Commissioning Responsibilities under the Care Act

1. The Duty to Promote Diversity and Quality in Service Provision

The Care Act statutory guidance states that 'high quality, personalised Care and Support can only be achieved where there is a vibrant, responsive market of services available'. The Local Authority role is seen as critical and under section 5 of the Care Act, the duty to promote the efficient and effective operation of the market of services for meeting care and support needs in the local area is firmly placed with them.

The duty applies not only in relation to services that the Local Authority commissions directly, but also to other non-commissioned services in its area (including those used by self-funders), and to universal services and services provided by partners (such as health or charitable services) that together create the marketplace.

The Local Authority should engage in market shaping activities to ensure that any person requiring Care and Support/Support services:

1. Has a variety of providers supplying a variety of services to choose from;
2. Has a variety of high quality services to choose from; and
3. Has sufficient information to make an informed decision about how to meet the needs in question.

In order to fulfil its duty to promote diversity and quality in service provision the Local Authority must ensure it has effective strategies to understand likely demand for such services, ensure stability and to shape the marketplace so that the right services are available.

2. Market Shaping and Commissioning of Adult Care and Support Services

Understanding the Definition of Market Shaping, Commissioning, Procurement and Contracting

Market Shaping

Market shaping involves engaging with stakeholders to understand the current local supply and demand for services and predict or anticipate what the future needs are likely to be based upon the changing needs and aspirations of people who use services. There is an expectation in the Care Act that the Local Authority will carry out market shaping activity in collaboration with relevant partners, including people who have Care and Support needs and carers.

Commissioning

Commissioning is the Local Authority activity of determining at a strategic level which of the Care and Support/Support services in the marketplace it should design, deliver, monitor and evaluate itself through a contractual arrangement and which it should not.

Procurement

Procurement is the specific function of buying or acquiring a service (or services) and agreeing how that service will be delivered. Some services will likely be procured in advance, so they are available when required and others will be procured as and when it is deemed appropriate to do so (for example, a specialist service to meet a particular person's complex needs).

Contracting

Contracting is the means by which the procurement process becomes legally binding. Contract management then ensures that the services (or services) continue to be delivered according to the standards agreed.

Recommissioning

Recommissioning is the process of reviewing then renewing a contractual arrangement with a provider.

Decommissioning

Decommissioning is the process by which the Local Authority withdraws from a contractual arrangement with a provider.

The Principles which should underpin all market shaping and commissioning activity

Focus on Wellbeing

The Local Authority must ensure that the promotion of the Wellbeing of people with Care and Support needs and carers with Support needs is central in everything it does, including market shaping and commissioning activity. For further detail please see Promoting Individual Wellbeing.

Focus on Outcomes

The Local Authority needs to understand the outcomes that are most important to people living in its area and demonstrate that these outcomes are at the heart of local commissioning strategies and policies.

The Care Act statutory guidance recommends several tools and frameworks to support the Local Authority in collating information about outcomes.

Outcomes based commissioning

To support the Local Authority to fulfil its duty to promote individual Wellbeing and outcomes in everything it does the Care Act statutory guidance recommends that outcomes based commissioning is considered. Outcomes based commissioning means developing service arrangements that are based on the provider being able to support the person, carer or local population to achieve a set of agreed outcomes rather than on specified needs.

To support an outcome based commissioning approach the guidance suggests the Local Authority may wish to explore implementing a payments-by-outcomes arrangement with a provider, where payment for services is based on whether the agreed outcomes have been achieved.

Preventing, Reducing or Delaying the need for Care and Support/Support

The Local Authority has a duty under the Care Act to provide services that will contribute towards preventing, reducing or delaying the need for Care and Support/Support. As such, the Local Authority must consider how the market in its area and the services it commissions build community capital, skills and resources to understand and prevent the need for Care and Support/Support arising.

For further detail about this duty see Preventing Needs for Care and Support. 

Promoting Quality

The Local Authority should promote and monitor quality in the services being provided by individual providers and also the marketplace as a whole. It should:

1. Encourage local providers to develop a skilled and valued workforce;
2. Monitor how capable, timely, reliable, appropriate and flexible services being delivered are in relation to the promotion of individual Wellbeing;
3. Monitor the capacity and sustainability of service provision to maintain quality; and
4. Ensure that services it commissions directly or those delivered on its behalf comply with the requirements of the Equality Act 2010.

Supporting Sustainability

The Local Authority must develop markets for Care and Support provision that ensure there is adequate high-quality care available to meet expected needs whilst also recognising the fact that from time to time providers will exit the marketplace.

The Local Authority should work with providers in its area and support those facing challenges, making changes to commissioning arrangements where appropriate. For example if a provider is experiencing staff retention issues that mean they are finding it difficult to provide quality services to everyone it supports, the Local Authority may wish to reduce the number of people receiving the service temporarily to allow the provider time to replenish its workforce and continue to provide a quality service.

Ensuring Choice in Services Available

The Local Authority must encourage and support a variety of different providers and types of services to ensure that there is sufficient choice for people regardless of their Care and Support/Support needs, geographical location or method of arrangement (including whether services are Local Authority commissioned, arranged by the person through a Direct Payment or whether the person is self- funding).

The different types of service provision that the Local Authority must ensure choice in are:

1. Support services and universal services that promote prevention;
2. Domiciliary care;
3. Care homes and nursing homes;
4. Live-In Care services;
5. Specialist care for people with complex needs or multiple needs;
6. Reablement services;
7. Supported Living and Extra Care;
8. Shared Lives services and any other housing options;
9. Community support;
10. Counselling;
11. Social Work;
12. Information, brokerage, advocacy and advice services; and
13. Direct Payment support organisations.

Ensuring Choice in how Services are Provided

The Care Act statutory guidance is clear that the Local Authority should facilitate the personalisation of Care and Support/Support services. Market shaping activities should aim to ensure that people receiving services have choice and control over how they are delivered so that this reflects their individual needs, circumstances and wishes. The Local Authority should support people to make meaningful choices and take control of their support arrangements wherever possible.

Co-Production with Stakeholders

Local Authority commissioners should work alongside people who use Care and Support services, carers who use Support services, care providers, voluntary and partner organisations to find shared and agreed solutions.

The steps that the Local Authority should take to develop and implement local approaches to market shaping and commissioning

Designing Strategies that meet local needs

Since 2007 there has been a duty on the Local Authority, through health and wellbeing boards to undertake Joint Strategic Needs Assessments (JSNA) with the local Integrated Care Board. This is a process that maps the needs and demand for health and social care support in the area.

Under the Care Act the Local Authority, with regard to the JSNA should develop, review and publish strategies and plans that show how they intend to meet their specific legislative duties and requirements in relation to market shaping and commissioning. In particular the statutory guidance recommends the co-produced development of a Market Position Statement containing information on the authority’s intended direction of travel in relation to market shaping and commissioning activity and the evidence upon which this is based.

Engaging with Providers and Local Communities

The duties under the Care Act are the responsibility of the Local Authority to meet but successful market shaping is very much seen as a shared endeavour in the Care and Support Statutory Guidance. Without the involvement of stakeholders, the Local Authority is unlikely to be able to fulfil its duties as it will:

1. Not understand the needs of the local population and the outcomes they aspire to achieve; and
2. Not understand the challenges facing organisations in order to promote quality and sustainability.

The Local Authority should engage with stakeholders that reflect the range and diversity of communities and the range of needs experienced by people in its area, for example:

1. People who need Care and Support themselves;
2. Organisations representing people who need Care and Support;
3. Carers who need Support and organisations representing carers;
4. Health professionals;
5. Social care managers and Social Workers;
6. Independent Advocates;
7. Provider Organisations (including housing provider organisations and Care and Support providers);
8. Support Organisations that help people consider choices (including financial organisations and any organisations who provide a Care and Support/Support Planning service); and
9. Representatives from the wider local population (including the LGBT community, people who lack capacity and people from minority cultural or religious backgrounds).

