FTO Briefings, February 2009

2. Contents of this presentation: Context of the TCS programme within wider government reforms New patterns of provision: options and timeline Implications of options for NHS staff Process for PCT decision-making Opportunities for Trade Union input

3. Today’s briefing should provide… Understanding of government's direction of travel/future of community services Understanding of options available to PCTs Explanation of PCT decision-making process Details of opportunities for Trade Union input Explanation of implications for staff and the NHS

4. What is Transforming Community Services? Part of broader government agenda: ‘Choice/competition/innovation’ Commissioning a Patient Lead NHS (2005) Our Health, Our Care, Our Say (2006) Purchaser/Provider split Programme of changes: ‘Enabling New Patterns of Provision’ What has TU involvement been so far? SPF/Staff Passport Twin track approach

5. Guiding principles of TCS Benefits for patients and carers Staff employment rights and interests matter Early engagement and full consultation Staff have ‘first call’ to offer to provide services Workforce capacity - critical World Class Commissioning Competition

6. Key dates for PCTs April 2009: Separate PCT commissioner and provider arms contractual relationship – Service Level Agreement Oct 2009 : Detailed plan for transforming community services PCT provider services review governance arrangements Decision on social enterprise or Community Foundation Trust From Oct 2009: PCT commissioning arms should complete service reviews and market analysis PCTs to agree intentions for future of provider services with SHA By April 2010: PCTs to agree strategy for future of community estate with SHA During 2010: PCTs should develop implementation plan

7. What are PCTs required to do (1) Meet World-Class Commissioning requirements Stimulate market Set out which services are subject to Any Willing PCT-accredited Provider (AWPP) Accredit AWPPs Decide on future of assets Avenues for TU involvement: Union full time officers? Confidentiality agreements?

8. What are PCTs required to do (2) Achieve internal separation from commissioner Provider arm ‘fit for purpose’ Agree Service Level Agreements based on same rules as applied to all other providers Functions legally remain responsibility of PCT Board Assess viability Produce business plan/assess long-term sustainability

9. What are PCTs required to do(3) Consider appropriate organisational form – factors to consider: If staff wish to be involved as stakeholders Other stakeholders wish to be involved Current partnership arrangements Determine level of interest in ‘right to request’: DH document ‘Social Enterprise – Making a Difference: a Guide to Right to Request’

10. What are PCTs required to do (4) Produce a business plan, including: Viability Workforce arrangements Risks Prepare for AWPP accreditation: Engagement of staff in design and provision of services Partnership working with staff Compliance with Cabinet Office Code/NHS Constitution and Handbook

11. What SHAs are required to do Quality assure and oversee the process Provide support and guidance to PCTs Active role to ensure no conflict of interest Ensure good communications via regional SPFs Facilitate co-operation between PCTs on joint options Test proposals – refer to Competition Panel Agree implementation plans with PCTs Sign off PCT Estates strategy Approve applications for Social Enterprise (SE) or CFT status Develop commissioning and procurement

12. Possible models for service delivery Key issues on following slides: What will its structure look like? What does it mean for staff? What about new starters? How viable is it? What does it mean for future of NHS?

13. Possible models Arms-length Provider Organisation Polyclinics/GP-led health centres Community Foundation Trusts (CFT) Vertical Integration Horizontal Integration Integrated Care Private/Independent providers Social Enterprise

14. Continuing direct provision (Arms-length Provider Organisation) Separate governance arrangements for commissioner and provider within PCT Staff and new starters: NHS T&Cs/pension, A4C agreement Viability: government/SHA pressure on PCT to divest further; role of Co-operation & Competition Panel NHS direct provision

15. Polyclinics/GP-led health centres GP or private company-run: provide GPs, nurses, AHPs, diagnostic testing, minor surgery etc Staff: TUPE transfer; NHS pension for GP staff but not for private company staff; no automatic link to A4C; TU recognition? New starters – two-tier workforce agreement Viability: may be subject to takeover; business failure GP-run=existing model/private companies =services fragmented

16. Community Foundation Trusts (CFT) Most likely established through consortia of PCTs Staff and new starters: NHS T&Cs/pension; A4C agreement Viability: must meet Monitor’s minimum threshold; 3-year funding model NHS direct provision (subject to FT flexibilities)

17. NHS Integration – Vertical Integration PCT provider arm function integrated with local acute service through merger or joint management Staff and new starters: NHS T&Cs/pension, A4C agreement Viability: Pressure from government about monopoly providers; role of Cooperation & Competition Panel NHS direct provision

18. NHS Integration – Horizontal Integration More than one PCT-provider arm function integrated/merger with one or more PCT provider arms. May be first step to CFT Staff and new starters: NHS T&Cs/pension, A4C agreement Sustainability challenges: May be pressure to become CFT; role of Cooperation & Competition Panel NHS direct provision

