Created on 03 August 2015

Record numbers of people with learning disabilities and mental health conditions are being helped into work by the Access to Work scheme.

New figures from the Department for Work and Pensions show more than 2,000 people with a learning disability were helped by the initiative in the year to 31 March 2015 with more new awards than ever before. The number of people with mental health conditions using the scheme – which includes the recently-established Mental Health Support Service in Access to Work – has continued to rise and now stands at more than 1,600.

Users can receive help with travel to work as well as access to support workers and specialist adaptations to help overcome the challenges they face in the workplace. Their employers will receive financial support with the extra costs associated with employing a disabled person beyond reasonable adjustments expected under the law.

Access to Work is a demand led scheme, and the increase in users with a learning disability or mental health condition comes as the overall number of disabled people using the scheme to find or stay in work reaches a 5-year high. In 2014/15 growth continued for the third consecutive year with an additional 1,200 more people supported, taking the total to 36,760.

Since April 2007, Access to Work has helped nearly 124,000 disabled people into employment. Changes to the scheme announced in March this year introduced personal budgets for those who want them as well as enhancing support for disabled people who wish to start their own businesses.

 

Created on 19 November 2014

The number of people with substantial learning disabilities in England and Wales who are in paid employment has fallen.

While unemployment in Britain generally has been fallen, the Department of Health has suggested that the proportion of learning disabled people who were in paid employment fell from 7% in 2012-13 to 6.8% in 2013-14.

This is probably caused by cuts in the supported employment programmes which help people get into work.

Figures for Scotland from ESAY suggest paid employment in Scotland is less at only 6.2% (not including those training for employment)

 

Is Edinburgh Council obliged to tender for its new Supported Employment services?

Created on 25 June 2013

The short answer to this is No.  There are a range of options that local authorities can use to extend existing services or commission new or replacement services.  These have been well documented by the Scottish Government in response to previous concerns over competitive tendering.

For those who like more details, the following longer answer is drawn from work carried out by the Scottish Government on the procurement and commissioning of social care services.   A social care service is any service that a person receives because they have additional needs due to disability or age.

A          Commissioning and Procurement  – Understanding the Different Stages.
The Scottish Government is at pains in its guidance to ensure that local authorities understand that there are a clear set of stages in the Commissioning process.

  1. Analyse – where the needs are researched and understood.
  2. Plan– deciding which methods and services are best to meet the needs that have been identified
  3. Do – Deciding how a local authority will arrange for the chosen services to be provided.
  4. Review – Actually delivery of service

Competitive Tendering is only one of a range of options in the “Do” stage.  There are many ways to decide what services are provided.

In the Edinburgh Support Employment Review, there has been some apparent confusion between the two stages of Planning and Doing.   The main report is really a planning report that suggests what type of services that the Council might like to commission.  It does not cover the issue of how the council will actually procure services.

B          Procurement

The procurement of care and support services is in a process of adaptation over the coming years to take account of greater personalisation of services in the form of individual budgets and direct payments.  In addition, public bodies are facing unprecedented financial pressures which will require them to achieve efficiencies through procurement activity. The challenge for public bodies is to work in partnership with service providers to make the best use of public funding whilst maintaining quality and meeting service users’ needs and expectations. Procurement activity is itself constrained by resources and needs to be proportionate.

Various sets of different laws cover the decisions about what public services have to be procured and these will in instances conflict.  It is the duty of each local authority to satisfy itself that it has met its legal duties for any particular decision.

  1. Procurement Legislation.

Public procurement is governed by a legal framework which includes principles deriving from the Treaty on the Functioning of the European Union, European Procurement Directives, as implemented in national legislation and European Court of Justice and national case law. The legal framework establishes procedures which must be followed by public bodies whenever they purchase goods, services or works from external suppliers or service providers.

The principles deriving from the Treaty on the Functioning of the European Union (the “Treaty principles”) apply to all activities undertaken by a public body. The key Treaty obligations in the context of public procurement, include:

  • transparency – contract procedures must be transparent and contract opportunities should generally be publicised;
  • equal treatment and non-discrimination – potential suppliers must be treated equally;
  • proportionality – procurement procedures and decisions must be proportionate to the outcome desired;
  • mutual recognition – giving equal validity to qualifications and standards from other Member States, where appropriate.

European Procurement Directive 2004/18/EC sets out detailed procedural rules for the purchase of goods, services and works by public bodies. These procedural rules support and are interpreted by reference to the Treaty principles. Directive 2004/18/EC is given effect in Scots law by the Public Contracts (Scotland) Regulations 2006 (SSI 2006 No. 1), as amended.17 Chapter 8 provides detailed information about the application of the 2006 Regulations to the procurement of care and support services.

Decisions of the European Court of Justice (ECJ) and the national courts provide interpretation of the Treaty principles and the European Procurement Directives and can establish precedents which must be observed. Case law, by its nature, is constantly evolving and can have significant effects.

