Q&As

In the case of a local authority service user who has been receiving a personal budget which they use to employ a carer, but who no longer has mental capacity and whose personal budget is being removed, where there is no lasting power of attorney or authorised person, is the employment contract between the service user and the carer frustrated (and therefore terminated by operation of law)? If not, who can act on behalf of the service user to give the carer notice of termination for redundancy?

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Published on LexisPSL on 27/04/2021

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • In the case of a local authority service user who has been receiving a personal budget which they use to employ a carer, but who no longer has mental capacity and whose personal budget is being removed, where there is no lasting power of attorney or authorised person, is the employment contract between the service user and the carer frustrated (and therefore terminated by operation of law)? If not, who can act on behalf of the service user to give the carer notice of termination for redundancy?

In the case of a local authority service user who has been receiving a personal budget which they use to employ a carer, but who no longer has mental capacity and whose personal budget is being removed, where there is no lasting power of attorney or authorised person, is the employment contract between the service user and the carer frustrated (and therefore terminated by operation of law)? If not, who can act on behalf of the service user to give the carer notice of termination for redundancy?

An individual who employs another individual to work under a contract of employment will have the same obligations as any employer. For further information, see Practice Note: Employee status and Employees and workers: checklist of rights.

In the employment context, frustration will only be found to have occurred when performing the contract:

  1. becomes impossible, or

  2. would be a thing radically different from that agreed between employer and employee under the terms of the employment contract

It will be very rare indeed that this occurs.

In addition, for the doctrine of frustration to apply, contract law generally requires that the thing that happens to cause the frustration was not the fault of either party.

For information on the doctrine of frustration, see:

  1. the section of Practice Note: Distinguishing dismissal from other forms of termination entitled Distinguishing dismissal from other forms of termination—Operation of

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