COMMERCIAL: Commissioners in Devon failed to fully discharge their duties under the Equality Act when awarding a £132m contract to Virgin Care, a judge has ruled.
The NHS Devon, Plymouth and Torbay primary care trust cluster and Devon County Council named Virgin Care as the preferred provider for services including sexual health, behavioural intervention and learning disabilities in July this year.
Lawyers acting for a mother whose children use the services challenged the decision on the grounds the commissioners had failed to adequately assess the impact of the move into the private sector on service users.
The judge found although initially commissioners had failed in their duty under the Equality Act 2012 to assess the impact on disabled children or children with learning disabilities, they had since addressed this. This impact assessment did not take place until after Virgin had been announced as preferred provider.
He declined to order the quashing of the contract award.
Adam Hundt, partner at Deighton Pierce Glynn which acted for the mother, said the contract was “tainted by illegality”.
“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,” he added.
In a joint statement the cluster and the council said: “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 will continue to focus on this duty during the remainder of the process.
“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.”
Solicitor statement and PCT statement (attached)
19 October 2012