PLC Public Sector reports:
The move towards personalisation, putting service users in control of their care, is part of the transformation of social care set out in ‘Putting people first: a shared vision and commitment to the transformation of adult social care‘.
Personalisation creates a number of interesting issues for local authority lawyers as service users manage their own budgets and buy bespoke services. For example, how does the council balance service user choice with the need to ensure it is discharging its statutory responsibilities? What will happen to the employees who were providing these services previously? How can councils ensure that the flexibility of the arrangements doesn’t force smaller service providers from the market? We will be closely following and commenting on developments in this area. Here’s our starter for ten…
Contracting for individual budgets
There are several ways service users can become more in control of their care, including contributing to the specification and award of care services. However, the most radical way is through managing their own budgets. Some service users will receive and manage a direct payment; others will use the service of a broker to help them identify the best way to meet their needs. Brokers may even enter into contracts on behalf of service users. The authority may want to specify the terms on which the broker will contract with third party providers if it can do so without unduly limiting service user choice.
However, although personalisation brings the benefit of choice, service users may lose out financially or even in the standard of care they receive if they cannot take advantage of the authority’s greater bargaining power.
One way of addressing these potential downsides of personalisation could be the use of framework (spot purchase) agreements set up by the council with providers which meet a required standard. Such agreements would permit the council to specify the terms on which services must be provided and thereby ensure an element of protection and consistency for users. Service users would then be able to select specific services based on information provided by the council about the range of services and prices on offer, together with published feedback on those services from other users. Unlike under current arrangements, the contract to deliver care services to an individual would be between the provider and that individual. It would, of course, be open to service users to make their own arrangements outside of these agreements.
TUPE or not TUPE?
It is clear that TUPE was not designed with personalisation in mind. Nevertheless when a service user changes care provider, even if that change is from a block contract to an individual arrangement, TUPE may apply if a specific employee had previously been providing care predominantly for that service user.
This is because TUPE applies in two circumstances: the transfer of an undertaking (i.e. a stable business or part of a business); and (since 2006) also to a service provision change. Whilst an individual care worker is unlikely to amount to an “undertaking”; all that is required for a service provision change is for the activities provided under a contract to be the same before and after the transfer, provided they are carried out for the same client (i.e. pursuant to an outsourcing, insourcing or retendering). Where an individual manages their own budget, it is likely that the client for the services will cease to be the authority. However, if the individual budget is managed by a broker on behalf of a service user, such a person may be seen as the authority’s agent and thus the “client” for the services both before and after the transfer.
How can these issues be resolved to the satisfaction of both council employees and service users? Service providers are likely to want the authority to indemnify them against redundancy costs if service users choose, either during or at the end of a contract, to manage their own budgets.
Ensuring a viable market for care services
One risk associated with large scale take up of individual budgets is that the lack of security may force smaller providers to merge with others or to leave the market altogether and so restrict rather than enable choice. Authorities should give some thought to how to ensure a viable, healthy and competitive care market into the future. Although providers would not be guaranteed any work under a framework agreement, the fact that prices and terms are determined at the outset may provide them with some comfort. As framework agreements are used, providers will begin to be able to make some predictions based on trends which should similarly help them with forward planning. We hope the market will see personalisation as an opportunity for creative solutions such as the setting up of social enterprises to provide care and health services.
However, it is still likely that more choice for service users, will mean less certainty for the providers. The success of personalisation for service users, providers and authorities depends on striking the right balance between these apparently conflicting needs.
TUPE is clearly going to be a major issue in all local authority procurements trying to achieve person centered care. Due to lack of capacity most individuals will need to make use of a broker rather than procuring care themselves, and in many cases it would seem likely that the authority will not be able to demonstrate a sufficient division of control over the choices that the broker makes to ensure that the ‘client’ for the services has changed. Considering the need for the authority to act in the service users best interests at all times they will generally need to have the ability to ‘step-in’ to the shoes of the broker and take control of contracts with service providers which would seem to make it even more likley that TUPE will apply.
One additional issue is that once service users and their families have control over their budgets they may wish to change the care package selected on a more regular basis – which would incure additional costs for all involved and drive up prices further as the service providers would have even smaller economies of scale.
I agree that TUPE could apply to SOME de-commissioning of contracts but the decision to give a person a direct payment, and let them be their own commissioner is surely not a transfer of an undertaking, but the cessation of the making of arrangements by A for B, with C, and the beginning of the making of arrangements by C with X, Y or Z, for him or herself?
I would also call readers’ attention to the fact that no incapacitated person can legally HAVE a broker foisted upon them, under the common law of agency. You have to have enough capacity to know you need help in order to be able to engage instruct and give authority to an agent.
And furthermore, no authority has a duty to act in the best interests of a service user, UNLESS that service user is incapacitated. People have autonomy in this country, unless and until they lose the presumption of capacity. That means that they can refuse social services when offered, if they are content to rely on other sources of help, or judicially review unreasonable, invalid or illegal offers.
The use of a framework agreement has very clear regulation set around it as to how works or services are called off of it, these regulation very clearly state that, they will either call off on the baisis of pre established price and qulaity as would be the case in a Dom care contract or would undertake a minin tender if these have not been pre established. In the case of a framework set up on pre agreed qulaity and price evaluation the reulations state very clearly that you should always go to the top scoring oranisation and only if they are not able to resource the service would you be able to go to the second placed organisation etc. etc.
Although social care is a residual service (part B) and therefore not covered by full EU directives, I wonder if using the title of FRAMEWORK AGREEMENT will open us up to challenge when service useres pick their organisation of choice based on their own preference and not on the pre established framework agreement call off procedures.
When commissioning Part B services it is useful to comply with the Public Contracts Regulations 2006 to the extent that they enable the authority to comply with its obligations under the EC Treaty; namely to treat all bidders fairly, equally and to conduct the procurement transparently. In the majority of procurements the successful bidder will be clearly identifiable following an evaluation based on clear award criteria and a transparent scoring system. However, it is likely that in some contracts, such as for social care services, the need to ensure that service users are happy with the organisation providing their care, an element of subjectivity is included in the evaluation. It may even be the sole criterion on which services are called off, assuming that sufficient information about prices and the provision of the service were evaluated when the framework was set up. Providing bidders are made aware that work will be awarded in this way at the outset of the framework procurement, it seems unlikely that a challenge to this element of the selection process would be successful.
Social care commissioning has its own language and it may be that the use of the term “framework agreement” would be confusing. However, the model suggested in the post could operate as a framework within the meaning of the Regs, even if it is procured differently.
Another strategy for providing service users some comfort when buying their own services, instead of using framework agreements, could be the use of an accreditation system, operated by the council. Providers would have to meet certain minimum standards to be accredited and service users could feed back to a forum hosted by the council.
this is impressive!