A National Care Service for Scotland: consultation

Commissioning of services

BSL version of Chapter 5: Commissioning of services

The case for change

How we identify need and then commission community health and social care services at a local level will look and feel different moving forward. Ethical Commissioning will become a cornerstone that the National Care Service will use to oversee continuity of approach at a local level. Continuity of approaches to commissioning, the process to determine needs and how we will deliver services, supports and solutions, will deliver better consistency of access across Scotland.

This chapter sets out the role the National Care Service will have in embedding ethical commissioning at a local level, including driving up quality and securing person centred outcomes and fair work practices. It will ensure full engagement with those who access care and support, those who support people to access care and support, families and friends, unpaid carers, the workforce and providers. It also proposes services for which a "once for Scotland" commissioning and procurement approach may benefit individuals.

Terminology

"Commissioning" and "procurement" are terms used generally to describe how goods and services are planned and obtained.

Commissioning is the process of assessing and identifying the needs and the market available; developing a vision, strategy, policy, and forward plan to meet these needs; and designing a service or system for delivery which includes monitoring and continually improving the effectiveness of how these needs are met in practice. Commissioning may include a decision on whether to buy something from someone else or provide it within the organisation, and will not automatically lead to a procurement - that's just one choice.

Ethical commissioning, in relation to social care services, has a person-centred care first/human rights approach at its core, ensuring that strategies focus on high quality care. This includes fair work practices which encourage the development of a quality, sustainable, and appropriately valued work force; climate and circular economy considerations in our service footprint to support a just transition to net zero; financial transparency and commercial viability of any outsourced services; full involvement of people with living experiences throughout, putting the person at the centre of making the choice; and a shared accountability between all partners and stakeholders involved in delivery.

Where a service is to be outsourced, Procurement is the process of engaging collaboratively with the market, key stakeholders, strategic partners, and representative users of the service to deliver the commissioning strategy, policy, and service in practice. Ethical and Sustainable Procurement ensures that these are not only delivered to the right quality, in a timely, efficient, legal, and commercially sustainable way, but that we use the power of procurement to meet those broader social, economic and environmental objectives agreed in the vision.

How it works now

For integrated health and social care services, at present, local authorities and Health Boards delegate commissioning responsibility for the agreed services to integration authorities. For all but one area, the integration authority is the Integration Joint Board (IJB) (Highland is the exception where services are delegated between the Health Board and local authority).

The IJB then agrees a budget with the local authority and Health Board for the delivery of those integrated services, and the ambitions set out in the Strategic Plan, within their area. Spend on these public services is significant: local authorities spend around £3.4 billion on adult social care alone, much of it with third and independent sector care providers, in addition to significant investment in primary and community healthcare. Once the budget is agreed the IJB allocates the approved proportion of the budget for the specific service (for example a specific social care service) back to the local authority and Health Board as necessary. The IJB then directs the local authority and Health Board to use that budget to deliver the agreed services as per the strategic plan. The teams delivering those services are often referred to as Health and Social Care Partnerships (HSCPs).

Under the Public Bodies (Joint Working) (Scotland) Act 2014 (PBJWSA), IJBs are required to draw up a strategic plan to meet Scotland's national health and wellbeing outcomes. This strategic plan is then used as the commissioning strategy and includes assessing and making decisions on the following:

• Models of care and nature of services needed
• Quality and outcomes of service as agreed with local authority and Health Board
• Budget available for service
• Estimating and forecasting the future need of the local area
• The capacity of the local market to provide services
• Recommendations on whether services should be delivered in house (by the local authority or Health Board) or by out sourcing,
• Whether out-sourced services should be obtained through Public Social Partnerships, by grants or by procurement
• How to spend the pooled budgets from local authorities and Health Boards
• IJB are also responsible for assessing the market and whether the outcomes within the commissioning strategy have been met
• Managing relationships with service providers where appropriate

Health Boards and local authorities take forward the delivery and implementation of social care services based on the needs identified in the commissioning strategy. As services are often considered both health and social care, or are interconnected to other services, IJBs bring staff together for the delivery of integrated services. These services may be delivered by the local authority and/or Health Board directly employing staff themselves, or they may pay other companies or organisations to do so.

Where the local authority or Health Board decides to pay another organisation or company to deliver the service, as a service provider, this may be arranged through a grant or procurement process. Procurement is currently a key method used to establish these services, with local authorities contracting out as much as 80% of the care home and care at home provision to private and third sector providers. Alternatively they may also develop public social partnerships with third sector bodies (not commonly used and also known as alliancing).

