Comments on draft Social Care Procurement Guidance

Introduction

1. Alzheimer Scotland welcomes the opportunity to comment on the draft guidance on social care procurement.

2. Alzheimer Scotland is Scotland’s leading dementia voluntary organisation. The two main objectives which drive all our work are to be the foremost provider of support services and information to people with dementia and their families and friends in Scotland and to be the leading force for change protecting and promoting their rights. We represent the views of our 4,000 members, who are people with dementia, their carers, families and friends and professionals passionate about improving life for those affected by dementia. We work to improve the lives of everyone affected by dementia through our campaigning work nationally and locally and through facilitating the involvement of people with dementia and carers in getting their views and experiences heard. We provide individualised dementia support services (also called care at home and housing support) and day services (day centres, day opportunities) in 40 areas of Scotland, to approximately 1,500 people with dementia, including a range of more specialised services such as services for younger people with dementia. These services are mainly commissioned by local authorities. We also fundraise to provide the 24 hour Dementia Helpline, a network of Dementia Advisors, dementia nurses in the NHS and research into dementia and dementia care.

3. Alzheimer Scotland’s interest in social care procurement is twofold. From the perspective of promoting the rights of people with dementia and their families we hold it to be essential that all social care procurement is carried out with the interests of the end users of a service as paramount. In addition, as a major service provider for people with dementia and their carers and families, we have had experience of a range of tender processes, and have deep concerns about how these have been carried out.

4. For these reasons, we are very much in favour of the recognition that procuring social care is not the same as procuring other types of goods and services, because it is so personal to the lives of individual people and their families.

Key overarching issues

5. We welcome the guiding principles and see them as very appropriate.

6. We are concerned that the guidance should put a far stronger emphasis on ways other than by tender in which social care services can be secured by local authorities, and in what circumstances. The discussion of this begins on page 60 and is located within the part of the document setting out the procurement process in detail. We believe that this discussion should be right at the start of the document in a section of its own.

7. We do not think that the guidance sufficiently recognises the disbenefit of block tenders in creating volume dependency for organisations. The need to maintain the high volume of hours delivered in order to maintain a management structure is a strong disincentive to organisations to reduce the hours provided to individuals, with the perverse result of increasing dependency rather than working to enable people using services.

8. The production of this guidance, whilst welcome, takes place at a time when there is a clear governmental policy shift towards personalisation, including the promotion of self-directed support. Personalised approaches put control in the hands of the people who need support, resulting in services which are a better fit with people’s lives than block-commissioned services, and which use paid support more effectively to work alongside and maintain the active involvement of people’s ‘natural supports’ – friends, families and neighbours. This approach can provide better outcomes for people who use services, and is also likely to be more cost-effective.

9. Tendering is the antithesis of personalisation, with tenders such as those for care at home often for high volumes of service, at the expense of specialist services for those who need them and of choice, control and flexibility for the people using the service. A shift to individualised commissioning offers the opportunity to maximise the value of public money spent on services, by ensuring that they are fully personalised and thus provide the optimum combination with the support of friends and family in a way that block-commissioned services will not achieve.

10. The emphasis on the involvement of people who use services (a term we would prefer to ‘service users’) and carers is very positive. We do have some concerns about the timing – people should be involved in the decision about whether or not to advertise a contract – and about the current quality of the involvement process: it is not sufficient simply to consult an existing forum and consider this box ‘ticked’. It is sometimes that case that it is the views of a vocal few that often predominate. Local authorities must pay greater attention to ensuring the involvement of the actual people using specialist support services, and the guidance in section 9.5 is helpful here. However, it is unfortunate that the Summary Paper – Service user and carer involvement is not a good model of involvement practice. The title seems to suggest that the paper will be about how to involve service users and carers in procurement. However, the introduction in the paper (para 4) implies that it is a summary of the full draft so that service users and carers can comment on the guidance as part of the consultation, without needing to read the full document. However the paper is very confusing both in the way it is structured, its purpose and in some of the content.

11. Overall, the draft guidance is a significant improvement on what happens at present but we are concerned that as presented it is heavy going and inaccessible and lacks ‘flair’. We believe that it is important that those in the local authority who are expected to follow the guidance and change how they operate will not be influenced as effectively unless it is re-edited into a more straightforward, clearly structured and concise form.

Detailed comments

Section 2 - Guiding Principles.

12. The guiding principles are silent on human rights. This seems contrary to what is said in the following sections 3 & 4.

13.

14. Section 3 and 4 both stress the relevance of Human Rights Legislation. In 3.4 the draft states that “Social care procurement must comply with a number of legislative and regulatory requirements” , this includes the European Convention of Human Rights and the Human Rights Act 1998. In 4.2 it states “that Local Authorities must ensure that their staff, including those directly involved in social care procurement, and contracted providers understand individuals human rights and take account of them in the process to secure services”. This is wooly and should say “comply with”.

15. For the reasons below a Human Rights Based Approach should be explicit in the guiding principles contained in Section 2.

• Including human-rights-based criteria in the procurement process is an essential way of ensuring that the rights of individuals are given full regard and that the highest quality of standards are maintained in the current economic climate where spending cuts are inevitable.
• Embedding human-rights-based criteria within the procurement processes would ensure that care providers are offered contracts based on high standards of care rather than simply the lowest priced tender. This would ensure that is a business incentive for care providers to apply a human-rights-based approach to their practice and policies.
• Procurement process must acknowledge the rights of people to make decisions about the care and support that they receive. While cost considerations will undoubtedly put pressure on those responsible for procurement of services, compliance with human rights standards and principles can help provide innovative and personalised solutions. It also fits well with other policy initiatives including Changing Lives, Self Directed Support Guidance (including the draft strategy), Community Care Outcomes Framework etc.

Section 3 - Policy Context

16. In 3.2 the first bullet point talks about fundamental rights and freedoms based on the core principles of dignity, fairness, equality, respect and autonomy. When we were involved in developing the Charter of Rights for people with dementia the Scottish Human Rights Commission advised us that, in their view, the terminology is not grounded in international human rights law. They suggested that some of the core values may be vague and lacking universal accord and that would be preferable to use a more international recognised human rights language.

17. Following the advice of the Scottish Human Rights Commission we based the Charter on an approach endorsed by the United Nations known as “PANEL” This approach sets out individuals’ rights to:

• Participate in decisions which affect their human rights;
• Accountability of those responsible for the respect, protection and fulfilment of human rights,
• Non-discrimination and equality;
• Empowerment to know their rights and how to claim them;
• Legality in all decisions through an explicit link with human rights legal standards in all processes and outcome measurements.

18. The Charter is also based on the General Principles of the Convention on the Rights of Persons with Disabilities

• Respect for inherent dignity
• Individual autonomy including the freedom to make one's own choices
• Independence of persons
• Non-discrimination
• Full and effective participation and inclusion in society
• Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity
• Equality of opportunity
• Accessibility
• Equality between men and women

19. The Convention means that people with a disability must no longer be viewed as people who need help, services or treatment but as citizens with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society.

20. On page 14 paragraph 3 the convention is mentioned but it seems merely as an addition rather than a fundamental basis of human rights. We suggest that 3.4 should reflect PANEL and the principles of the Convention on the Rights of Persons with Disabilities to ensure the correct legal context for the guidance and that these principles be made explicit in Section 2 (guiding principles).

21. There is also no mention of the Self Directed Support Strategy.

Section 4 - Legislation

22. The Convention on the Rights of Persons with Disabilities should be in here rather than in Section 3 as an addition.

23. There is no mention of International Covenants on Economic, Social and Cultural Rights and Civil and Political Rights (right to enjoy the highest attainable standard of physical and mental health and the right to an adequate standard of living, right to participation in cultural life etc).There is also no mention of local authorities’ duty to offer direct payments (Community Care and Health (Scot) Act 2002).

Section 5 - Local policy, strategy & approach

24. We would like to see the suggestion that community planning partnerships contribute to local authorities’ social care procurement strategies strengthened, with explicit reference to voluntary sector involvement.

25. We welcome the reference to moving control from organisations to individuals and the recognition that this may require strategic partnerships between local authorities and service providers, and would like to see clearer recognition that local authorities may need to invest resources in transitional funding in order to achieve such a shift.

26. The added value and financial contributions that voluntary sector service providers offer to existing services should also be more explicitly recognised. Our own position is that although the majority of our services are provided on contract to local authorities the full cost of the services is often not met, and the quality of the service we provide relies on our fundraised resources. We would like the guidance to make it more explicit that local authorities should take this into account when weighing up the potential for retendering.

27. We welcome reference to delivery plans including indicative purchasing intentions informed through involvement of stakeholders and would like further clarity on forums for this.