19. NHS Integration – Integrated Care Joint health and social care services – may be through S.75 arrangements – pooled funds / transfers between LA/NHS or new organisations e.g. care trusts Staff: if NHS-run: NHS T&Cs/pension, A4C agreement if local authorities-run then TUPE applies New starters: either NHS or LA T&Cs/pension Viability: possible disagreements over funding NHS remains in public sector

20. Private/Independent providers Individual or bundled services transferred to private or voluntary sector organisations ‘Cherry picking’ by the private sector leaves non-profitable services elsewhere Staff: TUPE transfer but lose NHS pension and have no automatic link to A4C. Future loss of TUPE protection through an ETO reason. Loss of Trade Union recognition New starters: two-tier workforce agreement/no less favourable T&Cs Viability: dependent on profitability/vulnerable to business failure NHS not publicly provided; fragmented service. Private companies - run for profit

21. Social Enterprise (SE) Different structural models ranging from share companies to worker co-operatives ‘Right to request’– PCT must consider requests. If SHA approves then SE gets a 3-year contract Individual or bundled services transferred to SE Staff: TUPE transfer; no automatic link to A4C. NHS pension for staff undertaking NHS work only New starters: Cabinet Office Code applies, i.e. no less favourable T&Cs. No NHS pension Viability: Vulnerable to takeover or business failure; Co-operation & Competition Panel NHS not publicly provided; fragmented service

22. Dept of Health says “No blueprint” But… Pressure on staff to exercise ‘Right to request’ for SE “Through…social enterprises, clinical leaders and others can exert their influence to improve outcomes like never before”, DH Preferable treatment for SE Threat of procurement if do not request SE Co-operation and Competition Panel

24. TCS (Workforce) Appendix 2 – ‘Issues for staff’ What it covers: Sets out good practice engaging staff & TU Equality requirements Sets out requirements if transferring staff Refers to NHS Constitution Further advice from Social Partnership Forum on ‘Staff Passport’ to be issued

25. Staff Engagement PCTs required to work with TU reps: Including initial consideration, appraisal and development of proposals for service delivery Legal requirements PCT Business and Workforce Plans must be shared Good communications and consultation key – proposals may be jeopardised if not

26. Trade Union view PCTs and SHAs must ensure high level and early engagement and consultation Use local machinery e.g. Local Partnership Bodies/Forums (PFs) Agree timetable and process at PCT and SHA Seek views of members Discuss alternatives/mobilise opposition Extend timetables if necessary

27. PCT Level : Use Joint Consultative Committee and local PFs or new joint bodies SHA Level – oversight and review role. Use regional SPFs to consider PCT proposals Unions should use regional SPFs to ensure engagement and information sharing See key questions for TU Reps to ask PCTs/SHAs TCS Appendix 2, Pages 76 &77 TU Guide Page 9 & 10

28. Other Issues for Staff Equality – to ensure no unlawful discrimination against employees Public Sector duty - PCTs must do Equality Impact Assessment. Ensure this is embedded in contractual relationships Must embed NHS Constitution and Handbook in provider contracts See key questions to ask PCT CS Appendix 2, Pages 77 &78 TU Guide Page 11 & 12

29. Protection - Pay T&Cs Where staff transfer – TUPE applies. But ETO reason could negate TUPE protections Cabinet Office Statement of Practice – Fair Deal for Staff Pensions (2000) Code of Practice on Workforce Matters (2005) Retention of Employment model restricted See table summary (TCS pages 86 to 90) See key questions to ask the PCT

30. Human Resource issues Providers are expected to demonstrate: An HR Strategy HR policies and workforce planning Provision of access to Continuous Professional/Personal Development Staff engagement – through a staff survey, TU recognition, partnership working, consistent with NHS Constitution principles See key questions for new provider(s)

31. Key tasks for Trade Unions Insist on early engagement/consultation Local staff side to agree timetable with PCT Regional officials to agree timetable with SHA Build in timetable for reporting back to members Ensure staff informed about pitfalls of social enterprise and loss of rights/job security under privatisation Contact LA Overview and Scrutiny Committees Ensure NHS options considered Campaign for direct NHS Provision Build in Code and other protections to contract documents and procurement process Keep your national office informed – co-ordination and sharing experience helps us all Ensure all unions working together at all levels

32. Key Reference Documents (web links) Transforming Community Services http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_093197 Next Stage Review http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_085825 NHS Constitution http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_085814 Social Enterprise - Making a Difference: a guide to the Right to Request http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_090460 Transfer of Undertakings (Protection of Employment) Regulations http://www.berr.gov.uk/files/file20761.pdf Cabinet Office Code of Practice http://archive.cabinetoffice.gov.uk/opsr/workforce_reform/code_of_practice/index.asp