Where a local authority or Health Board uses a service provider to deliver the service, the local authority or Health Board who entered into the agreement are responsible for the oversight and management of the services against the agreed specification (i.e. service description including how the organisation will deliver the service), quality standards, and terms and conditions.

Some people receiving support may also choose to receive direct payments, and buy their own care or employ staff themselves.

Where procurement is identified as the method of obtaining the service or support for social care, local authorities' procurement professionals will source the services and support from a range of private sector, third sector and other public sector bodies via a combination of the following methods. Health Boards will source services for health care, often through the NHS National Procurement:

• call off contracts from collaborative framework agreements. A framework agreement is an agreement with service providers to establish terms governing contracts that may be awarded during the life of the agreement. In other words, the framework agreement sets out terms and conditions for which local authorities can make specific purchases (call-offs)
• direct award contracts, for example using the National Care Home Contract which has agreed pricing, or where this method has been deemed appropriate by procurement professionals after the consideration of equal treatment and non-discrimination principles
• tendering services, through a variety of procurement processes which give multiple organisations the opportunity to submit bids to deliver the service or support, such as through using Quick Quotes, Open Procedures or the Light Touch Regime.
• Service Level Agreements with other public sector bodies
• Public Social Partnerships also known as alliancing as the end result of a procurement process

Currently the most commonly used method of procurement for social care services and supports are tendering and call-offs from frameworks agreements. Framework agreements are non-obligatory meaning the local authority does not need to use the framework agreement nor are they committed to a specific value of spend through the framework agreement. Once a local authority establishes a specific requirement, or has a confirmed budget it can call-off from a framework agreement to meet that particular local requirement. For social care services, framework agreements have most commonly been established by local authorities or by Scotland Excel, the Centre of Procurement Expertise for local authorities.

Public Sector procurement is required to comply with the following:

• Procurement Reform (Scotland) Act 2014
• Public Contracts (Scotland) Regulations 2015
• Procurement (Scotland) Regulations 2016
• The World Trade Organisation's Government Procurement Agreement
• Any relevant case law

The Public Contracts (Scotland) Regulations 2015 describe the detailed procedural rules that apply to the end to end process for awarding a public contract, and set the limited terms for applying the Light-Touch Regime that applies to social care and other specific services. In applying these regulations public bodies must adhere to the principles of non-discrimination, equal treatment, transparency, and proportionality.

The Procurement Reform (Scotland) Act 2014 requires additional transparency obligations, including an obligation to comply with the sustainable procurement duty to consider how to deliver on improved outcomes for the economy, the environment and society and to promote fair work practices, including payment of the real Living Wage.

Public funding through grants and procurement promote Fair Work First, which includes effective staff voice, workforce development, no inappropriate use of zero hour contracts, action to tackle the gender pay gap and diversity and fair pay, including the real Living Wage.

In respect of primary care IJBs are also responsible for planning, design and commissioning of the primary care functions (including general medical services) delegated to them under the 2014 Act based on an assessment of local population needs, in line with the IJB Strategic Plan.

This includes collaboration with Health Boards on the local arrangements for delivery of the 2018 Scottish GP contract. This involves development of a Health and Social Care Partnership Primary Care Improvement Plan, in partnership with GPs and collaborating with other key stakeholders, that reflects local population health care needs.

Issues and problems

The Independent Review of Adult Social Care (IRASC) identified we have world leading policies for delivering social care, but they are not effectively implemented throughout Scotland. There is a lack of consistency of services provided, integration of health and social care, and practices within commissioning and procurement to implement the policies. Differences in commissioning and procurement practices is also one of the factors considered to contribute to the lack of consistency and parity of service across Scotland and the ability to have portable packages of support, in addition to availability of services, and accessibility criteria. Access to service and support is addressed in more detail in the section of the consultation on Access to Care and Support.

The IRASC found that budget constraints, and a focus on price, lead to poor outcomes for people who use services and negatively impacts on the level of provision, including preventative and collaborative interventions. In particular, using generic framework agreements or contracts where based on defined services or hourly rates does not work well for people with fluctuating needs for support, nor does it support sustainability for service providers. There is limited involvement of people with lived and living experience, including users of services and unpaid carers, in commissioning and procurement, and limited market engagement in service design

The market-led approach to commissioning and procurement can foster "competition, not collaboration", which, in turn, can lead to too much focus on costs rather than high quality, person-centred care and support. It can also result in poor conditions for the work force including a lack of fair pay. This is further aggravated with a lack of cost transparency.

