Explanatory Memorandum to the Partnership Arrangements and Population Assessments (Miscellaneous Amendments) (Wales) Regulations 2019
This Explanatory Memorandum has been prepared by the Health and Social Services Group and is laid before the National Assembly for Wales in conjunction with the above subordinate legislation and in accordance with Standing Order 27.1.
Deputy Minister’s Declaration
In my view, this Explanatory Memorandum gives a fair and reasonable view of the expected impact of the Partnership Arrangements and Population Assessments (Miscellaneous Amendments) (Wales) Regulations 2019. I am satisfied that the benefits justify the likely costs.
Julie Morgan
Deputy Minister for Health and Social Services
5 March 2019
Part 9 of the Social Services and Well-being (Wales) Act 2014 (‘the 2014 Act’) provides Welsh Ministers with powers to ensure appropriate structures and resources are in place to enable the provision of integrated care and support services. The Partnership Arrangements (Wales) Regulations 2015 (“the Partnership Regulations”) provide for the establishment of seven regional partnership boards on the health board footprint and set out requirements for those boards.
The Partnership Arrangements and Population Assessments (Miscellaneous Amendments) (Wales) Regulations 2019 (“the Amendment Regulations”) amend the Partnership Regulations in order to:
· Change the partners included in both the Cwm Taf and Western Bay Regional Partnership Board areas to take account of the change to the boundaries of Abertawe Bro Morgannwg and Cwm Taf health boards;
· Change the names of the regional partnership boards affected by this health board boundary change to reflect the new names of the Swansea Bay and Cwm Taf Morgannwg health boards;
· Clarify requirements for regional partnership boards to establish regional pooled funds in relation to care home places for older people;
· Require housing and education representation on regional partnership boards;
· Clarify when regional partnership boards must produce annual reports.
They also amend the Care and Support (Partnership Arrangements for Population Assessments) (Wales) Regulations 2015 (“the Population Assessments Regulations”) in order to:
· Change the partnership arrangements for population assessments to take account of the health board boundary change;
· Change references to the names of the health boards above to reflect changes to those names as a result of the boundary change.
The Amendment Regulations are linked closely with The Local Health Boards (Area Change) (Wales) (Miscellaneous Amendments) Order 2019 (“the Boundary Change Order”) and as a result reference is made to the Boundary Change Order in the explanatory note of the Amendment Regulations. The boundary change Order will amend the boundary and names of Abertawe Bro Morgannwg and Cwm Taf Health Boards and make other consequential amendments. The Amendment Regulations will amend the areas and names of the corresponding regional partnership boards as well as other changes in relation to regional partnership boards. In light of the need to finalise details of the boundary change, the Amendment Regulations (which will be made under the affirmative procedure) will need to be laid in advance of the Boundary Change Order (which will be made under the negative procedure). In the event the Boundary Change Order is subsequently annulled, we would then revoke those specific regulations in the Amendment Regulations which make reference to the local health board boundary changes.
An alternative option would be to include all consequential amendments to the boundary change within the Boundary Change Order. However, this would mean changes to the Partnership Regulations being made by two pieces of legislation at the same time, which would not be desirable. Also, we consulted on the Amendment Regulations on the basis that there was a need to amend the Partnership Regulations in light of the health board boundary change, and this offered an opportunity for a general tidy-up of the regulations.
These Amendment Regulations amend the principal Partnership Regulations which came into force on 1 April 2016.
The 2015 Partnership Regulations are available at:
http://www.assembly.wales/laid%20documents/sub-ld10399/sub-ld10399-e.pdf
The accompanying Explanatory Memorandum and Regulatory Impact Assessment for the 2015 Partnership Regulations is available at:
http://www.assembly.wales/laid%20documents/sub-ld10399-em/sub-ld10399-em-e.pdf
This should be read in conjunction with the Partnership Arrangements (Wales) (Amendment) Regulations 2017:
http://www.legislation.gov.uk/wsi/2017/491/pdfs/wsi_20170491_mi.pdf
The accompanying Explanatory Memorandum and Regulatory Impact Assessment are available at:
http://www.assembly.wales/laid%20documents/sub-ld10924-em/sub-ld10924-em-e.pdf
The powers enabling these Amendment Regulations to be made are contained in sections 166-168 and 196 of the 2014 Act.
