The Derbyshire Contracts Advice Network brings together voluntary sector providers, infrastructure agencies & commissioners to focus on the procurement agenda. It is led by Links in partnership with many other infrastructure bodies. Derbyshire CAN is in the 4th year of 5 year Big Lottery Fund support from the BASIS programme. For more information please click

May 2011 Issue 29Issue 29

What is Derbyshire CAN?

The Newsletter is compiled and distributed by Links CVS. We welcome articles. The newsletter is produced electronically: to join the For more information about any items in this newsletter

Derbyshire Contracts Advice Network is steered by a Core Executive:

Karen Duke, DCIL;Rachel Hayward,

Community Enterprise Derby

Angela Kerry, Southern Derbyshire Voluntary Sector Mental Health Forum;

Carol Lawton, Links;Jo Smith, South

Derbyshire CVS; David Timcke, North

Derbyshire Voluntary Action;

Fiona Worrall, Services Project Workers: Sandra Pink, Management AdviserDiane Sheppard/John Chell, Social Economy Advisers and Martin Conlan, ICT The opinions expressed in this newsletter are the views of the authors and not necessarily of the the above partners. While every effort is made to check accuracy, Links: the Chesterfield & Norh East Derbyshire Council for Voluntary Service and Action Limited, registered office: Blenheim Court, 17 Newbold Road, Links is a registered charity 1089963 and company limited by guarantee registered in England and

Local News

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Local News- Health and Wellbeing Board Page 2- Derbyshire GP Consortia

2National News- NHS Reforms

3- Health and Social Care Bill – NAVCA Briefing

3- Responses to Health and Social Care Bill

4 -5- Public Services

5 - - Work Programme 5-6

- TUPE/Pensions 6-7

- NAVCA Regulations 7

- Procurement Officer 7

- Government Procurement 8

Structures to support the new Derbyshire County CouncilHealth & Wellbeing Board

Derbyshire County Council is one of the early implementers of the Health & Wellbeing Boards, which form part of the new structures contained in the Health & Social Care Bill. The Bill is currently subject to a ‘pause’ and ‘listening exercise’.

The new Health & Wellbeing Board is statutory and will be a formal sub-committee of Derbyshire County Council. Its membership is prescribed within the Health & Social Care Bill and will consist of the Director of Public Health, The Director of Adult Care, the Director of Children & Young Adults, plus appropriate cabinet members. Healthwatch must be on the Board and there must be some representation from NHS commissioning. There will probably be one seat for a district council representative plus an officer.

“The voluntary sector will not be represented, nor will any providers. However, Derbyshire County Council will be establishing a new Adult Care Board, and the Children’s Trust will continue. DCAN is advised that the voluntary sector will be represented on the Adult Care Board and there is already voluntary sector representation on the Children’s Trust Board.”

It is envisaged that the Adult Care Board will be largely a joint commissioning board whereas the Health & Wellbeing Board will oversee the Joint Strategic Needs Assessment. Derbyshire GP Consortia

A list of GP practices/consortia has been published via the Derbyshire Community Engagement Board. The list gives details of basic capitation, locality size, practice name, Chair/Locality Lead and Consortium Manager/Locality Support. Click on the link below for details.

“A meeting of the North Derbyshire GP consortium took place on 5th May in Chesterfield at the B2Net football stadium and NDVA attended. They will report in their circulation Network. Hardwick Health, a different GP consortium covering nine practices in Bolsover and north Derbyshire, held a meeting at the Chesterfield Hotel on 11th May at the Chesterfield Hotel according to the Derbyshire Times. South Derbyshire Voluntary Sector Forum invited a local GP consortium to their forum. How voluntary

National News

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The Health & Social Care Bill – NHS Reforms

“Campaigning for Changes to the Health & Social Care Bill’ - a NAVCA Briefing”

In the April edition of the Newsletter, DCAN reported on the ‘pause’ and ‘listening exercise’ which have been announced for the Health & Social Care Bill and on the establishment and role of the Future Forum in the listening exercise.

NAVCA have produced a briefing ‘Campaigning for Changes to the Health & Social Care Bill’ and you may be interested in reading and responding. Please note that the final deadline for responses is 31 May 2011.

For information on the Future Forum go to:http://healthandcare.dh.gov.uk/about-the-nhs-future-forum/ To view the NAVCA briefing paper please click on the image.

