LocalGovernmentLawyer Adult Social Care 2017 27 ('the 2006 Act') with regard to public health functions ● NHSA 2006, s 248 with regard to independent advocacy services ● ss 18 and 20 of the Care Act 2014 (CA 2014) with regard to provision of services to people with eligible needs for care and support ● CA 2014, s 2 with regard to preventative services ● CA 2014, s 3 with regard to promoting integration of care and support with health services ● CA 2014, s 4 with regard to information and advice It is increasingly unusual for local authorities to act as direct service providers as the practical burdens (including providing the necessary premises, equipment and staff and registering with the Care Quality Commission) are considerable and difficult to maintain in the context of the current financial pressures on local authorities. For a number of years now central government has discouraged local authorities from acting as direct service providers, instead encouraging them to act as 'commissioning hubs' by commissioning services from a wide range of providers from the private and third sectors. In line with this policy drive, CA 2014, s 79 gave local authorities wide powers to delegate most of their functions under CA 2014, Pt 1 (which sets out the statutory framework for social care). This enables authorities to commission both the delivery of services, and exercise of local authority functions such as the assessment of needs for care and support, and production and management of care plans. This builds on The Contracting Out (Local Authorities Social Services Functions) (England) Order 2014, SI 2014/829, which allows the delegation of adult social work functions to third parties where they are performed by or under the supervision of a social worker registered in the UK. Legal requirements applicable to commissioning activities The legal requirements applicable to the various commissioning activities undertaken by a local authority will vary according to a number of factors. Key factors include: ● the nature of the services being commissioned ● how the commissioned services 'fit' with other functions of the authority ● how the commissioned services relate to functions of other bodies, such as local clinical commissioning groups (CCGs) ● the local authority's relationships with other organisations, and ● the extent to which the authority wishes to bring in local considerations under the Public Services (Social Value) Act 2012 However, this article identifies key legal considerations which will or may be relevant. Failure to comply with applicable legal requirements renders commissioning decisions vulnerable to challenge by way of judicial review or otherwise (see below). Complying with general public law requirements To ensure that commissioning activity is lawful, the scope/specification of the services being commissioned must be consistent with the statutory framework, which includes ensuring that: ● the scope/specification is in line with the definition of the services in the statutory power or duty under which the authority is acting ● it is a service for which the local authority is responsible. Local authorities have no power to commission (or provide) NHS services other than public health services for which they have responsibility under NHSA 2006 unless responsibility has been delegated: ● by an NHS commissioner under the power in NHSA 2006, s 75 (see further below), CA 2014, s 22, or ● through the sharing of staff on secondment who are able to exercise powers on behalf of both organisations under section 113 of the Local Government Act 1972 ● the scope/specification complies with any relevant regulations ● any contracts or other agreements entered into comply with any relevant regulations In addition, an authority's approach to scoping and specifying commissioned services has to be defensible in terms of general public law principles. This means that the approach must: ● Be reasonable ● take into account all relevant considerations ● not be based on any irrelevant considerations ● be in accordance with the authority's own standing orders and policies, including its policies on: ● commissioning generally, and ● the services being commissioned and/or any related duties (for example, ensuring that the approach to commissioning social care provision is consistent with the approach to identifying an individual's needs for care and support in care plans/care and support plans, or its policies on promotion of individual wellbeing) ● follow a proportionate, fair and transparent process, compliant with EU procurement regulations (please see below) ● consider the authority's other decision-making duties such as: ● the general duty under s 1 of the Care Act 2014 where a local authority is exercising, or delegating, a function under Part 1 of the Care Act 2014 in relation to an individual, to promote that individual's well-being ● the best value duty under s 3 of the Local Government Act 1999 to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness, and ● fiduciary and equality duties (see below) Complying with duty to consult where material changes to services If a commissioning process would or may result in material changes to: ● the types or levels of services provided ● the way in which or the basis on which the services are provided, or ● the identity of the provider the local authority will usually have a legal duty to consult with the public/service users and providers, taking their views into account in the formative stages before a final decision is made.