Sections 166 -168 of the 2014 Act provide the Welsh Ministers with regulation making powers to specify partnership arrangements to be made between local authorities and local health boards for carrying out specified functions.
These Regulations are subject to the Affirmative procedure. Subject to agreement by the National Assembly for Wales, these Regulations are due to come into force on 1 April 2019.
A summary is provided below. A more detailed description is contained in the RIA in Part 2.
Forthcoming change to Cwm Taf and Abertawe Bro Morgannwg health board boundary
Housing
Education
1. Overview
This Regulatory Impact Assessment should be read in conjunction with the Regulatory Impact Assessment in relation to the Partnership Regulations:
http://www.assembly.wales/laid%20documents/sub-ld10399-em/sub-ld10399-em-e.pdf
and the Regulatory Impact Assessment in relation to the 2017 Amendment Regulations:
http://www.assembly.wales/laid%20documents/sub-ld10924-em/sub-ld10924-em-e.pdf
Option 1 – Do nothing
Under this option, the existing Partnership Regulations would remain in place with no Amendment Regulations being made.
Option 2 – Amend the Partnership Regulations
Forthcoming change to Cwm Taf and Abertawe Bro Morgannwg health board boundary
Following consultation, the Welsh Government announced in June 2018 that healthcare services in the Bridgend County Borough Council area will transfer to Cwm Taf University Health Board from Abertawe Bro Morgannwg University Health Board, moving the health board boundary accordingly. This change will align economic, education, health and social services partnership arrangements for Bridgend County Borough firmly within the Cardiff Capital Region. This will take effect on 1 April 2019.
The Partnership Regulations set out the bodies included within each regional partnership board. The Population Assessments Regulations set out partnership arrangements for population assessments of care and support needs. The Amendment Regulations amend both of these sets of Regulations to take account of this boundary change as set out below:
|
Regional Partnership Board |
Current partnership arrangements |
Partnership arrangements after amendment |
|
Cwm Taf |
Cwm Taf University Health Board Rhondda Cynon Taf County Borough Council Merthyr Tydfil County Borough Council |
Cwm Taf University Health Board Rhondda Cynon Taf County Borough Council Merthyr Tydfil County Borough Council Bridgend County Borough Council |
|
Western Bay |
Abertawe Bro Morgannwg University Health Board Swansea City and County Council Bridgend County Borough Council Neath Port Talbot County Borough Council |
Abertawe Bro Morgannwg University Health Board Swansea City and County Council Neath Port Talbot County Borough Council |
Separate statutory instruments will address the actual change of health board boundaries, transfer of assets and liabilities and consequential amendments to other legislation. This will include changes to safeguarding boards, Community Health Councils and mental health partnerships. Regional adoption arrangements will be amended separately in Directions.
The Local Health Boards (Area Change) (Wales) (Miscellaneous Amendments) Order 2019 is subject to the negative procedure. It is due to come into force on 1 April.
Associated with the boundary change, the health board names will be changing as follows:
|
Current health board name |
Name from 1 April 2019 |
|
Abertawe Bro Morgannwg University Health Board |
Swansea Bay University Local Health Board |
|
Cwm Taf University Health Board |
Cwm Taf Morgannwg University Local Health Board |
The Amendment Regulations will change references to these names within the Partnership Regulations and the Population Assessments Regulations.
The Partnership Regulations will also amend the names of the regional partnership boards as follows, to reflect these changes
|
Current regional partnership board name |
Name from 1 April 2019 |
|
Western Bay |
West Glamorgan |
|
Cwm Taf |
Cwm Taf Morgannwg |
Regional pooled funds
Pooled funds are a key element of the integration agenda and the drive towards the joint commissioning of services. Further to requirements in the Partnership Regulations, supporting statutory guidance sets out the expectation that partners also put in place an integrated commissioning process focused on improved quality as well as securing better value for money. This guides partners to:
· agree an appropriate integrated market position statement and commissioning strategy;
· Agree a common contract and specification;
· Develop an integrated approach to agreeing fees with providers;
· Develop an integrated approach to quality assurance; and
· Adopt a transparent use of resources.
