The drawing up of specifications for care, and contract negotiation with the private sector becomes a central part of commissioning for social care, if an authority decides that going down such a route will lead to better value and responsiveness to service users’ needs.
The absence of unionisation in the private social care sector means that commissioning services from those able to set a Health and Safety policy at a certain (lower) level might be less controversial than if standards were lowered in the public sector. This in turn means that the private or voluntary service may genuinely be able to provide a less expensive service without cutting back from the client’s perception of the service. In addition, savings may be achieved by virtue of the sheer purchasing power of the local authority which are not available to individuals.
On the residential care side, many authorities have been able to make the most of market forces, ignorance of social care law, and occupancy concerns, to ensure that they keep private sector home owners to below (or at) the rates set by the DSS (now the DWP) for amounts provided by way of income support to those in residential care. And on the domiciliary side, since social care has been virtually unregulated until the arrival of the working time directive and the minimum wage requirements, the temptation for private sector providers to quote low prices in order to get the work, and make do later, once the contract was secured, must have long been strong. There can be no doubt that in some cases, commercialism and the perceived need on the part of providers to cut corners and therefore costs, has worked to the disadvantage of service users. And even where this is not so, the outcome must sometimes have been the insolvency of the provider concerned.
Price setting is not just a matter of stubborness though; it is underpinned by the legal duties which give rise to the need to do it, and the commercial fact that managers are given budgets to stick to, and heads roll if they don’t, even though there may be more money in reserves in the authority’s coffers. The duties to provide which give rise to a need to agree a price are found in the National Assistance Act, the Mental Health Act and the CSDPA 1970. Other duties which may impact on market forces are found in the Care Standards Act, governing room sizes and other requirements, with which most local authority homes cannot comply. This galvanises the authority into externalising homes, and moving to a purchasing model, but that is a role which has to be performed, once provision duties have been triggered towards specific individuals, so this statutory duty distorts the freedom of the authority to say ‘Well alright then, we won’t place our clients with you if that’s how much money you want’.- and this inability affects the supply and demand equation which regulates who has the upper hand in any given area. But the way in which the negotiation about price is done is also affected by DoH guidance, too, accompanying the Choice of Accommodation Directions 1992, and the terms of the Competition Act, which may well bite on contracting for care.