Health and Care Bill, Second Reading, House of Lords, 7 December 2021

The LGA broadly supports the Bill’s focus on improving the health and wellbeing of the population through greater integration between NHS organisations and between the NHS and local government. We also support the duty on the integrated care board (ICB) and all local authorities within the integrated care system (ICS) to have regard to the integrated care strategy in making decisions.


Key messages

  • The LGA broadly supports the Bill’s focus on improving the health and wellbeing of the population through greater integration between NHS organisations and between the NHS and local government. We also support the duty on the integrated care board (ICB) and all local authorities within the integrated care system (ICS) to have regard to the integrated care strategy in making decisions.
  • We are strongly in favour of the duty to engage with patients, carers and representatives. We have committed to work with the Government, NHS, local government and patient and public voice organisations, to produce clear guidance to support local health and care systems to work in partnership with their communities.
  • The LGA strongly supports the requirement for ICBs and local authorities to establish an integrated care partnership (ICP) with responsibility for convening a broad partnership and producing an integrated care strategy. It is good to see recognition of the importance of Health and Wellbeing Boards (HWBs) and the health and wellbeing strategies and joint strategic needs assessment they produce.
  • We support the intention of the legislation to give local systems the flexibility to make their own arrangements for joining up services, and setting their own strategies for improving population health, but this means that there is relatively little on the face of the Bill and more emphasis will be on statutory guidance to accompany the legislation. We have already been working with the Government and the NHS on co-branded pieces of guidance, including the Thriving Places pre-implementation guidance for ICSs on working at place level, and the engagement document on establishing ICPs. We are looking forward to continuing to work on joint guidance.
  • We support the repeal of legislation related to delayed discharges. This paves the way for the continuation of discharge arrangements which have worked well during the pandemic. The emerging evidence is that going home straight from hospital is what people want. However, the policy is not fully implemented by the NHS and local government because of the ongoing pressures of Covid and the uncertainty over funding. We also need a flexible joint workforce working across health and social care to ensure that people get holistic and person-centred support to regain their independence.
  • The provisions for assuring local authorities’ adult social care functions set out a new role for the CQC and the Secretary of State in the review and performance assessment of councils. We are working closely with the CQC, DHSC and other partners to ensure the assurance process is proportionate, includes a clear and continuous role for existing sector-led improvement work, and takes account of the significant financial pressures facing adult social care.
  • We are concerned that the increase in powers of the Secretary of State to intervene at an earlier stage in NHS reconfiguration proposals will undermine existing local authority health overview and scrutiny powers and corrode local accountability. As such, we are seeking amendments to Schedule 6 of the Bill which would require the Secretary of State to consult with relevant health overview and scrutiny committees in exercising this power. We’ve defined relevant HOSCs as (a) in relation to an area that coincides with the area of a health overview and scrutiny committee; (b) in relation to an area that may be the whole or part of the area of more than one health overview and scrutiny committee.
  • Many provisions in the Bill relate to the practical steps the NHS must take to reorganise governance, staff and budgets. However, it is vital that clinical, professional, political and community leaders at local, system and national level stay focused on the broader and more challenging ambition to work together to improve health and wellbeing and reduce health inequalities, which have widened further during the pandemic.

Integrated Care Systems (ICSs)

Integrated Care systems will comprise an NHS Integrated Care Board (ICB) and an Integrated Care Partnership (ICP). In England, Integrated Care Boards will be established as statutory bodies. The ICB will be responsible for the day to day running of the NHS, while the Integrated Care Partnership will develop an integrated care strategy to address the system’s health, public health and social care needs. Public and ‘patient voice’ will be important in both bodies. The dual structure recognises that there are two forms of integration that will be enshrined in legislation: integration within the NHS to enable NHS organisations to work together across a system; and integration between the NHS, local authorities and other partners to deliver improved outcomes for health and wellbeing of their populations. The ICB and relevant local authorities will be required to establish an ICP, bringing together wider partners across the NHS, social care, public health and wider stakeholders.

