Procurement of care and support services: best practice guidance - updated June 2021

Annex 3: Wider legislation, standards, policies and procedures

Scottish Procurement Policy Notes (SPPNs)

Scottish Procurement Policy Notes also describe any changes to, or points of clarification about, the public procurement rules and are published on the Scottish Procurement and Commercial Directorate (SPCD) website on a regular basis.

Procurement Centres of Expertise

There are also a number of Procurement centres of expertise in Scotland.

• Scotland Excel is the centre of expertise for local authorities
• National Procurement NHS National Services Scotland is the centre of expertise for all NHS Scotland organisations a
• Advanced Procurement for Universities and Colleges (APUC) is the centre for Scotland's Universities and colleges

National Care Standards

National Care Standards are intended to ensure the same high standards in all registered care services. These standards explain what people can expect from any social care and support service, written from the point of view of the person using the service. The National Care Standards are currently being reviewed with proposed changes expected in 2016.

National Performance Framework

This underpins delivery of the Scottish Government's agenda - which supports the Outcomes Based approach to performance.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) as amended

The application of the TUPE Regulations will vary on a case-by-case basis and public bodies and service providers should seek legal advice on the TUPE implications of a procurement exercise which might involve a change of service provider.

The intention of the TUPE Regulations is to preserve the continuity of employment and terms and conditions of employees who are transferred to a new employer when a business (or part of one) is transferred or when there is a 'service provision change'. The TUPE Regulations may therefore apply when a public body outsources a service or brings a service back in-house or when a service transfers from one service provider to another.

The TUPE Regulations place duties on both the transferor and transferee employers to inform and consult with affected staff. The transferor employer is required to provide certain specified information about the transferring workforce to the transferee employer a minimum of 28 days before the transfer occurs. Where the Regulations apply, employees whose job is transferring automatically become employees of the new employer on the same terms and conditions (except for certain occupational pension rights).

The Department for Business Innovation and Skills produced a guide to the 2006 TUPE Regulations for employees, employers and representatives.

Children's Services Planning

Children's Services Planning relates to the planning and co-ordination of service provision as opposed to procurement but it is perhaps helpful, in the context of this guidance, to make some cross-reference. Part 3 of the Children and Young People (Scotland) Act 2014 places a duty on each local authority and the relevant health board to jointly prepare a Children's Services Plan (CSP) for the local authority area covering a 3 year period and to jointly publish an annual report. These detail how the provision of children's services and related services in that area have been provided in accordance with the CSP.

Getting it Right for Every Child GIRFEC

GIRFEC is the national approach to improving outcomes through public services that support the wellbeing of children and young people. Based on children's and young people's rights, it supports children, young people and their parents to work in partnership with the services that can help them. The Named Person and Child's Plan are introduced as part of the GIRFEC provisions in the Children and Young People (Scotland) Act 2014, although more widely, all 18 parts of the Act are underpinned by the GIRFEC approach. The wellbeing of children and young people can be described using eight indicators and is at the heart of the GIRFEC approach. More information on GIRFEC can be accessed at: http://www.gov.scot/Topics/People/Young-People/gettingitright.

Social Work (Scotland) Act 1968

This is the primary Act regarding the general social work functions of a local authority. The central duty, under section 12 of that Act, gives every local authority the duty to 'promote social welfare'. This should be:

• through making available advice, guidance and assistance on a scale appropriate to the area
• by providing or securing suitable and adequate facilities and assistance to persons over eighteen years who are in need and requiring assistance.
• It is the duty of a local authority to enforce and execute all the provisions of this Act where such a duty is not imposed on another body. They can, however, make arrangements with voluntary organisations or other persons, to assist in the performance of their functions. Before deciding whether to assist a person a local authority must consider the availability of assistance to them from any statutory body.

Community Empowerment (Scotland) Act 2015

The Community Empowerment Act will help to empower community bodies through the ownership of land and buildings, and by strengthening their voices in the decisions that matter to them. It will also improve outcomes for communities by improving the process of community planning, ensuring that local service providers work together even more closely with communities to meet the needs of the people who use them.

Carers (Scotland) Act 2016

The provisions of the Act are applicable only to unpaid carers or young carers. The Act enshrines the rights of unpaid carers in law. It places a duty on local authorities to provide support to unpaid carers, based on their identified needs which meet the local eligibility criteria. The Act will be commenced in 2017-18.