New risks for local education authorities in outsourcing

Posted by Malcolm Johnson on

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The case of Woodland v Essex County Council has create a new kind of duty for local authorities who outsource their statutory functions to outside bodies. This article gives some pointers on where those risks lie for local authorities.

The Supreme Court made three key points.

  • The law should protect those who were both inherently vulnerable and highly dependent on those with a significant degree of control over their lives.
  • Parents were required by law to entrust their child to a school. They did so in reliance on the school's ability to look after them.
  • Schools would be liable for the negligence of independent contractors only if and so far as the latter were performing functions which the school had assumed for itself a duty to perform, generally in school hours and on school premises

The judgment contains a list of situations where a school would not be liable for the defaults of independent contractors. These would include providing extra-curricular activities outside school hours, such as school trips in the holidays, trips to theatres, zoos or museums to which children might be taken by school staff in school hours, or mishaps on the bus that took them to these places. If a child was injured on his way home from school, transport having been provided by the local authority, that authority would not normally be liable for the driver's negligence.

What then should a local authority do? First of all, basic risk assessment and review should be no mystery. Local authorities will already have statutory and internal procedures in place for the checking of independent bodies, who will also probably come under a statutory umbrella, particularly if they provide care.

Secondly the Supreme Court was careful to say that these non-delegable duties would be limited.

Thirdly the courts are forever stressing the point that public organisations cannot be responsible for everything that goes wrong, particularly when they done their best to guard against a particular risk.

Reading the judgment of the Supreme Court would be helpful it is written in plain language.

So the first question for a local authority will probably be to whom do we outsource our work? Some of these organisations will be carrying out functions that are not part of any statutory duty, but are provided as an added extra to the community. One example would be a "Dial a Ride" service to ferry the elderly around the community. Other functions will be part and parcel of the local authority's basic statutory functions. However even then there may not any kind of non-delegable duty, because the service users are neither vulnerable nor entirely dependent on the local authority for their safety. If for instance, the local authority hands over the running of a leisure centre to a private company, then they might not create a non-delegable duty to look after users of that centre because they are either adults of children accompanied by adults.

Other statutory functions do not involve looking after the vulnerable, but rather making sure that they get paid benefits. For example, a local authority might commission a private charity to make direct payment to the disabled. That would not necessarily create a non-delegable duty to ensure that the employees of the private charity took reasonable care of the payees.

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About the Author

Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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