Understanding the Market

The Local Authority must understand the current market and develop knowledge of future needs in relation to demographics, drivers, trends, aspirations, priorities and preferences of people who need or are likely to need Care and Support/Support.

As well as actively engaging with stakeholders the Local Authority should ensure it has an effective, robust and transparent method in place to collect and analyse data relating to factors such as:

1. The number of people being supported with various conditions (such as Stroke, Parkinson's, Motor Neurone Disease and other complex conditions);
2. The number of carers providing care to people informally;
3. The number of people who are arranging their own services (self-funders);
4. The type and intensity of support currently being provided to people (including the different models of support); and
5. How current services are being experienced by the people receiving them.

Facilitating the Development of the Market

When the Local Authority has taken steps to understand the current marketplace and predict future requirements it must facilitate the development of the market in a way that can meet both the current and future needs of people and carers, taking into account all of the commissioning principles outlined above.

The Care Act statutory guidance recommends that neighbouring local authorities consider taking a joint approach to market shaping in order to facilitate better outcomes for people and more cost effective outcomes for the local Authorities.

The Local Authority must monitor how the market is developing and have effective strategies to respond to changing demand or needs.

Integrating their approach with Local Partners

Integrated approaches include joint commissioning strategies, joint funding, pooled budgets, collaborative commissioning and working with potential providers to consider innovative ways that services can be delivered.

Under section 3 of the Care Act the Local Authority has a duty to take steps to ensure the integration of social care provision with health provision when it considers that this would:

1. Promote the Wellbeing of people and carers in the local area;
2. Contribute to the prevention or delay of the development of needs for care and support of people in the area;
3. Contribute to the prevention or delay of the development of needs for support of carers in the area;
4. Improve the quality of care and support for people in the area (including the quality of outcomes being met by services); and
5. Improve the quality of support for carers in the area (including the quality of outcomes being met by services).

The statutory guidance states that the Local Authority should extend their integrated approach to include housing, employment, transport, benefits and leisure services where there is evidence that integration would improve Wellbeing.

Securing supply in the Market and assuring quality through Contracting

The Local Authority should consider any contractual arrangement it makes (including block contracts, spot contracts or any 'qualified provider' approaches) to ensure that there are no negative impacts on sustainability, sufficiency, quality or diversity for that provider or in the marketplace as a whole.

The Local Authority must also ensure that the services it commissions:

1. Represent both quality and value for money. Value for money means optimal use of resources to achieve intended outcomes. It is not defined by cost alone;
2. Are sustainable;
3. Are able to demonstrate they are able to meet all of the requirements of the Care Act and related guidance. This includes having clear arrangements in place to prevent abuse or neglect. Services that are not able to meet the requirements cannot be commissioned by the Local Authority. If the Local Authority has already entered into a contractual arrangement the service should be decommissioned if it is not able to meet Care Act requirements. 
4. In the case of services providing a regulated activity, meets the minimum standards set by the regulatory body (the Care Quality Commission).

When arranging services, procurement and contract monitoring systems (e.g. Brokerage and Commissioning Departments for adult Care and Support) should work with social workers and others care managers to:

1. Ensure that the service being arranged will deliver a model and approach to meet the requirements and needs of the person so as to promote Wellbeing; and
2. Ensure that the service being provided is meeting the person's needs and outcomes effectively.

3. Managing Provider Failure

How the Local Authority can become aware of Provider Failure

Local knowledge through market shaping and commissioning activity

Commissioning duties and requirements of the Care Act mean that the Local Authority will have an understanding of the challenges that provider's in its local area may be facing. It should use that knowledge to monitor whether a particular provider is likely to experience business failure.

The CQC Market Oversight Regime

Some providers are vast nationwide organisations and understanding their business challenges is not something that individual local authorities are able to do effectively. One of the roles of the Care Quality Commission is to assess the financial sustainability of these organisations through a formal assessment process. The Care Quality Commission will identify the providers who are subject to its oversight. Where the Care Quality Commission feels that a provider is likely to become unsustainable financially it must inform the local authorities in which the provider is operating.

