National Care Service: business and regulatory impact assessment

Competition assessment

This section of the BRIA considers the impact of the Bill on competition between firms and on whether it will hinder new entrants to the sector or limit consumer choice or information.

The main impacts on competition arise from the provisions in the Bill on procurement and changes to the enforcement powers of the Care Inspectorate. As noted above we are not proposing any changes to the procurement procedural rules which are founded on principles of transparency and non-discrimination. Over time, the development of ethical commissioning and procurement, strengthening Fair Work in the sector and market shaping and market oversight of social care provision could impact on competition between firms but it is not possible to analyse these in detail at this stage.

The approach to ethical commissioning and procurement and market shaping and oversight will be consistent with the wider approach to strategic planning and public procurement already in place in Scotland. This aims to streamline the public sector's dealings with business, and adopt more efficient and collaborative systems.

In respect of public procurement, all public bodies are required to conduct their procurement activities in an open and transparent fashion, and in particular to advertise their contractual requirements on a single website, Public Contracts Scotland, all of which should increase the public contract opportunities available to suppliers. Public bodies are also able to conduct preliminary market consultation in advance of a tendering opportunity, which can foster collaboration, for example, by seeking advice from independent experts or the market itself.

For social and other specific services, the requirement to advertise and compete for a procurement opportunity applies at a higher threshold (currently £663,540 and above) than for other service contracts. This recognises that a procurement process for these contract types can be conducted in a way that for example, takes into account the quality, continuity and accessibility of the service and the involvement and empowerment of users in contract award decisions.

The NCS will operate within these rules so market shaping in and of itself should not give rise to significant impacts on competition. The market shaping role will involve engaging with the market to stimulate a diverse range of care and support services to ensure people's needs are met and that the market as a whole remains vibrant and stable.

The procurement provisions in the Bill will allow the NCS and local care boards to have the option to consider targeting mutual organisations when seeking invitations to bid for contracts. While the impacts on competition between firms could be significant, they are likely to be outweighed by the benefits to people who access care and support and the wider economy and society.

We do not anticipate any immediate competition impacts of the information sharing and information standards provisions of the Bill. In due course we expect that clear requirements will support competition but this will be subject to future regulatory impact assessments.

Right to breaks from caring

The right to breaks from caring, does not directly or indirectly limit the number or range of suppliers, nor does it limit the ability of suppliers to compete or reduce suppliers' incentives to compete.

The right to breaks from caring provision will result in an increase of the number of carers seeking access to the social care support market. This implies a need for more support, which will increase the demand for short breaks provision and therefore potentially promote greater competition in the market place. The legislation may also foster competition among large, small and micro enterprises in relation to the delivery of short break services.

Anne's Law

No impacts on competition and providers' ability to enter the market were noted in consultations with care providers on Anne's Law.

Care Inspectorate – Enforcement and related powers

We do not anticipate the provisions outlined in the draft Bill will have an impact on competition and providers' ability to enter the market. However, we aim to introduce additional regulations, via secondary legislation, to strengthen the current fitness of provider requirements. This will set further criteria on who can register a care service and those could have an impact on prospective providers. A further consultation will be carried out for more detailed provisions set out in the secondary legislation.