Integrated care system (ICS) and designate integrated care board (ICB) leaders have been tasked with working with clinical commissioning groups (CCGs) to review the list of statutory functions endowed in ICBs with effect from 1 April 2022, and to ensure that there is clear responsibility for each function within their proposed ICB governance arrangements. As part of the assurance process for ICB establishment, their designate CEOs will have to sign off a Readiness to Operate Statement (ROS) which requires them to confirm, amongst other things, that:   

• the ICB Scheme of Reservation and Delegation (SoRD) has been prepared and is ready to be adopted on 1 April 2022
• an ICB functions and decision map has been prepared and is ready to be adopted on 1 April 2022—including (where applicable) place boundaries, and details of place-based leadership and place-based governance arrangements, along with details of any delegations to place level
• any joint commissioning arrangements for 2022/23 including joint committees with local authorities, NHS trusts/foundation trusts, other ICBs and NHS England and NHS Improvement have been documented and are ready to take effect on 1 April 2022.

With these requirements in mind we look at what arrangements will be available for the delegation of ICB functions, and key considerations for those tasked with developing the governance arrangements for emerging ICBs.

What are the options for delegation?

Under the Health and Care Bill (“the Bill”) ICBs will have a significant degree of flexibility in how they choose to discharge or delegate their responsibilities. 

Clause 60 of the Bill provides for joint working and delegation arrangements by inserting new provisions into the NHS Act 2006. These allow for a “relevant body” to arrange for its functions to be exercised by or jointly with another relevant body or a local authority. Under this clause “relevant body” means—

• NHS England
• an integrated care board
• an NHS trust
• an NHS foundation trust
• such other body as may be prescribed.

There is provision for Parliament to confirm in regulations which functions cannot be exercised in this way.

Clause 60 also provides that where a relevant body has agreed to exercise a function jointly with another body listed in the clause, they may do so by setting up a joint committee, and may also establish a pooled fund which both parties have contributed to and out of which payments can be made in the exercise of the joint functions.

If these provisions are approved by Parliament then ICBs will be able to exercise their functions by way of delegation to a range of other bodies, or by forming a joint committee with those other bodies. In addition, if the ICB chooses to delegate functions to a group of NHS trusts and foundation trusts, the trusts could form a joint committee in order to exercise those functions on their behalf. 

These options will enable ICBs to adopt a flexible approach when deciding whether, and if so how, to delegate functions to place-level.

Some key considerations when delegating functions

Liabilities and accountability

Under current legislation, where CCGs delegate functions to other bodies they retain liability for the exercise of those functions, see s.14Z3 (6) of the NHS Act 2006. However, the Health and Care Bill may change this position for ICBs. Clause 60 proposes an amendment to the NHS Act whereby any rights acquired, or liabilities incurred, in respect of the exercise by a body of any function that is delegated to it are enforceable by or against that body, and no other person. This means that if an ICB delegates some of its commissioning functions to a joint committee of trusts and foundation trusts, those provider organisations will be liable for any liabilities arising from their exercise of the delegated functions. All parties should be clear as to the potential risks arising from such delegation, and it would be advisable for the providers to agree how any liabilities will be apportioned between them.

An associated issue is that ICBs will be subject to a variety of duties when discharging their functions. These include a duty to promote the NHS Constitution, a duty to secure improvement in the quality of services and a duty to reduce health inequalities. In addition, they will be subject to the Public Sector Equality Duty (PSED) as applied by s.149 of the Equality Act 2010. When delegating functions to other bodies, or joint committees, ICBs will need to ensure that those functions will be discharged with consideration to the various duties imposed on the ICB, and be able to demonstrate how they have done so.

Staff transfers and TUPE

If ICBs decide to delegate functions to other bodies, they need to consider the potential impact of that delegation on their staff. If CCG staff that are dedicated to a particular function transfer to the ICB and it is then proposed that the function will be delegated to another body, it will be important to determine in advance whether affected staff should transfer to the other body under the Transfer of Undertakings Regulations (TUPE). TUPE protects employees from dismissal and protects their terms and conditions of employment, including their continuity of service. TUPE also imposes obligations on the employers (both transferors and transferees) to inform and consult representatives of the affected employees. The position will be more complex if the function is being delegated to a joint committee of providers, since it will be necessary to identify a host employer for any staff that transfer under TUPE.

Double delegation

Where one body has delegated a function to another body, the receiving body cannot usually further delegate that function to a committee or another body. A good example of this arose from the delegation of primary care commissioning functions by NHS England to CCGs. CCGs were not able to enter into formal joint decision-making arrangements for those functions with neighbouring CCGs or local government as this would constitute unlawful ‘double delegation’.

As part of the consultation on legislative reform in the NHS, it was proposed that where functions were delegated that the receiving body should exercise those functions as if they were their own, thus avoiding the issue of double delegation. Clause 60 of the Health and Care Bill seeks to address this issue by proposing that where arrangements are made for the delegation of functions, those arrangements can include terms prohibiting or restricting the receiving body from making further delegation arrangements in relation to a function that has been delegated to it. The implication is that in the absence of such prohibitions or restrictions, onward delegation by the receiving body to a committee or another body will be possible.

Participation of providers in committees

As noted above, Health and Care Bill makes provision for NHS trusts and foundation trusts to form joint committees, including joint committees with ICBs. However, these provisions need to be read alongside existing requirements for the exercise of trust functions. In particular, under the NHS Act 2006, the constitution of a foundation trust may provide for any of the powers of the trust to (only) be delegated to a committee of directors or to an executive director. If it is proposed as part of the new joint working arrangements introduced under the Health and Care Bill that foundation trust functions will be exercised by joint committees, then those foundation trusts will need to look carefully at the proposed composition of those committees and the provisions of their constitutions.

How can Capsticks help?

We are providing a range of support with delegation arrangements to CCGs, NHS trusts and foundation trusts and emerging ICBs. This includes:

• working with CCG/ICB teams to map the transfer of functions from CCGs to ICBs—determining which functions can be delegated to place-level and the most appropriate arrangements for that delegation
• drafting or reviewing schemes of reservation and delegation
• advising NHS providers on current and future structures for joint working, including group models, committees in common, and joint committees.
• preparing relevant documentation for joint commissioning arrangements with local government.

If you’d like to discuss how we can help your delegation plans, please contact Peter Edwards.