Practical lessons to develop an STP and ACSPublic authorities working together -Peter Ware, Browne Jacobson

Public Authorities Working TogetherLocal Authority Perspectives

Peter WarePartner Government and Infrastructure Team

Current Local Government Context• Best case analysis Local Government has seen a real

terms reduction in spending power of 23.4% 2010-11 –2015-16

• Local Government spending is dominated by social care32.6% on Adult Social Care and 16.7% on Children’s SocialCare

• Social Care has largely been shielded by LocalGovernment– 5.1% increase in Children’s Social Care– 8.6% decrease for Adult Social Care

Current Local GovernmentContext• Local Government is already in a state of some flux

– Devolution– Re-organisation

• Highly centralised state in England• STP areas cross local government borders

– A resource issue– Cost issue

Local Government Context

LOCALGOVERNMENT

56 UnitaryCouncils

201 DistrictCouncils

9,000 Town andParish Councils

10 National Parks

46 Fire andRescue

Authorities(of different

types)

6/7 CombinedAuthorities

33 LondonBoroughs

27 CountyCouncils

Policing:37 PCCand39 policeareas intotal

Practicalities of Co-Operation

• Sovereignty of Services.• Local government is often commissioner and

provider.– Ethical walls– Will they be a bidder or a mandated sub-contractor

Practicalities of Co-operation

• Clash of provision– Social care is means tested– NHS services free at the point of care

• How do you group the services?• Commissioning processes• Standing orders

Practicalities of Co-operation :People• Pooling staff without changing employer?• Transferring staff

– TUPE ?– Terms and conditions– LGPS

Underfunding/Deficit – FRS17 Admission to scheme Guarantee?

Methods of Partnering

• Section 75 Agreement / Administrative Delegations• Virtual Partnerships• Corporate joint ventures

• Always consider Vires

Section 75 Administrative :Delegation• It is very important to consider LA Vires :

– To partner– To provide services– To participate in a particular vehicle

• LA can only do what it is statutorily empoweredto do

• Local Government Acts 1972 and 2000 placelimits on delegation.

• Be aware of terminology

Section 75 : AdministrativeDelegation• Allows partnership between Local Authorities and NHS

Bodies (NHS Trust, Foundation Trust, CCG and NHSE)• Section 75 of National Health Service Act 2006 allows:

– Pooled Funding– Exercise by NHS Body of LA’s prescribed health related

functions– Exercise by a LA of NHS prescribed functions– Provision of staff, good or services or making payment for

that.

Section 75 : AdministrativeDelegation cont’d• All designed to deliver the 3 flexibilities of

– Pooled budgets– Integrated commissioning– Lead commissioning

Section 75 : Prescribed FunctionsNHS prescribed functions (regulation5)

Local authority prescribed functions(regulation 6)

• Hospital accommodation.• Medical, dental, ophthalmic, nursing and

ambulance services (but not emergencyambulance services).

• Facilities for the care of expectant and nursingmothers and young children.

• Facilities for the prevention of illness, for peoplewho are ill or recovering from illness.

• Services or facilities for the prevention, diagnosisand treatment of illness.

• After care for people leaving hospital for mentalhealth conditions.

• Provision of vehicles for disabled persons.• Provision of healthy start vitamins.• Other health services.• Making direct payments for health care (England

only).

• Social services and community care.• Sports and leisure.• Housing.• Mental health.• Residential care services for people with learning

difficulties.• Youth services.• Numerous responsibilities under the Children Act

1989.• Functions under the Education Acts.• Deprivation of liberty functions under the Mental

Capacity Act 2005 (England only).• Provision of healthy start vitamins.• Numerous other functions, including those relating

to waste collection and disposal, environmentalhealth services, and highways and passengertransport functions.

Section 75 : The requirements

Before entering into a S75 agreement the partiesmust:• Believe that the arrangements are likely to lead to

an improvement in the way in which thosefunctions are exercised

• Have jointly consulted people likely to be affectedby the delivery of the functions through theagreement

Section 75 the requirements• A list of things that need to be in the agreement are set out in

Regulations• Key practical things we have found

– Be clear on roles and responsibilities– Risk share who bares what cost if things go wrong– Governance, be clear and make sure attendees have power to

take decisions– Where there is a pooled fund is there genuine pooling or

alignment– If genuinely pooled how will it be administered and reconciled

• Consider how charges for services will work in pooled budget, can itbe predicted (i.e. social services are often means tested/paid for)

Powers to co-operate withoutSection 75 Agreement• Section 256 NHSA 2006• NHSE and CCGs may make payments to a Local Authority or

registered social landlord for:– Provision of social services– Educational services for disabled people– Housing, meals and recreation for old people– Any expenditure of LA for functions which:

Have an effect on health of any individuals Have an effect on or are affected by any NHS funding Are connected with any NHS functions

Powers to co-operate withoutSection 75 Agreement cont’d• Section 76(1) LA may make payments to NHSE or CCG or

a local Health Board in relation to its prescribedfunctions (broadly similar to S.75 functions)

Virtual Partnerships

• Memorandum of understanding/contract• Agree to align but not to pool?• Vary existing contracts?• Align procurement/commissioning• Joint governance to help co-operation

Corporate Joint Ventures

• Consider powers to participate in a company• TUPE• Financial standing of company/guarantee• Taxation and VAT• Financial support?• Governance

Procurement

• Public Contracts Regulations 2015• National Health Service (Procurement, Patient

Choice and Competition) (No.2) Regulations 2013• What is the arrangement? Is it subject to the

regime?

Peter WarePeter.ware@brownejacobson.com0115 976 6242