Welsh Ministers have set out their expectation that pooled funds for care home places be established at the regional level between the health board and all the local authorities within the partnership area.
The proposed Amendment Regulations provide clarity that each regional partnership board must establish a single pooled in relation to care home places for older people. The health board and all of the local authorities within the regional partnership board must provide sufficient contributions into the pooled fund to meet anticipated needs for care home places.
Revised requirement:
“For each financial year, beginning with the financial year commencing on 1st April 2019, each partnership body must make a contribution to the regional pooled fund in relation to the exercise of their care home accommodation places for older people functions, which is commensurate with its anticipated annual expenditure on care home places for older people.”
Scope of pooled funds
Regulation 19(1)(a) of the Partnership Regulations currently requires that a pooled fund is established in relation to all adult care home accommodation functions.
Following discussions with regional colleagues, the Welsh Government acknowledges that the initial priority and the more realistic expectation is that pooled funds should only be required initially in relation to care homes for older people. The proposed Amendment Regulations therefore confirm that partners are required to establish and maintain a regional pooled fund in relation care home accommodation for older people. This still ensures that a pooled fund is established to meet the costs of the significant majority of care costs.
In response to a public consultation, the Amendment Regulations define an older person as a person aged 65 or over. Also in response to a public consultation, the Amendment Regulations set out that partners must provide sufficient contributions into the pooled fund to meet anticipated costs for care home places for older people in the region.
The regulations will not preclude regional partnership boards from developing pooled funds more widely dependent on their priorities. Partners will still be required to establish pooled funds in relation to Integrated Family Support Services and to consider establishing a pooled fund whenever they do something jointly in response to the population assessment required by section 14 of the 2014 Act.
Housing representation on regional partnership boards
The Partnership Regulations set out that the membership of each regional partnership board must include:
· At least one elected member of a local authority;
· At least one member of the local health board;
· Directors of social services from each local authority;
· A representative of the local health board;
· At least one person to represent people with needs for care and support;
· At least one person to represent carers;
· At least one person who represents the interests of care providers; and
· Two people who represent the interests of the third sector (one representing local and one national third sector organisations).
Regional partnership boards may co-opt other persons to be members as appropriate.
The Parliamentary Review of Health and Social Care urges the Welsh Government to “maximise the benefits of closer planning and collaboration by taking further steps through guidance, legislation and financial incentives to ensure that housing considerations are fully aligned with health and care planning at local level”. The Welsh Government’s long term plan, A Healthier Wales, in response to this, states housing will have a more prominent role in the partnership agenda.
Regional partnership boards are responsible for the Integrated Care Fund (ICF), including capital allocations. This capital investment has recently been significantly increased with new guidance providing an emphasis for regional partnership boards to support strategically important accommodation led solutions to health and social care.
The Amendment Regulations would add a requirement for at least one housing representative from a local authority and at least one representative from registered social landlords on each regional board.
Education representation on regional partnership boards
Following a consultation, the Amendment Regulations also add a requirement for at least one senior local authority officer from the education sector to membership of the boards. Like the local authority housing representative, the education representatives would not be expected to represent every local authority within the region but instead make use of the opportunity to bring an educational point of view to support the boards. This will provide for a greater focus from the regional boards on prioritising the integration of services for children with complex needs.
More generally, the proposed Amendment Regulations will slightly modify the wording in relation to membership requirements to ensure that terms such as “at least one representative…” are used consistently.
Regional partnership board annual reports
The Welsh Government has worked with the Institute for Public Care and regional colleagues to agree non-statutory guidance to support the requirement for regional partnership boards to produce annual reports. The Welsh Government has also agreed with regional colleagues that annual reports should be produced by 30 June each year to allow for end-of-year information to feature in the reports. The proposed Amendment Regulations clarify this requirement in the Partnership Regulations.
