Market Shaping and Market Failure Policy 060616 · Department of Adult Social Services Market...

Department of Adult Social Services

Market Shaping and Market Failure V3 (i) – 12th

January 2016

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Market Shaping and Market Failure



January 2016

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Policy: Market Shaping and Market Failure

Purpose: This policy statement refers to Wirral Borough Council’s statutory obligations regarding the sections of the Care Act that refer to the requirements for:

• Market shaping and commissioning of adult care and support

• Managing provider failure and other service interruptions.

Scope: All commissioners and Contract Managers working in adult social services

Contact point:


Approved by:

Mr Graham Hodkinson

Signature:

Version:

V3 (i) – 12th January 2016

Title:

Director of Adult Social Services

Review date:

June 2017

Date:

June 2016



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OVERVIEW In April 2015 new legislation called The Care Act 2014 was introduced in England in order to make care and support services better and more consistent across the country. The focus is firmly on the person rather than the service, and the new law empowers people to be involved and in control of their care journey and in turn maximise their potential to live a full and meaningful life. Wellbeing is at the core of the Act and it’s aspiration is for local authorities to help prevent, reduce or delay the onset of care and support services to help people stay healthy and independent for as long as possible. Information and advice services are seen as having a vital role in this process. There will also be new systems in place around payments and charging. It was also planned that from April 2016 a cap on care costs would be introduced as well as an extension to the financial limits which determine who receives financial support, however the Government have now postponed these changes until 2020.

Care and support is a term used to describe the help which some adults need to live as well as possible with any illness or disability they may have. It can include help with things like getting out of bed, washing, dressing, getting to work, cooking meals, eating, seeing friends, caring for families and being part of the community. Care and support includes the help given by family and friends, as well as any provided by Wirral Council or other organisations. People who are Carers will be entitled to a Carer’s assessment and, if eligible, their own support plans

Wirral Metropolitan Borough Council (Wirral Council) has developed a number of policy documents to describe the process which is followed by the Council in relation to the care and support needs of adults in its communities.

Each policy reflects the over-arching commitment to put the person at the centre of all decisions which are made. The focus on personal wellbeing, information, choice and control is at the heart of how care and support is provided by Wirral Council.

All Wirral Metropolitan Borough Council Department of Adult Social Services policies and procedures must be read in conjunction with the following Legislation The Care Act 2014 - Part 1 Care and Support, General responsibilities of Local Authorities. The Mental Capacity Act 2005 Human Rights Act 1998 Statutory Guidance Care and Support Statutory Guidance 2016 Wirral Council Policies Overarching values and principles Assessment, Eligibility and Review Support Planning Safeguarding Charging and Financial Assessment



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Primary legislation to be repealed or disapplied Title of legislation to be repealed, in whole or in part National Assistance Act 1948 Health Services and Public Health Act 1968 Local Authority Social Services Act 1970 Chronically Sick and Disabled Persons Act 1970 Health and Social Services and Social Security Adjudications Act 1983 Disabled Persons (Services, Consultation and Representation) Act 1986 National Health Service and Community Care Act 1990 Carers (Recognition and Services) Act 1995 Carers and Disabled Children Act 2000 Health and Social Care Act 2001 Community Care (Delayed Discharges etc.) Act 2003 Carers (Equal Opportunities) Act 2004 National Health Service Act 2006 Secondary legislation to be revoked Title of instruments to be revoked, in whole or in part Approvals and directions under S.21(1) NAA 1948 (LAC (93)10) National Assistance (Assessment of Resources) Regulations 1992 National Assistance Act 1948 (Choice of Accommodation) Directions 1992 National Assistance (Residential Accommodation) (Relevant Contributions) Regulations 2001 National Assistance (Residential Accommodation) (Additional Payments and Assessment of Resources) Regulations 2001 Delayed Discharges (Mental Health Care) (England) Order 2003 Delayed Discharges (England) Regulations 2003 National Assistance (Sums for Personal Requirements) Regulations 2003 Community Care (Delayed Discharges etc.) Act (Qualifying Services) Regulations 2003 Community Care Assessment Directions 2004 Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009 NHS Continuing Healthcare (Responsibilities) Directions 2009 Ordinary Residence Disputes (National Assistance Act 1948) Directions 2010



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1.0 Purpose

This policy statement refers to Wirral Borough Council’s statutory obligations regarding the sections of the Care Act that refer to the new requirement for:

• Market shaping and commissioning of adult care and support

• Managing provider failure and other service interruptions.

2.0 Introduction

Once of the key principles of this policy is the commitment of Wirral Council to work collaboratively with the Clinical Commissioning Group (CCG) and across the Council as a whole including public health, housing and children’s services

2.1 Market shaping and commissioning of adult social care and support

High quality, personalised care and support can only be achieved when there is a vibrant, responsive market of service providers. The role of the local authority is critical to achieving this. Through the actions it takes to directly commission services and the broader understanding it facilitates with the wider market the local authority plays a key part in creating services for the benefit for all local people and communities. The promotion of the wellbeing of individuals, carers and the outcomes they require are central to all care and support functions. The emphasis is on the importance of enabling people to stay independent for as long as possible. Local authorities need to understand the outcomes which matter most to people in their area and demonstrate these outcomes are at the heart of local strategies and approaches.

