Reason for the decision
- The Non-Maintained Independent Special School (NMISS) Dynamic Purchasing System (DPS) was established in September 2022 for an initial period of three years, ending 31 August 2025. The DPS contains explicit provision for the Council to exercise three optional one year extensions, with a maximum end date of 31 August 2028. The original Record of Decision omitted reference to the DPS initial three year period and the extension clauses contained within it.
- The present proposal is to extend the current DPS for one year until 31 August 2026, with a view to procuring a replacement dynamic market or framework agreement for use from 1 September 2026 onwards.
- The new Specification and Terms and Conditions for the future service beyond 1 September 2026 will take on board the learning from the issues identified within the arrangements to ensure that the future services and model better aligns with and meets the needs of the transforming SEND landscape and continuum of education support in Kent.
Background – Provide brief additional context
- KCC has a statutory responsibility to provide suitable education for all Children and Young People (CYP). Prior to the establishment of the NMISS DPS, placements in the independent sector had been spot purchased, with escalating number of placements and associated costs year on year.
- The key drivers to establish a DPS framework for education placements outside of the mainstream and maintained provision for children and young people with Education Health Care Plans (EHCPs) was to enable Kent County Council (KCC) to monitor quality of provision, improve outcomes for children and young people, ensure placements offered best value for money in a way that could not be achieved through the process of spot purchasing and set a strategic platform to communicate with the sector differently.
- It was recognised that this was the first step to developing a baseline of information and to this end, the DPS framework has been successful. Further work is now needed to address the key issues identified and to ensure placements in the NMISS sector under any newly procured dynamic market or framework arrangement are better aligned to Kent’s wider strategies and approach to the SEND whole system change and continuum of needs and provision.
Options (other options considered but discarded)
- Future commissioning activity must be considered within the strategic context of:
o The Council’s commitment in discharging its statutory duty for children and young people with SEND
o The Council’s drive for greater inclusion of children and young people with SEND in mainstream settings and schools, as outlines in the Countywide Approach To Inclusive Education
o Delivery of the Safety Valve commitment and SEND transformation
- A number of options were considered and appraised against the above criteria, as well as consideration of the new Procurement Act 2023 which comes into force in February 2025.
- The preferred option is to extend the NMISS DPS under its existing terms and conditions for one year, so that it would expire 31 August 2026, and to then re-procure a new framework that can address the issues identified through contractual and operational management of the current framework and ensure that the future NMISS market meets the future needs of the Council, from 1 September 2026 onwards.
How the proposed decision supports the Framing Kent's Future - Our Council Strategy 2022-2026
- Priority 1 - Levelling up Kent - To maintain KCC’s strategic role in supporting schools in Kent to deliver accessible, high quality education provision for all families
- Priority 4 - New Models of Care and Support – To reshape our commissioning practice to ensure we build strategic partnerships with our providers, through earlier engagement, more consistent and proactive commissioning practice, and a stronger focus on co-designing services.
How the proposed decision supports Securing Kent’s Future 2022 -2026: Securing Kents Future - Budget Recovery Strategy.pdf
- The decision will be compliant with the Strategic Statement in the context of the significant financial challenges that the Council is facing, as a key driver of the current NMISS DPS framework and any future re-provision.
- It will meet the strategic objectives by contributing to bringing the Council’s budget back into balance and support the delivery of Securing Kent’s Future
- It will prioritise Best Value considerations
Financial Implications
- Total spend on Independent and Non-Maintained providers of special educational needs placements is forecast to be in excess of £80m in 2024-2025 as outlined in the latest monitoring report to Cabinet on 28 November 2024, of which approximately £50m (approximately 60%) is spent on contracted providers through the Non-Maintained Independent Special School Dynamic Purchasing System Therefore the estimated cost of the extension of one year is of the same value, subject to changes in demand over the next year, with the total cost of the contract c£200m over the life time of its contract of four years (September 2022 to 2026).
- The cost of this contract is reported against the Special Educational Needs and Psychology Services key service budget line, and total spend on Independent and Non-Maintained schools is reported with Section 3g (School Budgets) of the Council finance monitoring report to Cabinet. Whilst this spend is expected to be fully met from the High Needs Block of the Dedicated Schools Grant (DSG), and would not be direct cost to the General Fund, there is a significant accumulated deficit on the DSG (estimated to be £222m by March 2028), which the Council has agreed to contribute a total of £82m (in addition to a DfE contribution of £140m), between 2023 and 2027, to help pay-off the deficit by 2028-2029.
- If the contract was not to be extended, all contracts would revert to a “spot purchase agreement” with all the associated financial and operational risks.
Decision type: Key
Reason Key: Expenditure or savings of more than £1m;
Decision status: For Determination
Notice of proposed decision first published: 15/01/2025
Decision due: Not before 13th Feb 2025 by Cabinet Member for Education and Skills
Reason: To allow the required 28 notice period on the published list of forthcoming executive decisions
Lead member: Cabinet Member for Education and Skills
Lead director: Sarah Hammond
Contact: Christy Holden, Head of Children's Commissioning.
Consultees
The decision will be taken between CYPE Cabinet Committee meetings but notice will be provided and normal comments on the proposed record of decision will be sought at the relevant time.
Legal implications: Commercial and Commissioning Officers have advised that explicit provision to enable KCC to extend the DPS was included when it was originally established under the Public Contract Regulations 2015 (as amended). As such, provided the extension will remain within the original advertised financial value of services required, and are within budget, then it is open to KCC to extend the DPS in accordance with its terms and any process set out for doing so. As the DPS is open for new suppliers to seek to be onboarded to the DPS during its terms there is no risk of challenge from the market that they are being denied an opportunity to bid during the extension period as they can ask to be admitted to the DPS.
Equalities implications: Commercial and Commissioning Officers have advised that explicit provision to enable KCC to extend the DPS was included when it was originally established under the Public Contract Regulations 2015 (as amended). As such, provided the extension will remain within the original advertised financial value of services required, and are within budget, then it is open to KCC to extend the DPS in accordance with its terms and any process set out for doing so. As the DPS is open for new suppliers to seek to be onboarded to the DPS during its terms there is no risk of challenge from the market that they are being denied an opportunity to bid during the extension period as they can ask to be admitted to the DPS.