Health and Social Care Bill

Memorandum submitted by the Local Government Group (HSR 35)

LGA key messages

The Local Government Group has lobbied hard for a much greater role for Health and Wellbeing Boards and for a higher focus on a place-based approach and on integration of health and care services to improve health and wellbeing outcomes. As such we were pleased to see progress in relation to the powers for Health and Wellbeing Boards, a greater focus on place-based and whole population approaches, and stronger requirements to integration. But there is still more we can do to ensure the Bill is fit for purpose. We believe that many of the revisions (suggested by the Future Forum and agreed in principle to by the Government) to the Bill have the potential to strengthen the role of local authorities and put far greater emphasis on local health and wellbeing needs but we are worried about

that the amendments do not always reflect the rhetoric accurately.

We welcome the following three changes

· The renewed focus on a place-based approach to health and wellbeing commissioning, as suggested by the Future Forum and supported by the Government in its initial response, through the alignment of boundaries between first-tier councils and clinical commissioning groups; and the requirement that clinical commissioning groups will have to plan for the whole population of an area, rather than just their patient list;. The Government response to the Future Forum recommendations states: "We accept the recommendation in the Forum’s report that the boundaries of clinical commissioning groups should not normally cross those of local authorities. Any departure from this will need to be clearly justified". We do not see this commitment expressed clearly in the Bill amendments however and we continue to urge that this is displayed on the face of the Bill.

· The strengthened emphasis on patient and public involvement which is now embedded in the governance structure of all local bodies, including foundation trusts, clinical commissioning groups and health and wellbeing boards;

· The commitment to greater transparency and standards of good governance for all NHS commissioners and providers. This includes the requirement that commissioning groups and foundation trusts have public meetings. We will seek to ensure that all health commissioners and providers are subject to the same standards of good governance to which all local authorities comply.

We recognise however that not all of the changes that the Government highlighted in its response to the Future Forum have made their way into the Bill at this stage.

We want to see improvement in three areas:

We have identified three areas where there has been a positive response from the Government following the Future Forum recommendations but we feel need to change further. These are:

· Health and Wellbeing Boards – We welcome the Government’s recognition that the powers of HWBs need to be strengthened in order to ensure coordination and joining up of commissioning plans with the health and wellbeing needs of the area but we feel that proposals need to go further. The Future Forum recommended that HWBs ‘agree’ clinical commissioning group plans. The Government amendments require consortia to involve HWBs ‘at all stages’ and to be able to refer back to the commissioning consortia or upwards to the NHS Commissioning Board. However we feel this falls short of the power of sign-off and in the LG Group’s opinion, this is not sufficient to ensure that commissioning plans are firmly based on the health and wellbeing needs and priorities of the local community.

· Clinical Commissioning Groups – We have a number of concerns regarding the Clinical Commissioning Groups (CCGs), formally known as GP commissioning consortia. First, the name sends the wrong message with a focus on clinical issues rather than health and wellbeing. We suggest they are renamed Local Health Commissioning Groups to underline the fact that services will need to go further and wider than NHS treatment and include social care, public health and prevention. Second, we support the Government’s view that GP-led commissioning is the way to re-engage commissioning plans to addressing local health needs and improving health outcomes. Adding clinical experts from providers weakens the focus on commissioning for health improvement and is more likely to concentrate on NHS provider interests. Also, we understand that the clinical representatives will be drawn from outside the local area in order to avoid conflicts of interest. But this means the representatives will lack the local expertise and knowledge, which is one of the main aims of this reform. On a broader point, we feel that GP-led commissioning will need to take advice from a wide range of health, social care and other professionals but their role should be to give advice, not to make commissioning decisions. As such it is inappropriate for them to be members of CCGs.

· Integration – We welcome the renewed focus on integration but we feel that most of the changes simply reinforce the benefits of integration to the NHS rather than taking a whole-systems and person-centred approach, which looks at integration from the perspective of service users. The Ministerial announcement regarding revisions to the Health and Social Care Bill acknowledged the Future Forum’s recommendations regarding the need for greater integration but we feel that this is not reflected in the revisions to the Bill. The revisions also do nothing to address our concerns regarding safeguarding issues, and ensuring the particularly vulnerable groups do not fall through the cracks between services – such as homeless people and people in need of emergency mental health services.