The Temporary Duty to Meet Needs

The Duty

If a service provider providing regulated Care and Support activities in a Local Authority area becomes no longer able to do so because of business failure then the Local Authority has a temporary duty under section 48 of the Care Act to meet the needs of affected persons or carers. The duty applies for as long as it appears necessary to do so.

This duty applies from the time that the Local Authority becomes aware that the provider's business has failed. A full list of all the reasons that a regulated business can be deemed to be subject to business failure can be found in The Care and Support (Business Failure) Regulations 2015.

This temporary duty to meet needs applies regardless of whether:

1. The person or carer is ordinarily resident in its area (or even the same country of the UK);
2. The person or carer is known to the Local Authority;
3. The provider is known to or has a contractual arrangement with the Local Authority;
4. The person makes their own Care and Support arrangements (either through a Direct Payment or is self-funding);
5. The services were arranged by a different Local Authority;
6. The Local Authority has carried out a needs or carers assessment;
7. The Local Authority has carried out a financial assessment; or
8. The needs apparent are eligible under the National Eligibility Criteria.

Carrying out the Duty

The Care Act permits the Local Authority to decide how best to meet the needs of a person or carer under its section 48 duty. The only stipulations are that:

1. The needs the Local Authority arranges to meet must be those that were being met immediately prior to the provider failure;
2. The person or carer is involved in decisions about how to meet needs;
3. Anyone else deemed relevant is involved in decisions about how to meet needs (for example a health professional where there are complex health needs or an advocate); and
4. Disruption to the person or carer should be minimised.

When meeting needs temporarily under section 48, the Local Authority is not required to complete a needs, carers or financial assessment.  If the person or carer is not ordinarily resident in the Local Authority area:

1. The Local Authority discharging the temporary duty must inform the Authority in the area in which the person is ordinarily resident;
2. The 2 local authorities must co-operate with each other in respect of information sharing to determine the best way to meet needs (although the final decision about how to meet needs rests with the Local Authority discharging the duty);
3. The Local Authority discharging the temporary duty may seek reimbursement for costs from the Authority in the area in which the person is ordinarily resident.

Guidance on the determination of ordinary residence and process to manage disputes about ordinary residence can be found in the Ordinary Residence section of this guidance.

In order to discharge the duty the Local Authority has the power to request information from the provider whose business has failed and this should be provided.

Charging for services

The Local Authority is permitted to make a charge for the services it provides to meet needs under section 48. However, the charge must only cover the actual cost to the Local Authority in meeting needs and charges must not be made for non-chargeable services, such as the provision of information and advice.

4. Managing Other Service Interruptions

This section applies where either:

1. There is temporary interruption to any Care and Support service (Regulated and Non-Regulated); or
2. A provider of a non-regulated Care and Support activity fails.

Service interruptions happen for a number of reasons, for example:

1. Illness affecting a substantial number of the workforce meaning the service is temporarily unavailable or reduced (e.g. home care provision);
2. Illness affecting people with Care and Support needs meaning that a service is temporarily unavailable (e.g. a Norovirus breakout in a Day Service); or
3. Business challenges facing an organisation meaning that some services may be temporarily unavailable.

Under sections 18 to 20 of the Care Act, the Local Authority has the power to meet any need that it considers urgent, regardless of factors such as whether an assessment has been completed or whether the person is ordinarily resident in its area.

When services are interrupted or a non-regulated activity is no longer available, the statutory guidance requires the Local Authority to consider exercising this power if the circumstances warrant. This includes situations where the continued provision of Care and Support to those receiving services is in imminent jeopardy and there is no likelihood of returning to a ‘business as usual’ situation in the immediate future.

Contingency Planning

Local authorities should consider how they would respond to a range of service interruptions so that they are prepared and able to respond both quickly and appropriately. Where appropriate and it would be of benefit this contingency planning may take place jointly with neighbouring authorities.