Executive summary

1.1 This document, Who Pays?, sets out the framework for establishing which NHS commissioner will be  responsible for commissioning and paying for an individual’s NHS care. It replaces the previous version of Who Pays? published in June 2022. Who Pays? does not address funding allocations for NHS commissioners or the prices they must pay for healthcare services; it simply deals with how to identify which NHS commissioner is responsible for paying for a particular service for a specific patient.

Key changes and clarifications in this version

1.2 The key changes and clarifications made in this version of Who Pays? are summarised below.

Overseas visitors

1.3 In paragraph 11.10, we have clarified that NHS England (rather than an integrated care board (ICB)) must commission and pay for the services which it has a legal duty to commission, where a charge-exempt overseas visitor accesses services that are commissioned by NHS England. (Where responsibility for commissioning the relevant services has been delegated from NHS England to an ICB, that ICB must pay for the services provided.)

Activity undertaken at designated Community Diagnostic Centres (CDCs)

1.4 We have included a new rule in paragraph 17.5-7, setting out how to determine which ICB is to be responsible for paying a Trust to provide diagnostic services from designated CDC sites. Generally, responsibility for payment will sit with the ICB in which the CDC site is based.

The effect of the Worcestershire decision on section 117 aftercare duty

1.5 At the start of paragraph 18, we have clarified that the Supreme Court judgement on the Worcestershire case does not affect the operation of the rules relating to establishing the responsible NHS commissioner for detention and aftercare under the Mental Health Act 1983. ICBs should continue to apply the rules set out in paragraph 18 for determining responsibility for detention and aftercare.

Delegation of responsibilities from NHS England to ICBs

1.6 In paragraph 26, we have provided updated guidance which reflects the changes being made in specialised commissioning arrangements from 1 April 2024.

1.7 We have made a number of lesser changes to clarify aspects of the previous guidance, addressing specific issues which have been raised with us in practice by commissioners.

1.8 Throughout the document, material changes from, or additions to, the previous guidance are highlighted in yellow.

Ensuring prompt and safe care and treatment

1.9 The safety and well-being of patients is paramount. No necessary assessment, care or treatment should be refused or delayed because of uncertainty or ambiguity as to which NHS commissioner is responsible for funding an individual’s healthcare provision.

1.10 As explained in the arrangements for resolving disputes (Appendix 1), where substantive disagreements do arise, and they cannot be resolved swiftly at local level, the commissioners involved must agree a) that one of them will make arrangements for the patient to be assessed and to receive necessary care or treatment and b) that they will share the costs equally between them, on a “without prejudice” basis, pending resolution of the disagreement. That way, the patient’s assessment, care and treatment will not be delayed, and the provider will be paid promptly.

Implementation

1.11 This updated Who Pays? takes effect from 1 April 2024.

1.12 The publication of this updated Who Pays? must not be used by commissioners as a reason to re-visit funding agreements on historic cases or to unpick existing agreed funding arrangements for ongoing care packages. There would be no benefit to the NHS as a whole from this, and it could create uncertainty for patients. The dispute resolution process in Appendix 1 has been designed to be consistent with this principle.

Section A: Context, purpose and coverage

2 Introduction

2.1 This revised Who Pays? guidance sets out a framework, for the NHS in England, for establishing which NHS organisation has responsibility for commissioning an individual’s care and which has responsibility for paying for that care. It is published for implementation by commissioners with effect from 1 April 2024.

3 Contents

3.1 The contents of this document are organised as follows:

• Section A (this section) sets out the legal context for, and purpose of, the guidance, describes its coverage and how and when it is to be implemented, and outlines the approach to minimising and resolving disputes.
• Section B gives a high-level description of the distribution of responsibilities for commissioning and payment within the English NHS and sets out, in paragraph 10, the general rules for determining which integrated care board (ICB) has core responsibility for an individual.
• Section C gives further details about how these general rules are to be applied to certain services and in certain common situations.
• Section D describes a number of important exceptions to the general rules, with illustrative case studies to guide interpretation.
• Section E provides detailed clarification, again with illustrative case studies, on distinguishing between NHS services commissioned by ICBs and those commissioned by NHS England.
• Appendix 1 sets out the full dispute resolution process.
• Appendix 2 provides advice on defining ‘usually resident’.
• Appendix 3, published separately in Word, contains templates for submissions made to the national team under the dispute resolution process.

4 Legal context and purpose

4.1 Responsibilities of NHS England and ICBs for commissioning health services – that is, for making the arrangements for such services to be provided in particular locations – are set out in legislation.

4.2 The key legislative provisions relating to the determination of commissioning responsibility are contained in:

• The NHS Act 2006 (“the 2006 Act”), as amended, including by the Health and Care Act 2022 (“the 2022 Act”).The National Health Service (integrated care boards: Responsibilities) Regulations 2022 (the “ICB Responsibilities Regulations”).
• The National Health Service (integrated care boards: Exceptions to Core Responsibility) Regulations 2022 (the “ICB Exceptions Regulations”).
• The National Health Service (integrated care boards: Description of NHS Primary Medical Services) Regulations 2022 (the “Primary Medical Services Regulations”).
• The National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 (as amended by the Health and Care Act 2022 (Consequential and Related Amendments and Transitional Provisions) Regulations 2022) (the “Standing Rules Regulations”).

4.3 The 2006 Act (as amended by section 14Z31 of the 2022 Act) states that NHS England must from time to time publish rules for determining the group of people for whom each ICB has core responsibility and that these rules must ensure that everyone who is provided with NHS primary medical services, and everyone who is usually resident in England and is not provided with NHS primary medical services (the Primary Medical Services Regulations define these) is allocated to at least one group. In other words, the rules must ensure that everyone falling within either category is the responsibility of at least one ICB. The rules on core responsibility of ICBs are set out in paragraph 10.2 below.

4.4 Section 14Z31 also allows for Regulations to create exceptions to these published rules.

• The ICB Responsibilities Regulations define certain additional persons for whom ICBs will have responsibility. These exceptions are set out in Section D, paragraphs 13-18 below.
• The ICB Exceptions Regulations provide that an ICB is not responsible for commissioning for healthcare services for a patient who is registered with a GP practice associated with that ICB, but who is usually resident in Scotland, Northern Ireland or Wales. See Section D, paragraph 19 below.

4.5 The 2006 Act (again, as amended by the 2022 Act, this time by section 14Z50(1)) also states that NHS England may publish a document specifying circumstances in which an ICB is liable to make a payment to a person in respect of services provided by that person in pursuance of arrangements made by another ICB in the discharge of commissioning functions, and how the amount of any such payment is to be determined. It goes on to state that an ICB is required to make payments in accordance with any document published by NHS England under that power.

4.6 In general, responsibility for commissioning and for payment will be fully aligned; in other words, the organisation which is responsible for commissioning NHS care for an individual will also be responsible for paying for that care. However, there are some situations, set out clearly later in this Who Pays? document, where NHS England has made explicit use of its section 14Z50 powers to specify rules determining responsibility for payment which are different from the statutory position on responsibility for commissioning. ICBs must make payments in accordance with the rules specified in Who Pays?

4.7 Legislation, including the Standing Rules Regulations, continues to set out NHS England’s responsibilities for commissioning specific services. See Section E, paragraphs 20-25 below.

4.8 Amendments to the 2006 Act introduced by the 2022 Act also make broader provision than previously for the delegation of functions by one NHS body to another – by NHS England to an ICB, for instance. See section E, paragraph 26 below.

5 Coverage

Supporting guidance

5.1 Who Pays? is supported by the Commissioner Assignment Method (CAM) guidance and flowcharts, which provide practical tools to help identify the correct commissioner. Note that the CAM guidance does not provide for every eventuality or case study covered in Who Pays? In the event of any inconsistency between the CAM and Who Pays?, the provisions of Who Pays? should be followed.

5.2 Two key documents which describe and define services which NHS England has the responsibility for commissioning are:

• The Specialised Services Manual and Identification Rules, which describe how the prescribed specialised services commissioned by NHS England are to be identified; NHS England also publishes tools to support identification of prescribed specialised services.
• The national service specifications for public health services to be commissioned by NHS England, in accordance with the Section 7A public health functions agreement.

5.3 NHS England provides additional information about other services which it directly commissions.

Guidance on cross-border issues within the UK

5.4 Who Pays? is written primarily with the intention of providing guidance to the NHS in England.

5.5 Separate guidance covers arrangements for Scotland and Wales:

• The Welsh and Scottish Governments have published separate guidance (respectively, Responsible Body Guidance for the NHS in Wales, and Establishing the Responsible Commissioner: Guidance and Directions for Health Boards, March 2013).
• NHS England and the Welsh Government have also published a specific document aimed at ensuring smooth and efficient arrangements for patients living along or near the England / Wales border (England / Wales Cross Border Healthcare Services: Statement of values and principles).

5.6 More detailed guidance for English NHS bodies on managing cross-border issues within the UK is set out in paragraph 19 below.

Limitations of Who Pays?

5.7 It is important to set out clearly what Who Pays? does not cover.

• Access to free NHS treatment. Who Pays? does not describe who is eligible for free NHS treatment or how charges should be levied on those to whom they apply. The Department of Health and Social Care (DHSC) publishes advice on these matters. Note however that Who Pays? does address how the responsible commissioner for overseas visitors is to be identified – see paragraphs 11.9-11 below.
• NHS and local authority commissioning responsibilities. Who Pays? does not set rules for determining responsibility for commissioning services as between the NHS and local authorities or between local authorities.

5.8 Equally, the purpose of Who Pays? is to provide certainty on responsibility for commissioning and payment. It is not the function of Who Pays? to provide guidance on detailed processes to be followed by commissioners when arranging care for patients – or on the way in which commissioners should communicate with each other, and with providers, when doing so.

Nor is it the function of Who Pays? to specify which health service provider is to provide services for patients – that is for the ICB to arrange by selecting an appropriate provider (in accordance with the NHS Provider Selection Regime), awarding a contract to it (using the NHS Standard Contract for all healthcare services other than primary care) and making payments to it (in line with the arrangements set out in the NHS Payment Scheme.

In general, therefore, Who Pays? does not cover such matters but simply cross-refers to relevant other guidance where applicable. As a general point, we would emphasise the importance of prompt and clear communication, from commissioner to provider and between commissioners, when there is any doubt as to, or potential change in, the NHS body responsible for commissioning and payment for a particular patient.

