Adult Social Care 2017 LocalGovernmentLawyer 28 Complying with guidance Local authorities have a duty to have regard to or follow statutory guidance issued by the Secretary of State (in particular under NHSA 2006, s 73B and CA 2014, s 78). Where there is no specific statutory obligation to follow such guidance, this will usually be picked up by the obligation to take into account all relevant considerations. Complying with the Equality Act 2010 The public sector equality duty (s 149 of the Equality Act 2010 (EqA 2010)), requires authorities to have due regard to the need to: ● eliminate unlawful discrimination, harassment and victimisation ● advance equality of opportunity, and ● promote good relations between people with and without the characteristics protected by EqA 2010 In practical terms, this means identifying and taking into account the impact of commissioning decisions, particularly changes to services, on service users and others. Consultation is key to compliance with this duty. Local authorities are also subject to the duty to make reasonable adjustments (section 20), and the general positive action duty (s 158) under the EqA 2010. Other specific provisions will apply where local authorities are acting in their roles as education providers, employers, landlords, service providers and transport providers. Public procurement regulations Authorities should consider whether services to be commissioned fall within the public procurement regime under the Public Contracts Regulations 2015 SI, 2015/102 (PCR 2015), which replaced the previous regime in the Public Contracts Regulations 2006, SI 2006/5 (PCR 2006) and applies to all procurements advertised after 26 February 2015. The regime provides that health and social care services (which were exempt from substantial elements of the procurement requirements under the previous regime as 'Part B' services) are now subject to additional requirements and sanctions. These include: ● a requirement to advertise the procurement where the value of the services exceeds the relevant threshold (currently €750,000), and ● the application of the full range of sanctions for breach of PCR 2015, SI 2015/102, including potentially contract cancellation Separately, the Concessions Directive 2014/23/EU came into force on 18th April 2016 by the Concession Contracts Regulations 2016, SI 2016/273. These regulations apply to concession contracts (including services concessions) that involve third party income being collected by the service provider at its own risk, where the value of that contract is equal or greater to the threshold specified in the Directive (currently €5,186,000). Best value Authorities need to consider the impact on the commissioning process of the best value requirements in section 3 of the Local Government Act 1999 (see above). Compliance with procurement rules and best value duties is likely to require a focus on a transparent tendering process with clear specification of the services required and robust analysis of the capability and bids of the prospective providers. Specific requirements as to commissioning of social care provision CA 2014 sets a number of duties which have a significant effect on the commissioning of social care provision. For more detail please see our Practice Note: Local authority social care duties. In particular: ● authorities need to be able to demonstrate that commissioning processes and duties are consistent with their duty to promote individual wellbeing under CA 2014, s 1 ● CA 2014, s 5 requires authorities to ‘promote the efficient and effective operation of a market in services for meeting care and support needs’, with a view to ensuring that people wishing to access care services in each authority's area have the ability to choose from a variety of: ● providers, and ● high quality services ● Authorities will need to be able to demonstrate how both their overall approach and individual commissioning processes and decisions fit with this duty. ● the statutory guidance under CA 2014 sets out in considerable detail what compliance with the duties in ss 1 and 5 will mean for social care commissioning. Regarding: ● overall approaches; authorities are expected to have commissioning and market development policies, including a market position statement that will set the context and aims for commissioning activity ● individual commissioning processes; the guidance makes a number of statements as to the nature of the contracts resulting from the commissioning processes which include: ● the expectation that compliance with CA 2014, s 5 will involve seeking to ensure that care providers provide appropriate terms and conditions for the employees, including payment of at least the minimum wage and payment for travel time, and the provision of effective training and development of staff ● compliance with s 1 should always begin with the assumption that the individual is best-placed to judge their own wellbeing and should seek to involve the individual as fully as possible in decisions concerning their care ● that commissioning the provision of very short care appointments (ie 15-minute appointments) will not comply with the individual wellbeing duty in s 1 for people who need support with intimate care needs (but may be appropriate in other situations, for example to check that someone has taken medication or that they have returned home safely from visiting a day centre) ● an expectation that local authorities should undertake due diligence about the financial sustainability and effectiveness of potential providers to deliver services to agreed quality standards, in order to comply with their obligations under s 1 and s 5