Issue details

Proposed Decision: 

Approve a flexible extension to the current Advocacy Services Contract for up to 12 months from 1 April 2022 until 31 March 2023:  Undertake market engagement in partnership with CCG and Medway Council  to procure a new Advocacy Services Contract; and delegate authority to the Corporate Director Adult Social Care and Health to take relevant actions, including but not limited to finalising the terms of entering into required contracts of other legal agreements, as necessary to implement the decision.

Reason for the decision:

The Authority has statutory requirements to deliver independent advocacy under the terms of the Mental Capacity Act 2005, Mental Health Act 2007, Health and Social Care Act 2012, and Care Act 2014.  These duties are currently commissioned as an Advocacy hub, delivering a suite of services by the lead contract holder, The Advocacy People.

The contractual performance has been good during the life of the contract and there are no concerns around them or their ability to deliver a service.

The Advocacy Hub for Adults contract is due to expire on 31^st March 2022. With all contract extensions exhausted, an additional extension was made under the March 2020 Procurement Policy Note (PPN 01/20) due to the COVID-19, outbreak. The intention was to commence with procurement of new Advocacy Services during March 2021.

However, a national lockdown remained in place with restrictions on movement, and impact on people’s capacity, and public service resource under pressure.  Virtual market engagement and public consultation was not ideal for the cohort of people that the contract is commissioned to support as it would likely have disadvantaged learning-disabled people in particular.

The national restrictions have also limited the exploration of potential service developments for positive actions, such as recruiting and developing the advocates who represent the population groups the service delivers for.  

With hindsight, the extension was requested and approved before the unprecedented nature, and duration of the pandemic could be fully appreciated.

The review of the contract highlighted that there were interdependencies with Mental Capacity Act (MCA) amendments, indicating that Independent Mental Capacity Advocate (IMCA) services currently delivered under the Advocacy Hub contract, may be affected following the code of practice for Liberty Protection Safeguards (LPS) publication. The MCA amendments also indicate that while people subject to LPS will not have automatic rights to independent advocacy, a best interest decision may entitle people over 16, to this service. This may already be well aligned within the non-statutory community Advocacy service.

Bringing the assessment service delivered under the SEAMAS Deprivation of Liberty Safeguards (DoLS) Contract, together with the Advocacy Hub Contract service was identified as a commissioning strategy to further develop a cohesive experience for people across Kent.

However, the ongoing delay to the publication of the LPS code of Practice has caused a knock-on delay for consultation with the market about this direction of travel. Presently, this strategy remains intended and has the support of Senior Management Team with commitment to begin procurement in Spring 2022 regardless of any further delay to LPS code of practice publication.

The Advocacy Hub contract annual budget for the provision of the statutory and community advocacy services is £1,519,400

Strategic Commissioning has considered several options with operational colleagues which were presented to Senior Management Team on 9 November 2021 with the preferred option of a Flexible Extension to current contract as is for a period of 18 months (to 30 September 2023) endorsed.

In light of Legal advice from Invicta Law a flexible extension of up to 12 months is now the preferred option and was supported by the Commissioning Advisory Group on the 13^th December 2021.

A flexible extension and agreement to partnership approach to procurement would;

·      allow for implications, and the publication of the LPS code of practice to be more fully understood and planned for;

·      allow time for the most appropriate approach to market engagement and coproduction of future services;

·      shift the timing of the tender for future services, thereby avoiding more pressured periods on the market;

·      enable more comprehensive development of service specification for future procurement.

Flexibility around the ongoing commitments to the current services at this time will be built in with:

·   A three-month break clause or reserved right for earlier termination of the extended contracted services;

·   Reserved right to vary a contract for future commissioned services to incorporate and allow for the implementation of the LPS Code of Practice

Furthermore, Strategic Commissioning would use the extension period to more fully assess the implications outlined within the EqIA including the potential for any positive action with regard to recruitment and employment; and to challenge established assumptions. This particularly relates to disabled people and the emerging evidence from the neurodiversity movement outlined in the EqIA.

Community advocacy falls outside of the remit of our statutory advocacy duties; however, The Care Act suggests a need for community advocacy. 

The Advocacy contract will work together to improve everyone’s physical and mental health, supporting people to live well with quality local care when they need it.

Legal Implications:

The Authority has statutory duties to deliver advocacy services under the Mental Capacity Act (amended 2019), the Mental Health Act (2007), the Health and Social Care Act (2012) and the Care Act (2014), across all categories of need, including to young people in transition to adult services.

The 2019 Amendments to the Mental Capacity Act and the effect on the Advocacy services are not yet fully understood, due to the delay in the publication of the accompanying Code of Practice.

Legal advice received from Invicta Law supported a 12-month extension and they recommended that we begin the process to re-let this contract in early 2022.

The proposed 12 month extension is flexible, in order to reserve the right for earlier termination of the contract should the Code of Practice be published and the implications understood, thus informing and expediting the development of new services specification and procurement of services.

The extension is proposed in view of the remaining statutory obligations to deliver statutory services, regardless of whether they are contracted of not. In the absence of a contracted service, significant inconvenience, and duplication of costs to the Authority in managing spot purchased provision would likely occur. In addition, service users would likely experience inconsistent and fragmented delivery of Advocacy services.