Integrated commissioning and provision of services

5.9 As the NHS, together with local authorities, continues to develop local responses to the Long Term Plan and seeks to integrate health and social care services, the responsibility to apply Who Pays? remains with NHS commissioners.

Pooled budgets

5.10 Under arrangements put in place under Section 75 of the NHS Act 2006, NHS commissioners and local authorities can agree a “lead commissioning” approach and pool their budgets. Where a local authority is acting as lead commissioner under a s75 agreement, using a pooled budget on behalf of an ICB, then commissioning responsibility for health services will still be determined in accordance with Who Pays? The ICB must therefore ensure that – as part of the s75 agreement which underpins the pooled budget arrangement – the local authority will apply and abide by the provisions of Who Pays? in respect of responsibility for NHS-funded services.

5.11 In many situations, NHS and local authority commissioning responsibility for an individual will align – that is, the ICB responsible for meeting an individual’s NHS needs will be the ICB in whose geography will sit the local authority which is responsible for meeting that individual’s social care needs. But this will not always be the case, and care will be needed, when pooled budget arrangements are established locally, to ensure that there is clarity on which cases are to be funded from the pooled fund.

Lead provider arrangement

5.12 NHS commissioners may sometimes award contracts to lead providers to manage access to and quality of care for whole populations. It is important to be clear how Who Pays? applies where such lead provider arrangements are in place. In these situations, the lead provider does not “become” the commissioner; rather, the responsible NHS commissioning organisation (that is, either an ICB or NHS England) must always be determined by application of the Who Pays? guidance. It is for the commissioning contract between that commissioner and its appointed lead provider to determine what payments the commissioner must make to the lead provider and what services the latter must provide itself or sub-contract from other organisations. 

6 Implementation and transition

6.1 This guidance is for implementation by NHS commissioners from 1 April 2024 onwards.

7 Dispute resolution

7.1 One of our intentions in publishing Who Pays? is to minimise the number of disagreements between commissioners.

7.2 We therefore expect that commissioners will seek to apply the rules in this Who Pays? document in good faith, using their best endeavours to resolve, promptly, any disagreements about responsibility for payment. No necessary assessment, care or treatment should be refused or delayed because of uncertainty or ambiguity as to which NHS commissioner is responsible for funding an individual’s healthcare provision.

7.3 In those rare situations where disputes between NHS commissioners within England do nonetheless arise, a formal dispute resolution process, managed by NHS England’s national team, will apply to determine which commissioner should pay. This process is set out in full in Appendix 1. Participation in, and cooperation with, the process is mandatory, and its outcome will be binding on ICBs.

7.4 Where substantive disagreements arise, which cannot be resolved swiftly at local level, the commissioners involved must agree a) that one of them will make arrangements for the patient to be assessed and to receive necessary care or treatment and b) that they will share the costs equally between them, on a “without prejudice” basis, pending resolution of the disagreement. That way, the patient’s assessment, care and treatment will not be delayed, and the provider will be paid promptly.

8 Review

8.1 Any questions about interpretation of this revised guidance can be sent to england.responsiblecommissioner@nhs.net, and we welcome feedback that will help inform future iterations of this document.

Section B: Overall responsibilities and general rules

9 Overall responsibilities

9.1 At a summary level (and subject to the exceptions set out in Section D below (and any agreed arrangements for delegation of NHS England’s responsibilities as described in paragraph 26 below), an ICB is responsible for assessing needs and commissioning health services to meet all the reasonable requirements of the individuals for whom it has responsibility, with the exception of:

• Certain services commissioned directly by NHS England (such as primary care, high-secure psychiatric services, prescribed specialised services, secondary care dental services and the majority of health services for prisoners / those detained in ‘other prescribed accommodation’ and serving members of the armed forces and those family members who are registered with Defence Medical Services (DMS) GP practices in England).
• Public health protection and promotion services commissioned by NHS England or commissioned / provided by local authorities, the Office for Health Improvement and Disparities or by the UK Health Security Agency.

10 General rules on core responsibility

10.1 What determines whether an ICB or NHS England is responsible for commissioning a particular service for a particular individual is the nature of the service itself. If it is one of the specific services which NHS England has a duty to commission, then NHS England is responsible; if not (and assuming the service is not a public health service which is the responsibility of another body under paragraph 9.1 above), responsibility will fall to the relevant ICB.

10.2 For services which fall within the commissioning responsibility of ICBs, the 2006 Act, as amended by section 14Z31 of the 2022 Act, states that NHS England must from time to time publish rules for determining the group of people for whom each ICB has core responsibility. This Who Pays? document is the means through which such rules are published, as set out below.

10.3 Details of GP practices associated with each ICB are available in an updated “epraccur” file; the mapping of practices to ICBs is based on the historic CCG membership of each practice, so there is continuity with previous arrangements. Access a list of the postcodes covered by each ICB.

10.4 A number of specific exceptions to these general rules are set out in section D below. Where an exception is set out in section D, it takes precedence over the general rules expressed above.

10.5 Consistent with paragraph 4.6, other than where specified in any of the exceptions set out in Section D, the general rules above determine responsibility for commissioning and for payment, both of which will rest with the same commissioning body.

10.6 Note that the operation of the general rules above and the exceptions set out in section D will deliberately result in situations where one ICB is responsible for commissioning certain services for an individual, whilst another ICB is responsible for commissioning other, different services for the same individual.

Section C: Applying the general rules in practice

11 Summary

11.1 This section gives further details about a number of services and situations where the responsible commissioner is established broadly in line with the general rules outlined in paragraph 10.2 above, but where further clarification may be helpful.

Persons of “no fixed abode”

11.2 Where a patient has ‘no fixed abode’ and is not registered with a GP practice, then – in accordance with the general rules in paragraph 10.2 – the responsible ICB should be determined by the terms of the ‘usually resident’ test (see Appendix 2). If a patient considers themself to be resident at an address, for example a hostel, then this should be accepted. The absence of a permanent address is not a barrier for a person with ‘no fixed abode’ to registering with a GP practice. In many instances, practices have used the practice address in order to register a homeless person.

Approved premises and bail accommodation

11.3 ICBs are responsible for commissioning services for people residing in approved premises and bail accommodation, as well as for those serving community sentences or on probation. Approved premises and bail accommodation may house residents who have been required to move outside of their usual ICB area. The general rules as set out in paragraph 10.2 still apply – where the patient living in the approved premises or bail accommodation is registered with a GP practice (regardless of whether this is on the basis of temporary or permanent registration with a GP practice), the ICB with which that GP practice is associated is the responsible commissioner; if the patient is not registered with a GP, then the ICB in whose area the patient usually resides is the responsible commissioner.

When determining where the patient usually resides, reference should be made to Appendix 2.

Patients who change GP and/or move house within England

11.4 Where a patient changes GP (or where a patient not registered with a GP moves house) during the course of treatment, this may – through application of the general rules in paragraph 10.2 – trigger a change in the responsible commissioner (for instance if the patient registers with a GP practice which is
associated with a different ICB).

11.5 The table below summarises what generally happens to commissioning responsibility for patients who change GP and/or move house within England.

11.6 For instance, therefore, where a patient is undergoing a series of outpatient attendances or community contacts, ICB B will pay for those attendances or contacts which take place after it has become the responsible commissioner.

11.7 However, many of the exceptions set out in section D create a position where responsibility for payment remains with the original ICB, even where a patient changes GP – and these exceptions take precedence over the table above.

11.8 Note in particular that:

• An exception dealing with changes of GP during a hospital stay is set out in paragraph 13 below.
• Movement of patients across borders within the UK is dealt with separately in paragraph 19 below.

Overseas visitors

11.9 Where an overseas visitor is exempt from charges for NHS hospital treatment, or the NHS hospital service they receive is one for which no charge is to be made under the relevant Regulations, the arrangements for identifying the responsible commissioner are as follows.

11.10 For overseas visitors who are not registered with a GP in England and who are resident outside the UK, the responsible commissioner will be the ICB in which the organisation providing the relevant health services is physically located.

NHS England (rather than any ICB) must commission and pay for the services which it has a legal duty to commission, where an overseas visitor accesses services that are commissioned by NHS England. (Where responsibility for commissioning the relevant services has been delegated from NHS England to an ICB, that ICB must pay for the services provided).

This category of overseas visitors will be likely to include UK state pensioners living overseas; some former UK residents now working overseas; missionaries acting for UK-based mission; armed forces members and crown servants, and their dependents in both cases, who are serving overseas and returning to the UK for treatment.

NHS England (rather than any ICB) must commission and pay for the services which it has a legal duty to commission, where an overseas visitor accesses services that are commissioned by NHS England. (Where responsibility for commissioning the relevant services has been delegated from NHS England to an ICB, that ICB must pay for the services provided.)

11.11 By contrast, for those who are currently registered with a GP in England – or who are not currently registered with a GP in England, but who give a UK address and can be considered part of the UK resident population – the responsible commissioner should be determined on the basis of the general rules in paragraph 10.2. This category will be likely to include people who have been in the UK lawfully for more than 12 months; people who are taking up permanent residence in the UK; people who have paid the Immigration health surcharge; people who have been granted EU settlement status or have an application are under consideration, including appeals; refugees; asylum seekers whilst their applications are under consideration, including appeals; failed asylum seekers receiving section 4/95 support from the UK Border Agency; children in Local Authority care and diplomatic staff.

People taken ill abroad

11.12 If a person who is ordinarily resident in the UK is taken ill abroad, the responsible commissioner for treatment on return to the UK should be determined using the general rules in paragraph 10.2. If it is not possible to determine GP practice registration or establish a resident address by the usual means, usual residence should be determined as being in the area of the person is present. In practice, this will generally mean that the responsible commissioner will be the ICB in which the organisation providing the relevant health services is physically located. In all cases, it is the responsibility of the patient and/or his/her family to meet the costs of returning to the UK.

Right to cross-border healthcare treatment within the European Economic Area (EEA)

11.13 Patients currently have certain rights to access treatment within the EEA and Switzerland, under the S2 funding route. Arrangements for the EU Directive route changed following the end of the EU Exit transition period; the Directive route is no longer available and now only restricted legacy arrangements remain. Patients choosing to exercise these rights will receive reimbursement for eligible costs, as set out in guidance.

