Commissioning and COVID-19: Legal and policy context
Published: July 2020
Last reviewed: 8 January 2021
This guide summarises law and areas of policy (in England) relevant to social care commissioning. This includes specific changes or considerations during COVID-19. Commissioners making or informing decisions in relation to the legal position should consult source legislation and guidance.
The key legal and regulatory areas covered are:
- Coronavirus Act (2020)
- Care Act (2014) including easements
- Mental Health Act (1983) including modifications
- Children and Families Act (2014) including modifications
- Mental Capacity Act (2005)
- Human Rights Act (1998)
- Equality Act (2010)
- The Health and Social Care Act (2012)
- Public Services (Social Value) Act (2012)
- Public Contracts Regulations (2015)
Care Act 2014
Local authorities must have regard to the core principle of promoting wellbeing and considering care and support needs, and the support needs of unpaid carers in the context of the person’s skills, ambitions and priorities. They must carry out duties in relation to assessment, support planning, review and meeting needs via personal budgets using person-centred and holistic approaches. Local authorities should also consider people in the context of their families and support networks so as to promote health and wellbeing, which will support the person to live as independently as possible. They must make independent advocacy available where needed. Key general duties are as follows:
- Prevent, reduce, delay – Local authorities should ensure the provision of preventive services.
- Information and advice – Local authorities must ‘establish and maintain a service for providing people in its area with information and advice relating to care and support for adults and support for carers’. Information should be relevant, available and accessible. People should also be given tailored information and advice following an assessment.
- Market shaping – Local authorities have a duty to facilitate the market, using a wide range of approaches to meet 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. There should be a variety of different service providers available offering a wide range of appropriate, high quality services to meet the needs of the local population. Councils must promote equality and diversity in the provision of care and support services. They should promote a viable, well-trained and appropriately paid workforce.
- Integration, cooperation and partnership – Local authorities must carry out their care and support responsibilities with the aim of joining up the services provided, or other actions taken with those provided by the NHS and other health-related services (for example, housing or leisure services), where this is of benefit to people in the local area and to improve outcomes for individuals.
Easements to the Care Act 2014
The Coronavirus Act allows easements to the Care Act 2014 for local authorities to prioritise meeting the most urgent and acute needs if pressures due to a depleted workforce or increased demand are such that it is no longer reasonably practicable to comply with its Care Act duties. Guidance sets out the protections and safeguards to carry out ‘eased’ functions in line with the Care Act’s wellbeing principle, person-centred approaches, the Ethical Framework and in full compliance with non-changed legislation including the Human Rights Act, Equality Act and Mental Capacity Act. If local authorities adopt these easements, the changed duties mean they will NOT have to:
- carry out detailed assessments of people’s care and support needs in compliance with pre-amendment Care Act requirements
- carry out financial assessments in compliance with pre-amendment Care Act requirement
- prepare or review care and support plans in compliance with pre-amendment Care Act requirements
- meet eligible care and support needs, or the support needs of a carer; a power to meet needs replaces this.
All other Care Act duties remain in force including those in relation to market shaping, advocacy, information and advice, prevention and safeguarding. Local authorities must underpin decisions made regarding the care and support someone receives during this period must by the following legislation, which remains unchanged:
- Mental Capacity Act 2005 and duties relating to Deprivation of Liberty Safeguards (DoLS)
- Equality Act 2010, including duties to make reasonable adjustments, the Public Sector Equality Duty and duties towards people with protected characteristics
- Human Rights Act 1998 – Local authorities will remain under a duty to meet needs where failure to do so would breach an individual’s human rights under the European Convention on Human Rights.
Local authorities must follow a staged decision-making process before adopting the easements. This must involve the Director of Adult Social Services, the Principal Social Worker and the lead member. The LA must formally notify the Department of Health and Social Care (DHSC) and must also publish and notify local residents, if they apply the easements.