"Short-termism" results in providers spending significant time and resources applying and reapplying for contracts. This results in uncertainty for providers and the workforce, which makes it difficult to attract and retain staff and impacts on the continuity of care and support provision.

The methods for service providers to challenge local authorities or Health Boards on the decisions to award contracts or frameworks agreements are deemed too difficult, therefore they need to be easier and more accessible.

There is inconsistent service monitoring and quality management by local authorities and Health Boards. Improvement across localities is therefore not consistent and is primarily driven by external verification processes such as Care Inspectorate inspections.

Relevant Independent Review of Adult Social Care Recommendations

Recommendation 32: Commissioners should focus on establishing a system where a range of people, including people with lived experience, unpaid carers, local communities, providers and other professionals are routinely involved in the co-design and redesign, as well as the monitoring of services and supports. This system should form the basis of a collaborative, rights based and participative approach.

Recommendation 33: A shift from competitive to collaborative commissioning must take place and alternatives to competitive tendering developed and implemented at pace across Scotland. Commissioning and procurement decisions must focus on the person's needs, not solely be driven by budget limitations.

Recommendation 34: The establishment of core requirements for ethical commissioning to support the standardisation and implementation of fair work requirements and practices must be agreed and set at a national level by the new National Care Service, and delivered locally across the country.

Recommendation 35: To help provide impetus and support to the adoption of a collaborative and ethical approach to commissioning, the idea from CCPS (Coalition of Carers and Support Providers) of pressing pause on all current procurement should be fully explored in the context of a National Care Service, with a view to rapid, carefully planned implementation.

Recommendation 36: The care home sector must become an actively managed market with a revised and reformed National Care Home Contract in place, and with the Care Inspectorate taking on a market oversight role. Consideration should be given by the National Care Service to developing national contracts for other aspects of care and support. A 'new deal' must form the basis for commissioning and procuring residential care, characterised by transparency, fair work, public good, and the re-investment of public money in the Scottish economy.

Recommendation 37: National contracts, and other arrangements for commissioning and procurement of services, must include requirements for financial transparency on the part of providers along with requirements for the level of return that should be re-invested in the service in order to promote quality of provision and good working conditions for staff.

Recommendation 38: A condition of funding for social care services and supports must be that commissioning and procurement decisions are driven by national minimum quality outcome standards for all publicly funded adult social care support.

Recommendation 39: A decisive and progressive move away from time and task and defined services must be made at pace to commissioning based on quality and purpose of care – focused upon supporting people to achieve their outcomes, to have a good life and reach their potential, including taking part in civic life as they themselves determine.

Recommendation 40: Commissioning decisions should encourage the development of mutually-supportive provider networks as described above, rather than inhibiting co-operation by encouraging fruitless competition.

Recommendation 41: Commissioning and planning community based informal supports, including peer supports, is required to be undertaken by Integration Joint Boards and consideration of grant funding to support these is needed.

Recommendation 44: Putting in place national minimum terms and conditions as a key component of new requirements for commissioning and procurement by Integration Joint Boards. Specific priority should be given to pay, travel time, sick pay arrangements, training and development, maternity leave, progression pathways, flexible pathways and pension provision. The national evaluation of terms and conditions should be undertaken to inform these minimum standards and these should be reviewed as required.

What we propose

The Scottish Government has committed to implementing the recommendation to create a National Care Service (NCS), and to reform IJBs to become Community Health and Social Care Boards (CHSCBs) to be the delivery arm of the NCS.

We propose that the NCS will develop and manage a National Commissioning and Procurement Structure of Standards and Processes for ethical commissioning and procuring of social care services and supports.

The Structure of Standards and Processes will:

• define the approach to national and local level ethical commissioning and procurement
• provide templates to support decision making and procurement processes
• detail core criteria that must be considered when decisions are being made on how to meet the needs of the individual and deliver the service, including quality standards for the evaluation of services. Core criteria will include emphasis on workforce terms and conditions that support, develop, empower, and value their staff, the need to meet personal outcomes, and requirements for a level of financial transparency of publically funded service providers.
• be driven by national minimum quality outcome standards
• define stakeholders who must be engaged as part of the co-production process, including unpaid carers and those with lived and living experience
• embed standard terms and conditions
• support work to create a single, outcomes-focused approach to care and support which stretches from prevention and early intervention through to acute and specialist provision
• identify best practices examples and lessons learned and provide a space to share this on a national level
• expect and benchmark people standards (skills, capabilities and capacity) required to commission and procure quality services

The purpose of this is to ensure commissioning and procurement delivers a person-centred, human rights based approach that supports the outcomes and needs of the individual, meets minimum quality standards established for social care services, ensures fair work, promotes sustainability and ensures consistent implementation and equitable quality of service throughout Scotland.