The Health & Social Care Bill – progress to dateAt the beginning of April the Government announced a ‘pause’ to the passage of the Health & Social Care Bill, despite the bill already having started to make its way through parliament, to carry out a ‘listening exercise’ to see how the plans could be improved. The NHS Future Forum was established to be the focal point for the ‘listening exercise’ and to report to the Government on the results of the exercise. Listening events have been held with patients, doctors and nurses and views for and against have been expressed. On 9 May the government fought off a Commons challenge to its plans. MPs rejected a Labour call for the proposals to be abandoned, but the coalition’s parliamentary majority was cut by more than a third. The Deputy Prime Minister, Nick Clegg has said he will block the reforms unless major changes are made; including calling for guarantees there would not be “back-door privatisation” and on 15 May Nick Clegg announced that the Liberal Democrats would veto the Bill if Monitor, the national scrutiny agency, was not given the role of ensuring collaboration rather than competition.

In a speech to health staff in London on 16 May, David Cameron said that the NHS in England needed to change to avoid a ‘future crisis’. He was seeking to rally support for the plans. He pledged “never to take risks” with the core principles of the health service, but said there were growing problems due to too much waste, inflexibility and top-down control.

David Cameron stressed that the plans, drawn up by Health Secretary Andrew Lansley, would not be abandoned and sought to quash opposition claims that they could lead to full privatisation of the NHS, saying there would be “no competition for competition’s sake”. But he said the changes

Contrasting Responses from GPs To The Health & Social Care Bill

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In a further development, on 25 May the British Medical Association (BMA) called for a series of changes as part of its submission to the listening exercise. In particular, the union has demanded that the duty on the regulator, Monitor, to promote competition be dropped, something other critics have also called for.

The BMA also said that timetables need to be relaxed and duties placed on GP consortia to involve other clinical staff. They also want to see more stress on collaboration and integration. Nick Clegg and Labour MP, John Healey are due to make speeches about the plans on 26 May (just as we go to print) and both are expected to further criticise the plans.

This comes as the Government’s listening exercise is drawing to a close at the end of a 6 week process - the Government is expected to announce the results of the listening exercise sometime in June.

Cont…..

Royal College of General Practitioners Letter to the Prime Ministers Office.

On 9 May the Royal College of General Practitioners (RCGP) sent a 26 page analysis of the proposals in the Health & Social Care Bill: ‘The Government’s Health Reforms: An analysis of the need for Clarification and Change by the RCGP’. They welcome some parts of the government plans, such as the greater involvement of GPs in buying and planning care. But it also challenges the need for a greater market in healthcare and, for the first time, calls for the entire section on competition in the bill to be rewritten. The analysis outlines areas which they feel are of concern and need change www.rcgp.org.uk/pdf/Government%20Health%20Reforms%20Analysis.pdf

GP Group backs NHS Reforms

In contrast to the above analysis, on 11 May a group of doctors from GP consortiums in England said they backed NHS reform plans wholeheartedly. In a letter published in the Daily Telegraph, they said they wanted the

The signatories to the letter are chairmen and chairwomen of GP consortiums, who said they had already been working on commissioning care for the last three or four years and that the reforms are a natural conclusion of the GP commissioning role that began with fundholding in the 1990’s and, more recently, of the previous government’s agenda of GP polysystems and practice-based commissioning. To read the full article go to: http://www.telegraph.co.uk/health/healthnews/8505422/Letter-Health-reforms-will-benefit-most-vulnerable-in-society.html

BMA Calls for a series of changes to the government’s plans to the Health Service

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The Pathfinder Learning Network

The Network is an online hub on the Department of Health website which provides support, resources and information for GP Pathfinder consortia and the wider health community interested in the pathfinder programme.The online hub aims to promote the sharing of best practice and will

support GP Pathfinders in developing and implementing their new roles within commissioning.

GP Pathfinder Bulletin on the Department of Health website

The Department of Health has issued the first edition of the new GP Pathfinder Consortia Bulletin. The purpose of the network is to facilitate sharing what works, information and news on commissioning development and the wider transition programme.