NHS-funded nursing care

11.14 NHS-funded nursing care (or FNC) is when the NHS pays for the nursing care component of nursing home fees; in most cases the NHS pays a flat rate directly to the care home towards the cost of this nursing care. However, some individuals, who were in receipt of the high band of NHS-funded Nursing Care under the three-band system that was in force until 30 September 2007, continue to receive a higher rate (see paragraphs 277 – 278 of the National Framework). The responsible ICB for FNC will be determined in accordance with the general rules in paragraph 10.2.

11.15 Guidance for ICBs on FNC can be found in the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care. Further detailed guidance on FNC is available in NHS-funded Nursing Care Practice Guidance.

11.16 Separate arrangements for determining commissioning responsibility apply to continuing care (including NHS Continuing Healthcare), as described in paragraph 14 below.

11.17 Where (generally as a result of a patient decision to be nearer family or other support networks) a patient in receipt of FNC moves to a care home outside the area of the ICB in which they were originally registered with a GP practice (but still within England), the patient will generally register with a new practice in the area of the care home, and – under the general rules at paragraph 10.2 – the “receiving” ICB will then become the responsible commissioner.

(Note, however, the separate arrangements set out in NHS funded Nursing Care Practice Guidance at paragraphs 29-32. These cover short periods in residential care, including in emergencies, for respite care and for trial periods; in these cases, responsibility for payment remains with the ICB which arranges the care.)

11.18 Arrangements for nursing care costs where patients move across borders within the UK are dealt with in paragraph 19 below.

Students and boarding school pupils

11.19 Responsibility for students attending University or other higher education establishments or pupils attending boarding schools should be determined using the general rules in paragraph 10.2 (other than where the exceptions set out in paragraph 15 apply in relation to children placed in residential schools). In practice, therefore, responsibility for a student attending university in the area of one ICB but returning home to the area of another ICB during the holidays will keep changing, if the student changes GP registration each time.

Patient Transport Services

11.20 Non-emergency Patient Transport Services (PTS) are defined as nonurgent, planned transportation of patients with a medical need for transport to and from premises providing NHS healthcare, and/or between providers of NHS-funded healthcare.

11.21 ICBs are responsible for commissioning non-emergency PTS, including where patients require transportation to or from services commissioned by NHS England, and the responsible ICB for PTS is determined in the normal fashion, using the general rule at paragraph 10.2.

11.22 Note, however, that:

• NHS England has responsibility for commissioning some neonatal and paediatric transport services as prescribed specialised services.
• NHS England also has responsibility for commissioning transport services where patients need to be transported from children’s inpatient mental health services and secure mental hospitals.
• Emergency ambulance services are subject to the different arrangements set out in paragraph 17 below.

Personal health budgets

11.23 A personal health budget is an amount of money to support the identified health and wellbeing needs of an individual, which is planned and agreed between the individual, or their representative, and the local ICB. There are different ways to manage a personal health budget; some will involve the individual using the allocated budget to directly engage their own care team or spending it directly wit  another healthcare provider, rather than their care and support being managed under an ICB commissioning contract. Find out more details about personal health budgets.

11.24 The ICB which is to be responsible for offering a personal health budget to particular individual must be determined in accordance with this Who Pays? guidance – both the general rules at paragraph 10.2 and the exceptions in section D where relevant.

11.25 Where an individual in receipt of a personal health budget from ICB A moves away from its area and registers with a new GP in ICB B, responsibility for funding any personal health budget will transfer to ICB B, unless – because of the nature of the individual’s needs for which the personal health budget is being provided – one of the exceptions in section D is triggered (for example, the exception on continuing care detailed in paragraph 14), in which case the terms of that exception will apply.

Section D: Exceptions to the general rules

12 General information

12.1 This section sets out, in relation to ICB-commissioned services, exceptions to the general rules in paragraph 10.2, i.e. those circumstances where:

• An ICB is responsible for commissioning care for patients who are not registered with one of its GP practices and are not usually resident in the ICB’s geographic area.
• An ICB is not responsible for commissioning care for patients who are registered with one of its GP practices or for unregistered patients who are usually resident in its geographic area.

13 Change of GP / address during hospital admission

What are the exceptions and who do they apply to?

13.1 This exception applies where a patient, for any reason, changes GP or address during a hospital inpatient spell. It applies to all hospital inpatient spells other than those already covered separately by the exceptions in the rest of this section D (including those on continuing care and detention and aftercare under the Mental Health Act, for instance).

13.2 The exception involves use of our powers (now under section 14Z50 of the 2006 Act as amended) to state that the rules for determining responsibility for payment are to be different from the legal position on responsibility for commissioning.

13.3 Note that:

• The exception applies only where there is a genuine change of GP or address, not where an administrative error is being corrected (for example, the wrong GP or address has been recorded on admission and this is subsequently amended).

• The exception applies to the full duration of a hospital admission with any one provider organisation, but not where a patient is transferred to a different hospital run by a different provider organisation.

Effect on responsibility for payment

13.4 A patient’s registered GP may sometimes change during a hospital stay. An example might be where a patient has been admitted to hospital with a head injury, and the family – in anticipation of their discharge to be cared for at home with them – re-registers them with their own local GP. (NHS England’s
guidance on GP registration, makes clear that a family member may properly register a patient on their behalf in this kind of situation regardless of whether the patient has capacity.) It will be very unusual for a patient’s address to change during a hospital stay, but this may occasionally happen.

13.5 Where a patient’s registered GP or address does change during a hospital stay and where none of the other exceptions in this section D apply, then – under the general rule at paragraph 10.2 – the patient’s responsible commissioner may change at that point (if the new GP practice is associated with a different ICB or if the address is in a different ICB area).

13.6 If this same logic were also applied to responsibility for payment, then – in such a situation – two ICBs would each need to pay for a proportion of a patient’s stay in hospital. Under the NHS Payment Scheme, such a split is not straightforward to calculate. Applying such a rule to payment would create additional transaction costs and scope for possible confusion and dispute – as well as a perverse incentive in relation to ongoing costs after discharge, as described further in section 14 below.

13.7 We are therefore using our 14Z50 powers to state that, for an inpatient hospital spell commissioned by an ICB (and where none of the separate exceptions detailed in the rest of this section D apply), the ICB responsible for payment is to be determined on the basis of the general rule at paragraph 10.2 (that is, registered GP or, failing that, usual address), applied at the point of admission for that inpatient hospital spell. The ICB identified on this basis is responsible for payment for the whole of that hospital spell, even if the patient’s GP or address changes during the spell.

Illustrative scenario

13.8 Scenario 1 below illustrates how this payment rule applies in practice.

13.9 This rule applies to admissions to hospital which took place on or after 1 September 2020.

14 Out-of-area placements of adults for continuing care

What is the exception in relation to commissioning responsibility and who does it apply to?

14.1 The exception in this area applies in certain circumstances to adults in receipt of “continuing care”. (Children are dealt with in paragraph 15 below. Note also the arrangements for placements of members of the armed forces described further at paragraph 22 below.)

14.2 For the purposes of this guidance, the ICB Responsibilities Regulations define “continuing care” as “care provided over an extended period of time to a person to meet physical or mental health needs which have arisen as the result of illness”. This therefore includes, but is not limited to, NHS Continuing Healthcare (NHS CHC), as defined in the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (the “National Framework). “Continuing care” may include packages of care arranged jointly by an ICB and a local authority, where the individual has been deemed not eligible for NHS CHC but has some health needs identified that are beyond the power of the local authority to fund.

See also paragraph 18.17 below for clarification on the interplay between payment responsibility for continuing care and FNC on the one hand and aftercare provided under s117 of the Mental Health Act on the other.

14.3 When an individual’s potential need for continuing care becomes known and is to be assessed, the responsible commissioner must be determined in the normal way under the general rule at paragraph 10.2.

14.4 The exception (the detailed basis for which is set out in the ICB Responsibilities Regulations at the Schedule, paragraph 3) relates to individuals who have been assessed as needing continuing care and for whom the ICB identified as being the responsible commissioner under paragraph 10.2 (the “placing ICB”) then arranges (by itself or jointly with a local authority) a residential continuing care placement outside of that ICB’s geographical area.

14.5 Where, in order to meet an individual’s continuing care needs, the placing ICB arranges to provide them with:

• Accommodation in a care home or independent hospital (that is, a hospital not run by an NHS Trust or NHS Foundation Trust) located outside of the ICB’s geographical area.
• At least one planned healthcare service (other than simply NHS FNC) connected with the provision of that accommodation.

Then the placing ICB retains commissioning responsibility for that person, in respect of those services, regardless of which GP the individual is registered with. This continues for as long as the individual requires a continuing care package (that is, they remain resident in accommodation and continue to require services), whether this is provided in the same physical location or another.

14.6 Where this exception applies, the placing ICB retains commissioning responsibility for the accommodation, and for any planned services in connection with that accommodation, only. Whether or not the patient has capacity to express a view about a potential placement is not a material factor in determining responsibility.

14.7 Commissioning responsibility for all other NHS services provided to the person is determined in accordance with the general rule at paragraph 10.2 above or other relevant exceptions in this Section D as the case may be.

Responsibility for payment – overall rules

14.8 In general, if these rules on commissioning responsibility are also applied to payment responsibility, they will lead to sensible outcomes. Fundamentally, an ICB placing a patient for continuing care in residential accommodation outside of its local area will not be able to escape financial liability for the continuing care services, even if the patient re-registers with a GP associated with another ICB – and that is entirely appropriate.

14.9 In most situations, therefore – except for the circumstances described in paragraphs 14.16-30 below – the ICB which has responsibility for commissioning the services is also responsible for paying for those services.

Illustrative scenarios

14.10 The scenarios below explain how these general payment rules apply.

14.11 Scenario 1 is a straightforward situation where a patient is placed in-area and there is no change to GP registration. In this instance, the exception is not triggered; the general rule at paragraph 10.2 applies.

14.12 Scenarios 2a and 3 describe out-of-area placements where the exception does apply; scenario 2b demonstrates the limits of what services the placing ICB is responsible for, as set out in paragraph 14.9 above.

14.13 Scenarios 4a and 4b below make clear that the exception applies not only to NHS CHC placements but also to other placements for “continuing care” (as defined above) in care homes or independent hospitals, including for instance placements for long-term rehabilitation.

14.14 The exception does not apply to an individual who is receiving a package of continuing care in their own home, including in supported living settings. Responsibility for such a package is determined on the basis of the general rule in paragraph 10.2, as described in scenario 5a below. Where such an individual moves house from the area of one ICB to another and re-registers with a GP practice in the new ICB, commissioning responsibility will transfer to the new ICB from the date of re-registration, as set out in scenario 5b below.