LGA view

We support the creation of a statutory NHS Body to integrate health services in a system and welcome the intention to establish an ICP to ensure there is a partnership of equals that can set out plans for improving population health and delivering better and more integrated care and health services. We support local flexibility and we are keen to support health and local government leaders to work as equal partners in setting up the ICS Health and Care Partnership. We have many examples of existing effective partnerships and are keen to work with DHSC and NHSE to promote these as examples of good practice.

We welcome the recognition that each ICS will need to agree how the ICB and ICP work together and be held to account through the different accountability mechanisms for local government and the NHS.  It will be important for any new national accountability mechanism to build on and enhance existing local democratic accountability, not bypass or undermine it.

Integrated Care Board (ICB)

Putting ICBs on a statutory footing will give them decision-making powers and responsibilities for NHS system performance, delivery and sustainability. It will also allow NHS England to have an explicit power to set a financial allocation or other financial objectives at a system level.

The ICB will be responsible for the day to day running of the NHS and have specific requirements to develop a plan to meet the health needs of the population within their area, to set the strategic direction of the system and develop a capital plan for NHS providers in their system. The ICB will be required to meet the system financial objectives which require financial balance to be delivered. 

It will also take on the commissioning functions of clinical commissioning within its boundaries and some of those of NHS England. It will be able to delegate commissioning and functions to place level partnerships and provider collaboratives.

With regard to membership and governance, the Board will be directly accountable for NHS spend and performance, comprising as a minimum a chair, the ICS chief executive, representatives from NHS trusts, general practice, and one local government representative. The Board will need to ensure that it has appropriate clinical advice. The chief executive will be the accounting officer for NHS money allocated to the NHS ICS body.

The NHS ICS Body will take on CCG responsibilities in relation to local authority overview and scrutiny committees.

LGA view 

We support putting ICBs on a statutory footing as one way of promoting greater collaboration between NHS organisations and enabling them to focus on shared, system-wide objectives for improving health outcomes, improving care and support and making best use of resources.

Integrated Care Partnership (ICP)

The ICP key role will be to develop an integrated care plan to address the health, social care and public health needs in its system, to which each ICB and local authority will be required to have regard. Membership of the ICP could include representatives of Health and Wellbeing Boards (HWBs), local Healthwatch organisations, the voluntary and community sector, social care providers, housing providers and other partners involved in health and wellbeing.

LGA view

We are pleased that the Government has acted on local government’s calls for a wider health and care partnership to promote collaboration and equal partnership beyond the NHS. We strongly welcome the commitment to ensure flexibility for systems to develop their own ICPs. ICPs will need to give serious consideration to how they can best serve people in their area and will need to be mindful of what is and could be best delivered at place level and how to build on this. 

Many such partnerships are already firmly embedded and making strong progress.  We can learn from these areas to promote good practice elsewhere. The LGA is committed to working with the Government and NHS England to develop a coordinated implementation support offer to help these partnerships to reach their full potential.

Duty to cooperate

There will be a duty to cooperate on the ICB and local government.  This will replace two existing duties to cooperate.  Additionally, NHS bodies will have a duty to achieve the triple aims of the Long Term Plan: better health and wellbeing, better quality healthcare and ensuring the financial sustainability of the NHS.

LGA view

The LGA have long called for a shared duty of collaboration so we are pleased to see this proposal. We are keen to work with the Government and NHS England to draw on existing collaborative planning and delivery to encourage and support all areas to escalate the scale and pace of collaboration.

The role of place

Though there is little on the face of the Bill regarding the importance of place-based leadership, the White Paper underlines the importance of ‘place’ as where joining up of care and support is most effective.  Place, in most cases, will be the defined by the local authority ‘place’. ICSs will be most effective if they focus on delivery at place level, with recognition of the uniqueness of each place in relation to their population, geography, and history of partnership working.