The Department of Health is looking at how they can support both the early implementers of Health & Wellbeing Boards and GP Pathfinders to build new relationships and ensure there are plenty of opportunities to share information and collaborate across both networks. If you would like to keep up to date with what is happening with the GP Pathfinders and read the Bulletin go to http://healthandcare.dh.gov.uk/category/pathfinder-learning-network/

Public Services Scale Back

Work Programme - Statement re funding for the Voluntary Sector

“The government has privately admitted it is scaling back its plans to privatise swaths of the public sector for fear of appearing to be in favour of private companies excessively profiting from the taxpayer. Previously DCAN had reported that the Open Public Services White Paper was going to open up bidding for everything but security and the judiciary. But now Downing Street is denying it ever planned wholesale privatisation.”

In an article in the Guardian on 4th May, a report is given of a leaked

memo of a meeting between business chiefs and the minister for the Cabinet Office, Francis Maude, saying there will be ‘no return to the 1990s’ and wholesale outsourcing.

Maude is preparing a white paper on public services – delayed since February

“In answer to criticism that the voluntary sector is not benefiting from the Work Programme, Francis Maude has said that the charity sector will receive more than £100 million per year. About 289 charities are sub-contracted according to the prime contractors (of which only 2 are charities). Speaking in the House of Commons on 27.4.11 Francis Maude said that 30 to 40 per cent of the value of the work under the Work Programme will go to the voluntary sector and this would be in excess of £100m per year.

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TUPE & non-employees

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) covers those who are employed immediately prior to a transfer i.e. when a business is transferred from one owner to another.

This has been heightened by the case of Albron Catering BV v FNV Bondgenoten & anor. In that case the Claimant was employed by a service company that employed Heineken’s employees to work in operating companies within the group. The Claimant was working for HN which provided catering services to the group and whose services were outsourced by HN to Albron Catering BV.

The Claimant was deemed to have employment rights under TUPE as the directive refers to rights arising from the contract of employment or “from an employment relationship existing on the date of the transfer”. It may be that in the light of this decision Tribunals may be more willing to consider the application of TUPE where an employee is effectively controlled by the transferor (the initial employer) even if that organisation is not their contractual employer.

Additionally the definition of “employee” in TUPE regulations refers to “any individual who works for another person whether under a contract of service

Meanwhile, cross-party MPs on the Work and Pensions Committee have been scrutinising the contracting arrangements within the Work Programme and hearing evidence from charities and private-sector providers. They published their conclusions and recommendations in early May. They have asked for the Merlin Standard (the code which all contractors are supposed to follow) to be given more teeth. One aspect is to ensure that prime contractors really are sub-contracting to the voluntary sector and not making excessive profits.

A further concern is that prime contractors should pass on sufficient upfront funding. The committee said that the DWP should be proactive in reminding prime contractors that a key aspect of their role in the Work Programme is to bear financial risk, rather than passing it on to sub-contractors unfairly or disproportionately.’

And it advised the DWP to keep the ‘payment by results’ model under constant review to ensure providers are not creaming off those clients who are easiest to help and leaving those with more complex needs to sub-contractors to deal with. “

It may be the case that self-employed consultants, casual workers or other atypical workers may have been incorrectly identified. Working arrangements should be closely scrutinised in advance of a transfer to ensure that no one is excluded from the TUPE process who may be able to

The EU is consulting on the effectiveness of public procurement rules, which apply to all public bodies that commission services and set out how tendering exercises should be conducted. NAVCA claims an exemption would make it easier for local charities to win service delivery contracts.  Some social services contracts are already partially exempt.”

NAVCA/EU regulations

 ‘Procurement rule change urged’ 

The local infrastructure body NAVCA has asked the European Union to change its regulations so that the delivery of many social services is exempt from its procurement rules. 

Chief Procurement Officer Appointed

John Collington has been appointed the first Chief Procurement Officer for the whole of government. This paves the way for a radical transformation of how Government manages the procurement of commissioning goods and services. The Chief Officer will be

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Pensions

We have previously reported on the way that the rules around public sector pensions can cause a considerable barrier to third sector organisations taking on services previously run by the public sector.Under Fair Deal for Staff Pensions when a body employs people who are

compulsorily transferred from the public sector under TUPE, it is required to provide these employees with access to a pension scheme that provides benefits of equivalent value to the benefits which the employees would have had had they not transferred. This causes particular difficulties for voluntary and community sector organisations that may not have the resources to fund such pensions. There have been cases where organisations have had to turn down contracts although they have been successful in winning the tender. The Government has announced in the 2010 Spending Review that it intends to consult on the Fair Deal policy in a response to a recommendation made in the interim report of the Independent Public Service Pensions Commission, led by Lord Hutton. This is seen as good news for the sector as it would make it much more affordable to bid for public sector contracts. Details of the consultation and how to respond are available on the HM Treasury website at http://www.hm-treasury.gov.uk/consult_fair_deal_policy_pensions_publicsector.htm DCAN have also learnt from solicitors Bates Wells & Braithwaite that an organisation’s legal form impacts on the ability to access public sector pensions post transfer. In the case of the NHS transfers, to access the NHS pension scheme through the statutory route, the organisation must be a company limited by shares or CIC limited by shares with all shares held by

