In London Borough of Islington ex p McMillan there were problems in continuity of services arranged for a user in his own home. The authority was accused of breach of statutory duty, because the Care Plan indicated that particular services would be provided at particular times, and they hadn’t been. The Gloucestershire ex p Barry case had established that once a Care Plan has been set, it should not be departed from without a re-assessment. However, the court took a pragmatic view, and held that discontinuity in services in the care plan may amount to a breach depending on how serious it is, or it may be acceptable, so long as it is not long-term, or a service crucial to well-being. Missing a day’s meals would be a serious thing, but missing a day’s cleaning would not be regarded as so serious.
Both in-house and external private sector providers battle with the recruitment crisis in social care and all will be familiar with the headaches caused by sickness and absenteeism. However, the context in which arrangements for services are made is obviously one of extreme sensitivity and importance to people and their well-being – and where staffing problems threaten safety or create risk, the legal duties in play are as follows:
Local authority to client: owed under statute and probably in negligence. Note that whilst the statutory duty to provide the service is clearly enforceable by way of judicial review proceedings in public law, it is not likely to lead to damages for failure to provide, other than perhaps in an action based on the Human Rights Act.
Contractor to client: possibly owed in negligence
Contractor to local authority: owed in contract
At the very least, tendering and contracting procedures ought to cover emergency cover and crisis planning, in order to amount to a proper discharge of the authority’s provision/arrangement functions for those assessed to be in need of the services concerned.
Specifically Related questions:
>What is required by way of consultation of the service user, in a planned closure/transfer/change of provider situation?
>Are people entitled to a choice of domiciliary carer, and what if they fall out with the carer?