In the fourth part of our series on contract management pitfalls, we look at the risks arising out of varying the terms of construction contracts.
The abuse of vulnerable people by people entrusted with their care has become something of a live issue in recent years. At the extreme, and tragic, end of the scale was the case of Baby P whose dreadful neglect and eventual violent death showed up the inadequacies of the council supposedly monitoring his wellbeing. And among older people, the shocking care at the Winterbourne View home in Bristol was highlighted by the BBC’s Panorama, raising further awareness of problems elsewhere in the care sector.
Those cases, along with others publicised by the media, have acted as a catalyst for actions taken against care providers. However, the looming withdrawal of legal aid for abuse-in-care cases in April 2013, introduced under the Jackson reforms, is also influencing what we are seeing as solicitors in the sector. Currently, at Anthony Collins Solicitors, we are working on four cases of vulnerable people who say they were abused by their care home. These matters include fracture, bruising and other shocking injuries. We are also working on at least 10 childcare cases involving local authorities across the UK.
What these cases highlight is that the quality of care for vulnerable people in our society is simply not good enough. Because of that, local authorities and care providers are having to put aside huge amounts of extra money to insure themselves against sub-standard care under their watch. So when legal aid is removed in April, people who have suffered in care will lose a vital lifeline in gaining redress. Clearly, that raises the possibility that fewer people will be able to take action over abuse.
This is not a case of a group of law firms unjustifiably complaining about the taps being turned off when it comes to abuse in care. These are not ‘ambulance-chasing’ cases. Many of them involve neglect and abuse of some of the most vulnerable people in society. As the Baby P and Winterbourne View examples demonstrate, abuse can occur on a shocking level. It is vital, therefore, that we ensure those who need access to justice get it.
Against this background law firms are being forced to consider how they will approach cases once legal aid is removed in April. Many will consider conditional fees, where the lawyer does not get paid unless the case is successful. This approach ensures those vulnerable people can continue to instruct solicitors when they believe care has fallen below a certain standard. Children, after all, have the right to a decent quality of life – that is a cornerstone of a civilised society.
Clearly firms will carry a financial risk in future which may tempt some to leave the abuse-in-care market. It can be assumed that such a chain of events is not the Government’s intended effect of the withdrawal of legal aid. However, it is a somewhat inevitable result.
The reality is that the Jackson reforms will have a significant impact on how we investigate abuse in care under the current system. Each successful case ensures that local authorities and other providers are forced to confront the substandard care under their watch. This helps us avoid making the same mistakes again in future. Legal aid also ensures a level playing field and that those vulnerable people who have been affected by substandard care get the redress they need.
As mentioned before, this is not about law firms who are instructed in abuse-in-care cases losing out. It is about ensuring that those people who need services get them, regardless of how well off they are. That is a basic human right. However, it is unlikely that the Government will decide to reinstate legal aid for these cases. Given that, it is vital that law firms consider – and fast – how they can continue to serve those who now, more than ever, need support to ensure the care sector continues to improve. And local authorities should also prepare themselves for more cases as the countdown to the removal of legal aid continues.
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