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Government Procurement Website Now Online

A new Government Opportunities website – the media sponsor for the Supply National SME Engagement Programme – has been launched with an aim to be the essential intelligence hub for all involved in buying for and supplying to the public sector. Go to http://www.govopps.co.uk

The site also has a good article ‘Safeguarding the NHS – who really understands commissioning?’ by Doug Forbes, Institute of Commissioning

Law Commission recommends radical overhaul of Adult Social Care Law

Included in our recommendations are: putting the individual’s wellbeing at the heart of decision-making, using new

statutory principles giving carers new legal rights to services placing duties on councils and the NHS to work together building a single, streamlined assessment and eligibility framework protecting service users from abuse and neglect with a new legal framework,

and for the first time, giving adult safeguarding boards a statutory footing. This report concludes our project on Adult Social Care. Reference number: LC326 Adult Social Care Report Adult Social Care Report Summary Adult Social Care Report Impact Assessment Adult Social Care Report Summary Audio Adult Social Care Report Summary Large Print Adult Social Care Report Summary Welsh Adult Social Care Report Summary Easy Read

The Law Commission's proposals to simplify and modernise the law on adult care, published today, will inform government legislation next year. Although ministers have yet to say which recommendations they will accept, care services minister Paul Burstow said: "This report provides foundation for the most significant single reform of social care law in 60 years."The Government will review the Commission’s recommendations with a view to introducing legislation in 2012, as part of the wider review of adult social care that includes the funding of services.Adult Social Care Publication date: 11 May 2011 In this report, we make recommendations for a single, clear, modern statute and code of practice that would pave the way for a coherent social care system. Under the reforms proposed in our report, older people, disabled people, those with mental health problems and carers will, for the first time, be clear about their legal rights to care and support services. Local councils across England and Wales will have clear and concise rules to

Reports From Meetings And Workshops

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National NHS Commissioning ConferenceThe Conference was held on 19 April in Manchester. The key points from the day were: The message that although there is a ‘pause’ and ‘listening exercise’ in

the passage of the Health & Social Care Bill, no-one is expecting any dramatic changes. All the speakers gave the impression that they were working to this and going ahead with preparations.

As a result of the ‘pause’ there was no new information on national structures, but there was information on how the NHS is preparing for whatever comes – but as above, they didn’t seem to be expecting any dramatic changes. It was suggested that full implementation may slip to 2014 instead of 2013.

There were a large number of delegates who were representatives from private companies (both large and small), showing the amount of interest from private companies who are getting ready to bid for contracts.

If anyone is interested in the information from the day (agenda, delegate list, slides), please contact Links on 01246 274844 or email linkscvs@btconnect.com

DCAN asks the Deputy Prime Minister a question

DCAN’s Project Manager, Carol Lawton, happens to live in Nick Clegg’s constituency and had emailed the Deputy Prime Minister a question about the proposed NHS reforms relating to how voluntary groups were to be funded under the new GP commissioning arrangements in the climate of competition from the private sector and £20 billion cuts, sorry efficiency savings.

At a secret constituency meeting on 13th May - invitation only, printed copy of invitation and photo i.d. for admittance – location only revealed 24 hours beforehand, she (and 200 others!) were able to put these questions directly to Nick Clegg. Carol repeated her question asking how likely was it that GP consortia, who had little track record of buying from the voluntary sector, would continue joint funding arrangements in the climate of cuts/efficiency savings. She feared the voluntary sector could be a Trojan horse to let in large multinational private companies to dismantle the NHS and asked him to explain how “any willing provider” would work to ensure preventative services continued. Nick replied that he wanted to receive examples of where voluntary groups had lost out to the private sector. (So do let DCAN know of any such instances and we will pass them on.) Secondly, he intended to ensure that any new provider paid a training levy otherwise they could have transferred staff who had been trained at another’s providers expense. And, thirdly, in relation to the voluntary sector services he felt the reforms should provide opportunities for groups but expected some services to be commissioned by “PCT clusters.”. Perhaps he meant GP consortia clusters?

