A decision by commissioners to select Richard Branson’s Virgin Care to run a county’s children’s services was unlawful but it can still go-ahead, a judge has ruled.
NHS Devon and Devon County Council named Virgin Care as the preferred bidder for an £132m three-year contract to run a range of children’s services in the county including mental health, learning disabilities and school nursing, in July this year.
A judge said the decision was unlawful following a challenge by a Devon mother whose children use the existing services. The challenge was based on the grounds that commissioners failed to assess the impact that shifting the services to the private sector would have on service users.
The judge found that commissioners had initially failed to meet their duty under the Equality Act 2012 to assess the impact of the move on children with learning disabilities and disabled children.
However the judge ruled that commissioners had addressed the issues since and he declined to halt the deal, saying that the mother had not proved she or her children would suffer under the new model of provision.
In a statement Adam Hundt, partner at law firm Deighton Pierce Glynn who acted on behalf of the mother, said:
“The judge has found that the decision to appoint Virgin Care Limited as the preferred bidder for the contract to provide integrated children’s services in Devon did not comply with the law, but he declined to prevent the contract from being awarded, in part because the abolition of PCTs in March 2013 means that there is no room for slippage in the procurement process.”
“The contract is therefore tainted by illegality, and although my client is disappointed that the court was not willing to stop the process, she is pleased that this judgment makes it clear that outsourcing decisions of this kind will engage the public sector equality duty, and that the impact of outsourcing to the private sector cannot be dismissed as having no impact on service users, and has to be carefully assessed at a sufficiently early stage of the process in order to be lawful.”
A joint statement from NHS Devon and Devon County Council said:
“We firmly believe that the process we followed which involved large numbers of parents and carers, professionals and young people was thorough and conducted with great care.”
“Although disappointed that the Judge found that we did not initially fully discharge our public sector equality duty, we are pleased that he recognises that we have now addressed this.”
“We also welcome the judge’s comments that the decision to keep integrated children’s services together was the right one, and that the decision regarding the preferred bidder should not be quashed.”
A Virgin Care spokesman said: “We have a very strong track record of providing NHS care to vulnerable groups including children for many years now, strengthened with extensive expertise through our contract to provide community services in Surrey.”
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Andy McNicoll is Community Care’s community editor