Codes of Practice and Statutory Guidance in relation to the 2014 Act
We will also be making amendments to the Part 2 Code of Practice, the Part 9 Statutory Guidance and the Statutory Guidance in relation to area plans under section 14A. This will reflect the changes enacted by the Amendment Regulations, with more substantial changes to the Part 9 Guidance, taking account of responses to the consultation.
Detailed Impact Assessments were undertaken in relation to the 2014 Act, the Partnership Regulations and the Population Assessments Regulations. The Amendment Regulations are not expected to make significant changes to the impacts outlined in those assessments.
COSTS
Option 1 – Do nothing
Do not make consequential changes related to the health board boundary change
Regional partnership board areas would continue as they currently are, i.e. not aligned to the new health board areas of Abertawe Bro Morgannwg (Swansea Bay from April 2019) and Cwm Taf (Cwm Taf Morgannwg from April 2019) university health boards.
While difficult to calculate financial costs associated with this, it would likely cause significant difficulties in terms of effective partnership working arrangements within the regional partnership boards. The existing Regulations would also refer incorrectly to the previous names of the two health boards in question, from April 2019.
Do not clarify requirements for regional partnership boards to establish regional pooled funds in relation to care home places for older people
Under this option, the existing requirement for regional boards to establish pooled funds for care homes for adults would continue. Currently it is not explicit that these pooled funds must be regional in nature and therefore some regions may choose to establish local, rather than regional pooled funds, not realising the value for money opportunities of integrated commissioning supported by regional pooled funds.
Currently the requirement is for care home places for adults. In practice, regional partnership boards have initially focussed on care home places for older people, and this being one of the priority areas for regional boards, the Welsh Government has supported this approach. They have outlined that establishing pooled funds for wider adult care home places at this stage would be significantly complex to achieve. This could involve additional costs for regional partnership boards, although we would expect these to be met from existing budgets.
There are no anticipated costs associated with the other aspects of the Amendment Regulations.
Option 2 – Amend the Partnership Regulations
Make consequential changes related to the health board boundary change
Costs associated with the overall implications of the boundary change will be set out in the RIA accompanying the Boundary Change Order. £3m has been set aside within the Health and Social Services budgets in 2018-19 to support Cwm Taf and ABM Health Boards in preparation for the boundary change in relation to Bridgend county borough area. The Welsh Government has also provided £100k to Bridgend County Borough Council to support costs associated with partnership arrangements as a result of the boundary change.
Clarify requirements for regional partnership boards to establish regional pooled funds in relation to care home places for older people
All regional partnership boards have established some form of regional pooled funds in relation to care home places for older people therefore we do not expect significant additional costs.
Add housing representation onto regional partnership boards
There would be minimal costs for regional partnership boards to appoint these new members. There would be minimal opportunity costs for the representatives themselves in terms of the time to prepare for and attend approximately four meetings per year. In practice many of the regions already have sub-groups in place in relation to housing so the organisations involved would already be sending representatives. We would expect these costs to be met from within general administrative costs of the regional partnership boards and representatives’ organisations.
Add education representation onto regional partnership boards
There would be minimal costs for regional partnership boards to appoint these new members. There would be minimal opportunity costs for the representatives themselves in terms of the time to prepare for and attend approximately four meetings per year. In practice many of the regions already have sub-groups in place in relation to children and young people so the organisations involved would already be sending representatives. We would expect these costs to be met from within general administrative costs of the regional partnership boards and the representatives’ organisations.
Clarify when regional partnership boards must produce annual reports
Regional partnership boards already produce an annual report. We do not foresee any additional costs associated with amending the timing that this report must be produced.
BENEFITS
Option 1 – Do nothing
Do not clarify requirements for regional partnership boards to establish regional pooled funds in relation to care home places for older people
Some stakeholders have suggested that there should be flexibility to determine whether pooled funds should be regional or local. Some have argued that integration at a local or sub-regional level would be more practical and beneficial due to the complexities and perceived risks of cross-subsidisation of other local authorities. The Welsh Government however sees a regional pooled fund as being essential to drive integrated and collaborative commissioning on a regional level to achieve better value for money and improve well-being outcomes.
There are no anticipated benefits for any other parts of the Amendment Regulations.
Option 2 – Amend the Partnership Regulations
Make consequential changes related to the health board boundary change
The overall benefits associated with the health board boundary change will be set out in the RIA accompanying the Boundary Change Order. The benefits of these consequential amendments will be in terms of ensuring that the regional partnership board areas reflect the new health board boundaries and names are reflected correctly in regulations. This will support effective partnership working and integration in the Western Bay and Cwm Taf regions.
Clarify requirements for regional partnership boards to establish regional pooled funds in relation to care home places for older people
Ministers have already set out expectations for regional partnership boards to establish regional pooled funds in relation to care home places for older people. These amendments clarify the requirements in the Partnership Regulations. Pooled funds are a crucial part of integrated working and joint commissioning. They will enable public funds to collectively be used to improve well-being outcomes and achieve better value for money through collaboration and economies of scale. This can be achieved more effectively with regional, rather than local pooled funds.
The Welsh Government commissioned the Institute of Public Care (IPC) to review recent literature, to assess the potential benefits of pooled funds between local authorities and health organisations. The report identifies learning on key factors, which can make pooled funding arrangements successful in helping to secure better health, care and wellbeing outcomes. The report is available here:
https://ipc.brookes.ac.uk/publications/Better-Outcomes-through-Pooled-Funds.html
Although this requirement relates to care home places for older people, the regulations do not stop regional partnership boards from establishing pooled funds for other areas, based on their priorities.
Add housing representation onto regional partnership boards
This option would enable greater involvement of the housing sector in regional discussions and better support the effective use of the capital element of the ICF and also support commitments in A Healthier Wales for greater involvement from housing in the integration agenda.
Add education representation onto regional partnership boards
Regional partnership boards are already required to prioritise the integration of services for children with complex needs. The Welsh Government recently announced an additional £15 million of funding for regional boards to support improved services for children at the edge of care or in care. This amendment will ensure an education perspective on regional boards to support this area of work.
The membership section will also be tidied up to ensure terms such as “at least one representative” are used consistently.
Clarify when regional partnership boards must produce annual reports
The Welsh Government has already agreed that annual reports can be produced by 30 June each year. Setting this out in the Amendment Regulations provides additional clarity to regional partnership boards.
RISKS
Option 1 – Do nothing
Do not make consequential changes related to the health board boundary change
There would be a risk to effective partnership working in the Western Bay and Cwm Taf regions, due to lack of alignment with the new health board boundaries.
Do not clarify requirements for regional partnership boards to establish regional pooled funds in relation to care home places for older people
Not making this amendment would mean a continued ambiguity around the requirements in the Partnership Regulations in comparison to Welsh Ministers’ expectations. Also a risk that regional boards, initially focussing on older people would not be fully compliant with the current requirement in relation to adult care home places.
We do not foresee any significant risks for the other elements of this option.
Option 2 – Amend the Partnership Regulations
Clarify requirements for regional partnership boards to establish regional pooled funds in relation to care home places for older people
Some responses to the consultation highlighted complexities associated with regional pooled funds and potential risks of local authorities being required to cross-subsidise other authorities. We have carefully worded the requirement in the Amendment Regulations to require each partnership body to make annual contributions sufficient to meet its anticipated needs for care home places in order to avoid this risk. Also, we have asked the Association of Directors of Social Services Cymru (ADSS Cymru) to develop some practical support tools by April 2019, in relation to how a regional pooled fund should operate. This will address the specific issues and risks highlighted in the consultation.
Adding additional representation onto regional partnership boards
Some responses to the consultation suggested that adding additional members could make the boards too large and burdensome, particularly in areas with many local authorities, such as North Wales and Gwent. We will support regional boards to adapt to these new requirements and set out further advice in Statutory Guidance in order to mitigate this risk.
The draft Amendment Regulations and the proposed approach to amending the Part 9 Statutory Guidance to take account of the changes to regulations were subject to an eight week formal consultation between 31 August and 26 October 2018.
The amendments in relation to health board boundaries were consulted upon between December 2017 and March 2018. The other amendments have been discussed with a wide range of stakeholders, beyond the formal consultation process.
We received 44 responses to the consultation from a wide range of statutory organisations, third sector groups and professional bodies from the health, social care and housing sectors. This included Regional Partnership Boards, individual health boards and local authorities; both the Children’s and Older People’s Commissioners, the Welsh Local Government Association (WLGA) and a number of housing associations.
Responses to the consultation were broadly supportive but did reflect some constructive concerns in relation to the proposals.
Pooled funds
Most agreed that the requirement for regional pooled funds for care home places for older people was clear, although there were concerns raised about the practicalities of implementing the pooled fund. To address this we have asked the Association of Directors of Social Services (ADSS) Cymru to develop some practical support tools by April 2019, in relation to how a regional pooled fund should operate.
A number of responses suggested that 65 and older would be a more suitable definition of older people than 60 and over, due to current work towards pooled funds and financial information currently collected, therefore we have made this change within the Amendment Regulations.
While some respondents supported the proposal for regional commissioning strategies, there were a number of questions about their content and how they would relate to other requirements on regional partnership boards to produce population assessments, area plans and market stability reports. Later this year we will be consulting on new arrangements to align all of these requirements. We have therefore removed the requirement for commissioning strategies from the Amendment Regulations so that we can consider how they might fit into the wider framework.
In recognition that the intention for regional commissioning strategies was to inform the pooled fund, we have revised the Amendment Regulations to reflect that partners must provide sufficient contributions into the pooled fund to meet anticipated costs for care home places for older people in the region.
Housing representation
Education representation
Consultation responses emphasised the view that regional partnership boards need to place a strengthened emphasis in relation to children and young people going forward and that education representation on the regional boards would strengthen this. We have agreed that we will amend the regulations so that each of the regional partnership boards have at least one local authority education representative. This person would provide an education perspective to help inform regional partnership board discussions.
Annual reports
Responses strongly supported the proposal to clarify in the regulations that regional partnership board annual reports will be required by 30 June each year, therefore this amendment has not been changed.
Part 9 Statutory Guidance
There were a number of constructive suggestions made in relation to the guidance. We will consider these carefully as we amend the guidance to support the changes to the regulations.
The consultation summary report can be found at:
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The competition filter test |
|
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Q1: In the market(s) affected by the new regulation, does any firm have more than 10% market share? |
No |
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Q2: In the market(s) affected by the new regulation, does any firm have more than 20% market share? |
No |
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Q3: In the market(s) affected by the new regulation, do the largest three firms together have at least 50% market share? |
No |
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Q4: Would the costs of the regulation affect some firms substantially more than others? |
No |
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Q5: Is the regulation likely to affect the market structure, changing the number or size of firms? |
No |
|
Q6: Would the regulation lead to higher set-up costs for new or potential suppliers that existing suppliers do not have to meet? |
No |
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Q7: Would the regulation lead to higher ongoing costs for new or potential suppliers that existing suppliers do not have to meet? |
No |
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Q8: Is the sector categorised by rapid technological change? |
No |
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Q9: Would the regulation restrict the ability of suppliers to choose the price, quality, range or location of their products? |
No |
The competition assessment filter test has been completed on the proposed regulation. It has been determined that this regulation will have no detrimental effect on competition.
We will continue to monitor the impacts of these Amendment Regulations.
Regulation 12 of the Partnership Regulations requires regional partnership boards to prepare a report annually on the extent to which the Boards’ objectives have been achieved and submit this to the Welsh Ministers. These reports will provide useful information to assess the impacts of these amendments on the work of the regional partnership boards.