28. We welcome the focus on quality standards, and on how the local authority intends to improve smaller providers access to contracts. However, we would also like to see more recognition that commissioning strategies for care groups and services should take into account the need for specialist services rather than assuming that generic services will suffice.

29. The disadvantage to smaller providers is not due solely to their skill level in bidding, but to the likelihood that smaller providers, are likely to provide specialist services, and are also disadvantaged by higher overheads. The suggestion of providers forming consortia or collaborations is often rendered impossible during a tender process because of the short timeframe; the guidance could usefully emphasise the importance of a process allowing plenty of time to achieve this type of arrangement. We have experience of forming a consortium to bid for a tender, in which we were unsuccessful, due at least in part to the view of the assessors that the agreement between the two organisations was insufficiently developed.

Section 8 - Stage 2: Analyse
Establishing needs and outcomes

30. We have found that often no follow up is done to establish that outcomes are being met. Once contracts have been awarded, robust monitoring should take place and consideration should also be given to comments by the Care Commission on the involvement of service users/carers and the quality of the service provided.

31. In reference to personalisation, it should be recognised that hourly rates for self-directed support payments are generally lower than can be provided by specialist providers, thus reducing the choice for people using services.

32. Benefit and risk – there should also be robust evaluation of contracts and the ability to change providers if outcomes are not being met.

Current supply

33. At present, current procurement seems to weigh heavily on the hourly rate which disadvantages the specialist provider and subsequently reduces the choice for service users. Recent experience shows that despite being on a ‘Framework’, only the top 3 (generic) providers on the framework are being allocated work, excluding the (mainly specialist) remainder.

34. Taking into account the inspections of the regulatory bodies should be a very important aspect of procurement. A recent report by CCPS has highlighted that the Voluntary Sector regularly scores higher than both the Local Authority providers and the private sector. Analysis of those winning contracts would not probably follow this pattern.

35. Consideration should also be given to organisations which can provide added value, ie carer support, awareness raising, information and advice etc.

36. The section on market analysis could be stronger on how councils evaluate their own services in terms of best value. The suggestion of stimulating interest from specialist providers is welcome.

Section 9- Plan

37. The focus on quality in relation to selection and award criteria and the suggestion that for care services quality should have greater weighting than cost is very welcome, as is the guidance on moving beyond the evaluation of providers based on a written tender exercise and including evidence relating to track records. We would prefer to see stringer guidance on the application of quality thresholds; it is our belief that it is important to provide a service that does more than achieve an ‘adequate’ standard.

38. We welcome the highlighting of the scope for local authorities to agree longer contracts, avoiding frequent retendering and the negative consequences for people who use services and for providers.

Section 10 Stage 4:Securing services

39. The context of securing services should be more firmly embedded in the language of choice and control. Section 10 should start with a statement about people participating in a process to assist the local authority but not take away their individual choices.

40. Section 10.2 on page 75 is too weak. Local authorities should involve people before they start any procurement process not ‘as soon as they are able’ and it needs to be clear that this is not optional.

41. Section 10.5 about the evaluation of tenders is pretty weak too. We have felt that many of the tenders were really just paper exercises with no real attempt to find out from people who use services what they are really like. This section does talk about involving people but says the local authority might decide not to if they think the legal risks are too great.

42. The section on evaluation of tenders (p78-79) is too vague and does not make sufficient connection with other sections of the guidance; for example there is nothing about taking Care Commission grades into account when evaluating tenders to improve the link between scrutiny of services and procurement.

43. There is little mention of outcomes until the next section about reviewing services. People who use services should have the opportunity to discuss outcomes before the procurement process starts, at the stage of developing a service specification.

Section 11: review

44. In general we find this section to be sensible and reasonable guidance. However, there is still too much room for duplication of other monitoring/regulatory processes – though this is recognised there is not enough clarity on what does not need to be repeated though it does make reference to “taking account of”.

45. There is a welcome focus on improved partnership approach.

46. The reference to ‘relevant information’ gives too much potential for duplication and should be more clearly spelled out.

47. We very much welcome the guidance that there should be a proportionate approach.

48. It is also very welcome to see the inclusion of carers/people who use services in consultations and the possible use of peer inspection is particularly interesting. We are certainly aware of people with dementia who would be likely to be interested in being trained to participate in this way, and perhaps to act as lay assessors.

49. The guidance is clear on processes necessary when identifying any issues with performance and these do seem robust enough while offering protection to service provider to improve and challenge.