The principles governing the use of powers require that the needs and wellbeing of individuals should be central to decision making; respecting the principles of personalisation and co-production as underpinned by Think Local, Act Personal (TLAP) commitment to the Making it Real ‘I statements’. Local authorities should observe the Ethical Framework for Adult Social Care and its eight principles of:
- minimising harm
Mental Health Act 1983 (MHA)
The Coronavirus Act 2020 provides for some temporary modifications to the MHA to be used only if absolutely necessary due to severe pressure on mental health services. The intention is to help services to continue to offer care and treatment to those who need it during the emergency period.
The MHA assessment process provides multi-disciplinary scrutiny to protect the rights of people who may be detained. At least two doctors should be consulted to consider whether there is a less restrictive option, such as care and treatment in the community. The Coronavirus Act changes, if applied, allow for just one doctor, rather than two, to authorise detention and likewise for decisions regarding how long someone can be held in a place of safety for the assessment process to happen.
The requirement, if absolutely necessary, is dropped for a ‘second opinion authorised doctor’ to agree, after three months in hospital, that the treatment someone is resisting remains in their best interests. The Coronavirus Act also allows for relaxations to how mental health tribunals are run.
The Children and Families Act 2014 (CFA)
The CFA requires councils to ensure children and young people with special educational needs and disabilities (SEND) – up to age 25, if appropriate – and families are at the centre of decision making, enabling them to participate in a fully informed way, and with a focus on achieving the best possible educational and other outcomes. There is a duty to identify all disabled children and young people and those with special educational needs. Councils must carry out their duties in a way that promotes integration between education and training provision and health care and social care provision.
Local authorities must publish and maintain a co-produced local offer of information setting out the education, health and social care provision that the local authority expects to be available for disabled children and young people and those with SEND. This includes provision that will help them prepare for adulthood.
Children and young people with SEND should be supported to develop education, health and care plans (EHC), which set out how they will meet their needs and outcomes. Local authorities must prepare a personal budget for children and young people who have EHC plans, if the child's parent or young person requests one.
The Coronavirus Act 2020 modifies section 42 of the CFA: the duty to secure special educational provision and health care provision in accordance with an EHC. The modification means that the duty on local authorities or health commissioning bodies to secure or arrange the provision is temporarily modified to: a duty to use ‘reasonable endeavours’ to do so.
Mental Capacity Act (MCA)
The MCA sets out the legal framework that asserts and supports people’s rights to make their own decisions. It remains unchanged by the Coronavirus Act. Everyone is presumed to have mental capacity until it established that they do not, and local authorities should take all reasonable steps to support a person to make a decision. If a person cannot make a decision, then any decision made on their behalf must be made in their best interests and taking the least restrictive option.
Duties relating to Deprivation of Liberty Safeguards (DoLS) remain in place. Please see Mental Capacity Act (MCA) quick guide for a summary of MCA implications and Government guidance on applying DoLS in the pandemic.
Equality Act 2010
The Equality Act provides for protecting the rights of people against discrimination in relation to nine protected characteristics:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation.
It requires the design of policies and the delivery of services to reflect equality considerations, including internal policies, and to keep these under review. The public sector equality duty (the equality duty) requires public sector bodies to have due regard to the need to:
- Eliminate unlawful discrimination, harassment and victimisation.
- Advance equality of opportunity between people who share a protected characteristic and those who do not.
- Foster good relations between people who share a protected characteristic and those who do not.
Due regard for advancing equality involves:
- Removing or minimising disadvantages suffered by people due to their protected characteristics.
- Taking steps to meet the needs of people from protected groups where these are different from the needs of other people.
- Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.
Human Rights Act 1998
The Human Rights Act enables individuals to enforce 16 of the fundamental rights and freedoms contained in the European Convention on Human Rights (ECHR). Rights particularly relevant to care and support include the right to life, the right not to be subjected to inhuman or degrading treatment and the right to a family life.
Public Services (Social Value) Act 2012
This act requires those who commission public services (in England and wales) to consider how they can also secure wider social, economic and environmental benefits. It applies to public services contracts above the EU threshold for the application of EU procurement rules and so subject to The Public Contracts Regulations 2015.
Before starting the procurement process, commissioners should think about whether the services they are going to buy, or the way they are going to buy them, could secure these wider benefits for their area or stakeholders. It also encourages commissioners to consult their local provider market or community to design better services and find new and innovative solutions to difficult problems.
