Processes for managing and reporting derogations from estates technical standards and guidance

1. Introduction

1. Healthcare facilities built for the NHS are expected to support the provision of high-quality healthcare and ensure the NHS Constitution right to a clean, safe and secure environment. Therefore, organisations, providers and commissioners – irrespective of status, e.g., NHS trusts and NHS foundation trusts – must ensure any healthcare accommodation they are investing in is designed and constructed to the highest and most appropriate technical standards and guidance.

2. NHS-specific technical standards and guidance are integral to the capital planning process and appraisal of business cases (NHS Capital regime, investment and property business case approval guidance for NHS trusts and foundation trusts). They underpin regulatory processes and are referred to in civil and criminal court and coroner investigations.

3. The NHS England Estates team are the custodians of the NHS Technical Standards and Guidance programme. This programme produces and refreshes guidance in a programmatic fashion, prioritising publications as informed by the Future Standards Working Group.

4. It also sets out how derogations and appropriate supporting assurance must be documented.

5. When derogating, NHS organisations should consider the risk versus cost and benefit. Any derogations from HBNs or HTMs, including the measures implemented, should provide a degree of safety not less than that achieved by following the technical standards and guidance.

6. This process applies with immediate effect to all NHS organisations with business cases in progress, whether at outline business case (OBC) or full business case (FBC) stage, where the Preferred Option is identified. Organisations that cover primary care should ensure this process is followed for any developments they are paying for, including those delivered by non-NHS landlords where the NHS will be committed to a long term lease.

7. The need to demonstrate that a robust process has been followed when agreeing any derogation from technical standards and guidance is a core component of the business case assurance process.

2. Requirements

8. A schedule of derogations must be provided for any project requiring external business case approval and may be requested for those that have gone through an organisation’s delegated internal approvals process. The data provided in externally approved business cases will be collated centrally to help inform future updates to guidance.

9. All NHS organisations should retain their schedule of derogations to track risk mitigation where derogations have been agreed regardless of whether central approval is required.

10. Robust version control must be used to track the submissions through the various business case stages, with the final name indicating whether the schedule of derogations being submitted is at OBC, FBC or post occupancy evaluation stage.

11. Derogations must involve all specialists required to make an informed decision and be risk assessed and documented in accordance with the process given in Annex A so that they may be considered within the appraisal and approval process.

12. Derogations must be properly recorded and authorised by the project’s senior responsible owner. They must be informed and supported by appropriate in-house or outsourced technical advice irrespective of a project’s internal or external approval process.

13. Derogations should be submitted to the organisation’s Board/Project Board/ Senior Responsible Officer in the Schedule of Derogations and must be accepted in accordance with organisations governance process as part of the internal business case approval process. Business case guidance can be found on our website.

14. Where derogations are being considered they must be clearly described.

15. All proposed derogation(s) on accommodation size should be recorded as part of the project’s Schedule of Accommodation (“SoA HBN derogations” tab in Annex B). This must then be captured in aggregate by derogation type in the schedule of derogations for the Preferred Option to provide an audit trail for design and safety-related reviews as part of each business case stage beyond SOC. 

16. All agreed derogations must be ‘flagged’ in BIM (Building Information Modelling) data to manage the derogation during construction and post construction phases, including any associated costs with retrofitting and the impact of that decision.

17. These controls apply to all projects, whether 100% new build, repurposing, or refurbishment.

18. The agreed reporting template and instructions should be used at the following stages of a project, in line with applicability criteria set out in paragraph 8 above:

  • all projects with business cases at OBC for the Preferred Option.
  • all existing projects with business cases pre FBC for the Preferred Option.
  • all existing projects at post occupancy evaluation stage.

Annex A: Derogations in the context of the business case process

19. The standardised derogation process is mapped against NHS England business case guidance:





Has the business case been approved by the relevant board or governing body?

Provide minutes of the board/governing body meeting approving the business case.

The board/governing body has approved all parts of the business case, e.g., strategic fit and the financial/operational impact.




Have numbered and dated 1:200 (or electronic equivalent in terms of level of detail) drawings been included?

These should:

a) include site plans and elevations, where appropriate

b) be numbered and dated, not loaded and with m2 net internal area (NIA) shown

c) be consistent with the Schedule of Accommodation/Derogation.




Has a schedule of accommodation/derogation been provided?

This should be in Excel spreadsheet format on a room-by-room basis with any derogation to statutory/mandatory/DHSC standards [now hosted by NHS England see] highlighted. To support cost forms, drawings, infection control, fire safety, certificates of compliance, commissioning and handover documentation, etc should be attached.




Does the scheme comply with Health Building Note (HBN) requirements?

HBNs give ‘best practice’ guidance on the design and planning of new healthcare buildings and on the adaptation/extension of existing facilities. They provide information to support the briefing and design processes for individual projects in the NHS building programme. They should be complied with; however, where they are not, the deviation from guidance should be included in the derogations.




Does the scheme comply with Health Technical Memorandum (HTM) requirements?

HTMs give comprehensive advice and guidance on the design, installation and operation of specialised building and engineering technology used in the delivery of healthcare. Healthcare providers have a duty of care to ensure that appropriate governance arrangements are in place and are managed effectively. The HTM series provides best practice engineering standards and policy to enable management of this duty of care. They should be complied with; where they are not, the deviation from guidance should be included in the derogations.

Clinical quality case





What is the impact of estates derogation on clinical care?

Derogations must be approved by the medical and nurse directors, or equivalent, of the organisation.

NHS England Capital regime, investment and property business case approval guidance for NHS trusts and foundation trusts.

Annex B: templates for schedule of derogations and schedule of accommodation and instructions


20. The template includes completion instructions and has been kept as simple as possible. It is designed to ensure that the derogation, reason, risk, mitigation and sign off is captured at each stage of the business case/project programme from OBC to post occupancy evaluation.

21. All proposed derogations need to be covered.  If they only relate to area, then the standard m2 and proposed derogation m2 must be clearly stated in separate columns in the Schedule of Accommodation worksheet.

22. The NHS organisation must assess the impact risk of every proposed derogation to allow the project board and then external reviewers to consider the derogations in the light of the risk and rating assessed.

23. The organisation can use its own risk matrix to define the level of risk and, if adopted, this must be included in the schedule provided and defined in the OBC and FBC

24. An organisation’s board must also consider the advice of its appointed professional advisors (internal and external), and the project’s SRO must sign off the derogation schedule, e.g., architects, Mechanical and Electrical, Fire Safety, Health and Infection Prevention and Control Advisors.

25. The SRO must also sign off the impact risk and mitigation for each derogation, either single or like grouped.

26. NHS England business case guidance requires that the impact of estates derogation on clinical care must be identified and described from the patient perspective and must be approved by the medical and nurse directors of the project organisation. 

27. The impact of derogation should include assessment of any quality impact. This ensures that the derogation does not adversely affect the quality of the patient/staff environment, i.e., it does not lead to poor ergonomics or other associated risk to users.

28. The impact on cost (both capital and lifecycle) must be recorded as this provides an understanding of what drives the final outcome, e.g., is it clinical functionality or cost that makes a derogation acceptable/agreeable?

29. The schedule of accommodation (SOA) should be on a room-by-room basis with any derogation to statutory/ mandatory/DHSC standards highlighted, and consistent with information provided.

Forms to be completed as part of the derogations process

30. Complete schedule of derogations referenced.

31. P23 Clinical Design Requirements Toolkit (CDRT) – Parts A&B are freely available on the P23 Club website. This document provides project stakeholders to note all the documents and versions shared for reference should these need to be referred to at any date in the future.

Publication reference: PR00494