LG Group detailed views on revisions to the Bill


1. The Government has indicated that it will follow through on the Future Forum recommendation that the boundaries of clinical commissioning groups do not cross over those of the local authority unless there is a clear and justifiable reason for it to do so. The response suggests that a reason for not following local authority boundaries could be the need for CCGs to reflect local patient flows. To support this, when establishing clinical commissioning groups, the National Commissioning Board will be required to seek the views of the local HWB and where the boundaries do not align with local authority boundaries; there will need to be a clear demonstration of how integration of health and social care services will be achieved. Coterminosity of boundaries is something that the LG Group has been lobbying to ensure effective integration. 

2. This commitment to coterminosity is not clearly reflected in revised amendments to the Bill. We have received assurance from the Secretary of State in a letter to the Chairman of the Local Government Group that this is the intended direction but we still ask that this is stipulated in the legislation itself. Furthermore, we do not consider the need to reflect patient flows to secondary care as a justifiable reason for not following local authority boundaries. Quite the contrary, setting up CCGs on the basis of patient flows to hospital will simply reinforce commissioning to treat sickness in hospital rather than redesigning person-centred and place-based commissioning closer to home to promote health and wellbeing and prevent people needing hospital treatment.

3. Not aligning boundaries will make it very onerous for clinical commissioning consortia who may have to involve anywhere up to three HWBs and three separate local Health Watch groups, and a whole range of other community based patient and service user groups in the formulating their commissioning plans. This is easily solved by aligning boundaries with that of the local authority and makes sense as services that have an impact on health and wellbeing are often provided at a local authority level.

Clinical commissioning groups and health and wellbeing boards

4. The requirement for clinical commissioning groups to have a governing body that will meet in public and include at least two ‘lay members’ will go some way to ensuring that their decision-making processes are transparent and locally accountable. However, they will also need to build wider relationship with the rich tapestry of patient and public involvement bodies that already exist in most localities, including Health Watch, to ensure that there is full accountability.

5. The requirement to involve HWBs throughout the process of developing their commissioning plans is of course welcome and provides a stronger direction than the previous version of the Bill. While HWBs are not being given a 'veto' over commissioning plans (the LG Group has never proposed a veto), they will have the ability to refer plans back to the group or onward to the NHS Commissioning Board for further consideration. LG Group considers that the powers of referral upwards to the NHS Commissioning Board or back to commissioning groups will, in practice, ensure the commissioning plans reflect the priorities outlined in the Joint Health and Wellbeing Strategy. We envisage that the referral upwards to the NHS Commissioning Board would only be used in the last resort if after local consideration of plans is not effective in attaining consistency between commissioning plans and the priorities identified in the Joint Health and Wellbeing Strategy. This is far stronger than the previous requirement for GP commissioning consortia to ‘have regard to’ to the JSNA and the JHWS.

6. However, we continue to support the Future Forums recommendation that HWBs should ‘agree’ commissioning plans to ensure that they are consistent with the needs identified in JSNAs and the priorities of the JHWS. This would ensure that local priorities are thoroughly embedded in commissioning plans and the HWBs and CCGs are joint partners in addressing the health and wellbeing needs of their population. Anything less is not in line with what we and the Future Forum consider to be appropriate local accountability and coordination of commissioning plans.

7. HWBs will be given a formal role in authorising CCGs and the NHS Commissioning Board will have to take HWBs views into account in their annual assessment of commissioning groups. This change goes some way to addressing the LG Group’s call for stronger duties on CCGs to work with HWBs.

8. HWBs will have a new duty to involve users and the public. We strongly support this revision and the revisions which require CCGs to involve patients, carers and the public in decisions about the provision and commissioning of health services.

9. We support the freedom for local authorities to determine the precise number of elected members on a HWB. We support maximum flexibility on the composition of HWBs, including having a majority of elected members if that is what the local authority chooses to do. In our view this is an appropriate expression of localism.

Clinical Senates

10. We welcome the proposal to establish Clinical Senates to provide clinical and other commissioners with a broad range of professional expert advice and for them to include representation from adult social care and other local authority services that contribute to improved health and wellbeing outcomes. It will be important for the Clinical Senates to provide advice on the design of care pathways that promote health and wellbeing and prevent or minimise the need for hospital admissions.

Focus on whole populations

11. CCGs will now be responsible for their whole population, rather than just their registered patients. This will address some concerns of the LG Group of the potential for vulnerable populations, i.e. homeless people, falling through the cracks of responsibility. This is a welcome clarification to the Bill.

12. While the Government has stated that it is not appropriate for individual vulnerable groups to be named on the face of the Bill, we believe that the accompanying regulation must specify the responsibilities that clinical commissioning groups have towards particular vulnerable groups and HWBs should refer back commissioning plans which do not adequately address the particular needs of vulnerable groups such as those with emergency mental health needs, homeless people, people with dementia, HIV and AIDS etc.