LGA view

It is vital that regulations and guidance support the intentions set out in the White Paper that local areas will be free to develop their own place-based partnerships, between the NHS, local government and health and care services, building on existing arrangements where they are working and with NHS England and ‘other bodies’ to provide support and guidance. Furthermore, guidance and regulations will need to emphasise that HWBs will continue to have a place level leadership role in driving partnerships, and producing joint strategic needs assessments and joint health and wellbeing strategy, to which ICSs will be required to have regard. HWBs and ICSs will be supported to work together to complement each other. ICSs will be required to work closely with HWBs and have regard to the joint strategic needs assessments and the joint health and wellbeing strategies within their system. 

We strongly support the emphasis on place and the need for flexibility and freedom for local areas to develop their own place-based partnerships and to build on existing health and wellbeing boards and local delivery partnerships. We are keen to provide coordination information and a support offer with DHSC and NHSE for system and place leaders to develop a shared understanding of the role of place in driving forward collaboration to improve health and wellbeing.

Other proposals on how to facilitate collaboration within the NHS

In addition to ICSs, there are several other proposals to facilitate greater collaboration between NHS organisations:

  • Collaborative commissioning – There are a range of provisions to allows NHS England and ICBs to work together in different ways to commission services, similar to Section 75 arrangements, which enable local authorities and CCGs to exercise joint commissioning, lead commissioning and pooled budget arrangements.
  • Joint appointments – New provisions will allow NHS bodies to make joint appointments with other NHS bodies and with local authorities to drive joint decision-making, deliver integrated care, and engender a culture of collective responsibility across organisations.
  • Data sharing - There are provisions to ensure data sharing across health and care, including a requirement to share anonymised information to the benefit of the health and care system. There will be new powers for the Secretary of State for Health and Social Care to require data from all registered social care providers about all services they provide, and require data from private healthcare providers and to mandate standards for data collections and storage
  • Patient Choice – The aim of these proposals is to strengthen patient choice and control.  A key proposal is to repeal section 75 of the Health and Social Care Act 2012 including the Procurement, Patient Choice and Competition Regulations 2013 to replace with a new provider selection regime, which requires bodies that arrange NHS services to protect, promote and facilitate patient choice. 

LGA view

These proposals remove some of the barriers to greater collaboration between NHS organisations and as such we support them. In particular, we support measures that will improve data sharing between the NHS and local government and other partners at local level.  We will be keen to ensure that any new data requirements or standards do not add to the reporting burden for social care without providing a proportionate benefit, that the sector is involved in their design and, where possible, that suppliers of systems are required or encouraged to adapt their systems centrally to new standards and outputs. Any new burdens on local authorities associated with the implementation of new standards needs to fully funded.

Reducing bureaucracy 

Most of the provisions in the Bill are concerned with reducing bureaucracy and streamlining processes to enable joined up working within the NHS. For this reason, they are not summarised in detail in this briefing. In brief, they relate to competition with the NHS, arrangements for commissioning and providing healthcare services, adapting the national tariff so that it is not barrier to collaboration between NHS organisations, the creation of new trusts by the Secretary of State for Health and Social Care and removing the requirement for Local Education and Training Boards.

The LGA will keep a watching brief on developments with regard to reducing NHS bureaucracy to assess whether they have any significance for local authorities. NHSE has published a consultation on NHS procurement.

LGA view

We support provisions which reduce unnecessary and cumbersome requirements on commissioners and providers of NHS services.  However, we are keen that the NHS and local government commissioning are aligned. The DHSC will need to ensure that any measures to reduce requirements on the NHS do not, inadvertently, create barriers to the NHS and local government partners working collaboratively. We believe that councils and health partners will need to revisit their existing procurement and commissioning governance processes to take into account the new processes for procuring health services and any other services procured alongside and any future reporting requirements.

