The new National Framework for Commissioning Care & Support in Wales

Background

Issued under Section 145 of the Social Services and Well-being (Wales) Act 2014 (“the 2014 Act”), the Code also constitutes guidance under both Section 169 of the Act and Section 2 of the NHS (Wales) Act 2006 (“the 2006 Act”). Welsh Ministers will direct Local Health Boards and NHS Trusts under the 2006 Act to exercise their functions in accordance with its requirements.

The Code is an essential component of the wider Rebalancing Care and Support Programme Rebalancing Care and Support Programme, in conjunction with the newly created National Office for Care and Support (“the National Office”), which will oversee implementation and management of the Code. It may also publish further non-statutory commissioning guidance in between it’s formal two-year Code review periods, in order to expedite good practice and improved outcomes.

Between 22 May and 14 August 2023, the Welsh Government held a 12-week consultation on the Rebalancing Care and Support Programme, to which the majority of responses agreed that the principles and standards would positively contribute to more consistency and reduced complexity in commissioning processes. However, concerns were raised about implementation challenges, including resource limitations and varying capabilities, which called for clearer guidance, adequate funding and enhanced training for commissioners, as well as the development of tools and toolkits to support implementation.

The draft Code that was presented for consultation has been revised to incorporate feedback from the consultation responses. This includes strengthening provisions by changing guidance to a statutory requirement, such as obligating commissioners to encourage providers to complete and submit the annual Social Care Wales workforce data collection and use and keep up to date their information on the Care and Support Capacity Tracker. The updated Code also includes minor revisions for clarity and conciseness, aligning it with broader policy developments.

Purpose

The Code consolidates best practice in commissioning, embedding a framework that guides service commissioning from price-focused to quality and social value-orientated approaches. It also redirects reactive commissioning practice towards managing the market and focusing on outcomes, and requires Local Authorities and Local Health Boards to ensure that commissioning activities and practices achieve the aspirations of the 2014 Act for all people of Wales. The two principal objectives of the 2014 Act are for:

• services that achieve the well-being of citizens: “what matters” to them as they define it; and
• services that are sustainable despite demographic trends.

The graphic below, extracted from the Code illustrates how commissioning, procurement, and social value must integrate and function cohesively to secure good outcomes for people, rather than operating as isolated stand-alone functions.

Graphic from the National Framework for the Commissioning of Care and Support in Wales.

A ‘toolkit’ of resources which includes practice examples, case studies and evidence, commissioning tools, and template clauses, all to support commissioners and statutory partner to meet the requirements on the Code with be hosted on the Social Care Wales communities’ platform from August 2024.

The commissioning standards set out in the Code apply to all parts of the commissioning cycle including service redesign and decommissioning. They are as follows:

• Standard 1

Local Authorities and Local Health Boards must demonstrate the values and principles of the 2014 Act and the Well-being of Future Generations (Wales) Act 2015.

• Standard 2

Local Authorities and Local Health Boards must balance all elements of the commissioning cycle and ensure they have sufficient skills and capacity.

• Standard 3

Collate relevant and accurate data to ensure that commissioning is based on meaningful data and ensure there is sufficient analytical capacity and capability to inform robust commissioning planning.

• Standard 4

Demonstrate that commissioning and / or procurement plans are based on evidence informed decisions regarding the reason/s for selecting.

• Standard 5

Measure ‘value’ by people’s experience of and outcomes from care and support.

• Standard 6

Ensure that all care and support services are commissioned ethically and are underpinned by Fair Work principles.

• Standard 7

Demonstrate that they understand the full costs of directly provided and contracted care in their area.

• Standard 8

Make use of regional and / or national cost methodologies or benchmarks included in but not limited to those in the Toolkit in determining a fair and sustainable price for quality care and support.

• Standard 9

Keep Financial and Contract Standing Orders under review to ensure that they are fit for purpose to secure care and support services of the quality required.

• Standard 10

Evidence pro-active working to address inequalities and promotion and fulfilment of human rights.

Statutory partners must be able to demonstrate that their commissioning practices are undertaken in line with this Code, and Local Authorities must include evidence in the Director of Social Services’ annual report about how the standards and principles in the Code are being followed.