13. We are concerned that children and adults safeguarding is not given adequate consideration in the Bill. There is still a lack of clarity on how each component part of the NHS architecture – in particular the NHS Commissioning Board and CCGs – will be held accountable for safeguarding issues.

Integration of health and social care

14. We support the revisions that give integration a more prominent focus with a duty on CCGs to promote it and a requirement placed on Monitor to support it. HWBs will be given a stronger role in promoting joint commissioning and the integration of health and care. CCGs will have the freedom to form partnerships with local authorities and other groups to commission services. This change is a direct response to LG Group concerns about the Bill's lack of reference to social care integration. However the wording of the revised clauses appears to suggest that the primary aim of integration is to improve health services and health outcomes, and to address health inequalities. While we support this intention, we feel that it is too narrowly focused on integration for the benefit of health services, rather than for improving all services, including social care and other council services. We strongly believe that the primary objective of integration should be the improved experience of service users, and improved health and wellbeing outcomes.

15. Councils have a strong track record in commissioning the complex mix of services necessary to support vulnerable people and improve their health and wellbeing outcomes. CCGs need to work with councils to ensure these groups are adequately supported and safeguarded. Local government can play a significant role in delivering better health and wellbeing outcomes, not only in public health, but in supporting commissioning a broad mix of services – including housing, leisure and recreation, participation in the wider community as well as social care - and deliver greater integration: a person-centred `total health and wellbeing’ model.

16. Local government has a range of expertise to support better commissioning:

· significant experience in commissioning services, developing markets, and procurement, including in health, particularly adult social care

· human resources, legal, IT, financial, property management and other back office functions

· insights about the local community, community engagement and empowerment

· communication and complaints handling infrastructure

· advice and support on statutory requirements, for example on Freedom of Information requests, compliance with the single equality duty etc.

17. Local authorities can also use a combination of partnership working and the legal powers at its disposal, including potentially the general power of competency, to effect change and promote new models of services, such as mutuals and user-led organisations which provide greater choice and control.

18. We are still seeking clarification about the end destination of unaccounted for essential PCT functions such as free nursing care and safeguarding duties for adults and children.

Health overview and scrutiny arrangements

19. Oversight and scrutiny will continue to apply as it currently does, subject to changes in the Localism Bill. There is no evidence that the architecture for health scrutiny needs to be changed. The involvement of full council in determining substantial variations and consequent referral to the Secretary of State risks introducing additional bureaucracy to the process of consultation and referral.

20. We welcome the intention that HWBs will be subject to oversight and scrutiny by the existing statutory structures for the overview and scrutiny of local authority or health functions and that the existing statutory powers of local authority overview and scrutiny functions will continue to apply.

21. We strongly welcome extension of health scrutiny powers to facilitate effective scrutiny of any provider of any NHS-funded service, as well as any NHS commissioner.

Public Health England

· Public Health England (PHE) will be established as an executive agency of the Department of Health rather then a department within it. This, we hope, will help clarify its relationship with councils and HWBs. However we remain concerned at the lack of reference in the amendments to PHE and it role as an executive agency. We await the publication of the Public Health Command Paper on 13 July for precise clarity on the relationship between PHE, the NHS Commissioning Board and HWBs.

· We remain concerned at the level of central direction that the Secretary of State will retain. This goes against the localist spirit of the original proposals. In particular, Clause 14 of the Bill would give the Secretary of State power to make regulation requiring local authorities to exercise certain public health functions, with the ability to specify particular public health services, facilities or steps that one, several or all local authorities must provide. Clause 27 requires local authorities to have regard to Secretary of State publications – we believe in sector led development, not central prescription.

· In its original White Paper and subsequent Legislative Framework and Next Steps document, the Government indicated that the Bill would establish the basic legal architecture of a new public health service – Public Health England. PHE is still not mentioned in the revised clauses and we seek urgent clarification on how PHE will be put on the face of the Bill.

· We continue to seek urgent clarification on the public health budget: specifically, the overall funds available, what proportion will be allocated to local authorities and what will be retained centrally and what restrictions will be placed on local authorities in respect of using the budget. WE are increasingly concerned about the reports of more and more money from the budget being used to pay for central commitments such as health visitors, public dentistry etc. If councils are to adequately deliver on the new public health responsibilities, they need to be given the resources to match their ambition especially at a time of major cuts to their budgets.

July 2011


Prepared 19th July 2011