Of course, European law is complicated and some parts of it recognise the value provided by social business which have agendas other than just profit making.

Article 19 makes provision for what is known as “Reserved Contracts.”

Member States may reserve the right to participate in public contract award procedures to sheltered workshops or provide for such contracts to be performed in the context of sheltered employment programmes where most of the employees concerned are handicapped persons who, by reason of the nature or the seriousness of their disabilities, cannot carry on occupations under normal conditions. The contract notice shall make reference to this provision.

Article 19 makes clear that some of the businesses included in the Supported Employment proposals could be treated as “Reserved Contracts”.  This would cover the Engine Shed and might stretch to include the Scottish Braille Press and parts of the Forth Sector group.

  1. Social Work Legislation

Social work legislation sets out the duties, responsibilities and discretionary powers of local authorities to promote social welfare and meet the social care needs of individuals, families and communities. It also provides a framework of standards and arrangements for service and workforce regulation. Social work legislation dictates what services must or may be put in place.

The duty to provide social work services falls on local authorities, which have wide discretion in how they will exercise their social work functions. Under section 12 of the Social Work (Scotland) Act 1968, local authorities have a duty to “promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities as they may consider suitable and adequate”. Sections 12B and 12C of the 1968 Act place a duty on local authorities to make direct payments available to eligible persons who wish to receive them.  The Self Directed Support (Scotland) Act will place a duty on local authorities to ensure that all those who receive social work services are aware of their option to choose and manage their own support.   [This is a local authority responsibility not just that of the Social Work Department.]

Local authorities perform their functions under the general guidance of the Scottish Ministers, who are given the power throughout social work legislation to make regulations and issue guidance or directions to local authorities regarding the performance of their social work functions.

This section raises the question of how the City Of Edinburgh plans to implement Self Directed Support for vulnerable adults.  The route into supported employment in the city is not normally through a social work assessment but all of the individuals who benefit from this type of service do have support needs.

  1. Human rights law

The European Convention on Human Rights (ECHR) sets out individuals’ fundamental rights and freedoms based on the core principles of dignity, fairness, equality, respect and autonomy. The ECHR recognises individuals’ freedom to control their own lives and effectively take part in decisions made by public bodies which impact upon their rights. It sets out the human rights obligations and minimum standard thresholds to which public services must adhere. The fundamental rights and freedoms contained in the ECHR are given legal effect in Scotland by the Human Rights Act 1998 and the Scotland Act 1998.

Under section 6 of the Human Rights Act 1998, it is unlawful for a public body to act in a way which is incompatible with a Convention right. Public bodies must ensure that all staff involved in the procurement of care and support services, and contracted providers, understand and take account of individuals’ human rights. Section 3 of the Act provides that, so far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the Convention rights. All legislation which impacts on the procurement of social care and support services should therefore be interpreted in a way which is compatible with the Convention rights.

All EU law must be compatible with fundamental rights recognised by the EU. The EU Charter of Fundamental Rights (which includes all ECHR rights) and the Treaty on the Functioning of the European Union (from which procurement law derives) have the same legal value.

The following ECHR rights may be of particular relevance in a social care context:

Article 3 – “the right not to be subject to torture or inhuman or degrading treatment”

A violation of Article 3 may occur if a person at risk is neglected or is living in unsafe or inappropriate conditions. Article 3 is an absolute right which is not to be balanced against other considerations.

Article 8 – “the right to respect for his private and family life, his home and his correspondence”

The European Court of Human Rights has taken a broad interpretation of  “private life” as referred to in Article 8. In Pretty v UK (2002), the Court stated that Article 8 includes the right ”to conduct one’s life in the manner of one’s choosing”. In a subsequent case, the ECJ stated that “private life” encompasses “aspects of an individual’s physical and social identity including the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world”.     Article 8 is not, however, an absolute right; public bodies may lawfully balance Article 8 rights against other considerations where to do so is in accordance with the law, necessary and proportionate. Complying with EU law is not in itself likely to infringe Article 8 if public bodies have regard to service users’ rights throughout the procurement process.

Article 14 states that, in the application of human rights, people have the right not to be treated differently because of their race, religion, sex, political views or any other personal status, unless there is an “objective justification” for the difference in treatment. The definition of “other status” includes disability, sexual orientation and age.

The United Nations Convention on the Rights of Persons with Disabilities enshrines the rights to information, communication and choice for disabled people in relation to their individual autonomy and independence, and the right to be given opportunities to be actively involved in decision making processes about policies and programmes, including those directly concerning them. In addition, the International Covenant on Economic, Social and Cultural Rights includes the right to the highest attainable standards of physical and mental health.

  1. Equality legislation

There is currently a range of equality legislation protecting people from discrimination on the grounds of race, disability, gender, gender identity, age, sexual orientation and religion or belief. Public bodies must comply with all relevant equality legislation.

