Summary: Mr X complained the Council did not explain his company would need to apply to join an Approved Providers List to continue to work with the Council. The Council’s failure to ensure all providers were aware they would need to apply to the new APL to continue working with the Council is fault. This fault has caused Mr X an injustice.

The complaint

1. The complainant, Mr X complained the Council’s communication regarding the development of an Approved Providers List did not explain that his company, as an existing service provider, would need to reapply. He complains the procurement process was not clear and transparent and has disadvantaged his company.
2. Mr X also complained the Council delayed in responding to and did not properly investigate or address his complaints.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X
• Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

6. Mr X says his company has worked with Council, providing a supported living service since 2020. It had a spot purchase contract with the Council for supported living services from September 2021 to October 2022.
7. In October 2021 the Council began a procurement process to develop an Approved Provider List (APL) for supported living services. It sent an email to all providers inviting them to attend marketing engagement events. The email said the Council was developing a Learning Disability Approved Provider List and a Mental Health Approved Provider List. It was seeking knowledgeable, skilled, and experienced service providers to support individuals for the two services.
8. Mr X says he did not respond to the email as he assumed it was intended for new providers, rather than those like him with existing spot purchase contracts. He did not attend the engagement meetings or take part in the subsequent tendering/ procurement process to join the APL.
9. The Council continued to operate on spot purchase contracts for supported living providers until February 2023 when it began to operate the APL.
10. Although Mr X’s contract with the Council ended at the end of October 2022, Mr X says he continued to receive referrals in November and December 2022. Mr X says his business is based entirely on referrals from the Council. When he stopped receiving referrals in early 2023 he contacted the Council and was advised he would not receive any further referrals as he was not on the APL.
11. Mr X say he discussed his concerns with officers who advised the Council had informed him of the decision to change from spot purchase to APL and the need to apply. Mr X disputed this and made a formal complaint to the Council in July 2023. He asserted the Council had unfairly and discriminatorily penalised his company by not advising that existing providers they would need to apply for the APL. Mr X disputed he had been told he would need to apply for the APL and asked the Council to provide him evidence it had.
12. The Council responded in early October 2023. It set out the tendering process for supported living and noted all local providers were sent an email inviting them to attend engagement meetings. It held three meetings and then advertised the tender opportunity.
13. The Council told Mr X it was legally bound to undertake a tender process when procuring goods, works and services. It said the APL could be opened as and when the business need arises and that this would be a service decision. The Council confirmed if the APL is re-opened, Mr X could apply.
14. Mr X was disappointed the Council had taken so long to respond and had not addressed his concerns. He again asked that Council for evidence it had advised he would need to apply for the APL or the Council would cease to do business with him. When the Council then provided a copy of the email sent to all providers in October 2021 he asked for his complaint to be considered further.
15. Mr X complained the email in October 2021 did not say that existing providers had to apply for the APL, that there was a change in procedure, or that spot purchases would end. He asserted the Council had failed to properly communicate its intentions and there was a lack of clarity for existing providers.
16. The Council reviewed Mr X’s complaint and responded in January 2024. It acknowledged its timeframes for responding to Mr X’s complaint were longer than they should have been and apologised. The Council confirmed it had reviewed its complaint processes and put new processes in place to ensure timely responses
17. The Council was satisfied Mr X’s company was given the opportunity to engage in the procurement process and was sent details of meetings. It said it was unfortunate Mr X did not realise he had to reapply as an existing provider for the new APL. The Council acknowledged the email to all providers does not state that existing providers need to be aware that they have to reapply. It states however that this does not mean it was not verbally communicated at the meetings.
18. The Council confirmed it had now ensured that when a new contract is due to be procured, all existing providers are made aware they will have to reapply
19. It said there were occasionally situations where the Council had to use providers for spot purchasing outside of the APL. This was common practice for a variety of reasons. The Council said if the APL reopened Mr X would be welcome to apply, but there was no clear intention to reopen it at that time.
20. As Mr X remains dissatisfied he has asked the Ombudsman to investigate his concerns. He maintains the Council has not provided evidence it informed him of the of end spot purchases, the change of procedure to APL, or the consequences of not applying for the APL. Mr X also disputes the Council verbally informed him of any changes. In the absence of this information Mr X asserts the Council was wrong to end spot purchases with his company.
21. Since complaining to us Mr X says the Council has made referrals to his company outside the APL system. He complains the Council has not allowed him to join the APL but continues to use his company when it suits it to.
22. In response to my enquiries the Council says 108 providers applied and 35 were accepted on to the APL. Of these, eight were existing service providers. It says full details of the APL were given at the engagement events and were available on the procurement portal. And the Council confirmed at these meetings that existing providers were encouraged to apply to the APL.
23. The Council says it has taken learning from the APL around the need to use spot providers when those approved providers are unable to offer appropriate placements. It says it now has a process in place to facilitate this according to business needs.
24. Since the introduction of the APL the Council has spot purchased eight placements with Luton based providers, four of which were with Mr X’s company. It has also spot purchased four placement with out of borough providers.
25. The Council says it is in the process of reviewing the supported living APL with a view of reopening it later in 2024. Mr X will have the opportunity to apply. It says its commissioning team with ensure all existing providers are informed of the opportunity to apply when new tenders are initiated.

Analysis

26. The Council’s initial email to providers does not make it clear that the proposed APL will replace spot purchases or that existing providers will need to apply to the APL to continue working with the Council. I recognise that providers who attended the marketing engagement meetings would have received more information. And that the Council may well have clarified the need for existing providers to apply to the APL at these meetings. However any existing providers who, like Mr X did not attend these meetings would not have received this additional information.
27. I consider the Council’s failure to ensure all providers were aware they would need to apply to the new APL to continue working with the Council is fault.
28. I also consider the length of time taken to respond to Mr X’s complaints amounts to fault. The Council’s complaint process say it will respond to stage 1 complaints within 15 working days and will respond at stage 2 within 25 working days. In this instance the Council missed both theses timeframes. The Council took 10 weeks to respond to Mr X’s complaints at each stage of the process. Such delays are clearly unacceptable and amount to fault.
29. Having identified fault I must consider whether this fault has caused Mr X an injustice. I am satisfied that had Mr X been aware of the need to apply to the APL, he would have done so. It is possible that the Council would have accepted Mr X onto the APL, particularly as the Council has purchased four placements with Mr X’s company since the introduction of the APL.
30. However it is also possible that the Council would have preferred other providers and accepted them instead. It is not the case that all those who applied were accepted on the APL. The Council’s response shows it accepted just less than a third of those who applied to join the APL. It is also not possible to speculate on the number of referrals Mr X’s company would have received had he been accepted on the APL.
31. It is however clear that Mr X has experienced uncertainty and frustration as a result of the lack of clarity around the need for existing providers to reapply. This frustration and uncertainty will have been exacerbated by the delays in responding to Mr X’s complaints. In the circumstances I consider the Council should make a symbolic payment to recognise the distress Mr X has been put to.
32. Mr X would like to be added to the APL, but this is not something I am able to recommend. Acceptance on the APL must be done via a proper tendering process. However, the Council is reviewing the APL and has indicated it may reopen it later in 2024, which will allow Mr X the opportunity to apply.

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Agreed action

33. The Council has agreed to apologise to Mr X and pay him £350 to recognise the distress, uncertainty, and frustration the fault identified above has caused him.
34. The Council should take this action within one month of the final decision on this matter and provide us with evidence it has complied with the above actions.

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Final decision

35. The Council’s failure to ensure all providers were aware they would need to apply to the new APL to continue working with the Council is fault. This fault has caused Mr X an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman