A legal review of this chapter was carried out. Following the review, all sections were refreshed.
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:
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.
IMPORTANT TO KNOWThe Care Act statutory guidance describes an ambition that ultimately the Local Authority will not only fulfil its statutory duty but will influence and drive the pace of change for the whole marketplace, finding innovative ways to continuously improve choice and control and deliver cost-effective outcomes that promote the Wellbeing of people requiring the Care and Support/Support services.
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.
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.
IMPORTANT TO KNOWThe Care Act statutory guidance promotes the use of outcome based commissioning approaches but recognises that these approaches are still in their infancy in the adult Care and Support sector. There is however, an expectation that the Local Authority monitor how outcome based approaches are being implemented nationally so as to build on best practice as it emerges.
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:
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:
The Local Authority is permitted to develop approved lists or frameworks that limit the amount of providers they commission directly. However, in doing so it must still ensure that there is reasonable choice for people. There is no stipulation in the Care Act as to the number of choices that must be available in order for reasonable choice to have been provided, other than that it must be 'more than 1'.
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.
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:
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:
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:
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:
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:
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: