Kieron Dominic Scully v Northamptonshire County Council

A local authority may discharge its duty to meet an adult’s care and support needs by making direct payments under Care Act 2014. That statutory method does not require, imply, or establish an employment contract between the authority and a person engaged to provide the care.

Whether a further employment contract should be implied depends on the common-law test of necessity. It must be necessary to explain the parties’ actions. A contract will not be implied where the accepted facts provide another explanation for the care arrangements. A person’s alleged lack of contractual capacity requires evidence. Even if established, it does not of itself make it necessary to imply a contract with the local authority.

The appellant provided care and support to his adult brother, S, between 2013 and 2020. The respondent local authority made direct payments to fund S’s care. The appellant brought claims for race and disability discrimination, arrears of pay, and other employment payments, alleging that the respondent was his employer.

Following a preliminary hearing, the Employment Tribunal at Cambridge found that the appellant worked under an express employment contract with S, or with S’s mother acting on S’s behalf. It found no employment relationship between the appellant and the respondent, and dismissed all claims.

On appeal, the appellant contended that the statutory care arrangements, and S’s alleged lack of capacity to contract, required a contract of employment with the local authority to be implied. The central issue was whether the tribunal had erred in finding that the respondent was not the appellant’s employer.

1. Appeal refused. The tribunal was entitled to conclude on its unchallenged findings of fact that no express or implied employment contract existed between the appellant and the respondent.

2. Care Act 2014 expressly identifies direct payments as a means by which a local authority may meet care and support needs. The making of such payments can therefore discharge the authority’s statutory duty. It neither requires nor implies that a carer is employed by the authority. The accepted facts instead showed that direct payments funded care provided under an express employment contract between the appellant and S.

3. A contract of employment may be implied only where necessary to explain the parties’ actions, applying The Aramis [1989] 1 Lloyd’s Rep. 213 and James v Greenwich London Borough Council [2008] ICR 545. It was unnecessary here. The findings concerning S’s mother’s role in arranging carers and managing the care arrangements provided an adequate alternative explanation.

4. South Lanarkshire Council v Smith was not binding authority to the contrary. Its control-based approach had been overtaken by James, and it arose under a different statutory scheme where the authority retained substantial practical control over recruitment, appointment and training.

5. There was no medical or psychological evidence that S lacked capacity to enter the employment contract. Capacity could not be determined by assertion. In any event, incapacity would at most render the contract voidable, not void, and would not make a contract with the respondent necessary. The regulatory and trust arguments likewise did not establish an employment relationship.

• Employment Appeal Tribunal: Appeal refused. The Employment Tribunal’s dismissal of the claims was upheld.
• Employment Tribunal at Cambridge: Following a preliminary hearing on 28 February 2022, the tribunal held that the respondent was not the appellant’s employer and dismissed the discrimination and employment-payment claims. Judgment was sent on 13 March 2022; written reasons were sent on 19 May 2022.