Market Shaping and Commissioning of Adult Care and Support

1. Introduction

The local authority has a critical role in ensuring services provide high quality, personalised care and support for the benefit of all local people and communities. It can do this through the actions it takes to commission services to meet needs The Care Act 2014 places duties on the local authority to make sure the market for adult care and support as a whole 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. Market shaping and commissioning aims to promote a market for care and support that broadens, supplements and supports other sources of care and support including peoples own efforts, families and carers.

This chapter outlines the responsibilities of the local authority in relation to market shaping and commissioning. It contains information for service staff involved in contracting and commissioning arrangements with local authorities.

2. Definitions

2.1 Market shaping

Market shaping means the local authority working closely with other relevant partners, including people with care and support needs, carers and families to develop services including:

• services arranged and paid for by the state through the authority itself;
• those services paid by the state through direct payments;
• those services arranged and paid for by individuals from whatever sources (self-funders);
• services paid for by a combination of these sources.

Market shaping activity should stimulate a wide range of  high quality services and ensure the market as a whole remains vibrant and sustainable. Market shaping means working with stakeholders to understand people’s needs and aspirations. It should be based on evidence, to signal to the market the types of services needed now and in the future to meet them, encourage innovation, investment and continuous improvement. This includes working with people who purchase their own services, for example by helping people who want to take direct payments make decisions about employing personal assistants.

2.2 Commissioning

Commissioning is the way the local authority assesses the needs of local people for care and support services, determining what element of this needs to be arranged by the authority, then designing, delivering, monitoring and evaluating those services to ensure appropriate outcomes.

3. Principles of Market Shaping and Commissioning

3.1 Focusing on outcomes: Wellbeing

The local authority must ensure the promotion of the wellbeing of individuals who need care and support, and the wellbeing of carers. The outcomes, are central to all care and support functions in relation to individuals, emphasising the importance of enabling people to stay independent for as long as possible (see Promoting Wellbeing and Preventing, Reducing or Delaying Needs).

3.2 Promoting quality

The local authority must make sure they commission a diverse range of high quality and appropriate services. In doing so, they must have regard to ensuring the continuous improvement of those services and encouraging a workforce which effectively underpins the market. The quality of services provided and the workforce providing them can have a significant effect on the wellbeing of people receiving care and support, and that of carers, and it is important to establish agreed understandable and clear criteria for quality and to ensure they are met. It should encourage a wide range of service provision to ensure that people have a choice of appropriate services; appropriateness is a fundamental part of quality. Appropriate services will meet people’s needs and reasonable preferences. This includes considering the appropriateness of care and support services for people from different communities, cultures and beliefs.

People working in the care sector play a central role in providing high quality services. The local authority must consider how to help foster, enhance and appropriately incentivise this vital workforce to underpin effective, high quality services. In particular, it should consider how to encourage training and development for the workforce, including for the management of care services, though, for example, national standards recommended by Skills for Care, and have regard to funding available through grants to support the training of care workers in the independent sector.

3.3 Ensuring choice

The local authority must encourage a variety of different providers and different types of services. This is important in order to provide genuine choice to meet the range of needs and reasonable preferences of local people who need care and support services, including for people who choose to take direct payments, recognising, for example, the challenges presented in remote rural areas for low volume local services.

The local authority should facilitate the personalisation of care and support services, encouraging services (including small, local, specialised and personal assistant services that are highly tailored), to enable people to make meaningful choices and to take control of their support arrangements, regardless of service setting or how their personal budget is managed. Local authorities should have regard to the TLAP Partnership agreement that sets out how shaping markets to meet people’s needs and aspirations, including housing options, can promote choice and control. Alongside the suitability of living accommodation, the local authority should consider how it can encourage the development of accommodation options that can support choice and control and promote wellbeing. Personalised care and support services should be flexible so as to ensure people have choices over what they are supported with, when and how their support is provided and wherever possible, by whom. The mechanism of Individual Service Funds by service providers, which are applicable in many different service types, can help to secure these kinds of flexibilities for people and providers.