14.15 Where an individual is receiving funded nursing care (FNC) only, the general rule in paragraph 10.2 applies, as described further in paragraphs 11.14-18 above.

Responsibility for payment – other rules

14.16 However, there is a risk of perverse outcomes and increased disputes if we retain exactly the same rules on payment responsibility as on commissioning responsibility in all circumstances. We have therefore decided to use our powers under section 14Z50 of the 2006 Act, as amended, to state that responsibility for payment is to be different from responsibility for commissioning in order to address two specific situations:

• To facilitate, and ensure that there are no perverse outcomes under “discharge to assess” arrangements.

• To avoid perverse incentives for ICBs to delay NHS CHC assessments.

14.17 We explain each of these rules on payment responsibility below.

Short-term “discharge to assess” placements on hospital discharge

14.18 In March 2022 DHSC published Hospital Discharge and Community Support Guidance, which came into effect on 1 April 2022. It states that local areas should adopt discharge processes that best meet the needs of the local population, which could include the Discharge to Assess, Home First approach. It also states that systems should work together across health and social care to jointly plan, commission, and deliver discharge services that are affordable within existing budgets available to NHS commissioners and local authorities, pooling resources where appropriate.

14.19 The guidance sets an expectation that, other than in exceptional circumstances, no one should transfer permanently into a care home for the first time directly following an acute hospital admission. It states that everyone should have the opportunity to recover and rehabilitate at home (wherever possible) before their long-term health and care needs and options are assessed and agreed.

14.20 In situations where short-term residential care is to be provided after discharge, a patient may well need to register, at least temporarily, with the GP providing medical cover to the intermediate care accommodation / care home in which they have been placed. And, in a small number of cases, the accommodation in question may be outside the placing ICB’s area, meaning that the patient may re-register with a GP practice associated with a new ICB. A patient’s stay in such accommodation for the purposes of “discharge to assess” should always be of short duration and will not typically meet the definition of “continuing care” in the ICB Responsibilities Regulations. So, in such a case, the new ICB will become responsible for commissioning services for the patient.

14.21 If this same logic were also applied to responsibility for payment, then a perverse incentive would be created for ICBs to arrange “discharge to assess” placements in out-of-area accommodation, thus passing responsibility to the neighbouring ICB for funding both the short-term “discharge to assess” placement and any resulting long-term residential placement.

14.22 To avoid this, the position on responsibility for payment will be as follows:

• Where a patient is discharged from NHS-funded hospital care to short-term non-hospital residential accommodation which is wholly- or partly-funded by the NHS (such as a care home or intermediate care facility) and where none of the separate exceptions detailed in the rest of this section D apply, then:
  • the ICB which is to pay for the short-term placement (or the NHS contribution to it) will be the ICB which was responsible for paying for the hospital spell from which the patient is being discharged, as determined under the general rule at paragraph 10.2 and the exception at paragraph 13 above where applicable; and
  • the same ICB will then retain responsibility for paying for any residential NHS CHC placement which follows directly on from this short-term placement or for paying the agreed NHS contribution to a jointly-funded continuing care placement, as applicable.
• This will apply even where the patient is discharged to accommodation out-of-area and registers with a GP practice associated with a different ICB.
• Where the hospital spell from which the patient is to be discharged has been commissioned and paid for by NHS England (as a specialised service, for example), the same principle will apply; the ICB responsible for paying for the out-of-area placement and any subsequent residential continuing care placement will be the one identified by the application of the general rule at paragraph 10.2 and the exception at paragraph 13 above where applicable, at the point of the patient’s admission to hospital for the spell from which they are now being discharged.

14.23 The scenarios below explain when the payment rule on “discharge to assess” does and does not apply.

14.24 If a patient placed in short-term accommodation in this way requires readmission to hospital direct from the short-term placement, the ICB responsible for payment will remain the same – that is, it will be the ICB responsible for paying for the original hospital admission and the short-term placement, even if the patient has subsequently re-registered with a GP associated with a different ICB.

Patients who change GP or address while an NHS CHC assessment is ongoing in a non-hospital setting

14.25 It is important that assessments for NHS Continuing Healthcare are completed promptly. The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care sets a clear expectation (paragraph 182) that “the overall assessment and eligibility decision-making process should  in most cases, not exceed 28 calendar days from the date that the ICB receives the positive Checklist (or, where a Checklist is not used, other notice of potential eligibility) to the eligibility decision being made”.

14.26 We are keen to avoid the risk of any perverse incentive for an ICB to delay completion of an NHS CHC assessment. The arrangements set out in paragraphs 14.18-24 above will ensure that there is no such perverse incentive where assessments are completed after discharge from hospital under ‘discharge to assess’ arrangements. But we also need to address situations where patients in the community (including in care homes) are referred for NHS CHC assessment. In such cases, it is also possible that a patient may change GP and/or address while an assessment is ongoing, especially if it has been delayed – for example, where a local authority has to take urgent action to place an individual in a care home for their own safety. 

In such a situation, if the new GP practice is associated with, or the new address is in, a different ICB, then, under the general rule at paragraph 10.2, commissioning responsibility passes to the new ICB.

14.27 Again, we do not think this outcome is appropriate in terms of the payment rules. Instead, the position on payment responsibility will be that, in such a case (other than where covered by the “discharge to assess” arrangements set out in paragraphs 14.18-24 above), responsibility for paying for any resulting NHS continuing care placement in a care home or independent hospital will be determined on the basis of the general rule at paragraph 10.2 (that is, registered GP or, failing that, usual address), applied at the point at which a referral for NHS CHC assessment for the patient was first received by any ICB. A “referral” in this context is the earliest notification (to an ICB or person or body acting on behalf of an ICB) that full assessment of NHS CHC eligibility is required (e.g. a positive checklist, Fast Track Tool or other notification that full assessment is required).

14.28 Scenarios 10 and 11 below show two examples of where the arrangement above operates.

Withdrawal of NHS CHC funding and dispute resolution relating to NHS CHC

14.29 Note also these two important points (which relate only to NHS CHC, not to continuing care as defined more broadly in paragraph 14.2 above).

• The National Framework for NHS Continuing Healthcare and NHS funded Nursing Care states at paragraph 210 that “It is a core principle that neither an ICB nor a local authority should unilaterally withdraw from an existing funding arrangement without a joint reassessment of the individual, and without first consulting one another and the individual about the proposed change of arrangement. Therefore, if there is a change in eligibility, it is essential that alternative funding arrangements are agreed and put into effect before any withdrawal of existing funding, in order to ensure continuity of care”.

• The National Framework for NHS Continuing Healthcare and NHS funded Nursing Care requires (paragraphs 228-236) a local multi-agency dispute resolution process to be put in place in each local area, through which disputes between ICBs and local authorities relating to NHS CHC can be managed. (These are of course entirely separate from the arrangements for dispute resolution between ICBs, described in detail in Appendix 1.)

14.30 The interaction between the rules on responsibility for continuing care and those for detention and aftercare under the Mental Health Act can be complex. We cover this in scenario 2c above and in paragraphs 18.4 and 18.17 below.

15 Out-of-area placements of children

What is the exception in relation to commissioning responsibility and who does it apply to?

15.1 The exception here applies to certain children who are placed in residential accommodation “out-of- rea”. (Note that we use the term “children” throughout Who Pays? to refer to any individual under the age of 18.)

15.2 The responsible ICB for any child, including those covered by this exception, must be established at the outset in accordance with the general rules in paragraph 10.2. The ICB identified in this way is known, for the purposes of this exception, as the “originating ICB”.

15.3 The categories of children to whom the exception applies are specified in the ICB Responsibilities Regulations (Schedule, paragraph 4). In practice, the exception applies to any of the following, where the child has been placed in residential accommodation out-of-area:

• Any looked after child.
• Any child to whom a local authority has duties as a relevant child pursuant to Section 23A of the 1989 Act.
• Any child who qualifies for advice and assistance from the local authority pursuant to Section 24 of the 1989 Act.
• Any child provided with accommodation at a school to which they were admitted in accordance with an Education Health and Care Plan.
• Any child that requires accommodation in a care home, a children’s home or an independent hospital in order to meet their continuing care needs, including under the Children and young people’s continuing care national framework.

“Residential accommodation” in this context includes, but is not limited to, a care home, a children’s home, an independent hospital, a residential school or supported living. A placement into foster care will also constitute residential accommodation.

15.4 This exception applies so as to ensure consistency in the organisations commissioning healthcare services for children who have an ongoing level of contact with and assistance from a local authority.

15.5 For children to whom the exception applies, it operates as follows:

• Where the originating ICB itself arranges, or jointly with a local authority arranges, accommodation for a child in the geographical area of another ICB, then the originating ICB remains the responsible ICB for the services for which ICBs have responsibility for commissioning, even where the child registers with another GP practice in the different ICB’s area.
• In addition, where a local authority alone arranges accommodation for a child in the geographical area of an ICB other than the originating ICB (being the ICB with commissioning responsibility pursuant to the general rules in paragraph 10.2 immediately prior to the local authority making those arrangements), then the originating ICB remains the responsible ICB for the services for which ICBs have responsibility for commissioning, even where the child registers with another GP practice in the different ICB’s area. (ICBs will therefore wish, in their joint work with local authorities, to ensure that robust referral mechanisms are in place, so that ICBs are aware of children being placed out-of-area by the local authority, even if there is no current commissioning or financial liability for the ICB regarding the child.)
• In both cases, the originating ICB only retains responsibility for as long as the child is resident in the accommodation. Responsibility thereafter is determined in accordance with the general rules in paragraph 10.2.

15.6 Note that pupils attending special schools on a day-only basis remain the responsibility of the ICB determined using the general rules in paragraph 10.2, as they cannot be said to be resident in such accommodation.

Effect on responsibility for payment

15.7 Under this exception, the ICB which has responsibility for commissioning the services is also responsible for paying for those services.

Illustrative scenarios

15.8 The scenarios below explain where the exception does and does not apply.

Where a scenario refers to an ICB having responsibility for meeting the costs of all of a child’s health needs, this means the costs of all of the services which an ICB is responsible under the law for commissioning.

15.9 Scenario 1 is a straightforward situation where a child is placed in-area and there is no change to GP registration. In this instance, the exception is not triggered; the general rules at paragraph 10.2 apply.

