In-house versus franchise on sensitive instructions: Where the operational risk actually sits

Before instructing a firm to manage a probate or Court of Protection property, there is one question worth asking that most professional appointees never ask: who is actually going to attend the property, and who do they work for?

The brand that wins the instruction is not always the answer. A good share of the UK property services sector delivers its work through franchise networks and subcontractor panels. The name on the letterhead belongs to one company. The person who picks up the keys and walks the rooms works for another. Sometimes the two are separated by a single franchise agreement. Sometimes there is a regional operator in between, and the chain runs to three links before it reaches a human being at the front door.

Most appointees never see that chain. The instruction letter goes to the brand, the invoice comes back from the brand, and the structure underneath never comes up until something goes wrong.

The operating models behind the brand

National coverage is expensive to build. A firm that wants to offer attendance at any property in England and Wales has, broadly, two routes. It can employ people in every region, and carry the recruitment, vehicles, training and management cost that comes with that. Or it can assemble coverage from businesses that already exist locally: franchisees trading under the national brand, or independent contractors engaged job by job from a panel.

I want to be careful here. Franchising is a legitimate model, and it has built some of the most consistent consumer businesses in the country. A franchise agreement done properly buys real things: brand standards, central training, an operations manual, an audit regime. The question for this piece is narrower. What does the model do to accountability when the asset is an empty house belonging to someone who has died or lost capacity, and the appointee's conduct on that file is measured in reasonable steps?

Where the contract chain leaves the appointee

Start with the legal structure, because it is the part nobody reads until there is a claim. A franchisee is an independent business. The standard franchise agreement says so in terms: the franchisee is neither the agent nor the employee of the franchisor, and the franchisor accepts no liability for the franchisee's acts or omissions.

That structure matters because the law largely respects it. In Barclays Bank plc v Various Claimants [2020] UKSC 13, the Supreme Court confirmed that vicarious liability does not extend to true independent contractors. Barclays was not liable for the conduct of a doctor it had engaged for decades but never employed. The same logic runs down a property services delivery chain. When damage happens at a property and the person who caused it was engaged by a franchisee, the claim does not run to the national brand whose name was on the quote. It runs to the local operating company, and recovery depends on that company's insurance position and on whether it still exists by the time the claim lands.

Insurance follows the same boundary. An employer must hold employers' liability cover under the Employers' Liability (Compulsory Insurance) Act 1969, and the 1998 Regulations set the minimum at £5 million per claim. That is a meaningful floor, and it applies to employed staff. It does not apply to a self-employed contractor attending under his own steam, whose public liability cover is voluntary and varies a lot. I wrote about what that looks like when it goes wrong in the first piece in this series: a contractor instructed on a probate property, £30,000 of flood damage, no insurance, nothing worth pursuing. The franchise question is the same problem moved one contractual step further from the appointee, which makes it harder to see and no easier to recover from.

What vetting means in each operating model

Every provider in this sector says its people are vetted. The word means different things in different operating models, and the difference is structural rather than a matter of effort.

A firm that employs its workforce vets continuously, whether it intends to or not. Recruitment, DBS checks, training records, supervision, complaints, the firm's own insurance renewals: all of it sits inside one company, in front of the people who answer for it. When a standard slips, the firm finds out through its own management line.

Vetting across a network is a different exercise. The franchisor checks the franchisee at onboarding and audits at intervals. Between audits, the local operator recruits its own staff, sets its own pay, manages its own insurance renewals and decides where corners get cut. The central brand's knowledge of any given property is whatever the local operator chooses to send back. I have read handover files where the inspection photographs were taken from the pavement. We have taken over properties where the keys had passed through three sets of hands and nobody at the instructing firm could say who still held copies.

When I raise this with solicitors, the usual response is that the network is the provider's problem to manage. Up to a point, it is. The difficulty is that the appointee carries a duty the provider does not. An executor or deputy who instructs a national brand has taken reasonable steps only if the arrangement delivers what the file assumes it delivers. "We instructed a national firm" is a good answer right up until the question becomes "and who attended, and what did you know about them?"

The questions worth asking at instruction stage

Instructing solicitors already know this logic from their own regulation. The SRA Code of Conduct for Firms puts it at paragraph 2.3: a firm remains accountable for compliance where its work is carried out through others. Outsourcing the work does not outsource the accountability. The same principle, applied to property instructions, produces four questions that take five minutes to ask and tell you how a provider is put together:

• Who employs the person who will attend the property?
• Whose insurance responds if they cause damage, and at what level?
• Who holds the keys, and where is that recorded?
• If the local operator fails or leaves the network mid-instruction, what happens to my file?

A provider delivering in-house can answer all four in one sentence each. A provider delivering through a network can usually answer the first one only after checking which postcode the property is in. In my view that difference is the honest test of an operating model, and it tells you more than anything on either firm's website.

A stake in the ground

On a sensitive instruction, the firm that holds the contract should be the firm that does the work. Where it is not, the appointee is carrying a gap between who they think they instructed and who is inside the property, and that gap surfaces at the worst possible moment: after the damage is done, when the local operator's insurance position suddenly matters.

Networked providers do not fail routinely. Most properties, most weeks, nothing happens. But as I argued in the piece on empty probate property, "nothing happened last time" is not a defensible answer if something happens this time. The appointee's position is judged on the arrangement they put in place, not on the luck they had with it. The time to ask who actually does the work is at the instruction stage, while the answer can still change the decision.

I would be interested to hear from professional appointees on this. Whether you recognise the contract chain from your own files, or whether you have an instruction-stage protocol that handles it better than what I have described here. You can find me at [email protected] or on LinkedIn.

At Prospect PS we deliver every instruction through our own employed teams because accountability on these properties has to sit where the contract sits.