Section 5 of the Care Act places a duty on local authorities to promote diversity and quality in the market of care and support providers for people in their local area. In particular, local authorities must act to ensure there are a range of different providers of services available, offering a range of services shaped by the demand of individuals, families and carers and that those services are of a high quality.

Section 5 is a new duty that reflects existing responsibilities of local authorities and policy with regard to the promotion of the market of local services. The Act places new duties on local authorities to facilitate and shape their market for adult care and support as a whole, so that it meets the needs of all people in their area who need care and support, whether arranged or funded by the state, by the individual themselves, or in other ways. The Care Act states that local authorities should encourage choice between providers; facilitating an effective open market, driving quality and cost-effectiveness.

The principles underpinning Section 5 focus on outcomes and wellbeing; promoting quality services, including through workforce development and remuneration and ensuring appropriately resourced care and support. Market shaping and commission activity should support sustainability, ensuring choice and co-production with partners, stakeholders and customers.



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The council, working with its commissioning partners where applicable should support the market by both notifying the market of its commissioning intentions, and where possible co-producing specifications and services to meet locally identified needs.

Wirral Council’s actions in relation to this guidance are detailed below in Section 3.1

2.2 Managing provider failure and other service interruptions

The possibility of interruptions to care and support services causes uncertainty and anxiety for people receiving services, their carers, family and friends. Interruptions can arise for a number of different reasons, for example when a provider of services faces commercial difficulties that puts the continuation of their business under threat. Both large national and small local providers can experience commercial issues which cause uncertainty for people receiving care and support.

The local authority has an important role in situations where a provider is unable to continue to supply services because of business failure.

There are numerous other situations that can cause disruption to care and support services. Some may impact on the whole business – for example a provider decides to close the business down, while others impact on a particular service – for example a meningitis outbreak at a care home.

Section 19 of the Care Act (Power to meet needs), provides a broad power for the local authority to meet care and support needs in circumstances where Section 18, ‘Duty to meet needs’ does not arise. The Care Act allows for local authorities to temporarily bypass carrying out an assessment of needs, where care and support is needed urgently.

Sections 48-52 set out legal responsibilities on local authorities where a care provider fails; replacing and updating existing requirements. The Care Act makes it clear that local authorities have a temporary duty to ensure the needs of people continue to be met if their care provider becomes unable to carry on providing care because of business failure, no matter what type of care they receive. The Local Authority will work collaboratively with any other partner agencies who may have jointly commissioned care to ensure needs are met. The local authority will have a duty towards all people receiving care; regardless of how they pay for that care.

The Care Act states that the local authority must take steps to ensure that a person does not experience a gap in the care they need as a result of provider failing. This can range from providing information and advice to actively arranging care with a different provider.

Sections 53-57, Market Oversight, establishes that the Care Quality Commission (CQC) will take on a new responsibility for assessing the financial sustainability of certain ‘hard-to replace-care providers from April 2015. Sections 53-57 are new in law and practice. The Care Act introduces an oversight regime for the CQC to;



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• Assess the financial sustainability of the most difficult to replace providers

• Support local authorities to ensure continuity of care when providers fail

The Care Act allows CQC to request that, a provider who they judge to be in financial difficulty develops a sustainability plan and, where needed, arranges an independent business review. The CQC’s role is to oversee the provider plans to remedy the situation or to inform the local authority affected where it believes a provider is likely to fail; to ensure a smooth, well managed process that provides continuity of care. The CQC’s role is not to stop providers failing or to bail out providers.

Wirral Council’s policy in relation to this is highlighted in Section 3.2.

3.0 POLICY

3.1 Market shaping and commissioning of adult social care and support

Wirral Council will

• Take steps to design integrated strategies that meet local needs and engage with providers and communities to implement local approaches to market-shaping and commissioning.

• Facilitate the development of the market; to ensure the delivery of better, innovative and cost effective outcomes that promote the wellbeing of people who need care and support. Encourage a variety of different providers and different types of services, and will make available information about the providers of care and support services in the borough and the services provided

• Collaborate with stakeholders and the community, and integrate their approach with local partners and providers.

• This is then captured in specific service strategies e.g. Autism strategy, Dementia strategy to address and meet the needs of the market that are identified through Contract Market Demand Management .These individual strategies are then incorporated into the Department of Adult Social Services’ Market Position statement. This then informs the respective commissioning strategy for the Department.

3.2 Managing provider failure and other service interruptions

Wirral Council will:

• provide temporary support and continuity of care to any person whose care provider becomes unable to do so, due to business failure. Wirral Council may however charge for arranging care and support in these situations, in line with the same procedure for ongoing services.



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• work with CQC and other key partners as part of the new provider failure oversight regime. Develop contingency plans in advance to address service interruptions that pose the greatest risk locally.

• gather market intelligence data, including provider feedback and information to support providers (Section 5) anticipate and, if necessary, respond to business failures and other services interruptions.

• where appropriate Wirral Council will work on a wider footprint with other Local Authority commissioning colleagues for example, Liverpool City Region

ENDS

Market Shaping and Market Failure Policy 060616 · Department of Adult Social Services Market...

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