The Cities and Local Government Devolution Act is now in force (although, as ever, there are timing traps for the unwary).

What does the new Act mean for health and social care commissioners and providers, and how does it tie in with all the other programmes and initiatives that might broadly fall under the ‘increasing integration’ banner?

Sharing and delegating health and social care functions and pooling budgets

The Act extends the rather bewildering array of options for sharing or delegating functions and pooling budgets between health bodies and local government:  

  • It amends s7A of the NHS Act to enable combined authorities to take on public health functions
  • It amends s13Z of the NHS Act and adds in new sections 13ZA and 13ZB – which enable NHS England to delegate functions (including specialised commissioning) to a group of health and social care bodies, and for those bodies to pool budgets in relation to those functions;
  • It amends s14Z3A to allow CCGs to share functions and pool budgets with combined authorities
  • It provides that section 75 arrangements may now include combined authorities exercising health functions

These add to existing powers for CCGs to share functions with NHS England (s14Z9) and for those bodies to pool budgets (s13V), and to the separate new regulations which, from 1 April, will allow primary medical services to form part of a section 75 arrangement.

Although all this flexibility is welcome, the million-dollar question is how all the various powers fit together, and to what extent can they be used to create genuine ‘place-based commissioning’? It isn’t straightforward and the answer, of course, is ‘it depends’.  The powers are ‘asymmetric’ in that they each cover different functions, shared between different bodies, and with different levels of ability to pool budgets. The art of the possible therefore depends on exactly what the integrating bodies are seeking to achieve.  

What is clear is that these extended powers add an impetus and opportunity to local health and social care commissioners looking to integrate between themselves (perhaps building on any integrated commissioning arrangements in place, in respect of the Better Care Fund or otherwise) and looking to take on devolved commissioning functions from the centre. Some of the new powers mentioned above involve a combined authority, so are unlikely to be used outside of a formal devolution deal, but many of them do not, and there is no reason why commissioners outside of a devolution area cannot use them to their advantage. We are already seeing places developing integrated commissioning proposals using these powers for sharing or delegating functions and pooling budgets, in tandem with new models of care provision through the Vanguard projects and other initiatives.

Transferring functions

We haven’t yet mentioned the headline provisions of the new Act, which allow for the complete transfer of functions from a public authority (say, NHS England or a CCG) to a combined authority or local authority, in the context of a formal devolution deal. The provisions also allow for joint or concurrent exercise of functions by sender and receiver.  

At the time of writing, nowhere is yet seeking to use these new powers to transfer functions in a health or social care context.  When some brave place does, there will plenty of devil in the detail, starting with the issue that not all local authorities are eligible to receive powers under section 16 of the new Act. In particular, London Boroughs are excluded. Lots of thought will be required on how NHS standards will be applied to any local government body taking on health functions, and how accountability and reporting lines will work. These concerns were certainly at the forefront of the Communities and Local Government Select Committee, in its report on devolution issued last month. 

Sustainability and Transformation Plans

Finally, CCGs and other stakeholders in health and care systems will also be aware of their obligations to develop Sustainability and Transformation Plans (“STPs”) in accordance with the NHS Shared Planning Guidance 2016/17. Any commissioners working through this process should note that the Planning Guidance states that the transformation footprints for the purposes of STPs should reflect the geography associated with any devolution bids that have been put forward.