Regarding the power of the Secretary of State to create new trusts, we urge the Government to ensure that the existing powers of local authorities are not undermined or bypassed by this new provision. The Government will need to consider what impact this will have on the powers and duties of the NHS and local authorities in relation to the reconfiguration of NHS services. Currently, the NHS has a duty consult any local authorities that are affected by any substantial variations or reconfigurations of health services. 

Enhancing public confidence and accountability

These provisions are primarily focused on the NHS accountability arrangements. It includes proposals to allow the Secretary of State to intervene in local services configuration proposals ‘where required’

LGA view

With regard to powers of the Secretary of State to intervene in NHS reconfigurations, we are concerned that this may undermine the existing powers and duties of local authority Health Overview and Scrutiny Committees relating to local NHS reconfigurations. We continue to seek assurances from the DHSC that the existing powers and duties of local government will not be undermined or by-passed.

While we appreciate the Government and Parliament’s desire for greater accountability of the NHS to them, we are concerned that no consideration is given to increasing accountability of the NHS to local people. We urge the Government to ensure that any new powers will not undermine local democratic accountability mechanisms.

Additional proposals support social care and public health

Data collection

The Bill allows the Secretary of State to require a provider of adult social care to provide the Secretary of State with information that relates to: the person on whom the requirement is imposed; their activities in connection with the provision of social care; any person to whom they have provided adult social care. The Bill sets out restrictions on the onward disclosure of information, directions to certain bodies to exercise these functions of the legislation, and arrangements with third parties.

LGA view

We support the intention of gathering high quality data so long as the data collection is proportionate, the data sharing is purposeful and timely, and its prime purpose is seen as supporting effective local commissioning and delivery of care. The data should be jointly owned by the sector, and should flow not just to the DHSC but also back to authorities, for them to understand and support their residents better, understand the impact of different interventions and support, and commission effectively. It is also crucial that intelligence should be shared back with providers. Equally, it is important that the NHS shares data with local government so that local partners have timely access to the same information. To this end, local government should be involved in discussions to agree what data is collected and how. Where the DHSC collects data directly from providers this should be shared with local government in support of councils’ market shaping duties. A streamlined and co-ordinated approach to reporting and data sharing is needed that meets the collective needs of providers, LAs, CQC, ICSs and national government, to reduce provider burden and avoid collecting the same information from providers more than once.

Adult social care regulation

The Bill introduces a new duty for the Care Quality Commission to: conduct reviews of councils’ regulated adult social care functions (functions under Part One of the 2014 Care Act); assess the performance of councils following each review; and publish a report of its assessment.  In addition, the Bill sets out the roles and responsibilities of the CQC and the Secretary of State. The latter will set objectives and priorities for the CQC in relation to the assessment process, and the former will determine the indicators of quality for the assessment process (which the Secretary of State needs to approve and can direct the CQC to revise). Wherever possible, this framework should use existing data sets and reporting rather than creating new ones. Similarly, the CQC must prepare a statement setting out the frequency with which the reviews are conducted, the period they relate to and the methodology to be used. This must be approved by the Secretary of State, who can also direct the CQC to revise the statement.

LGA view

We understand Government’s desire for greater transparency in social care. Councils need to continue to be an equal partner in the ongoing design of national oversight, which must build on existing sector led improvement work, recognise local democratic accountability and give a meaningful voice to people who draw on and work in social care.

Any new processes or structures for assurance and oversight need to be accompanied by a New Burdens assessment to fairly capture the capacity and resource implications for councils in meeting new regulatory approaches.

Any assurance process has the potential to highlight shortfalls in services and delivery of the intentions of the Care Act due to resource constraints. Any assessment of a council’s adult social care services would need to be contextualised in terms of available resources.

The assurance process must continue to be developed in partnership with local government and the CQC; we favour an approach looking at whole systems, based on a shared agreement of what good looks like (– in particular, the importance of person-centred and locally flexible care and support), based on councils’ own self assessments and improvement plans, and where targeted local reviews are needed, building on the successful model of Local Area Reviews which took place in 2017 and 2018.

