Clause 21 - NHS England’s financial responsibilities

Part of Health and Care Bill – in a Public Bill Committee at 4:30 pm on 16 September 2021.

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Photo of Justin Madders Justin Madders Shadow Minister (Health and Social Care) 4:30, 16 September 2021

I will talk briefly about clauses 21 and 22, although with your indulgence, Ms Elliott, I will step over into clauses 23 and 24, because we cannot really look at these points without having some regard to those clauses. I promise I will not repeat the same points when we get to them.

We know that ICBs and NHS trusts will have spending limits, and that in theory they cannot go into deficit in any year, but the combined deficits of trusts before the pandemic was several billion pounds. Foundation trusts are in a slightly different position. Monitor is going—clause 26, which I suspect we will not get to today, goes into that, and it reads quite brutally in isolation—so it needs to be clear in the Bill how performance management and financial oversight will work in its absence. We still have questions about that, particularly how accountability will work with those new systems.

We see in these clauses a basic tension that NHS England will apply totals to systems, but individuals within the systems all have their own duties and responsibilities. We might think it is the ICB plus all the providers that deliver the services required, which are paid for by the ICB, but I am not sure that is how it will work in practice.

If I am correct, an integrated system is not defined in the Bill, so how do we control something that does not exist in law? Where accountability lies is very vague. The terminology used in proposed new section 233M, which is where the Bill tries to constrain aggregate financial spending each year, is:

“Each integrated care board and its partner NHS trusts and NHS foundation trusts”.

That suggests some kind of joint responsibility, but where community health services are provided by Virgin Care, that does not appear within that wording. GPs and their spend are considered outside, even though they are commissioned by the ICBs, so how do their costs fit into this system? There have to be some answers on that.

We also need clarity on how NHS England will control the aggregate spending in any patch, because some trusts span more than one area. If we had coterminosity, that might not be such a problem. Can the Minister explain how that will be policed? Core specialist services are also sometimes delivered outside ICBs. How will that all fit in? If a trust or foundation trust wants to argue about its space allocation from the ICB, who is going to decide that? Will it be NHS England or the ICB? Can the Minister help us with that?

What will this all mean in practice? Each system constitutes ICBs plus the trusts, and has a limit. We do not know how ICBs will get their funding allocated. The trusts do not know how the money will be coming down to them and on what basis, because none of that is defined in the Bill. Where does the buck stop for those decisions? Who carries the can if there is an overspend? What if commissioners and providers are on the same side? Where does the buck stop there? Can a system be put into special measures if it overspends? What if it is one rogue provider? Does everyone else have to bear the consequences of that? Do overspends get clawed back?

There are a lot of questions about how this will work in practice, and they go with the sense of uncertainty about exactly what ICBs will be doing when they are up and running. Surely, if an ICB exceeds its total, some kind of regime will have to apply. Will expensive consultants be brought in to tell people what they have done wrong and state the obvious? It is not clear to us what the levers are to apportion accountability and hold people to account. While we have a blurring of the lines between commissioner and provider, that will cause continued problems.

Rather than saying that we are fully against the proposals, we are saying that we do not understand how all this is going to work in practice. I hope the Minister will be able to shine a light on that.