• Somerset County Council decided against rolling social care money into CCG’s outcome based commissioning plans
  • Council received legal advice that it could not participate in non-competitive process
  • CCG managing director says “most capable provider” process “not available” to NHS organisations from this month

A council in the South West decided against pooling its social care budget with the local clinical commissioning group because it was concerned it would fall foul of competition regulations.

Somerset County Council declined to join Somerset CCG in a joint commissioning process after receiving legal advice that it could only procure its social care contracts through a full, competitive tender.

European Parliament

European Parliament

EU rules could make it harder for commissioners to avoid going to market

The revelations were disclosed at a meeting of the Commons health committee last month.

Somerset CCG wants the health and care providers on its patch to come together to form two “accountable joint ventures” in the east and west.

Each joint venture would receive an outcomes based budget to pay for their population’s care.

David Slack, Somerset CCG’s managing director, told the committee that the CCG was using a non-competitive “most capable provider” process to establish the contracts because “the whole ethos is to get organisations working together better”.

A most capable provider process allows commissioners and providers to collaborate on service redesign without going through a lengthy procurement process.

However, Mr Slack said it was a “disappointment” the council had decided against rolling its social care money into the new contracts because “the legal advice was that they could not participate in that”.

He said: “My understanding of the legal advice that they had was that they needed to follow a competitive procurement process potentially if they were going to include all their social care contracts within these arrangements.”

While this was “different to the original advice” the CCG had received “the council felt that it was too big a risk for them to be participating in the [most capable provider] process”, he said.

Mr Slack told the committee that the CCG did not wait to refer the conflicting advice up to a higher body for resolution because “time [was] not on our side”.

“Our understanding of the most capable provider process is that that is not available to NHS organisations after April, so it was important that we started the process,” he said.

As HSJ reported earlier this week, new EU regulations – the Public Contract Regulations 2015 – take effect for the NHS on 18 April that are likely to make it harder for commissioners to avoid going to market. Commissioners will be required by law to publicly advertise all contract opportunities over €750,000 or risk being challenged through the courts.

Mr Slack said the CCG had reached this understanding about the most capable provider process “in discussions with Monitor”.

A Somerset County Council spokesman said the organisation was “fully committed” to working with the CCG and other health bodies to join up services.

He said: “We were unable to formally participate in the most capable provider process because, as a local authority, the Public Contract Regulations 2015 applied to us from February 2015. Our interpretation of these regulations is that they preclude the use of most capable provider.

“The health sector will be required to adopt these regulations in April 2016, and as indicated by David Slack in his evidence to the committee, this may preclude the future use of most capable provider by the health sector from that date.”