Social Value Act commissioner guidance sets out examples of wider benefits including: helping to employ a diverse workforce for the delivery of the service; collaborating with the voluntary and community sector and users involved in designing and delivering the service; improving skills and access to digital technology; job creation/employing from a local community or disadvantaged groups.
The Public Contracts Regulations 2015
Where a contracting authority chooses to put a service out to tender, the authority must comply with the UK’s regulations in conducting its procurement process in line with the 2014 European Union Public Procurement Directive. The full regulations only apply to certain types of contract above a price threshold determined by the EU. Contracts valued below the thresholds do not have to comply with the full regulations but do have to comply with the principles of procurement set out in the regulations.
Inclusion London set out regulation-compliant recommendations contracting small providers to support the commissioning of DPOs (Disabled People’s organisations) and small organisations which are often disadvantaged by traditional tendering. These organisations, however, can make a significant contribution to local economic growth.
The Local Government Association’s (LGA) National Social Care Category Strategy for local government and associated toolkits and guidance supports appropriate procurement in the sector. They recommend involving procurement officers or category managers throughout the commissioning cycle to understand the options for spending money on health and care, and so market analysis is available at the outset of the process.
Procurement should not be at odds with personalised choice. Guidance on the light touch regime under the Public Contracts Regulations makes it clear that allowing people who use services to choose their provider, whether through call-off from frameworks or dynamic purchasing systems, does not contravene requirements around transparency and treating providers equally. The expectation is that people using services should be involved in choosing services and there should be a clear justification if they are not.
COVID-19: Our action plan for adult social care Open
The DHSC plan sets out how it aims to support care providers, the care workforce, unpaid carers, local authorities and the NHS to maintain services and continue to provide high quality and safe social care to people throughout the pandemic. It focuses on four main strands of action:
- Controlling the spread of infection.
- Supporting the workforce.
- Supporting independence, supporting people at the end of their lives, and responding to individual needs.
- Supporting local authorities and the providers of care.
Carers action plan 2018–2020 Open
The carers action plan outlines the cross-government programme of work to support carers in England. It builds on the National Carers Strategy retaining the strategic vision for recognising, valuing and supporting carers. The plan is structured around the following themes: services and systems that work for carers; employment and financial wellbeing; supporting young carers; recognising and supporting carers in the wider community and society; building research and evidence to improve outcomes for carers.
The NHS Long Term Plan Open
The NHS Long Term Plan commits to developing fully integrated community-based health care and has a key focus on personalisation. There is a commitment to rolling out the NHS model of universal personalised care, extending social prescribing, and accelerating the use of personal health budgets.
Prevention Green Paper – Advancing our health: prevention in the 2020s Open
This sets out proposals for a personalised prevention model as well as programmes to tackle obesity and diabetes; support stop smoking; establishing alcohol care teams in more areas and commitment to almost 1 million people benefiting from social prescribing by 2023 to 2024. Underpinned by technology development, the aim is to shift the health system away from just treating illness, and towards preventing problems in the first place. This ‘asset-based approach’ takes a whole life view considering the wider impacts on health and wellbeing.
For mental health and through Every Mind Matters, the aim is to work towards ‘parity of esteem’ for how to treat conditions and also for how they are prevented. Improvements to dementia support are also proposed through timely diagnosis and access to advice, information, care and support to enable people to live well with the condition and to remain independent.
Regulatory context: the Care Quality Commission (CQC) Open
The CQC is the independent regulator of health and social care in England. It monitors, inspects and regulates services to make sure they meet fundamental standards of quality and safety and it publishes findings, including performance ratings, to help people choose care.
It has a ‘market oversight’ duty to oversee the financial health of the most difficult-to-replace providers of adult social care services, so it can assist local authorities with their responsibility to ensure continuity of care if services are likely to fail.
Support from SCIE
SCIE's COVID-19 hub contains more relevant information including safeguarding, Mental Capacity Act and infection control. It can be used when working and supporting people who are isolated or vulnerable through COVID-19, and can also be shared with community groups.