NEW edition of Who Pays? published: effective from 1 September 2020 – An Introduction

"All good things to those who wait", as they say, but fret not if the news we’d been anticipating keenly for some time now had actually passed you by completely.

What with Brexit back on the table to keep fears of a second wave of Covid company, children returning to school after the ‘six weeks holiday’ suddenly became a six month absence, and the shock still fresh of realising you’ve had a few days away from home for the first time this year only just as your local shops are displaying their latest influx of Christmas cakes, it was all too easy to miss the lack of fuss and fanfare heralding the new arrival just before the Bank Holiday weekend.

But it was certainly long overdue. Brought in at speed in 2013 to deal with the NHS landscape post-Lansley, seven years later Who Pays? had become ambiguous at best and inaccurate at worst, giving those in some quarters all the justification needed for consigning it to the recycling and pressing on in their own pragmatic way, guided instead by the rather clearer legislation governing commissioning responsibilities. But what of the new “updated” 2020 version: was it worth the wait and what can we glean from a first brief encounter?

What does Who Pays? (WP) aim to do?

If you were hoping that a publication entitled Who Pays? might resolve the vexed question of where the commissioning boundaries lie as between the NHS and local authorities, then you will be sadly disappointed.  In its own words, WP “sets out the framework for establishing which NHS commissioner is responsible for commissioning and paying for an individual’s NHS care”.  Or, as it also puts it: “It simply deals with how to identify which NHS commissioner is responsible for paying for a particular service for a specific patient”.  It does this in 68 pages (75 if you count Appendix 4, which is published separately with Word templates), composed of 5 sections and 4 appendices laid out with multiple examples as follows:

  • Executive summary.
  • Section A: Context, purpose and coverage.
  • Section B: Overall responsibilities and general rules.
  • Section C: Applying the general rules in practice.
  • Section D: Exceptions to the general rules.
  • Section E: Clarifying the boundaries of responsibility between CCGs and NHS England (see also Section B for reference to the Coronavirus Directions).
  • Appendix 1: Dispute resolution process.
  • Appendix 2: Defining “usually resident”.
  • Appendix 3: Reference guide to the updated WP [This is a quick guide to how sections in the 2013 edition map onto the 2020 update].
  • Appendix 4: Word templates for submissions under the dispute resolution process.

What prompted a new version of WP?

In the executive summary, NHSE/I sets out a handful of specific reasons for updating WP:

  • To eliminate supplementary material published over time to try to update the 2013 document, bringing everything together in one new clearer document.
  • To clarify responsibilities for funding care on discharge from hospital and make changes to facilitate the discharge-to-assess arrangements set out in the Hospital Discharge Service: Policy and Operating Model.
  • To update the commissioning and payment responsibilities relating to detained patients and their s117 aftercare.
  • To seek to minimise the number of disagreements between commissioners and to set out a formal, mandatory process for resolving disputes between commissioners in those, hopefully rare, situations which cannot be dealt with locally.

Why do we need WP when we have legislation?

WP 2020 emphasises the distinction, between commissioning a service/intervention/placement for a patient and paying for it, far more forcefully than the 2013 document did.  The 2012 Responsibilities and Standing Rules Regulations and allied legislation set out clearly who should commission something, ie: make the necessary arrangements, but they say little to nothing about who should pay for it.  In the majority of cases, commissioner and funder will be one and the same, but there are various scenarios in which the two functions separate [see Section D]; in this regard, WP is published by NHS E/I as a so-called s14Z7 (NHS Act 2006) document, which CCGs are statutorily bound to follow.

What are the main rules and principal changes?

  • The primary rule remains that the responsible commissioner is the CCG of which the patient’s GP practice is a member or, if the patient is not registered with any GP practice in England, the CCG in whose geographic area the patient is ‘usually resident’ [Section B. 9-10 and Appendix 2].
  • Exceptions to the primary rule can be found in Section D.
  • There are new rules, amongst the exceptions, for hospital stays [Section D. 13], discharge from hospital and continuing care [Section D. 14], and detention under MHA 1983 and s117 aftercare [Section D. 18].  We will blog separately on these.
  • Where a local authority is acting as lead commissioner under a s75 agreement, using a pooled budget on behalf of a CCG, commissioning responsibility for health services will be determined in accordance with the rules set out in WP.
  • Guidance on non-contract activity has been moved into the NHS Standard Contract Technical Guidance.
  • The new dispute resolution arrangements, managed by NHSE/I’s national team, are detailed in Appendix 1 with Word templates at Appendix 4.

Dispute resolution: local>system>NHSE/I

The revised WP sets out a mandatory dispute resolution process, binding on CCGs, for all new disputes arising from 1 September 2020 and any existing disputes where resolution is not already in hand.

Where disagreements cannot be resolved swiftly at local (ie: director to director) level, commissioners must agree that one of them will step up and undertake any assessment and make the necessary commissioning arrangements.  The cost of this will be borne equally between the commissioners in dispute - on a without prejudice basis - pending resolution, to ensure the provider is paid promptly and patient care is not jeopardised.

Embracing NHS integration, this is a dispute resolution scheme in which STPs/ICSs are to play a major role.  If local resolution fails, the process moves up a gear: “Disputes within any single ICS/STP must be resolved at system level; where disputes arise between CCGs in different systems, ICSs/STPs must liaise to seek resolution”.  If this still fails to produce a solution, disputes must be referred to the NHSE/I national team for final arbitration (see Annex 4 for Word templates for the necessary Chronology and Statements of Case).  NHSE/I is clear that its aim is to avoid commissioners resorting to the courts (much disapproved of by the judiciary also) or to other forms of arbitration.

On resolution, the appropriate financial adjustment should be made, with the responsible commissioner reimbursing the other commissioner(s) involved in the ‘without prejudice’ arrangements.  It is notable, however, that repayment has been limited by restricting recoupment to the beginning of the financial year in which the dispute was formally initiated.  NHSE has made it clear, on this point in particular, that it most definitely won’t pay to be caught napping.

And finally…

WP 2020 takes effect from 1 September 2020.  The new rules (hospital stays, discharge and continuing care, and detention and aftercare under MHA 1983) do NOT apply retrospectively.  The positions set out in the remainder of the document are said to represent accurately the legal position prior to this date and are recommended by NHSE for use to resolve any historic or ongoing cases.  NHSE/I is clear, however, that the publication of WP 2020 must not be used as a reason to revisit funding agreements on historic cases, nor should it be used to unpick existing funding agreements for ongoing care packages.

So, did this long-awaited publication live up to expectations?  I could conclude, in the spirit in which I began, saying something about the proof of the (Christmas?) pudding being undoubtedly in the eating …. or the document providing ample food for thought …. but better on this occasion, perhaps, to let the authors speak for themselves on the future of their work in progress:

“Any questions about interpretation of this revised guidance can be sent to [email protected]. We will review the effect in practice of the revised guidance and will publish further updates as and when necessary, reflecting clarifications which emerge from the process of responding to informal queries and resolving disputes.”

In the meantime, do let us know how you get on applying the revised guidance and don’t forget to look out for further health & care blogs in this series, dealing with the new rules on hospital care, discharge and continuing care, and mental health detentions and aftercare.

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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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