Other commitments included in the code

Welsh Language and Mwy Na Geiriau

‘More than just words / Mwy Na Geiriau’ is the Welsh Government’s strategic framework to strengthen Welsh language provision in health and social care. Commissioners must adhere to the requirements within Mwy Na Geiriau and the Welsh Language (Wales) Measure 2011 when planning and delivering care and support services, and ensure that they exercise the ‘active offer’ by offering services through the medium of Welsh, rather than people having to request it.

The Code sets out that the provision of care and support services through the medium of Welsh must be a right and is not a matter of choice, but of need and necessity. Commissioners must treat the Welsh language no less favourably than English and must seek to provide opportunities for people to fully use the Welsh language in their everyday life.

Equality and Diversity

Commissioners must have due regard to the principles of equality and diversity in carrying out their functions. As a minimum, commissioners must take into account the following, along with their implications and findings, when commissioning care and support services:

• Welsh Government Anti-Racist Wales Action Plan;
• the Equality and Human Rights Commissions report into Experiences from health and social care: the treatment of lower-paid ethnic minority workers;
• the EYST report: Evaluation of the Social Services and Well-being (Wales) Act 2014: expectations and experiences of Black, Asian and Minority Ethnic service users and carers;
• United Nations Convention on the Rights of the Child (UNCRC);
• Untied Nations Convention on the Rights of Persons with Disabilities (UNCRPD); and
• United Nations Principles for Older Persons.

Environment and Sustainability

Local Authorities must monitor, record and seek reductions in the carbon emissions associated with the care they are commissioning and ensure that they are making wider environmental considerations as part of their commissioning processes. A tool will be available in the Toolkit for service providers to complete to submit their carbon emissions data to local authorities.

Carers

A number of tools will be available in the Toolkit to support commissioners in commissioning activities or services to support carers. Commissioners must also comply with the Welsh Government’s ‘Charter for Unpaid Carers’, which will also be included in the Toolkit, which sets out the legal rights under the 2014 Act of “unpaid” carers in Wales.

Children

Commissioners must consider, as part of the commissioning process, ways in which children and young people can be accommodated and cared for closer to home more often, to ensure they can continue to be part of their community and maintain their local support networks. Commissioners must also stay informed about the range of resources included in the Toolkit regarding services for children, and use all such resources to:

• commission care and support services for looked after children in line with the evolving guidance and statutory requirements set by the Welsh Government on and to achieve the not-for-profit policy agenda; and
• ensure that the best interests, rights and entitlements of children are considered in every part of the commissioning process.

Safeguarding

Commissioners must take all reasonable steps to ensure that the commissioning of care and support services promotes and protects the well-being of children and adults at risk. The following statutory guidance and further resources must be referred to when commissioning care and support:

• Working Together to Safeguard People – Volume 1 – Introduction and Overview (2016)
• Working Together to Safeguard People – Volume 5 – Children at Risk (2018)
• Working Together to Safeguard People – Volume 6 – Adults at Risk (2018)
• The Wales Safeguarding Procedures
• The National safeguarding training, learning and development standards

Nyth/Nest Framework

The Nyth/Next Framework aims to ensure a ‘whole system’ approach for developing mental health, well-being and support services for babies, children, young people, parents, carers and their wider families across Wales. Commissioners should use the Nyth/Nest framework approach in their commissioning practices and ensure a ‘No Wrong Door’ approach. Service providers should also have a good understanding of the Nyth/Nest principles when undertaking services commissioned for these groups.

Further information

This new framework represents a structured approach to enhancing care quality and consistency across Wales, promoting services that are sustainable, based on well-being outcomes, and inclusive of the needs of the community.

You can read the Code of Practice here, and the Explanatory Memorandum here.

The National Office in partnership with the National Commissioning Board ran a series of MS Teams awareness raising sessions for commissioners, planners and professionals with responsibility for implementing the code, and for wider stakeholders.

A separate Code of Practice intended to amend guidance for Local Authorities on exercising their social services functions has also been laid before the Senedd, which mainly focuses on two policy areas:

• the promotion of social enterprises, co-operatives, user-led services and the third sector in the delivery of care and support and preventative services; and
• citizen engagement, voice and co-production in the design and delivery of care and support and preventative services.

You can read this here: Code of Practice, Explanatory Memorandum.

This article was co-written by Eve Piffaretti, Tomos Lewis and Eloise Knight.

For more information about the new Code of Practice or health and care legislation in Wales as well as how it interface with procurement legislation, please contact Partners Eve Piffaretti, Tomos Lewis and Legal Director Tina Whitman.