NHS England’s updated Who Pays? guidance: what NHS commissioners need to know

New updated Who Pays? guidance is key reading material for the newly formed Integrated Care Boards who now have responsibility for the commissioning functions previously held by CCGs. The updated guidance takes effect from 1 July 2022 and replaces the earlier 2020 version of Who Pays?.

New regulations supporting the commissioning arrangements introduced by the Health and Care Act 2022 have also been published and came into force on 1 July.

While legislation underpinning Who Pays? is changing, the guidance makes clear that the new arrangements from 1 July will “in practice provide a very high level of continuity with the rules which have applied under the 2020 version of Who Pays?”, which will provide comfort for busy commissioners.

So what is changing?

We summarise in broad terms the three key changes, but sections where material changes have been made from, or additions to, existing guidance have been highlighted in yellow by the NHSE team.

People for whom an ICB is to have core responsibility

Previously under CCG arrangements, the default position has been that responsibility falls to the CCG of which the patient’s current registered GP practice is a member. However GP practices will not be a member of ICBs in the same way. This Who Pays guidance sets out these new rules – in short, a list of GP practices associated with each ICB.

The rule is that responsibility will fall to the ICB with which the patient’s registered practice is associated. The association of practices with ICBs is based on the historic CCG membership of each practice, so there will be continuity with current arrangements.

Responsibility for patients not registered with a GP will continue to fall to the ICB in whose area the patient is usually resident, as was the case with CCGs.

Responsibility for detention and aftercare under the Mental Health Act

The arrangements for determining NHS responsibility for commissioning detention and aftercare services under the Mental Health Act are changing under the new regulations. In short, their effect will be to bring the legislative position on responsibility for commissioning these services into line with the rules on payment responsibility which have been set in Who Pays? since 2020.

Here’s an example for you, illustrating the “care closer to home” agenda, avoiding incentives for ICBs to place patients out-of-area in order to avoid retaining responsibility:

Where an individual is first detained under the MHA, the ICB which has core responsibility for them under NHSE’s rules at that point is responsible for arranging and paying for:

  • the detention in hospital and associated services; and
  • (with the relevant local authority) the subsequent section 117 aftercare, until such point as the patient is discharged from aftercare or dies (including for any subsequent re-detentions in hospital and further periods of aftercare)

Transition to adult continuing care placement

The important change here relates to children and young people who transition into adult continuing care placements. The change means that placements in residential education establishments are to be treated in the same way as those in care homes, children’s homes and independent hospitals – namely that responsibility remains with the originating ICB – that is, the ICB which was responsible for the child at the point at which the child was placed in residential accommodation.

This revised rule will apply to assessments for adult continuing care from 1 July 2022 onwards.

A word on implementation and transition

The guidance offers some clarity for commissioners grappling with the new rules in a couple of areas.

  • If a patient is starting a new course of treatment, identifying the responsible ICB with effect from 1 July will be a matter of applying the new Who Pays? rules.
  • What about care pathways which are ongoing at 1 July 2022? Responsibility will transfer from a CCG to its successor ICB and this will be the case in two areas:
    • Where the CCG was the “placing CCG” in respect of an individual’s NHS funded adult continuing care; and
    • Where a CCG was the “originating CCG” in respect of a looked-after child placed out-of-area

There are separate transitional arrangements for responsibility for detention and aftercare under the MHA.

Supporting you

Do get in touch if you would like to discuss the new Who Pays? guidance or if you have a tricky responsible commissioner matter you’d like to discuss – we have a friendly and expert team ready to support you.

Katrina McCrory and Molly Sanghera

Our content explained

Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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