The meeting included the Director of Public Health for Sheffield and many consultants and GPs who happen to live in the constituency. Most speakers expressed opposition rather than support for the proposals although, to be fair, this was hardly a representative sample as it was made up of people who had already contacted

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Two days later, Nick Clegg announced that Liberals would veto the bill if Monitor the national scrutiny agency was not given the role of ensuring collaboration rather than competition. Watch this space....Implementing Mutual Ownership Models in Public Services

This was a Westminster Briefing (highly expensive) conference in London held on 12th May. DCAN was keen to attend because it has already worked with a set of local authority employees considering options for setting up as a separate social enterprise.

The conference was opened by Prof. Peter March, the Vice Chair of the Cabinet Office Mutuals Task Force. The government is keen to promote the mutual ownership model but he admitted the definition of a “mutual” was not exact. The Task Force was concentrating on employee owned mutuals particularly local authority or NHS

Mutual Ventures, a social enterprise, spoke of the “Heaven” and “Hell” of mutuals. There could be the heaven of higher levels of employee engagement, less bureaucracy and increased innovation but there could be the hell of limited access to funding, little community interest, risk of failure, poor commissioning and a Trojan Horse for the big private firms to win contracts.In the Q and A, Carol from DCAN said she came from hell! where voluntary groups were already losing contracts to private sector providers like Serco and G4S in spite of millions of ChangeUp and Capacity Builders funding. Local authority employees did not have a track record nor were they used to the management skills needed to run an independent body. This view was backed by the only other voluntary sector attender who said, welcome to the real Everyone stressed the need to improve commissioning so that mutuals could compete on a level playing field with the private sector but, like a ray of light, solicitor Stephen Lloyd from Bates Wells & Braithwaite, pointed out that governments make policy sometimes without recognising the legal framework e.g. EU procurement rules, company law, charity law, TUPE, pensions. Stephen also reminded us we had been through the “mutuals” experience in the past e.g. friendly societies, sick societies, building societies, which were then “demutualised” or turned into state provision. He explained that “mutual societies” was a concept rather than a legal definition. They were owned and operated for the benefit of members but these did not need to be employees, they could be users or the public.A variety of legal forms can be used: company limited by shares or guarantee, a CIC, IPS or Limited Liability Partnership. Charitable status might or might not apply. TUPE, pensions and particularly VAT were serious risk factors. Stephen pondered whether mutuals could be given any preference in the context of an open market tender and introduced us to possibilities of relying on Teckal exemption where the organisation was “wholly owned” by public authority (rather like a housing arms length organisation) to build up the organisation before it went to full procurement later. Presentations available electronically from DCAN on request.

employees and he expected there would be a £10 million enabling fund for the establishment of mutuals. He expected there would be a “right” for public sector workers to form emloyee owned mutuals although he recognised they might chose other legal structures.

Understanding Successful Tendering

A series of three courses;1. Introduction to Tendering for Health & Social Care Contracts2. Preparing Effective Tenders3. Winning Tenders

The courses can be followed in full or in part by those who have any involvement with tendering for health and/or social care contracts. They are offered in sequence during June and July, November and December in either Manchester, Birmingham or London. Information and booking forms can be found on their website http://bit.ly/kaOAJi For further information email info@tenderingforcare.com or telephone 01629 584972.

Your Complimentary Pass to the Public Procurement Show 14 – 15 June 2011, ExCel, London

Visit the UK’S leading event for government procurement for FREE.The show will include a best practice session run by Business Solutions and Procurement Skills Workshops, completely free to attend, ranging from collaboration, cost reduction techniques and outsourcing. The sessions will be led by Stephen Ashcroft from Brian Farrington who will also be running a series of 121 clinics. Click on the link to register or telephone 020 33584852.www.publicprocurementshow.com

Pre Qualifying for Tenders

The event looks at the rules surrounding procedures, timescales, sustainability, selection criteria, evaluation process, debriefing and freedom of information.29 June London 24 November Manchester27 September Birmingham 30 November Cardiff13 October London

For more information contact the event team on 0845 270 7095

Training and Conferences

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