Delegation agreement – FAQs

The Delegation Agreement sets out the terms and conditions on how primary care functions to be delegated to CCGs are to be exercised. We have received a number of queries from CCGs about the Delegation Agreement and these are set out below. If you have any further queries, please email england.co-commissioning@nhs.net.

Terms of the Delegation Agreement

Can CCGs withdraw from the Delegation Agreement without NHS England’s consent?

CCGs can terminate a delegated arrangement, but must give notice by 30 September for the termination to take effect from the following 1 April.

In these circumstances, NHS England has agreed that there is no need to consent to this termination if the notice provisions are complied with. However, outside of these notice provisions, it would be highly problematical to terminate an arrangement mid-year, due to the allocations process and the workforce implications.

If CCGs are considering this we would encourage them to have an early conversation with NHS England.

Can NHS England change the requirements of the Delegation Agreement without the agreement of CCGs?

It is not NHS England’s intention to request that CCGs assume additional functions or management responsibilities to those set out in the Delegation Agreement, without prior discussion and agreement.

Changes to the Delegation Agreement must be agreed with CCGs through a consensual variation process.

Who is responsible for Liabilities for Losses?

The Delegation Agreement sets out some limited circumstances where CCGs will be responsible for losses suffered (for example, where the CCG has acted unreasonably, fraudulently or deliberately ignored the terms of the Agreement).

No reciprocal indemnity has been included because under the NHS Act, NHS England retains statutory liability for the exercise of the Delegated Functions. This means that any liability and losses in relation to the Delegated Functions will be retained by NHS England. Because of this statutory position, it is very unlikely that the CCG will actually suffer any loss.

NHS England is transferring its budget for the delegated functions to CCGs and this money should be used to meet claims that arise in relation to the delegated functions. If there are claims that relate to those functions, then the funds which are attributable to the functions must be used to discharge those claims.

The delegation agreement simply confirms this usual position (i.e. that the funds that a statutory body receives must discharge all the liabilities for its functions). In addition, NHS England has included a provision that allows the CCG to notify NHS England if it thinks that the delegated funds are not enough to cover any claim loss as well as discharge the delegated functions and for the parties to meet to agree any adjustments that may be needed. Likewise this process of agreement will be followed if there are cases where NHS England has retained any funds or provisions, or has contributed to the loss.

Under the Delegation Agreement NHS England will transfer monies to the CCG to undertake the delegated functions.  However, the Delegation Agreement does not set out how much this will be or how it is calculated.

Clause 13.1 of the Delegation Agreement sets out that NHS England will notify the CCG each year of the amount that will be the Delegated Funds. These are the sums that must be expended by the CCG on the exercise of the Delegated Functions i.e. the primary medical services delegated to the CCG and set out in the Delegation.

Under the Delegation Agreement it is unclear whether the CCG is taking on responsibility for the conduct of legal claims for the functions that are not being delegated to the CCG.  Please could you clarify the position?

The CCG is only responsible for the management of the claims where they relate to delegated functions.

When can NHS England “step-in” to a pre-litigious or litigious matter?

Due to the fact that NHS England remains liable for the delegated functions under the NHS Act, and that legal proceedings may raise repercussive issues e.g. a particular interpretation of a national contract term, there are provisions permitting NHS England to “step-in” to a pre-litigious or litigious matter to ensure its interests are best protected. It is hoped that with co-operative oversight between legal teams this is unlikely to be needed. This step-in will only be used where NHS England has first discussed the matter with CCGs.

Finance

Can there be changes to the Delegated Funds?

Any changes to the Delegated Funds are limited to specific circumstances including, for example, where there has been an error or where its own Mandate funds have been adjusted in this area. None of the specific circumstances provide discretion to change the allocations to cover cost pressures in the areas of its business.

Clause 6.2 sets out that all ‘Premises Costs Directions Functions’ are to be delegated. Does this include subsidy, void, bookable costs in CHP/NHS Property services premises, and if so would it be NHS England position that this would be covered by section 48 of those directions?

All premises functions, but not Capital Expenditure Functions, will be delegated to CCGs and by definition this includes everything.

Workforce

If staff are ‘assigned’ under delegated commissioning, does that mean TUPE applies?

TUPE does not apply in these circumstances as there would be no change in the individual’s employment status.

The staffing clause 18.5 refers to clauses numbering 13.3 and 13.5, however these sections have nothing to do with staffing as 18.5 indicates. Will this be corrected?

The references are correct as it relates to adjustments which can be made.

Other queries

What plans are CCGs required to submit as per section 13.26 to 13.33 of the delegation agreement?

We have received a number of queries relating to the following provision in the delegation agreement (section 13.26 to 13.33):

  • Within two (2) months of the date of the Delegation and thereafter three (3) months before the start of each Financial Year, the CCG must prepare a plan setting out how it proposes to exercise the Delegated Functions in that Financial Year and in each of the next (2) Financial Years (or over such longer period as NHS England may require.

For clarification, CCGs with delegated arrangements will only be required to submit a finance return, setting out a breakdown of planned expenditure against the primary care allocation. This return is based upon your existing plan template and you will receive a macro to unhide a sheet in the plan template via your regions.

In addition, in discharging your delegated functions, NHS England and CCGs need to comply with a number of statutory duties as set out in the delegation agreement, including section 13E (duty as to improvement in quality of services), 13G (duty as to reducing inequalities) and 13Q (public involvement and consultation by the Board) of the NHS Act 2006 (as amended). For confirmation, we do not require CCGs to submit an additional plan setting out how these duties will be discharged in relation to primary care commissioning.