The NCS will be responsible for governance and assurance that CHSCBs comply with the Structure of Standards and Processes, through oversight of commissioning and procurement processes at a local level. CHSCBs will report their progress to the NCS national commissioning and procurement team.

The NCS will create and manage a professional development programme to ensure all commissioning and procurement professionals working within social care have the appropriate skills to effectively implement ethical commissioning and procurement.

The NCS will be responsible for market analysis and will work with partners to develop a thorough understanding of the market and share this information with CHSCBs.

The NCS will be responsible for the commissioning, procurement and contract management of national contracts and framework agreements for complex and specialist services including the following:

• care for people whose care needs are particularly complex and specialist
• custodial settings including prison
• residential care homes
• care home contract

The NCS will establish a national commissioning and procurement team to deliver this role.

Questions

Structure of Standards and Processes

The National Care Service will develop a Structure of Standards and Processes for ethical commissioning including procurement which Community Health and Social Care Boards will follow and provide assurance against to the National Care Service. The Structure of Standards and Processes will:

• define the approach to national and local level ethical commissioning and procurement
• provide templates to support decision making and procurement processes
• detail core criteria that must be considered when decisions are being made on how to meet the needs of the individual and deliver the service, including quality standards for the evaluation of services. Core criteria will include emphasis on workforce terms and conditions that support, develop, empower and value their staff, the need to meet personal outcomes, and requirements for a level of financial transparency of publically funded service providers.
• be driven by national minimum quality outcome standards
• define stakeholders who must be engaged as part of the co-production process, including unpaid carers and those with lived and living experience
• embed standard terms and conditions
• support work to create a single, outcomes-focused approach to care and support which stretches from prevention and early intervention through to acute and specialist provision
• identify best practices examples and lessons learned and provide a space to share this on a national level
• expect and benchmark people standards (skills, capabilities and capacity) required to commission and procure quality services

Q67. Do you agree that the National Care Service should be responsible for the development of a Structure of Standards and Processes?

BSL Version of Question 67

• Yes
• No
• If no, who should be responsible for this?
• Community Health and Social Care Boards
• Scotland Excel
• Scottish Government Procurement
• NHS National Procurement
• A framework of standards and processes is not needed

Q68. Do you think this Structure of Standards and Processes will help to provide services that support people to meet their individual outcomes?

BSL Version of Question 68

• Yes
• No

Q69. Do you think this Structure of Standards and Processes will contribute to better outcomes for social care staff?

BSL Version of Question 69

• Yes
• No

Q70. Would you remove or include anything else in the Structure of Standards and Processes?

BSL Version of Question 70

Market research and analysis

The National Care Service will be responsible for market research. This will include market analysis to identify the structure of the market, behaviours, supply chain risks, barriers to market entry, environmental factors, and ethical considerations, to better understand how the health and social care market works, the direction in which the market is going, the competitiveness and the key suppliers within the market. In addition to this the National Care Service will work with the national regulatory and market oversight body to share information and use shared data to support ethical commissioning, decisions making on procurement routes and processes and contract management to minimise the risk of supplier failure.

Q71. Do you agree that the National Care Service should be responsible for market research and analysis?

BSL Version of Question 71

• Yes
• No

If no, who should be responsible for this?

• Community Health and Social Care Boards
• Care Inspectorate
• Scottish Social Services Council
• NHS National Procurement
• Scotland Excel
• No one
• Other- please comment

National commissioning and procurement services

The National Care Service will establish a national commissioning and procurement team to commission and procurement national contracts and framework agreements where it is deemed that individuals needs and outcomes will be better met through national service provision.

Q72. Do you agree that there will be direct benefits for people in moving the complex and specialist services as set out to national contracts managed by the National Care Service?

BSL Version of Question 72

• Yes
• No

If no, who should be responsible for this?

• Community Health and Social Care Boards
• NHS National Procurement
• Scotland Excel