15.10 Scenarios 2 and 3a describe out-of-area placements where the “originating ICB” exception does apply. Note that, under scenario 3, the exception does apply, even though the “originating ICB” was not involved in making the out of-area placement.

15.11 Scenario 3b makes clear that, where there is an out-of-area placement and the exception applies, the “originating ICB” is responsible for commissioning and paying for all the ICB-commissioned health services which the child may require.

15.12 Scenarios 4 and 5 deal with situations where a child:

• Leaves a residential care setting to which the “originating ICB” exception applies, but where no referral for adult NHS CHC is made.
• Reaches the age of 18 without such a referral being made.

The key point is that – whereas, under the Children Act, a local authority may retain certain responsibilities in respect of those who have left care until they reach the age of 25 – the “originating ICB” ceases, subject to paragraph 16 below, to have responsibility for a child placed in residential accommodation out-of-area from the date at which the child turns 18.

16 Transition to adult continuing care

What is the exception in relation to commissioning responsibility and who does it apply to?

16.1 The exception here applies to certain individuals who have been placed in out-of-area accommodation prior to their 18th birthday and relates to responsibility for their care after they turn 18. The detailed basis for the exception is set out in paragraph 5 of the Schedule of the ICB Responsibilities Regulations.

16.2 The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care describes the process for managing the transition from child to adult NHS CHC and makes clear (paragraphs 365- 67) that local authority children’s services “should identify those young people for whom it is likely that adult NHS Continuing Healthcare will be necessary and should notify whichever ICB will have responsibility for them as adults”. The National Framework sets out that this process should commence when the individual reaches the age of 14 “so that, wherever applicable, effective packages of care can be commissioned in time for the individual’s 18th birthday”.

16.3 As mentioned at paragraph 5.7 above, Who Pays? does not set rules for determining responsibility for commissioning services as between the NHS and local authorities or between local authorities.

16.4 The exception in relation to commissioning responsibility applies where an individual has been placed out-of-area in a care home, children’s home, independent hospital or residential school before they turn 18, with a continuing care package (which must include nursing and another planned, service), remains resident in that accommodation and continues to require the planned service or services provided beyond the age of 18. In such circumstances, responsibility is not determined on the basis of current GP registration under the general rules at paragraph 10.2. Instead, responsibility remains with the originating ICB – that is, the ICB which was responsible for the child, under the general rules at paragraph 10.2, at the point at which the child was placed in residential accommodation, as described in paragraphs 15.4-5 above.

16.5 Where this exception applies, the originating ICB retains commissioning responsibility for the accommodation, and for any planned services in connection with that accommodation, only. Commissioning responsibility for all other NHS services provided to the person, from the age of 18 onwards, is determined in accordance with the general rule at paragraph 10.2 above or other relevant exceptions in this Section D as the case may be.

16.6 Paragraph 5 of the Schedule of the ICB Responsibilities Regulations includes an explicit reference to schools into which a person is admitted in accordance with section 37 of the Children and Families Act 2014 (education, health and care plans), in addition to care homes, children’s homes and independent hospitals, as being a setting that is within the scope of this exception. This represents a change from the original 2012 regulations and the rule contained in the 2020 version of Who Pays? This change has been made following feedback that some packages of continuing care (with nursing) provided in residential educational establishments can be very similar to those provided in other settings such as children’s homes. This change came into effect from 1 July 2022.

16.7 Where, prior to 1 July 2022, a young person aged under 18 had been assessed as being eligible for an adult continuing care package and had been placed in a residential educational establishment with an adult continuing care package including nursing, the introduction of the revised rule did not trigger a change in which ICB funded the NHS element of that care package. The revised rule applies in cases where on or after 1 July 2022 a young person, having been assessed as eligible for an adult continuing care package, is placed in (or remains in) a residential educational establishment with a package of adult continuing care including nursing.

16.8 Note the following points in relation to the operation of this exception:

• It applies only where the individual has been placed for the adult continuing care package by an ICB, or by an ICB and a local authority acting together – not where the individual has been placed by a local authority acting alone.
• It applies only to placements in care homes, children’s homes, independent hospitals or residential educational establishments, not to packages of care provided in individuals’ own homes.
• It applies regardless of how long the individual was in the accommodation prior to turning 18. So, for example, it applies where an individual remains, beyond the age of 18, in the same accommodation in which they were originally placed as a child of, say, 14; but it also applies where (as a result of consideration of their potential continuing care needs as an adult) an individual is placed in different accommodation shortly prior to their 18th birthday.

Effect on responsibility for payment

16.9 Under this exception, the ICB which has responsibility for commissioning the services is also responsible for paying for those services.

Illustrative scenarios

16.10 Scenarios 1a, 1b and 2 provide straightforward examples of how the exception does or does not apply.

16.11 Scenarios 1a and 2 above describe situations where the child-to-adult transition is managed in a timely manner, in accordance with the National Framework as described at paragraph 16.2. There may also be situations, however, where the potential need for NHS CHC only becomes clear after an individual has turned 18 – or where the referral for NHS CHC assessment is delayed because of an oversight. Such scenarios produce a different outcome in terms of NHS responsibility; scenario 3 below clarifies that the responsibility remains with the originating ICB into adulthood only if the residential NHS CHC placement is arranged and commences before the individual turns 18; if the placement is not arranged until after the individual has turned 18, the exception will not apply and responsibility will be determined on the basis of the general rules at paragraph 10.2.

17 Emergency ambulance, A&E and similar services, and services provided in designated community diagnostic centres

Emergency ambulance and A&E services – what is the exception in relation to commissioning responsibility and who does it apply to?

17.1 This exception applies to emergency ambulance services, A&E services and services provided in urgent treatment centres (including minor injury units and walk-in centres).

17.2 The ICB Responsibilities Regulations (Schedule, paragraph 2a) set out the position on responsibility for commissioning emergency ambulance services,  A&E services and services provided in urgent care centres, minor injuries units and walk-in centres. The effect of the Regulations is that – rather than commissioning responsibility being based on the normal GP registration rule at paragraph 10.2 – an ICB is responsible for commissioning these services for everyone present in its geographical area, regardless of GP registration. (By contrast, for those admitted to hospital as inpatients, the general rule at paragraph 10.2 does apply.)

Effect on responsibility for payment

17.3 This is a situation where we have used our powers under section 14Z50 of the 2006 Act, as amended, to state that the rules for determining responsibility for payment are, in certain respects, to be different from the legal position on responsibility for commissioning:

• For emergency ambulance services, responsibility for payment is aligned with commissioning responsibility – so the ICB which pays for a particular emergency ambulance journey is determined by the physical location where the patient ambulance journey commences. In the case of emergency ambulance transfers between hospitals, it is the location of the transferring hospital which determines responsibility for payment.
• But for A&E services and services provided in urgent treatment centres, minor injuries units and walk-in centres, the ICB responsible for paying for a particular patient is not aligned with commissioning responsibility – instead it is determined in accordance with the general rule at paragraph 10.2 (subject to the other relevant exceptions in this section D and except in situations where NHS England is responsible – for example, for members of the armed forces in England).

Illustrative scenarios

17.4 The following table sets out the potential scenarios and the commissioner
responsible for payment in each case:

Services provided in designated Community Diagnostic Centres

17.5 The national Community Diagnostic Centre (CDC) programme has been put in place to create, at pace, significant new diagnostic capacity at local level. The national process has involved submission of business cases to NHS England for capital and revenue funding for CDCs, based on the assessment by each ICB and its partner Trusts of likely local need for such services. All of the approved revenue funding for a CDC has so far been passed from NHS England to the ICB in whose area the CDC site is located – so that the “host” ICB can then pay all of that money to the relevant Trust providing the CDC service, regardless of the fact that some proportion of the activity carried out at that CDC is likely to relate to patients for whom other ICBs have core responsibility.

17.6 In the medium term, NHS England’s intention is to revert to a normal population-based method for providing revenue funding to ICBs in relation to CDC activity. Until further notice, however, the current system of passing all funding for each CDC to the host ICB will remain necessary. For this reason, we are again using our powers under section 14Z50 of the 2006 Act, as amended, to state that the rules for determining responsibility for payment for CDC activity are to be different from the legal position on responsibility for commissioning CDC services.

17.7 For activity undertaken at designated CDCs, the ICB responsible for paying for a particular patient will not necessarily be aligned with commissioning responsibility. Instead, the ICB responsible for paying the Trust for all activity undertaken at the CDC will be the ICB listed in Appendix 1 of NHS Community Diagnostic Centres: Finance and contracting arrangements for 2024/25 (available on the CDC page within Future NHS). The ICB responsible for payment will generally be the ICB within whose area the CDC site is based.

18 Detention under the Mental Health Act and section 117 aftercare

The effect of the “Worcestershire” decision

We have been asked to clarify whether the Supreme Court’s judgement in the “Worcestershire” case (R (on the application of Worcestershire County Council) (Appellant) v Secretary of State for Health and Social Care) affects the operation of the rules for determining ICB responsibility for patients detained and receiving aftercare under the Mental Health Act 1983.

The position under the ICB Responsibilities Regulations, under which the originating ICB retains responsibility for care during subsequent detentions, even if the patient moves to a different part of the country, is not affected by the Supreme Court’s judgment.

The case of R was concerned with a situation where, after being discharged from hospital the person in question moved from the area of one local authority (Worcestershire) to the area of a second local authority (Swindon). In accordance with section 117(3), Worcestershire provided her with aftercare. But when she was then detained in hospital for a second time, the court held that Swindon was responsible for her aftercare, on the basis that Worcestershire’s duty to provide aftercare ended when she was detained a second time.

In the case of the ICB Responsibilities Regulations, the continuing obligation of the originating ICB derives from the regulations, not section 117(3) itself. In particular, regulations 5 and 7 have the effect that, if an ICB has core responsibility for a patient individual when a “relevant application” is made for detention, then it retains responsibility for commissioning mental health services during detention and aftercare even if it would otherwise not be responsible (eg because the patient had moved out of area). A relevant application is an application made either before or after an “exclusion period” beginning with detention and ending with a person’s “next discharge from aftercare services”. So, unlike the local authority position in Worcestershire, a second detention made before the person is actively discharged from after care does not bring to end the responsibility of the originating ICB.

Similarly, where under the transitional provisions in regulation 6, an ICB had core responsibility for a person who was detained or in aftercare on 1 July 2022, the responsibility for mental health services continues during any second or subsequent detention and related aftercare, and is not brought to end by a second or subsequent detention, only by an active discharge from aftercare.

ICBs should therefore continue to apply the rules for determining responsibility for detention and aftercare as set out below.

Background

18.1 In the 2020 version of Who Pays? we sought to address confusion – and remove some perverse incentives – around NHS responsibilities for commissioning and payment where, under the Mental Health Act, patients (whether adults or children) are detained in hospital and where, following discharge, they then receive aftercare (“section 117 aftercare”). We established a separate rule on CCG responsibility for paying for detention and aftercare services, so that – in summary – the CCG which was responsible for the patient at the point of initial detention under the Act retained responsibility for paying for the detention, subsequent aftercare and any further detentions / aftercare until the patient was ultimately discharged
from aftercare. This was different from the position set out in legislation, at that point, on CCG responsibilities for commissioning detention and aftercare services.

18.2 From 1 July 2022 onwards, the position is much simpler – because the new ICB Responsibilities Regulations now align the legislative position on responsibility for commissioning detention and aftercare services with the rule on responsibility for paying providers which was introduced in the 2020 version of Who Pays? The new arrangements are described below.

What is the exception in relation to commissioning responsibility and who does it apply to?

18.3 For individuals who are detained under the Mental Health Act for the first time on or after 1 July 2022 (including where they are detained for the first time following discharge from s117 aftercare provided after a previous detention), the position on commissioning responsibility will be as follows  
and the same rule will also apply to payment responsibility.

• NHS England will be responsible for commissioning and payment for any period where the patient is treated by a prescribed specialised service.
• In respect of ICB-commissioned detention and aftercare services, the ICB responsible for commissioning and payment will be determined on the basis of the general rules at paragraph 10.2 above, applied at the point of the decision to initially detain the patient in hospital under the Act (whether for assessment or treatment). This ICB will be known as the “originating ICB”.
• This originating ICB will then retain responsibility for commissioning and payment throughout the initial detention (including any period of informal admission following detention, during which the patient is no longer detained but remains in hospital voluntarily), for the whole period for which any s117 aftercare is provided and for any subsequent repeat detentions or voluntary admissions from aftercare, until such point as the patient is finally discharged from s117 aftercare – regardless of where the patient is treated or placed, where they live or which GP practice they are registered with.

18.4 To clarify further:

• For individuals whose initial detention under the Act (whether ICB or NHSE-funded) took place after 1 September 2020 but before 1 July 2022, the position is as per paragraph 18.6 of 2020 Who Pays? – in respect of ICB-commissioned detention and aftercare services, the ICB responsible for payment will be determined on the basis of the general rule at para 10.2 applied at the point of the decision to initially detain the patient in hospital under the Act.
• Detention for assessment under s2 of the Mental Health Act does not trigger a right to s117 aftercare –but it does constitute detention for the purposes of the rule at paragraph 18.3; so if a patient is detained under s2 for assessment and then, while they are in hospital, this becomes an s3 detention for treatment, the ‘point of initial detention’ will be the date of the s2 detention.
• Removal by the police to a place of safety under s136 of the Act does not constitute detention for the purposes of the rule at paragraph 18.3.
• The arrangements set out in paragraph 18.3 do not apply where an individual is deprived of their liberty under the Mental Capacity Act but is not detained pursuant to the Mental Health Act; in that instance, the general rule at paragraph 10.2 applies
• S117 aftercare services are services which are intended to meet a need that arises from or relates to an individual’s mental health condition and which reduce the risk of deterioration in the individual’s mental health which could otherwise lead to re-admission to hospital; an individual receiving s117 aftercare may therefore also be eligible for FNC or continuing care (see paragraph 41 of the NHS-funded Nursing Care Practice Guidance and paragraph 339 of the National Framework respectively); in such cases, payment responsibility for the FNC / continuing care will be determined separately under the rules in paragraphs 11.14-18 and paragraph 14 as applicable.

18.5 In this guidance we do not seek to describe how mental health services should be commissioned or how ICBs should work together to ensure that patients receive care that is appropriate to their needs, for example where a patient receiving s117 aftercare that is organised and paid for by ICB A but is actually delivered by a provider located in the area of ICB B where the patient is now resident. Materials are available to support commissioners and providers, such:

• As the DHSC’s Mental Health Act Code of Practice which sets out to “encourage commissioners of services, health and care providers and professionals to deliver a holistic, whole person approach to care that is reflective of clinical best practice and quality”.
• DHSC’s Discharge from mental health inpatient settings, which sets out how health and care systems should support the discharge of people from mental health inpatient settings.

18.6 We are aware that there may be occasions where it is clinically necessary for someone to be admitted to an acute mental health bed before it has been possible to identify the responsible commissioner. Where this happens, the provider must make every effort, without delay, to establish which commissioner is responsible for funding the patient’s care – and the relevant commissioners must engage with, and support, the provider in doing this This will help to avoid disputes and ensure that the provider is paid in a timely manner.

Transitional arrangements for payment

18.7 Where a patient is detained in hospital for the first time on or after 1 July 2022, responsibility for commissioning and payment will be determined on the basis of the arrangements set out in paragraphs 18.3-4 above.

18.8 For patients already detained in hospital or receiving aftercare before 1 July 2022, NHS England continues to mandate (using its 14Z50 powers, as described in paragraph 4.5 above) the following transitional requirements (first set out in 2020 Who Pays?) in relation to payment responsibility for detention and aftercare. These transitional arrangements continue to operate by reference to the date when the 2020 version of Who Pays? came into effect – that is, 1 September 2020:

• Where, at 1 September 2020, a patient had been discharged from detention and was already receiving s117 aftercare, funded in part or whole by a CCG, that CCG (and its successor ICB where applicable) will remain responsible for funding the aftercare – and any subsequent further detentions or voluntary admissions – until such point as the patient is discharged from s117 aftercare.
• Where, at 1 September 2020, a patient was detained in hospital funded by a CCG, that CCG (and its successor ICB where applicable) will be responsible for funding the full period of detention and any necessary NHS aftercare on discharge – and any subsequent further detentions or voluntary admissions – until such point as the patient is discharged from s117 aftercare.
• Where, at 1 September 2020, a patient was detained in hospital funded by NHS England, the CCG/ICB which will be responsible for funding any further detention in a CCG/ICB-funded hospital setting and any necessary NHS aftercare (including any subsequent further detentions or voluntary admissions, until such point as the patient is discharged from s117 aftercare) will be determined as set out in paragraph 18.3 above – that is, on the basis of the general rules at paragraph 10.2 above, applied at the point of the decision to initially detain the patient in hospital under the Act.

Illustrative scenarios

18.9 The table below sets out how responsibility for payment is to be determined in specific scenarios.

18.10 Scenario 1a describes a straightforward situation where a patient is detained in hospital in, and receives aftercare in, their own local area, with no change in GP registration.

18.11 Scenarios 1b, 2a and 2b illustrate that the originating ICB retains responsibility for payment for detention and s117 aftercare, regardless of registered GP and location of treatment or residence – but that responsibility for payment for other NHS services is determined on the basis of the general GP registration rule at paragraph 10.2.

18.12 Scenario 2c demonstrates that the originating ICB retains responsibility for payment for detention and aftercare, even where – while still in receipt of aftercare – a patient has to be detained in hospital for a second time.

18.13 Some services in which patients are detained in hospital are commissioned by NHS England as prescribed specialised services, whereas others are commissioned by ICBs. Scenarios 3 and 4 illustrate how the rules apply where an individual is first detained in NHS England-commissioned accommodation and is then, while still detained, “stepped-down” into an ICB commissioned setting.

18.14 Following a period of detention, some patients may stay in hospital on a voluntary basis, prior to discharge and s117 aftercare. Scenario 5 makes clear that, in this situation, responsibility for payment remains with the originating ICB, including for the voluntary stay in hospital.

18.15 Scenario 6 shows that the originating ICB ceases to retain responsibility for payment for detention and aftercare once a patient has been discharged from aftercare. If the same patient is then detained in hospital again after this point, responsibility for payment is determined afresh, on the basis of the rule set in paragraph 18.3 above.

18.16 Scenario 7 addresses a scenario involving crossover between the arrangements for children placed out-of-area (under paragraph 15 above) and for detention in hospital under the Mental Health Act and subsequent s117 aftercare (in this section).

18.17 Paragraph 18.4 above clarifies the interplay between these arrangements for s117 aftercare under the Mental Health Act and the arrangements in paragraphs 11.14-18 for FNC and in paragraph 14 for continuing care. But it is also important to consider a situation where an adult patient receiving a package of continuing care (whether in their own home or in a residential care setting) is detained in hospital under the Mental Health Act. In such a case, responsibility for commissioning and payment will be determined afresh, using the rules set out in this paragraph 18, as illustrated in scenario 8 below.

19 Cross-border issues within the UK

Overall responsibilities

19.1 Regulation 2 of the ICB Exceptions Regulations provides that an ICB is not responsible for commissioning healthcare services for a patient who is registered with a GP practice associated with that ICB, but who is usually resident in Scotland, Northern Ireland or Wales. However, the complexity of the position along the England/Wales border is recognised, where frequently English residents are registered with a Welsh GP and vice versa, requiring specific arrangements with regard to the commissioning and payment for healthcare services to have been agreed (see paragraph 19.2 below).

19.2 Specific arrangements have been agreed between NHS England and the Welsh Government relating to responsibilities for commissioning and payment for patients living in defined areas along the England / Wales border. These arrangements apply to Flintshire, Wrexham, Powys, Monmouthshire and Denbighshire in Wales and the geographical areas in England that were covered by West Cheshire CCG, Shropshire CCG, Gloucestershire CCG, Herefordshire CCG, South Cheshire CCG, Wirral CCG and Telford and Wrekin CCG. They are set out in England / Wales Cross Border Healthcare Services: Statement of values and principles.

Commissioners should continue to refer to this for detailed guidance on issues relating to the defined border areas.

19.3 Attribution of responsibility to individual Health Boards in Scotland or Local Health Boards in Wales is a matter for the separate guidance published by the Scottish and Welsh Governments, referred to in paragraph 5.5 above.

Patients who move across borders within the UK

19.4 The general rules for patients moving across UK borders are set out below in paragraphs 19.5-6. But note also the specific arrangements which apply in respect of continuing care and registered nursing care (paragraphs 19.7-8), children placed out-of-area (paragraph 19.9), emergency care (paragraphs 19.10-12) and mental health services (paragraph 19.13).

