Financing arrangements that are novel, contentious or repercussive
This page forms part of a suite of guidance setting out the processes for reviewing and assuring complex change, including transactions between NHS trusts and foundation trusts.
Scope of this guidance
Where providers propose financing arrangements that we consider to be novel, contentious or repercussive (regardless of value), we may decide to review the proposed arrangements to understand the level of risk trusts are exposed to.
Where financing arrangements are already being considered as part of capital proposal assurance processes elsewhere within NHS England, we will not duplicate this work.
Our role in reviewing certain financing arrangements that are novel, contentious or repercussive falls under our general responsibilities to ensure foundation trusts can comply with the conditions of their provider licence, and the equivalent of these conditions for NHS trusts.
Reporting and risk assessment
There is no financial threshold in relation to novel, contentious or repercussive financial arrangements; all such arrangements are reportable.
Trusts and ICSs considering financing arrangements that could reasonably be considered to be novel, contentious or repercussive should discuss these with their NHS England regional team at the earliest opportunity.
NHS England will then take a view on the level of potential risk and whether an assurance process is required. This assessment will be made with reference to applicable elements of the risk assessment framework in Section 2 of Assuring and supporting complex change: Statutory transactions, including mergers and acquisitions. The risk assessment process will also incorporate a decision on whether the transaction is significant or material, as defined in the guidance.
The scope of any assurance process will depend on the nature of the financing arrangement in question. The approach could incorporate some or all of the key lines of enquiry and broader process set out in Assuring and supporting complex change: Statutory transactions, including mergers and acquisitions. Further key lines of enquiry may need to be explored based on the nature of the proposed arrangement.
Following an assurance process, one of our committees will make a decision regarding support for the proposed arrangement. This will be communicated to trusts in a letter outlining a narrative outcome of the review. In some cases, further approvals may also be required from other bodies such as DHSC or HM Treasury.
It is for the trust to decide whether or not to proceed with the financing arrangement, but we may use enforcement powers to stop a financing arrangement from proceeding if we have significant concerns.