The local authority should encourage flexible services to be developed and made available that support people who need care and support, and carers who need support, to take part in work, education or training. Services should be encouraged that allow carers who live in one local authority area but care for someone in another local authority area to access services easily, bearing in mind guidance on ordinary residence.

3.4 Co-production with stakeholders

Local authorities should pursue the principle that market shaping and commissioning should be shared endeavours, with commissioners working alongside people with care and support needs, carers, family members, care providers, representatives of care workers, relevant voluntary, user and other support organisations and the public to find shared and agreed solutions (see also the Think Local Act Personal Guidance on Co-production).

3.5 Developing local strategies

It is important that the local authority develops evidence based strategies for how it should exercise its functions and align them with wider corporate planning. It should publish strategies that include plans that show how its legislative duties, corporate plans, analysis of local needs and requirements (integrated with the Joint Strategic Needs Assessment and Joint Health and Wellbeing Strategy), thorough engagement with people, carers and families, market and supply analysis, market structuring and interventions, resource allocations and procurement and contract management activities translate (now and in future) into appropriate high quality services that deliver identified outcomes for the people in their area and address any identified gaps.

Engagement with people needing care and support, people likely to need care and support, carers, independent advocates, families and friends, should emphasise understanding the needs of individuals and specific communities, what aspirations people have, what outcomes they would like to achieve, their views on existing services and how they would like services to be delivered in the future.

4. Undertaking Market Shaping and Commissioning

4.1 Understanding the market

The local authority must understand local markets and develop knowledge of current and future needs for care and support services. This is important so that the authority can articulate likely trends in needs and signal to the market the likely future demand for different types of services for its market as a whole, and understand the local business environment, to support effective commissioning.

4.2 Facilitating the development of the market

The local authority should collaborate with stakeholders and providers to bring together information about needs and demands for care and support with that about future supply, to understand the implications for service delivery for the whole of its markets. This will include understanding and signalling to the market as a whole the need for the market to change to meet expected trends in needs, adapt to enhance diversity, choice, stability and sustainability, and consider geographic challenges for particular areas. To this picture, the local authority should add their own commissioning strategy and future likely resourcing for people receiving state funding. The local authority should consider coordinating these market shaping and related activities with other neighbouring authorities where this would provide better outcomes.

4.3 Promoting integration with local partners

The Health and Social Care Act 2012 sets out specific obligations for the health system and its relationship with care and support services. It gives a duty to NHS England, integrated care boards (ICBs), Monitor and Health and Wellbeing Boards to make it easier for health and social care services to work together to improve outcomes for people. The local authority has a duty to carry out their care and support functions with the aim of integrating services with those provided by the NHS or other health-related services, such as housing.

4.4 Preventing abuse and neglect

When commissioning services, the local authority should pay particular attention to ensuring that providers have clear arrangements in place to prevent abuse or neglect. This should include assuring itself, through its contracting arrangements, that a provider is capable and competent in responding to allegations of abuse or neglect, including having robust processes in place to investigate the actions of members of staff. The local authority should be clear what information they expect from providers (for example, where there are allegations of abuse, what action the provider is taking or has taken and what the outcome is) and where providers are expected to call upon local authorities to lead a section 42 safeguarding enquiry (where the management of the provider is implicated for instance), or to involve the integrated care boards (for health matters) or police (for example, in the case of potential crimes) – see Safeguarding Adults from Abuse or Neglect. There should be clear agreement about how local partners work together on investigations and their respective roles and responsibilities.

4.5 Financial sustainability

When commissioning services, the local authority should undertake due diligence about the financial sustainability and effectiveness of potential providers to deliver services to agreed criteria for quality, and should assure themselves that any recent breaches of regulatory standards or relevant legislation by a potential provider have been corrected before considering them during tendering processes. For example, where a provider has previously been in breach of national minimum wage legislation, a local authority should consider every legal means of excluding them from the tendering process unless they have evidence that the provider’s policies and practice have changed to ensure permanent compliance.