An important aspect of the assurance process will be intervention in cases where, following CQC assessment, a council is considered to be persistently failing in its duties. The criteria for such intervention, and what is considered “failure”, is under current discussion with DHSC civil servants. They indicate that the policy intention is for this to be very rare, but – as with many aspects of this section of the Bill – much will depend on the drafting of the policy and any further guidance or secondary legislation.

Direct payment to local providers

The Bill enables the Secretary of State to make direct payments to any bodies engaged in the provision of social care services. Currently, the Secretary of State can only make such direct payments to not-for-profit bodies.

LGA view

We recognise Government’s desire for a mechanism that gets funding to social care providers quickly. Local decision-making, local knowledge of the provider market, and local democratic accountability are important underpinnings of the system of social care funding and should not be bypassed; it is therefore helpful that the white paper stated that this power would only be used in exceptional circumstances. We urge the Government to consider how best to ensure the use of this power does not disrupt the important local foundations of social care funding.

Discharge to assess

The Bill updates the approach to hospital discharge by changing the legislative framework to enable a ‘discharge to assess’ model. This model includes enabling assessment to take place after an individual has been discharged from acute care. The Bill repeals existing requirements to assess for care needs before hospital discharge.

LGA view

We support the ‘discharge to assess’ model, and its underpinning philosophy of ‘Home First’, which advocates that home is the most appropriate place for resolving crises and recovery for nearly all people being discharged from hospital. We support the removal of the requirement for assessment and discharge notices. The model needs to be properly funded, and funding should be channelled through the Better Care Fund.

Better Care Fund

The Bill proposes to create a standalone legal basis for the Better Care Fund (BCF), separating it from the NHS Mandate setting process, which will no longer be on an annual basis.

LGA view

The LGA supports the proposal to separate BCF planning from the NHS Mandate.

Public health power of direction

The Bill introduces measures to make it easier for the Secretary of State to direct NHS England to take on specific public health functions. Under section 7A of the 2006 NHS Act, the Secretary of State for Health and Social Care can make arrangements for his public health functions to be exercised by NHS England, however the Secretary of State cannot require NHS England to take the delegated function.

LGA view

It is unclear whether the changes relate only to public health functions exercised by NHS England or equally to public health functions exercised by local government. Any new legislation needs to be clear on which requirements apply to which parts of the public health system. The LGA will be seeking clarity on the Secretary of State’s power of direction.

Obesity

The Bills introduces new strengthened food labelling requirements, including changes to front-of-pack nutrition labelling and mandatory alcohol calorie labelling. It also introduces restrictions to prohibit advertisements for products high in fat, sugar or salt being shown on TV and online before 9pm.    

LGA view

We support proposals to strengthen front-of-pack nutrition labelling and calorie labelling on alcohol. We believe a single, standard and consistent system will help people make informed choices.

We also welcome plans to prohibit advertisements of products high in fat, sugar or salt being shown on TV and online before 9pm. It is disappointing that the Bill does not include plans to give councils powers to ban junk food advertising near schools, which is something that councils and the LGA have campaigned for.     

Water Fluoridation

The Bill streamlines the process for the introduction, variation and termination of water fluoridation schemes in England by transferring the responsibilities for doing so, including consultation responsibilities, from local authorities to the Secretary of State for Health and Social Care.

LGA view

Whilst we welcome the shift to a more streamlined consultation process for water fluoridation schemes, water fluoridation must not be imposed on communities. It has been the long-standing policy that local decision-makers are best placed to take into account locally-expressed views and to balance the perceived benefits of fluoridation with the ethical arguments and any evidence of risks to health. Local authorities have encountered difficulties with the current consultation process, including the fact that local authority boundaries are not coterminous with water flows, which requires the involvement of several authorities in these schemes.

Contact

Laura Johnson, Public Affairs and Campaigns Adviser
laura.johnson@local.gov.uk