6. Suggested Best-Practice for the Effective Involvement of People Who Use Care Services and Their Carers/Partnership Working With Service Providers
6.1 This chapter describes how a public body, when procuring a care and/or support service might effectively involve people who use those services and their carers.
6.2 In accordance with the key considerations described at chapter 4, it is crucial that the views of people who use services and their carers are considered (aiming, where possible, to engage with a diverse group of service users) in the commissioning and procurement processes for care and support services. It is also important to consider what knowledge, skills and support they will require to participate in the procurement process.
6.3 Consideration should also be given to expectation management taking account of the feasibility and affordability of meeting the wishes and choices expressed.
Personalisation of health and social care services
6.4 As described in the introduction, policy and legal developments in Scotland are increasingly focused on the personalisation of services. This includes the development of the National Strategy on Self-Directed Support in 2010 to help take forward the personalisation of health and social care services. This was given a legislative framework through the Social Care (Self-Directed Support) (Scotland) Act 2013.
6.5 The fundamental principles of SDS are choice and control. Choice is evident where people are able to choose how they live their life, where they live and what they do. People can also have control of the supports they receive by determining the who, what, when and how of that provision.
6.6 SDS is targeted at empowering people and putting the principles of independent living into practice. It describes the ways in which individuals and families can exercise some choice about the way their support needs are met from available resources.
6.7 The National SDS Strategy describes the activity required to mainstream self-directed support. It identifies that service providers and individuals should have shared responsibility for agreeing the best approach to meeting quality of life outcomes. This can be achieved best by commissioning for outcomes.
6.8 As mentioned in chapter 2, SDS includes a number of options for getting support. The person's individual budget can be:
- taken as a direct payment (a cash payment) (Option 1);
- allocated to a provider the individual chooses. The public body or a third party holds the budget but the person is in charge of how it is spent (this is sometimes called an individual service fund) (Option 2);
- the individual can choose a service arranged by a public body (Option 3); or
- the individual can choose a mix of these options for different types of support (Option 4).
6.9 SDS also enables people to make some purchases from outwith the traditional provider market and to spot purchase for more general goods and services.
SDS and Procurement
6.10 SDS Option 3 is mainly where this best-practice guidance has some focus.
6.11 There can also be procurement considerations for other elements of SDS, in particular, some aspects of SDS Option 2. This would only be in those circumstances where a public contract is in place - i.e. where a public body has formed a contract with a provider. Where this has been established, there are no legal requirements that stipulate a public body must follow a procurement process to meet the obligations of SDS Option 2. That said, it might choose to include procured services as part of its Option 2 considerations - in some circumstances - where it decides this best matches local need and meets any wider policy aims such as ensuring quality standards. This could be where a public body chooses, for example, to establish a framework of providers. This decision, and decisions about SDS implementation generally, are however largely local operational matters for individual public bodies to consider.
6.12 It is also for a public body to decide whether an existing service should be
re-tendered when a contract expires. This guidance makes clear that, in doing so, it should take account of the procurement rules, local and national policy and legislation and the benefits and risks to those people who use services.
6.13 Given that self-directed support also includes statutory responsibilities, it is important that consideration of the principles and also the mechanisms that are best to promote it should be part of the strategic commissioning process and, where relevant, reflected in individual procurement exercises.
6.14 The SDS Strategy provides a checklist of areas where advancements in self-directed support may impact on procurement activity. These include:
- the extent and measurement of quality of life outcomes and service level satisfaction;
- providing information about procurement to citizens;
- involving individuals and family carers in the development of commissioning strategies, procurement policies and individual procurement plans;
- development of the social and health care market;
- new forms of financial planning and financial management;
- balancing risks and responsibilities;
- systems to deliver direct services or purchase other services in line with personally determined support plans;
- aggregating data from support plans to inform procurement exercises;
- means to support service purchase by people who use services if this option is chosen;
- maintaining quality standards and ensuring cost-effectiveness;
- flexibility in service specifications and contracts; and
- contract monitoring and review.
6.15 As policy and legislation on self-directed support is embedded in practice, public bodies will need to continually consider how this is reflected in commissioning strategies and also their local procurement policies and procedures.
Involvement of people who use services and also their carers
'A human rights based approach to social care means that people who use the services participate in their design and delivery. The involvement of communities increases the likelihood that the needs of the community will be met more effectively and thus contribute to achieving better social care. Furthermore, participation helps ensure that the social care system is responsive to the particular needs of disadvantaged groups.'
Scottish Human Rights Commission
6.16 A public body should consult widely on any proposals for new services. Also, where decisions have to be taken about the continuation of existing services there is a need for more focused engagement with people receiving those services. A public body should take account of the views expressed by people who use services and their carers at the analysis stage (see commissioning cycle diagram at chapter 5) when:
- establishing individual needs and intended outcomes;
- analysing existing arrangements for delivering the service; and
- deciding if a service should be provided, for example in-house, under a shared service arrangement, or if it should be procured from an external service provider.
