consultation in relation to the role of local government. Under the Care Act 2014, the provision of adult social care is the responsibility of councils. Whilst many social care staff are employed by councils, the majority are employed by third parties that have been commissioned by councils. Regardless of employer status, councils bear the statutory responsibility to provide these services to their communities.
It is therefore critical to the delivery of these services that the views of councils are sufficiently and appropriately represented on the ASCNB – this is in addition to, and separate from, the representation on this body of councils as employer representatives.
The DHSC has set out proposals for consulting/checking with local government in creating an FPA. This includes ‘the Terms of Reference for the Negotiating Body and the roles and responsibilities of the chair should specify that the interests of local government must beconsidered’ and that ‘having regard to the views of local government’ should be specified in regulations. Finally, that the Secretary of State will consider a written assessment of the proposed FPA before ratifying it.
The LGA is concerned that the constitution of the ASCNB should provide sufficient representation of local government within the body to recognise councils’ statutory responsibilities for the provision of ASC and as the single largest commissioner of care in their areas. Councils are democratic bodies with legal duties on the overall provision of social care and the social care market. The LGA does not believe that the proposals set out in the consultation provide sufficient representation for local government in the ASCNB and its processes. The impact of FPAs 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.
The LGA’s proposal on the structure of the ASCNB’s employer side would create a body which more effectively reflects the role of local government, however this was rejected by DHSC.
Care should be taken to ensure that all members of the ASCNB are able to be held accountable to their constituents for the decisions taken. Under the proposals it is not clear what the mechanism for accountability would be.
Negotiation process
The consultation asks ‘Is there anything else that you think a letter from the Secretary of State should set out?’. The letter from the Secretary of State should make clear to all parties that all costs arising from fair pay agreements will be met by central government.
Funding of both the transition to this new negotiating body and the implementation of its agreements will be vital to ensuring its success. The LGA remains concerned that councils have not been given assurances that they will be financially supported to deliver the transition to, and the outcomes from, the ASCNB.
If council employed social care staff are in scope, councils will need funding for the costs of transitioning staff onto new pay systems and managing the wider change.
Once the body has been established, sufficient resourcing will need to be provided for employers to be able to deliver and implement the agreements reached by the ASCNB. Uplifts to pay, terms and conditions will need to be funded by central government and passed to councils/ employers to ensure they can be implemented without putting further strain on budgets.
Funding for adult social care will need to be sufficient to ensure that councils can procure services that employ staff in line with the negotiating body’s agreements. The LGA is seeking a commitment that the establishment and output of the Fair Pay Agreement policy will be fully funded by central government.
The funding references in the consultation (also see press statement), states that £500m will be made available to cover the first FPA in 2028/29 from the £4bn already announced in the June 2025 Spending Review – this is a cause of significant concern.
Implementing the uprated National Living Wage in 2025/26 (that increased the NLW by 6.7 per cent) cost the adult social care sector £1.85 billion. The LGA believes that the government must clearly provide additional funding to fully cover the cost of implementing all fair pay agreements. A failure to do so would be at the expense of other council services and the pay and jobs of local government workers.
The LGA strongly disagrees with the proposal around how negotiations would work on the basis that the interests of local government are not sufficiently represented.
The consultation asks whether six months is sufficient time for negotiating an agreement. In the LGA’s experience, six months is likely to be insufficient. National pay negotiations will require both sides to seek a mandate and consult with their constituents at various points in the process. With such a complex provider landscape it is likely to take a considerable length of time to ensure that the sector has been comprehensively consulted. This is especially so given that, in the main, this sector has not previously been involved in national pay negotiations. Sufficient time to consult both employees and employers is vital to ensure that negotiations can take place in good faith and that agreements can be reached that will be acceptable to both sides. Having sufficient time for the negotiation process will help to reduce the chances of disputes arising.
The consultation also asks whether six months is enough time for the sector to prepare for implementation of the pay agreement. This will largely depend on whether the funding for implementing the agreement is being underwritten by central government. If employers have to find the funding for an FPA from their current budgets then there will be significant consequences for local government and adult social care provision. If the FPA is not fully funded and councils have no alternative but to cut other services and/or jobs as a result, then implementation is likely to take longer than six months. If the FPA is fully funded and well/widely communicated, then a six month window might be achievable.
Coverage and remit
The consultation asks whether there are staff who should be excluded for this new negotiating body’s coverage. The consultation also asks whether staff covered by the NJC (Green Book) should be in the ASCNB.
The LGA believes that directly employed local government ASC workers should remain within local government’s national (or local where appropriate) collective bargaining (NJC/Green Book) and be, at least initially, out of scope of the ASCNB. This could be reviewed in subsequent years.
Given that front-line care workers employed by councils earn, on average, above the rates paid by private sector care employers (and have additional benefits such as a high quality sickness scheme, above statutory annual leave, and access to the Local Government Pension Scheme), the initial fair pay agreements are unlikely to be of benefit to council employed adult social care staff.
The consultation suggests that workers can be covered by the ASCNB as well as another negotiating body, but this is not the case for those staff covered by the Local Government Services NJC. The constitution of the ‘Green Book’ precludes those covered by it from also being covered by another negotiating body so this would remove adult social care staff from the ‘Green Book’ pay settlements etc... The LGA is concerned about the increased equal pay risk (both set out below) and industrial action risk (both set out below under ‘Equalities Impact’) posed by the creation of the ASCNB, particularly if council employed ASC staff are covered by the new body.
If council employed ASC staff are included within the scope of the FPA this could raise concerns in relation to differential rates of pay/pay rises being applicable to adults’ and children’s social care staff. In addition to those providing care, those in scope also includes qualified social workers, occupational therapists, supervisors and managers and Directors of Adult Social Services.
Local authorities may well want to comment on this as part of the consultation. The consultation asks about coverage directly (and also in the question “Are there any settings, services or roles that you think should be excluded from the ASC Negotiating Body’s coverage?”).
If the ASCNB does include council employed ASC staff within its scope, then consideration of the consequences for the existing national collective bargaining arrangements in local government is important.
The ASCNB is likely to focus initially on the lowest earning workers in the sector which could potentially mean that no provision is made for roles such as social workers, occupational therapists or Directors of Adult Social Services, all of whom could be in scope of the ASCNB. Councils would then have to make decisions over the reward of those employees who could find themselves outside collective bargaining as neither their previous relevant local government collective bargaining body, nor the Fair Pay Agreement, would apply (save to the extent that terms are incorporated into contracts at a local level). This would increase management and administrative work for councils and introduce significant uncertainty and inconsistency for local government employees in areas already facing major recruitment and retention problems.
The LGA recommends that councils think carefully about the impact of their adult social care staff – at all grades – being included in the initial scope of the ASCNB.
In responding to the questions in this section it is worth noting that the key point will be whether full funding from central government will be provided to support FPAs. All of the sections (pay priorities, wider employment matters, people and culture, additional benefits and financial support) will depend on outcomes being fully resourced and accessible to all employers and employees across England.
Dispute resolution
The LGA disagrees with the approach to dispute resolution set out as it does not sufficiently include representation from local government. As currently proposed, an entire dispute resolution process could take place without input from local government even though any agreement will depend on local government for successful implementation.
The creation of a new negotiating body potentially increases the risk of industrial action in local government and/or adult social care. If the ASCNB does not reach agreement on the terms of fair pay agreement (FPA), then the Secretary of State can determine what the FPA should be (after the disputes procedure has been exhausted). If trade union/s do not accept an imposed FPA then they could establish a legitimate trade dispute with their employers.
Further, if equalities issues are identified as a result of an FPA, this too could lead to trade disputes and strike action.
The ballot thresholds established in the Trade Union Act 2016 are likely to be removed next year. This means that unions will no longer need to pass a minimum turnout threshold to take legitimate industrial action. This is a further reason for local government to be fully engaged in the ASCNB process as industrial action is a fundamental risk to the delivery of ASC and councils’ statutory responsibilities.
Implementation
As stated above, successful implementation will depend on full central government funding, clear and extensive communications and the engagement of councils.
Compliance and enforcement
Successful compliance will depend on the factors set out above (funding and communication). There will need to be government support for the local government if the consequences of implementing an FPA leads to impacts on other parts of local government service provision and/or jobs.
Equalities impact
The LGA is concerned about the potential for equal pay risks arising from the introduction of this new Body if council employed ASC staff are covered by the ASCNB. The questions at the end of the consultation on the equalities impact of implementing the ASCNB and its FPAs could be where councils place on record concerns about equal pay risks.
The LGA is concerned that some employees directly employed by councils could be impacted positively whilst others could be impacted negatively. As the demographics of the workforce will vary significantly from council to council and across workforces, it is difficult to say which particular protected characteristics might be more adversely affected. Given that the right to claim equal pay is likely to be extended to include ethnicity and disability as well as gender, any increased risk of equal pay cases arising will be concerning.
To explain the potential issue, if, for example, a higher annual pay award was agreed and implemented for Green Book NJC employees than for those covered by the ASCNB, then an equal pay risk could occur. This would arise from adult social care staff comparing themselves with other council colleagues who are doing work of equal value (or ‘like work’). Of course, this could also work the other way round if the ASCNB FPA pay award was higher.
The LGA believes that equal pay liabilities arising out of the creation of this new negotiating body should be underwritten by central government.
New burdens
The consultation states that the DHSC “...have considered whether fair pay agreements would represent a new burden for local government under the new burdens doctrine. Our assessment is that, at this stage, there is no new burden.” The LGA is concerned the implementation of the ASCNB and future Fair Pay Agreements may well constitute significant ‘new and additional’ work and require substantial resources from councils and you may wish to comment on this in your submission.