Public Bodies (Joint Working) Scotland Bill: Business and Regulatory Impact Assessment

Scottish Firms Impact Test

Input from Scottish Government colleagues

Following discussions with Scottish Government colleagues, we anticipate that businesses associated with social care will be affected to a greater extent than those associated with healthcare. This is because there is far greater plurality of provision in social care in Scotland than in healthcare (with the NHS providing almost all healthcare), and because the commissioning process of procuring social care services is likely to be different in Scotland's local authority areas.

The level of health and social care provided in communities is expected to increase under these proposals. There will be a greater impact on social care businesses, because of the plurality of providers, but there will also be an impact on, for example, pharmacies. We will consider the impact on businesses across health and social care to take account of the range of interests involved. The organisations identified as being the most likely to be affected by the Bill included: Association of Community Health Partnerships; Chartered Institute of Housing; Health and Social Care Alliance; Mental Health Tribunal for Scotland; Royal Pharmaceutical Society; Society of Local Authority Chief Executives and Senior Managers; and Voluntary Health Scotland.

For the joint venture and Common Service Agency procurement proposals, there are no additional regulations or requirements being placed on private sector stakeholders. In respect of collaborative procurement, the powers sought will be used in the context of existing contractual arrangements and documentation. The proposals will not impact on access to public sector markets.

Consultation

There were seven specific responses to the partial BRIA and some additional comments made within the body of the consultation responses. In addition, the Scottish Government held two workshops with a range of stakeholders to further inform the full Business Regulatory Impact Assessment. Stakeholders also provided input at the consultation events and local meetings. The points raised from the workshops, consultation responses and events, relating to the BRIA, are summarised below:

General comments

A general view from both the workshops and consultation responses was the requirement for more detail on the proposals in order to better determine some aspects on the impacts, costs or benefits to business.

In particular, this was identified in relation to the integrated budget and the extent to which the shift towards preventative care would be realised. Respondents to the consultation also made reference to the requirement for clarity regarding the impact on commissioning and procurement practices, with issues on economies of scale and therefore the effect on smaller businesses cited as a concern.

Impacts, Costs and Benefits

• There was an overall consensus that the proposals had the potential to impact on a wide range of businesses in the private and third sector delivering community health and social care services, suppliers to these services, housing services and periphery businesses such as utility providers. It was noted that businesses would be affected to differing degrees across Scotland dependent on the proportion of the population being older people and the geography of communities.
• There was a range of opportunities identified by respondents especially for small businesses. The main thrust of the comments described the opportunity to provide more innovative and person centred community services. The opportunity for 'access' to the integrated budget, which is to include a level of acute spend, was welcomed and it was suggested that this move from silo funding mechanisms would support preventative and up-stream activities. Another theme that was expressed by respondents was the opportunity to work collaboratively across sectors, form strong relationships, reshape and redefine workforce roles and reduce duplication.
• A theme from both respondents to the consultation and face-to-face discussion was cultural differences between the two statutory partners, Health Boards and locals authorities, suggesting that this was a barrier to businesses working across health and social care. Reference was made to the need for the market to adapt to the new arrangements; this in turn would have cost implications especially for smaller or new businesses. It was commented that support may be required to enable smaller businesses to understand and adapt to the competitive tendering process and to facilitate shared ventures which will help deliver partnership working. It was also noted that a greater emphasis should be placed on businesses to support the integration agenda as part of the solution.
• Respondents commented that there will be an impact on businesses as a result of the increasing care at home and in the community. It was further noted that as a result, greater demand for social care services would impact on third sector, social work and GP home visits, placing a greater burden on businesses.

Commissioning of services

• The commissioning of services was a prominent theme of discussion at the workshops and within the consultation responses. It was noted that the commissioning process will require an investment in skills and requires a clear understanding and transparency of the cost of services and of care pathways. There was support for a commissioning strategy which would provide a common language and bring transparency to the commissioning process, though further detail would be required. A further view made reference to the need for contracts to enable flexibility and creative opportunities.
• Inclusion of local businesses in the planning for local services was cited as essential in order to allow businesses the flexibility to adapt their business model and plan for new arrangements. A respondent also noted that there would be a risk to business with regards to the impact of transition to the new arrangements, specifically demand, price and contractual arrangements.

Challenges and changes for Businesses

• A re-occurring theme from the consultation was that the proposals will provide for change for a range of providers and services of health and social care. In particular, the biggest changes are the integrated budget and how this will be used to maintain people in the community. A third sector response also highlighted the impact on the operational environment, which equally applies to other providers of health and social care services, with respect to the commissioning of services, new funding arrangements and compatibility of information technology systems and data sharing between organisations.
• Key challenges highlighted were the current focus on cost rather than outcomes and the provision of quality of service in the tendering process for social care. One respondent made the point that locality planning, if based around GP clusters, may prove challenging to businesses without networks based around the health sector and therefore result in weaker links with providers of social care and other support functions. In addition, businesses may find it difficult to plan and adapt their business model when decision-making will be determined locally.

Competition Assessment

As part of the consultation process we asked businesses to complete a questionnaire using Officer of Fair Trading(OFT)^[12] competition filter questions. This helped to ascertain whether the proposals will impact on competition.

The integration of adult health and social care will potentially create a greater demand for social care services as a result of the desired shift from institutional care to care in the home or sheltered accommodation. The findings from the OFT questionnaire conclude that the Bill is unlikely to prevent, restrict or distort competition in this area.

Test run of business forms

No new business forms will be brought in with the implementation of the legislation.

Legal Aid Impact Test

We have discussed the integration agenda with the Scottish Government Legal Aid Team. The Legal Aid Team confirmed that nothing will impact on the legal aid fund as we are not creating any new offences or penalties and there is nothing to indicate that there will be an increase on individuals seeking legal advice as a result of the legislation. There is no requirement to carry out a legal aid impact test.