Outsourced public services “failing to protect rights of individual service users”: report

Central government and local authorities do not have proper information about the quality of outsourced public services, and are often unaware of rights abuses until too late, a report from law reform and human rights charity Justice has claimed.

Published today (12 June), the report found that some local authorities are outsourcing medical assessments to determine individuals’ vulnerability in the context of homelessness applications, without even a basic written contract.

After sending FOI requests to 19 councils, JUSTICE revealed that only two could confirm they had a contract with the provider, and 17 councils did not have easily accessible information about the outcome of the assessments.

Further, the report revealed how, in the Brook House immigration detention centre, the government outsourced public services to providers “despite knowing they were not capable of meeting the legal standards required of those services”.

The Working Party focused on four key front-line service areas which directly impact individual’s fundamental rights: homelessness medical assessments; benefits health and disability assessments; adult social care; and prisons / immigration detention centres.

The authors warned that “far too often”, contracts are awarded to providers for the lowest cost rather than a wider consideration of value for money.  

The report set out “recurring problems” with government outsourcing:  

• A lack of engagement and oversight by public authorities, often waiting until there is service failure or scandal before addressing issues.
• Too much focus on short-term cost saving, rather than a wider consideration of value for money and quality.
• A lack of focus on the individual rights of service users, leading to serious rights breaches and the state being liable for rectifying them.
• The poor quality of government data on outsourced services and a lack of transparency
• A lack of accountability: it is the public authority’s responsibility to ensure individuals are aware of their rights and able to enforce them.

Acknowledging that both the UK’s main political parties remain committed to “significant outsourcing”, the report called for a move away from a hands-off approach towards more collaborative practices, “designed to better uphold people’s rights and meet the government’s legal duties”. 

The report made the following recommendations to help create a “responsible, rights-centred approach” to government contracting:

1. Increase Early Engagement to better assess services and the possible problems/ solutions. Individual service users should be consulted beforehand and an early Rights Impact Assessment should assess the potential risk of individual rights breaches.  

2. Emphasise value during procurement, which must be understood to include the rights protection of (often vulnerable) service users, and the risk of unintended costs to individuals and the public authority if things go wrong. 

• • Value should be emphasised in Most Advantageous Tender regulations and guidance, a recommended new Procurement Policy Note on “Protecting Individual Rights”, and consideration should be given to excluding providers who commit serious rights breaches.
  • If a tender process does not reveal a bidder which can meet the basic legal standards for individual rights required, then the public authority should not award the contract.

3. Better use of the contract to protect rights. Serious rights breaches should lead to proper penalties in the contract. A new Individual Rights Focused Model Contract Guidance should provide model provisions on protecting rights. Outsourced assessments must have a written contract, with clear protections for individuals. 

4. Pro-active contract management and oversight. There should be more independent auditing, greater use of independent oversight bodies (such as inspectorates and ombudsman) and central government oversight of local government contracting. 

5. Improve transparency and accountability: there should be published information about performance of medium and high-risk services, reform of Freedom of Information law to ensure contracts are published and not excessively redacted, individuals should be given information on how to challenge decisions and access independent oversight bodies.  

Stephanie Needleman, Legal Director of JUSTICE, said: “JUSTICE has, for many years now, been concerned about the lack of accountability when public services are outsourced to private bodies. The many examples in this report, from the Brook House scandal to local authority homelessness assessments taking place without even speaking to the individual, show the desperate need for change.  

“The new Procurement Act regime represents an opportunity for public authorities to re-focus on individual rights and proper value for money. However, for this opportunity not to be squandered, the government must adopt the evidence-based recommendations of this report.”    

Sir Gary Hickinbottom, Chair of the Working Party, said: "The outsourcing of public services is here to stay, regardless of the make-up of the next Government. Instead of lurching from crisis to scandal, with government and provider blaming each other, we need to find a better way - and the starting point must be putting people using the services at the heart of the contracting process. 

 “Our report sets out the practical measures necessary to do that, by involving individuals and considering their rights from the very start to the end of the process. By doing so we will not only raise the standards of service delivery but ensure true value for public money."

Lottie Winson