Debate Care Commissioning Competing to provide care isn’t fair, and now is the time to change it. Today the High Court has ruled that the government’s creation of a 'VIP Lane' for preferential treatment of certain companies favoured by Ministers in the procurement of PPE equipment in 2020 was unlawful. It breached the principles of open and fair competition (or 'equal treatment' as the Judge put it) between all potential contractors, that should have applied in the tendering processes that the government was undertaking to buy essential supplies with public money. This is a judgment we welcome, underlining what fair and transparent decision-making should be in public life. The ruling comes at a time when the government has recently published its revised plans for major procurement law reform later this year, and in the legal principles they propose for all public procurement in future, the equal treatment of all competing organisations would be set in legal stone again. For Children England and our sector, the news also lands in a context of the Care Review for children’s social care, and the ongoing work by the Competition and Markets Authority on the state of the public markets in fostering and residential care provision for children in care. Having spent decades analysing and seeking policy change in the rather niche, often-invisible world of public procurement, we would say that the ethics and practices used by the state to spend public money have really never been quite this high on the public policy agenda. And we have taken the opportunity to submit several of our ideas and longstanding calls on procurement reform, both to the procurement green paper consultation, and to the Care Review’s call for ideas. One of the ideas that we submitted to the Care Review in December is that all care arrangements and settings for children who need care should be exempted from public competition rules altogether - a window of possibility opened up by the government’s own response to the Procurement Green Paper. In the light of our welcome for today’s ruling that the government broke competition laws on PPE contracts, this might appear to be in conflict with us simultaneously seeking to get 'fair and open' competition rules taken out of the spending decisions councils are making every day, about who gets taxpayer money to provide the care children need. If the lack of fair and open competition was unlawful in PPE supply contracting, shouldn’t open and fair competition underpin all of the care contracts paid for with public money too? The fundamental difference between public procurement of vital supplies, and public commissioning of care services, is that services are about people – the people who need them, and the people who care for them - while the procurement of supplies is about “things” – products that are bought and sold in all sorts of contexts (not just by governments), that once bought can be transported to wherever they’re needed. The child who needs to be cared for has rights, not just to the care that is right for them, but to be cared for by people, and in a place, where they can maintain their friendships and community bonds, to stay at the same school if they can, to have visits and contacts with family. The care they need is not a product that can be purchased from anywhere in the world and brought to them. Over thirty years of turning care into a marketplace, using procurement rules and mechanisms to put their care 'out to competition', what’s happened is that their care has become a chaotic nationalised marketplace, and one in which there is simply not enough care for every child who needs it. That has resulted in far too many children having to do the travelling, out of authority, and sometimes hundreds of miles away from their home community, to take up whatever care has been found and purchased for them from the marketplace. That is, to be frank, a form of child abuse at the hands of market forces. If we continue to treat care for children as subject to the same rules and regulations governing public procurement as PPE supplies, the forthcoming Bill on Transforming Public Procurement would enshrine the rights of competing care providers to be treated equally, above the rights of the children they care for. No organisation, whatever its legal form (charity, private company or publicly run) should want, or have, a 'right to compete' for the responsibility of caring for children. Care is not a product, it is vital societal infrastructure, and councils need the freedom to commission locally for the long term care infrastructure they need without having to be ‘fair’ to a marketplace of potential competitors. Exempting care from competition rules would free councils to invest in and nurture the local people and organisations who are willing and ready to offer that care, in the same community as the child who needs them, and to all those children who will come to need it in future. It would enable councils to stop shopping for units of care wherever they can find them, and start investing in the people and places who care within their own boundaries. It’s important to underline that simply exempting the care system from competition would not, on its own, achieve all the radical change and improvements we need to see for children in care. It would, however, create the new systemic context in which reform of the care market could begin in earnest. Capitalising on the freedom from competition to make care sufficiency and quality more local, sustainable and relationship-based will take bold, creative commissioning by councils, and it will require major public investment too. It will still be important for public accountability and transparency to make sure that the public spending on care is well spent – 'Best Value for Money' – but that can be done on the basis of understanding the true costs of the people, skills, premises and quality of support that it really takes, instead of relying on market competition to find the right price. In another of our submissions, published and discussed for many years, we describe our Care Bank idea for a national funding and oversight body for the care sector, that (among other things) would make sure that the money for every child’s care follows that child and pays for whatever they need, hence bringing national funds into the local care system no matter where they live, or what wider financial challenges their council faces. We think the ideas go well together, but to be clear, the exemption from competition would be of huge potential impact in and of itself. Public procurement mechanisms are so rarely in the public spotlight, and even more rarely open to wholesale legislative reframing, that this feels like a really pivotal moment in time to see action on the longstanding problems created by the marketisation of public services. Those of us who’ve worked to make the case for it for so long aren’t blanketly anti-competition, not anti- private sector business, not anti-trade - we know they all have really important roles in our economy and our society. Market competition for PPE contracts should undoubtedly have been open and fair, just as the judge has ruled today, but market competition should play no part in how we decide who cares for our children, and we have a chance to change it, right now.