19.5 Subject to the separate arrangements in relation to the defined English /Welsh border areas set out in the Statement of Value and Principles (see paragraph 19.2 above), the following will apply:

• Where a patient moves their usual residence across the border from England to Scotland, Wales or Northern Ireland, the responsible body will be the one where the person is now usually resident (this is the case even if the patient has not yet de-registered from his or her previous English GP)
• Where a patient moves their usual residence across the border from Scotland, Wales or Northern Ireland to England, then the relevant ICB will become the responsible body (or NHS England will, for services which it commissions).

19.6 In the latter case, if the patient has deregistered from their original GP and registered with a new one in England, the responsible ICB will be identified on the basis of the new GP. If the patient has not yet deregistered from their original GP, the responsible ICB will be determined on the basis of the patient’s new usual residence.

Cross-border arrangements for continuing care and registered nursing care

19.7 Where an English ICB arranges a cross-border package of residential continuing care (other than a package that is only NHS-funded nursing care) in Scotland, Wales or Northern Ireland, the “placing ICB  exception described in paragraph 14 applies and the ICB will remain responsible for commissioning and payment for that person’s care package until that episode of care has ended. This is a reciprocal arrangement; in cases where people are assessed as eligible for CHC, and are placed by the Scottish, Welsh or Northern Irish health board in a care home in England, the placing health board will remain responsible for funding the care home placement.

19.8 As set out in Care and Support Statutory Guidance (paragraphs 21.48-50), where an ICB arranges the placement of an individual who is eligible for NHS-funded nursing care in a nursing home in Wales, the receiving Local Health Board is responsible for meeting the costs of nursing care. This is a reciprocal arrangement, so where a Local Health Board arranges the placement of an individual eligible for NHS- funded nursing care in a nursing home in England, the ICB is responsible. By contrast, where such placements are made across the borders between England and Scotland or Northern Ireland, it falls to the relevant NHS body in the “placing” country to meet the costs of nursing care.

Cross-border arrangements for children placed out-of-area

19.9 The arrangements described in paragraphs 15 and 16 above, in relation to children placed out-of- rea and transition to adult continuing care:

• Do apply to individuals placed across the border from England into Wales and vice versa.
• Do not apply to individuals placed across the borders between England and Scotland or Northern Ireland.

Cross-border arrangements for patients receiving emergency care

19.10 To clarify how the arrangements for the funding of emergency care, set out in paragraph 17 above, apply in a cross-border scenario:

• Where a patient usually resident in Scotland, Wales or Northern Ireland attends an English A&E department (or urgent treatment centre, minor injury unit or walk-in centre), the responsibility for payment falls to the host ICB for the provider concerned – that is, the ICB in which the A&E provider is based.
• Where a patient usually resident in Scotland, Wales or Northern Ireland is transported by an English emergency ambulance service, the responsibility for payment falls to the ICB in which the ambulance journey commenced.
• where a patient usually resident in Scotland, Wales or Northern Ireland requires emergency inpatient admission to a hospital in England, responsibility for payment falls to the relevant NHS body in Scotland, Wales or Northern Ireland, not to an ICB.

19.11 The same principles apply, broadly, in reverse to patients usually resident in England being treated in Scotland, Wales or Northern Ireland.

19.12 Note that the 2023-25 NHS Payment Scheme provides further guidance, at section 2.6, on where English “national tariff” rules and prices do and do not apply in these cross-border scenarios.

Cross-border arrangements for mental health patients

19.13 Cross-border arrangements in relation to mental health patients detained in hospital may be complex, and commissioners may need to seek specific advice on individual cases. The following guidelines will generally apply, however:

• Where a patient resident in Scotland, Wales or Northern Ireland has to be detained for assessment or treatment under the Mental Health Act in a hospital in England, the costs will fall to the English NHS to fund (that is, to NHS England or to an ICB, depending on the exact service being commissioned). Note, however, that this is not a reciprocal arrangement.
• Where such a patient is then discharged from hospital for aftercare, responsibility for funding any NHS element of this will be determined (as between the English NHS and Scotland, Wales or Northern Ireland) on the basis of the individual’s usual residence in accordance with paragraph 19.5 above.
• Where this results in the English NHS funding both detention and aftercare, the payment rules set out in paragraphs 18.3-4 above should apply, in terms of how the responsible ICB should be determined.

Section E: Clarifying the boundaries of responsibility between ICBs and NHS England

20 Introduction

20.1 This section deals with those services which, by statute, fall to NHS England to commission – although the 2022 Act allows NHS England to delegate its responsibility for commissioning particular services to ICBs, as described further in paragraph 26 below.

20.2 The examples provided in paragraphs 21-24 below are particularly aimed at clarifying responsibility where there is more than one commissioner during the course of a patient pathway. They are not exhaustive but, where possible, set out some principles that can be applied more widely.

21 Prescribed specialised services

21.1 NHS England is responsible for commissioning prescribed specialised and highly specialised services, as set out in the Standing Rules Regulations.

The Specialised Services Manual and Identification Rules describe how these services are to be identified.

Detailed tools to assist with identification are also published by NHS England.

22 Armed forces and veterans

22.1 The Ministry of Defence (MOD) is responsible for the primary medical services for members of HM Forces and other military personnel (including NATO personnel), through Defence Medical Services (DMS). The MOD provides primary care, occupational mental health services and community rehabilitation services to serving members of the Armed Forces (including mobilised reservists).

22.2 Dependants of members of HM Forces can remain registered with their NHS GP practice or apply to register with another GP practice when they wish to do so – e.g. when they move. However, dependants can alternatively choose to register with a DMS practice (where this is available) and access primary medical services through a HM Forces member’s entitlement to DMS. Dependants cannot register with DMS dental services except when overseas.

22.3 Respective responsibilities of NHS England and ICBs for commissioning and paying for services for serving personnel and their families can be summarised as follows.

22.4 ICBs are responsible for:

• Out-of-hours primary medical services for all patients in their area which includes serving personnel and their families registered with DMS practices (this is funded by the MOD and paid for by an annual transfer of resources).
• Community and mental health services for armed forces patients (serving and dependants), as funding has never transferred from ICBs to NHS England for these services.
• Emergency ambulance services for those armed forces patients (serving and dependants) present in their areas.
• Armed forces patients and their dependants who are stationed overseas and who return to England for a course of treatment (such patients are dealt with under the arrangements for overseas visitors set out in paragraphs 11.9-11 above).
• Health services for veterans and reservists (when not mobilised).

22.5 NHS England is responsible for:

• Acute hospital services (including A&E attendances) for members of the armed forces and their families, where they are registered with a DMS practice in England, and for reservists whilst mobilised and registered for primary care services with a DMS practice in England.
• Prosthetic services for veterans through specialised commissioning arrangements.
• Specific bespoke veterans’ mental health services including Op Courage.

22.6 NHS England may also arrange a small number of packages of health care for seriously injured or ill members of the armed forces, or their families, if registered with a DMS practice in England. NHS England is only responsible for such packages whilst the patient is registered with a DMS practice. After the patient leaves the armed forces, responsibility will transfer to the appropriate ICB, determined by reference to the general rules at paragraph 10.2 above.

22.7 The following examples illustrate respective responsibilities.

Specific infertility treatment examples

23 Prisoners and those detained in ‘other prescribed accommodation’

23.1 NHS England is responsible for commissioning health services (excluding emergency care) for people in prisons and, in most cases, those detained in ‘other prescribed accommodation’ (as set out in the Standing Rules Regulations).

23.2 NHS England’s responsibilities include prisons, young offender institutions, secure children’s homes, immigration removal centres and secure training centres. Note however that, for the present, health services for individuals detained in Oakhill secure training centre are arranged by the Youth Custody Service, rather than by NHS England.

23.3 ICBs are responsible for commissioning emergency care, including A&E and ambulance services as well as out-of-hours primary medical services1, for prisoners and detainees present in their geographical area. ICBs are also responsible for commissioning health services for adults and young offenders serving community sentences and those on probation and health services for initial accommodation for asylum seekers.

23.4 There may be circumstances in which someone is mentally ill in prison during their sentence or whilst on remand to a degree that requires referral and assessment under the Mental Health Act and, if deemed appropriate, transfer to an inpatient mental health, learning disability or autism inpatient hospital. In order to reduce the risk of unnecessary delays in assessment or treatment, it is important to be able to identify the ICB responsible for funding a patient’s care upon transfer to the inpatient mental health hospital. An increase in the number of prisoners who choose to register with a prison GP practice, and who are thus automatically removed from a community GP list, may lead to an increase in the number of cases where in the absence of a community GP registration, it is necessary to fall back on ‘usual residence’ in order to establish the responsible ICB. This is because prison GPs are not associated with an ICB in the same way that community GPs are, and so registration with a prison GP service is not a factor in determining the responsible commissioner in accordance with Who Pays? rules.

23.5 For the avoidance of doubt, the location of the index offence has not been a material consideration in determining the responsible commissioner since the publication of the 2013 version of Who Pays?

23.6 When there is a need to identify the responsible ICB for a person in prison who requires assessment and may require transfer to an inpatient mental health setting, the following three steps should be followed:

• When there is a need to identify the responsible ICB for a person in prison who requires assessment and may require transfer to an inpatient mental health setting, the following three steps should be followed.
• Is the person still registered with their previous community GP (ie the GP registration before they went to prison)? If so, the ICB with which that GP practice is associated will be responsible.
• If there is no current registration with a community GP, can the person give a usual residence outside of prison? If so, the location of that usual residence will determine the responsible ICB.
• If there is no current community GP registration and it proves impossible to establish usual residence (having followed the guidance in Appendix 2), then the person must be considered to be usually resident where they are physically present, that is, in the prison – so the ultimate default would be that the ICB in whose area the prison is geographically located would be responsible.

23.7 There may also be circumstances in which someone who is nearing the end of their prison sentence may need to be referred to ICB-funded community mental health services upon release from prison. The responsible commissioner for this community mental health care should be identified in accordance with the general rule at paragraph 10.2, ie community GP registration or, in the absence of a community GP registration, usual residence.

23.8 The following examples illustrate respective responsibilities.

24 Primary care

24.1 NHS England is responsible for commissioning primary care services. This includes:

• Essential and additional primary medical services through GP contracts and nationally commissioned enhanced services.
• Out-of-hours primary medical services (where practices have retained the responsibility for providing OOH services).
• Pharmaceutical services provided by community pharmacy services, dispensing doctors and appliance contractors.
• Primary ophthalmic services, i.e. NHS sight tests and optical vouchers;
• All dental services, including primary2 , community and hospital services3 and urgent and emergency dental care.

24.2 ICBs are responsible for commissioning the following related services:

• Out-of-hours primary medical services (where practices have opted out of providing OOH services under the GP contract).
• Community-based services that go beyond the scope of the GP contract (akin to previous Local Enhanced Services).
• Meeting the costs of prescriptions written by member practices (but not the associated dispensing costs).
• Secondary ophthalmic services and any associated community-based eye care services.

24.3 The following examples illustrate respective responsibilities.

25 Public health services

25.1 Regulations5 set out requirements on local authorities in respect of the provision of certain public health services, and DHSC makes ring-fenced public health grants to local authorities, and these grants are accompanied by conditions setting out how they are to be used.

25.2 NHS England commissions certain public health services in accordance with the Section 7A public health functions agreement and the national service specifications available at https://www.england.nhs.uk/commissioning/pub-hlth-res/.

26 Delegation of responsibilities from NHS England to ICBs

26.1 The 2022 Act enables NHS England to delegate to an ICB any or all of its statutory functions for directly commissioning healthcare services and paying providers for them.

26.2 In each case where this happens, a Delegation Agreement will be put in place between NHS England and the ICB, to record what is being delegated, including in respect of which services, providers and/or population the ICB is taking responsibility.

26.3 As at March 2024, NHS England has delegated – to each ICB in England – functions relating to the commissioning of primary medical care services, community pharmacy services, general ophthalmic services and primary, community and secondary care dental services. From 1 April 2024, functions relating to the commissioning of some prescribed specialised services are expected to be delegated to some ICBs. Delegation is likely to be expanded further from April 2025 onwards.

Appendix 1 – dispute resolution process

1. This Appendix sets out principles which apply where there is disagreement about a responsible commissioner issue between ICBs, or between ICBs and an NHS England commissioning team, and describes the formal dispute resolution process to be followed where a disagreement cannot be resolved
locally.

Coverage

2. This process applies only within the NHS in England. It does not apply to disputes involving an NHS commissioner and a local authority, nor does it apply to cross-border disputes within the UK.

3. Note, however, the separate process for dispute resolution between NHS bodies in England and Wales set out in England / Wales Cross Border Healthcare Services: Statement of values and principles.

Principles

4. The key principles underpinning the process are set out below.

a) We strongly recommend that commissioners do not spend public money on taking external legal advice on Who Pays? matters.
b) Rather, in cases of uncertainty or disagreement, commissioners should jointly seek advice, either:

• On specific topics from relevant officers in the regional teams of NHS England (such as regional leads for Continuing Healthcare or Transforming Care).
• From the national team at NHS England via the email helpdesk.

c) Disagreements about payment responsibility between NHS commissioners must not:

• Delay a patient’s necessary assessment, care or treatment.
• Result in the patient or family, or a local authority, having to pay for care or treatment which should have been funded by the NHS.
• Mean that a provider which is properly providing clinically appropriate services to a patient remains unpaid.

d) Where substantive disagreements arise, which cannot be resolved swiftly at local level, the commissioners involved must agree a) that one of them will make arrangements for the patient to be assessed and to receive necessary care or treatment and b) that they will share the costs equally between them, on a “without prejudice” basis, pending resolution of the disagreement. That way, the patient’s assessment, care and treatment will not be delayed, and the provider will be paid promptly. (Once the dispute is resolved, whether through local agreement or this arbitration process, an appropriate refund should be made by the commissioner which has been found to be responsible to the other commissioner, to repay the amount which the latter has paid under the “without prejudice” arrangement.)

e) If – despite advice having been sought and provided as described above – a substantive disagreement does persist about which commissioner should pay for a patient’s care and treatment, the commissioners involved must follow the process set out below. Participation, in and cooperation with, this process is mandatory, and the outcome will be binding on the parties.

f) Where a third party (a provider or a local authority) encounters sustained difficulties in establishing which NHS commissioner is responsible for a particular individual, it may seek assistance from the national team.

g) In accordance with paragraph 1.12 of the Executive Summary, any disputes must be initiated promptly, and commissioners must not seek to re-open historic cases. The maximum retrospective financial adjustment between commissioners, required as a result of an arbitration, will be to the beginning
of the financial year in which the dispute was formally initiated.

Step by step approach

Step 1 – local resolution

5. Before the formal dispute resolution process is initiated, the parties must ensure that discussion is held between them at Director level, so that a final attempt can be made, in good faith, to resolve the matter by agreement.

6. The parties should ensure that, to inform this discussion, they have jointly taken advice as described at 4b) above.

Step 2 – arbitration through NHS England national team

7. If the action at points 5-6 is unsuccessful in resolving a dispute, the commissioners involved should jointly submit a single, agreed, factual chronology for the case to the NHS England national team, asking the national team to arbitrate. The chronology must make clear the period for which payment responsibility is in dispute and provide all of the relevant background information – where the patient has been treated and in what circumstances, which organisation has arranged and funded treatment or placements to date, the patient’s history of GP registration and usual residence and all other relevant factors. Whichever organisation submits the chronology must ensure that the relevant senior representatives of the other parties to the dispute are copied in.

8. The national team will then require the parties to clarify any aspects of the joint chronology as necessary, and, once this is complete, to submit separate “statements of case”, describing, for each organisation – with reference to this Who Pays? guidance and to legislation or other guidance as appropriate – why it believes that it should not be considered the responsible commissioner in the case.

9. Templates for completion of the chronology and “statements of case” are attached at Appendix 3.

10. The national team will then use the chronology and statements of case to produce a brief arbitration report for the local parties, identifying, with reasons, the organisation responsible for commissioning and paying for the services during the period in dispute. The national team may seek further information from the parties where it deems necessary, and the parties must cooperate fully in supplying such information promptly.

11. The national team’s arbitration findings must in all circumstances be considered binding on the local parties and they must act on those findings accordingly.

12. Where, for any reason, one commissioner will not engage in a process to seek local resolution (paragraph 5 above) or the preparation of an agreed chronology (paragraph 7 above), the other commissioner may nonetheless refer the matter to NHS England for arbitration. This should however be wholly exceptional.

13. Where the national team considers that either party has failed to co-operate in the process (including where either party refuses to submit information or statements required for the process or fails to do so, without reasonable justification, to the timescale required by the national team), the national team may, at its discretion, take this into account in reaching its arbitration decision.

Timescales

14. The normal expectation will be that the arbitration report will be available within approximately eight weeks from the date by which both parties have submitted their statements of case.

Costs

15. Subject to the volume of cases remaining at a manageable level, arbitrations  will be carried out by the national team, and there will be no charge to the local parties for entering arbitration. However:

• In complex cases, the national team may, at its sole discretion, seek legal advice from a firm of solicitors from NHS England’s national legal panel; the actual costs of such advice will be re-charged to the local parties on the basis of an equal split.
• Where one of the commissioners involved in the dispute is NHS England itself, and any of the other parties involved objects to NHS England itself conducting the arbitration, NHS England will instruct a firm of solicitors from NHS England’s national legal panel to conduct the arbitration and produce a report; the actual costs of such arbitration will be re-charged to NHS England and the local parties on the basis of an even split.
• In exceptional circumstances, if the volume of disputed cases outstrips capacity within the national team, the team may, at its sole discretion, outsource responsibility for conducting the arbitration and producing a report to external solicitors; in such cases, the actual costs will again bere-charged to the local parties on the basis of an equal split.

Confidentiality

16. The parties must ensure that no patient-identifying information is submitted to the national team. Documents must be redacted where necessary, before submission, to remove any patient-identifying information.

Appendix 2 – defining “usually resident”

1. It is important to note that:

• The ‘usually resident’ test must only be used to establish the responsible commissioner when this cannot be established based on the patient’s GP practice registration.
• ‘Usually resident’ is different from ‘ordinarily resident’. If a person is not ordinarily resident in the UK and they or their treatment are not covered by an exemption in regulations, then they are liable for NHS hospital treatment costs themselves. The ‘usually resident’ test may still be needed to establish the responsible commissioner for non-hospital services.
• By contrast, local authority responsibility in relation to the public health services they commission is based on a duty to take steps to improve the health of the people in their area. The duty is not limited to residents, or people permanently in the area. It can include people who are only temporarily in the area, e.g. a visiting student or worker, or a tourist, or a commuter. It is therefore for the local authority to determine who is the relevant population (residents or wider) in relation to the services they commission 6 , deciding whether any step to improve their health is appropriate, given their resources, other priorities etc.
• Local authority responsibility for the provision of accommodation and community care services is largely based on the concept of ‘ordinary residence’ (explained further in chapter 19 of the Care and support statutory guidance).

2. The main criterion for assessing ‘usual residence’ is the patient’s perception of where they are resident in the UK (either currently, or failing that, most recently). The same principles apply in determining usual residence for determining which ICB has responsibility for arranging care for a patient.

3. Where the patient gives an address, they should be treated as usually resident at that address.

4. Certain groups of patients may be reluctant to provide an address. It is sufficient for the purpose of establishing usual residence that a patient is resident in a location (or postal district) within the ICB geographical area, without needing a precise address. Where there is any uncertainty, the provider should ask the patient where they usually live. Individuals remain free to give their perception of where they consider themselves resident.

Holiday or second homes should not be considered as “usual” residences.

6 Apart from sexual health services – under regulations local authorities are required to commission
certain specified sexual health services on an open access basis for all people present in the area and cannot limit the population for these services.

5. If patients consider themselves to be resident at an address, which is, for example, a hostel, then this should be accepted. If they are unable to give an address at which they consider themselves resident, but can give their most recent address, they should be treated as usually resident at that address.

6. Another person (for example, a parent or carer) may give an address on a patient’s behalf.

7. Where a patient cannot, or chooses not to, give either a current or recent address, and an address cannot be established by other means such as through reference to GP registration history, they should be treated as usually resident in the place where they are present.

Appendix 3 – word templates for submissions under the dispute resolution process

Both parts of this form 3A are to be completed jointly by both (or all) the commissioners involved in the dispute and submitted as a Word document to england.responsiblecommissioner@nhs.net.

By submitting this document, each commissioner agrees to be bound by any arbitration finding provided by NHS England and agrees to meet costs, where applicable, in accordance with Appendix 1 of Who Pays?

Download the Word templates for submissions under the dispute resolution process.

Publication approval reference: PRN00887