6.17 A public body should also take account of the views, benefits and risks expressed by people who use services and their carers at the planning stage when:
- advertising the requirement and awarding the contract or framework agreement by competition;
- developing the service specification;
- developing the evaluation criteria; and
- preparing questions for use in interviews with potential service providers.
In doing so, a public body should continue to be careful to ensure compliance with the procurement rules for example by ensuring that any approaches taken do not have the effect of distorting competition or preventing the equal treatment of bidders.
6.18 The views expressed by people who use services and their carers during ongoing consultation, for example during assessments and the development of care plans, should inform the development of individual procurement plans. These should describe when and how a public body will communicate its intentions to people who use services and their carers and seek their views on the particular procurement exercise. These should also describe when and how a public body will communicate the outcome of the procurement exercise.
6.19 A public body should consider the following factors to ensure effective consultation with, and the involvement of, people who use services and their carers:
- timing, method and frequency of communication;
- resource implications;
- responsibility for communicating with people who use services and their carers;
- arrangements for facilitating the involvement of people who use services and their carers;
- the appropriate level of involvement, given the nature and scale of the service and diversity of people who use services and their carers; and
- methods of recording the views expressed by people who use services and their carers.
6.20 When determining what type of communication is appropriate for a particular procurement exercise, a public body should consider the preferred methods of people who use services and their carers. It should consider different methods of written communication (taking into account diverse needs to ensure that people who use services are able to participate), for example letters, story board publications and the publication of information on its website. It should consider whether to undertake a survey of people who use services and their carers and how to seek comments from user-led organisations. It should also consider different methods of communicating face to face, for example in open meetings, or meetings with particular groups of people who use services and their carers.
If procurement activity may result in a change of service provider or change to service provision, information about the procurement process should be provided to people who use the services and their carers who may be affected. Where relevant, they should also receive information on the choices available to them and the availability of SDS.
6.21 It is important to consider what knowledge, skills and support people who use services and their carers will require in order to participate in the procurement process. Consideration should be given to using advocacy services to enhance their confidence in participation.
It is important that a public body is very clear when providing guidance to people who use services and their carers about a formal procurement exercise. For procurements where a cross-border interest has been established, and to which EU law applies, consideration must be given to how compliance with the TFEU fundamental principles (e.g. equal treatment) can be secured. For example, people who use services and their carers should be made aware, during a procurement process, that there must be no bias towards, or against, service providers that they do, or do not know, or service providers which are established in or outside Scotland. Decisions must be focused on a provider's ability to meet the requirements of the specification in the most efficient way.
The expression of choice from people who use services and their carers in a formal procurement exercise can differ from the choices available more widely through SDS. It is therefore important that a public body manages the expectations of people who use services and their carers taking account of the feasibility and affordability of meeting the wishes and choices expressed. It is important that people who use services and their carers are enabled to make formal representations about any procurement exercise involving their support and are aware of their rights to exercise choice through Self-Directed Support.
Once a decision to procure services has been taken, the possible application of EU law must be taken into account, notwithstanding the preferences of people who use services or their carers' preferences.
Overall, taking account of these considerations, consistent with section 15(5)(b)(ii) of the Act, a public body should set out in its procurement strategy a statement of its general policy on consulting and engaging with those affected by its procurements.
Accessibility of information and terminology
6.22 Where possible, information about local policies and procedures for the procurement of care and support services and proposed service changes should be available in plain language. Consideration should be given to the development of easy-to-understand versions and to providing information in alternative formats. For example, a public body should consider whether information should be provided in paper format or electronically (on websites, by e-mail or via social networks). It should also consider whether there is a need for information to be provided in minority languages and the use of large print, audio tape, Braille, DVD or British Sign Language DVD.
6.23 Communication with people who use services and their carers must take account of individual needs. For example, the use of text messages may be suitable for people with hearing impairments but may be inappropriate for someone with a learning disability. A public body has a duty to make 'reasonable adjustments' under the Disability Discrimination Act 2005 and should evidence what it has done to take account of individual need.
Partnership working with service providers
6.24 The procurement of care and support services should promote partnership working across sectors. Successful partnership working must be built upon openness and transparency, mutual respect and a joint understanding of the roles and responsibilities of each partner and the challenges that they face. To achieve this, as best practice, a public body should:
- recognise service providers' contributions to achieving positive outcomes for people who use services;
- involve service providers in the development of local commissioning strategies and local policies and procedures for the procurement for care and support services;
- be proactive in involving service providers in service design and the development of service specifications; and
- in doing so, continue to ensure compliance with the procurement rules - for example by ensuring that there is no conflict of interest which could distort competition or prevent the equal treatment of bidders.
6.25 A public body should ensure that its procurement plans for individual procurement exercises describe how and when it will communicate its intentions to service providers. Where the procurement exercise involves an existing service, a public body should ensure that sufficient information is given to incumbent service providers to enable them to:
- direct people who use services to the relevant contact within the public body;
- properly inform their staff about developments;
- plan for their involvement in the procurement exercise;
- respond to requests under the Transfer of Undertakings (Protection of Employment) Regulations 2006 ('TUPE') as amended for information relating to staff transfers.
6.26 It should also ensure that its procurement plans describe how it will engage with service providers (for example, by holding an open day) and how service providers will be involved in developing the service specification.
6.27 It is also important to consider the appropriateness of language and terms used in a procurement exercise. For example, the term 'lots' is a standard term in the forms mandated by the European Commission for the advertisement of contracts in the Official Journal of the European Union (OJEU). Although the term 'lots' in a procurement context refers to groups of services and not those who use them, the absence of a clear distinction can be misconstrued. The use of the term 'lots', for example, should therefore be avoided, wherever possible, in documentation relating to the procurement for care and support services. Efforts should be made to ensure that terminology reflects the principles of dignity and respect and that jargon is kept to a minimum.
This guidance focuses on a public body's role in the procurement of care and support services. Accordingly, the preceding paragraphs describe some of the actions that a public body can take to promote effective partnership working with service providers. It should be noted that service providers have specific responsibilities in the procurement process and share responsibility for promoting effective partnership working.
6.28 Any need for service continuity should be a key consideration in the procurement of care and support services. A public body should:
- assess that need when analysing existing arrangements for delivering the service at the analysis stage;
- take into account the need for service continuity when analysing the benefits and risks to people who use services and service delivery of advertising the requirement and awarding the contract or framework agreement by competition;
- consider the implications of self-directed support;
- determine which contracting mechanism (for example use of a framework agreement) will deliver the required outcomes in terms of continuity of care;
- determine the appropriate contract duration to ensure continuity of care for people who use services while taking account of the procurement rules and best practice;
- allow sufficient time to ensure that services are appropriately registered to undertake the care service functions; and
- consider what will happen at the end of the contract term and plan accordingly.
The need for service continuity should be balanced against the need for service reform and re-design in certain situations to move services forward.
Fair Work Practices
6.29 As stated in the key considerations at chapter 4 a public body should ensure that the procurement for care and support services considers how to take account of a bidder's approach to fair work practices (see the statutory guidance on Addressing Fair Work Practices, including the Living Wage, in Procurement).
6.30 The nature of care and support services means that the quality of these services is highly dependent on whether a provider has a diverse workforce and whose staff are well-rewarded, well-motivated, well-led and who have appropriate opportunities for training and skills development. This means that a provider's approach to fair work practices would normally be expected to include fair and equal pay (including a commitment to support the living wage) and should be evaluated during the procurement process. The Scottish Government considers the payment of the Living Wage to be a significant indicator of an employer's commitment to fair work practices and that payment of the Living Wage is one of the clearest ways that an employer can demonstrate that it takes a positive approach to its workforce. Where a provider does not pay its employees the Living Wage, however, it does not necessarily mean that its approach to its employees fails to meet fair work practices.
6.31 As part of considering how to approach fair work practices in care and support services, a public body should:
- ensure, in designing services, that it consults with and involves staff and their representatives (including the trades unions) when appraising the options for service delivery;
- fully consider the implications of potential staff transfers under the TUPE Regulations;
- outline proposals for addressing fair work practices in the procurement strategy. For example, this can include considering how to promote suitable staff management practices, a fair and equal pay that can include a commitment to supporting the payment of the Living Wage, support for learning and development and stability of employment and hours of work by appropriately defining, in a specification, the level of quality required; and
- when considering how to weight a question on fair work practices it is important to be proportionate by taking into account the likely impact on the quality of the service delivery or the works performed and by ensuring the appropriate balance between the quality and cost of operating different kinds of care and support services.
- Where procurement activity results in a change of service provider or change to service provision, information about the procurement process should be provided to people who use the services and their carers who may be affected. They should also receive information about the choices available to them where applicable.
- It is important that a public body is very clear in providing guidance to people who use services and their carers when it is involved in a formal procurement exercise. For procurements where a cross-border interest has been established, and to which EU law applies, consideration must be given to how compliance with the TFEU fundamental principles can be secured. That is, people who use services and their carers should be made aware, during a procurement process, that there must be no bias towards, or against, service providers that they do, or do not know, or service providers which are established in or outside Scotland. Decisions must be focused on providers' ability to meet the requirements of the specification in the most efficient way.
- The expression of choice from people who use services and carers in a formal procurement exercise can differ from the choices available more widely through SDS. It is therefore important that a public body manages the expectations of people who use services and their carers taking account of the feasibility and affordability of meeting the wishes and choices expressed.
- Overall, taking account of these considerations, and in being consistent with section 15(5)(b)(ii) of the Act, a public body should set out in its procurement strategy a statement of its general policy on consulting and engaging with those affected by its procurements.
- Also once a decision to procure services has been taken, the possible application of EU law must be taken into account, notwithstanding the preferences of people who use services or their carers' preferences.
- See annex 5 for a summary of the key actions required by a public body to implement the guidance.