There are a number of options available to clinical commissioning groups (CCGs) with regards to commissioning support.
When the Health Bill was drafted, it was envisaged that the staff engaged by PCTs in commissioning functions would simply transfer across to CCGs.
However, that changed when the first draft of the Towards Service Excellence document, published in October 2011. A revised draft in November 2011 set out the vision and strategic direction for commissioning support.
Freedom to choose
The document is clear on the end state – CCGs will have the statutory freedom to secure their commissioning support from wherever they want, subject to undertaking the necessary procurement processes to test the capability of providers.
However, at present, commissioning support is undertaken predominately by staff working in PCT clusters and these staff have been tasked with developing future models of commissioning support to be made available to CCGs.
Given the intention to have CCGs established by April 2013, the document highlights the risk in developing these new models within that timescale and, as a result, it is widely expected (if not certain) that the NHS Commissioning Board will host some (if not the majority) of NHS commissioning support services from 2013 until no later than 2016.
When CCGs are ready to choose their preferred form of commissioning support, they can do so through a formal procurement process, which would be open to the private, voluntary and third sector as well as existing NHS commissioning support organisations.
The document acknowledges that the transition to this end point is complex and will take time and the purpose of the document is to set out the vision and strategy for getting there. Accordingly, a two-stage approach is to be adopted:
- First, redesigning, standardising and reducing duplication where appropriate to ensure the "basic" support is delivered effectively and efficiently.
- Secondly, developing new commissioning support offers in ways that will support innovative, clinically focused commissioning as CCGs start to develop their role.
Work is ongoing to determine at what level these support services would best be provided but the document sets out a proposed optimal scale arrangement for some of these activities (see box below).
|Proposed optimal scale arrangement for commissioning support activities|
|National (do once)||
|At some scale||
|Cluster level (250k-1m population)
Who will provide commissioning support?
The document goes on to acknowledge that, to develop ‘vibrant commissioning support’ it is important that suppliers from all sectors have the opportunity to contribute to its development. It anticipates involvement from the commercial sector, the voluntary and third sector (which is likely to want to develop niche services in special interest areas), local authorities and health and wellbeing boards that have specific roles to play around the joint commissioning agenda and the NHS – which will need to make the transition from statutory function to freestanding enterprise.
However, when CCGs secure their commissioning support through formal procurement and an alternative provider is selected, the document makes it clear that the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) will apply and herein lies a potential difficulty for CCGs moving away from a NHS hosted or free standing commissioning support function.
NHS organisations are able to offer access to the NHS pension scheme. However, if a commissioning support function is procured, the staff engaged in that function will transfer to the successful bidder under TUPE.
Although TUPE does not strictly apply to pension schemes, there is a Cabinet Office directive requiring public bodies procuring services to ensure that a broadly equivalent pension scheme is provided to the transferring staff. Accordingly, the cost to potential (non NHS) bidders of having to offer equivalent pension schemes could be prohibitive.
In summary, this document appears to provide a comprehensive vision and strategy for the transition of hosted commissioning support services to an end point where CCGs are free to procure such support from a range of service providers. However, the setting of the management budget for CCGs in the Operating Framework at the lowest of the predicted range of rates (£25 per head), and the difficulties that CCGs may face when subsequently procuring commissioning support services from a range of providers (including the concerns over TUPE transfers), mean that commissioning support is going to remain a difficult area for CCGs.
- Ross Clark is a partner at GP specialist lawyers Hempsons