The Equality Act 2010 has introduced a single equality duty which require particular public bodies to take proactive steps to eliminate discrimination and harassment and to promote equality of opportunity with regard to any protected characteristic. The equality duties apply to all public functions, whether carried out by a public body or by a third party on its behalf. This means that external service providers must have due regard to the equality duties when delivering a service which has been procured by a public body.  The UK Government is responsible for implementation of the Act.

  1. Local Government Legislation

Under the Local Government in Scotland Act 2003, local authorities have a statutory duty to secure “best value” in the performance of their functions. The legislation provides that local authorities must maintain an appropriate balance between the quality and cost both of directly provided public services and services which they purchase from external service providers, having regard to efficiency, effectiveness, economy, equal opportunities and sustainable development. It also provides a framework for the continuous improvement of directly provided services and those purchased from external service providers.

The 2003 Act also gives local authorities power to do anything they consider likely to promote or improve the well being of communities and individuals within those communities, as long as this is not prohibited by any enactment or does not unreasonably duplicate a statutory requirement on any other person. This clearly gives very wide powers in relation to social work as well as other functions.

  1. Taking a Lawful Decision

Arriving at a decision requires local authorities to have regard to these and other forms of competing legislation.  It is not enough to simply quote procurement law, the other legislative aspects need to be considered.  Parts of the legal landscape such as Self Directed Support, Article 19 and the quoted sections of the Human Rights Act mean that the council should consider a more varied approach to commissioning supported employment services.  Some parts should be treated as “reserved contracts”, other parts should be designed to be purchased by people with  individual budgets, others could be viewed as part of the “preventative” structure of social care in Edinburgh.

C          Making a Decision on How to Procure Services.

Procurement is not the only method of commissioning services; other options include the provision of services in-house, shared services or grant funding.  For example, grants are given for particular purposes and usually given without a legally binding contract on what will “actually” be delivered.

The Scottish Government recommends that public bodies should explore opportunities for developing collaborative approaches to the procurement of care and support services and are  currently supporting the development of Public Social Partnerships.

Deciding which procurement process to follow – If a local authority decides that they will advertise the requirement and award the contract or framework agreement by a procurement process, public bodies must decide which one of a range they will follow.   There are a complex ranges of options beyond simple competitive tendering.

  1. Contract renewal or direct award without competition – requires to meet certain legal justifications – for example where the existing contract allows for renewal or there is no other specialist provider able to provide such a service.
  2. Advertising the requirement and awarding the contract or framework agreement by competition
  3. Open procedure  whereby all service providers are invited to tender for the contract or framework agreement and the public body takes no steps to limit the number of tenders received or to consider the suitability of service providers prior to the submission of tenders.
  4. Restricted procedure which is a two-stage procedure whereby service providers are required to complete a Pre-Qualification Questionnaire (PQQ) and must satisfy certain selection criteria (the first stage).
  5. Negotiated procedure with a call to competition is a two-stage procedure whereby service providers are required to complete a Pre-Qualification Questionnaire (PQQ) and must satisfy certain selection criteria (the first stage).  The second stage involves negotiation with the short-listed service provider(s) (i.e. those which have already demonstrated their suitability in principle to deliver the service) with a view to agreeing the terms of the contract.
  6. Competitive dialogue is suitable only for the award of a “particularly complex” contract or framework agreement where the local authority is unable to define the technical specification for the service or is unable to specify either the financial and/or legal make-up of a project.
  7. Framework agreement sets out the terms and conditions under which specific purchases (“call-off contracts”) can be made throughout the term of the agreement.  Framework agreements are a recognised method of securing services where there is a repeat need but exact quantities or timings are unknown.
  8. Strategic partnerships – A public body may seek a long term (for example, over a period of 20 years) strategic partner or partners to re-design and achieve major changes in the delivery of a service and/or the use of resources.
  9. Public social partnerships are not an alternative to procurement but are a way of preparing a cohesive plan by involving third sector service providers and other interests/stakeholders in the design and piloting of a service alongside a public body.  There are typically three stages:
  10. Design – third sector organisations work with a public body to design how a service can be delivered and how social benefit can be maximised;
  11. Piloting – the service is delivered by third sector organisations (potentially in a consortium that could include a private sector partner) for a limited time.  During this period, changes can be made to how the service is delivered in order to maximise social benefit;
  12. Tendering for longer term delivery – the contract to deliver the service, which may include community benefit clauses, is advertised and awarded by competition.

All these different options remain open to Edinburgh City Council with regard to its support structure to help people with special needs secure and retain employment.

D          Conclusion

We hope this paper has helped to demonstrate that City of Edinburgh Council has a range of options for arranging its supported employment services.  Suggestions that they MUST competitively tender for this service are based on a misunderstanding of very complex legislation.

The full document ,  Procurement Of Care And Support Services, Scottish Government, August 2010 is available either on the Scottish Government website or on request.