We have been working with care homes to update their contracts and advise on the risks of charging the resident a regular “top-up” or additional fee where a resident is funded through NHS CHC
Covid-19 has had, and will continue to have, a significant impact upon the way in which local authorities deliver their services. During the height of lockdown, a number of emergency measures will have been put in place to maintain delivery, so far as necessary and possible, whilst also safeguarding service users, council officers and contractor staff.
As we continue to emerge from lockdown measures and deal with local measures and the short and long term economic impact of Covid-19, local authorities will need to re-assess how services will be delivered for years to come.
This re-assessment may be driven by how Covid-19 has fundamentally shifted how we operate as a society, but it will also be in response to the worsening financial situation that local authorities find themselves in as a result of increased costs and falling income from charges and commercial activities/investments. As has been widely reported, the Government’s compensation scheme will still require authorities to absorb significant costs and losses.
In this article, we set out important considerations for local authorities when looking at managing service delivery change:
The strategic context
- What is the aim of the redesign – responding to practical changes, creating efficiencies, delivering to a revised budget? Most likely it will be a mix of all of these but be clear from the beginning.
- What are the equalities implications of redesigning the service provision, including where the implications might have been enhanced or altered by Covid-19 – e.g. the impact upon mental health?
- Will the redesign have an impact on the local economy and economic development/regeneration in the area?
- Has the budget already been revised, or will the redesign proposals influence the revisions to the budget?
- Is there a political will to look at redesigning this service? Whilst officers should never be dissuaded from giving elected members proper advice, it is preferable to have politicians onboard (and open minded) from the beginning to avoid undertaking a – possibly expensive and time intensive – review that will go nowhere.
- If you redesign this service, what are the knock on effects for other service delivery by you and other public sector bodies?
- How will a redesign impact upon delivery of your corporate plans (and do you need to consider changing these as well)?
Powers, consultation and decision making
- Do you have a duty to provide the service or just a power? When considering this, break down your service delivery, are there elements that are not part of your core duty? Is there statutory guidance that means you have to deliver in a particular way, if yes, can you reasonably justify departing from it?
- Do you need to consult – a specific group or the public at large – on the changes? There might be a specific express obligation to consult a defined group and it will be important to identify that early on. More likely, there will not be a specific express obligation but there might be an implied obligation to consult (e.g. if you have promised to consult; or having regard to the impact of the change). Do not forget the need to show compliance with the public sector equality duty – that might in itself entail some form of consultation. If you do consult, you must consult fairly and, amongst other things, that means you cannot consult on a done deal. The consultation must have the opportunity to influence the eventual outcome and must be taken into account.
- What is your decision-making process and timescale (remember, if you operate executive arrangements, you will need to go to full Council if the redesign involves a change to or departure from the budget and policy framework and if you operate the committee system the Constitution will determine where the decision is made)?
- Make sure you have a checklist of all the considerations that need to be factored into your decision-making papers – if you are judicially reviewed (or threatened with it) can you show that you have acted lawfully and reasonably?
Contracts and public procurement
- If the service is contracted out:
- Is your contractor on-board with the changes?
- Does the contract enable you to require the change or do you need their agreement?
- How does the proposed change impact upon what the authority pays (including any capital investment)?
- Is the change so great, that really you should be looking to terminate early (either by agreement or using the termination provisions) and re-procuring?
- If you do terminate, are there assets that need to be taken back and are you required to pay anything to the contractor?
- If you do need to change an existing public contract, can that be authorised under Regulation 72, Public Contracts Regulations 2015 which sets out the forms of permitted change that will not require a new procurement process.
- What are the staffing implications for both you and any contractor? Could there be redundancies? With contractors, what is the allocation of risk?
- Will the implementation of the redesign require you (or a third party) to transfer any personal data and do you have appropriate data sharing arrangements in place to do that?
- If you are proposing to physically close buildings, do you need to surrender leases, sell your interest or do you have a property management plan for how the building could be used in the future?
For more information
At Anthony Collins, we offer a “whole council” service and can advise on all aspects of service delivery change. If you have any queries arising from this article, please contact Olwen Brown or Alex Lawrence.
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