The NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision in relation to the designation of certain NHS bodies as Care Trusts, the public health functions of local authorities and Local Healthwatch organisations.

Part 2 makes provision for the designation of clinical commissioning groups, NHS trusts or NHS foundation trusts as Care Trusts under section 77(1) of the National Health Service Act 2006 (c.41) (“the 2006 Act”) in consequence of amendments to section 77 of that Act by virtue of section 200 of the Health and Social Care Act 2012 (c.7) (“the 2012 Act”).

Part 2 also amends the NHS Bodies and Local Authorities Partnership Arrangement Regulations 2000 (“the 2000 Regulations”) in consequence of changes to health service made by Part 1 of the 2012 Act and prescribes certain functions of clinical commissioning groups, the National Health Service Commissioning Board (”the Board”) or a Local Health Board, for the purposes of section 76(1) of the 2006 Act.

Part 3 specifies functions of local authorities in relation to public health for which directors of public health are to have responsibility.

Part 4 specifies the functions to be exercised by local authorities in relation to dental public health in England.

Part 5 makes provision for complaints to be made in relation to local authority public health services.

Part 6 makes provision in relation to Local Healthwatch organisations. These organisations are provided for in Part 14 of the Local Government and Public Involvement in Health Act 2007 (c.28) (“the 2007 Act”) as amended by Part 5 of the 2012 Act.

Part 2, regulation 3(1) and (2) prescribes health-related functions of local authorities and NHS functions for the purposes of section 77(1) of the 2006 Act. The functions prescribed are those set out in regulations 5 and 6 of the 2000 Regulations, subject to the restrictions in paragraphs (3) and (4).

Regulation 4 makes provision for consultation before a clinical commissioning group or an NHS foundation trust is designated as a Care Trust and prior to the revocation of the designation. Regulation 5 makes provision for combined consultations where the parties to the Care Trust agree.

Regulation 6 prescribes the form and manner for publication of reasons for the proposed designation of an NHS foundation trust, NHS trust and a clinical commissioning group as a Care trust and information relating to the governance arrangements of the Care Trust.

Regulation 7 provides for steps which the parties to the Care Trust must take following consultation but prior to designation or revocation of the designation of the NHS foundation trust, NHS trust or the clinical commissioning group as a Care Trust.

Regulations 8 and 9 make provision for publication requirements following the decision to designate or revoke the designation of an NHS foundation trust, NHS trust or a clinical commissioning group as a Care Trust.

Regulation 10 prescribes the bodies which the parties to a Care Trust must notify following the designation or the revocation of a designation of a Care Trust.

Regulation 11 revokes the Care Trusts (Application and Consultation) Regulations 2001 and amends the National Health Service Trusts (Consultation on Establishment and Dissolution) Regulations 2010.

Regulation 12(2) amends the 2000 Regulations in consequence of changes to the health service made by Part 1 of the 2012 Act.

Regulation 13 prescribes certain functions of clinical commissioning groups, the Board or a Local Health Board, for the purposes of section 76(1) of the 2006 Act. Subject to certain conditions prescribed in Directions made by the Secretary of State under section 76(3) of the 2006 Act, this provision allows local authorities to make payments to those NHS bodies towards expenditure incurred by them in connection with the performance of any of the functions so prescribed. Regulation 13 also revokes the National Health Service (Payments by Local Authorities to NHS Bodies)(Prescribed Functions) Regulations 2000.

The public health functions specified in Part 3 for which directors of public health are to have responsibility relate to local authorities making representations and making applications in connection with premises regulated by the Licensing Act 2003 (regulation 14).

Regulation 15 prescribes those functions which are specified in regulation 14 pursuant to section 73B(2)(e) of the National Health Service Act 2006. The effect is that local authorities must have regard to any document published by the Secretary of State in the exercise of those functions and the Secretary of State may give guidance to local authorities as to the exercise of these same functions.

The functions to be exercised by local authorities in relation to dental public health in England as specified in Part 4, relate to the provision of oral health promotion programmes and oral health surveys. In the case of oral health surveys, local authorities must make their own arrangements for oral health surveys and must also participate in any such surveys conducted or commissioned by the Secretary of State.

Regulation 18 revokes and replaces the Functions of Primary Care Trusts (Dental Public Health) (England) Regulations 2006, which made provision for functions in relation to dental public health to be exercised by Primary Care Trusts, and makes transitional provision.

Part 5 makes provision for complaints about the exercise of public health functions by local authorities. Regulation 20 specifies the range of complaints which may be made in relation to the exercise of public health functions by local authorities; this includes complaints about services provided by “service providers” with whom local authorities make arrangements to provide services in the exercise of their public health functions.

Regulation 21 requires each local authority and service provider (“responsible body”) to make arrangements for the handling of consideration of complaints.

Regulation 22 requires each responsible body to designate a person to be responsible for ensuring compliance with the arrangements and a complaints manager to be responsible for managing the complaints procedure.

Regulation 23 specifies the persons who may make complaints under these Regulations and Regulation 24 makes provision as to the circumstances in which each responsible body will have a duty to handle complaints in accordance with the Regulations. Regulation 25 specifies certain types of complaint which are not required to be dealt with in accordance with the Regulations.

Regulation 26 makes provision for local authorities to co-operate in relation to complaints being considered by one authority which also fall to be handled by another authority.

Regulation 27 specifies the time limit for making a complaint and regulation 28 makes provision about how a complaint is to be made and processed initially, including determining the likely period for investigating and responding to the complaint. Regulation 29 provides for the investigation of the complaint and the response to the complainant. Regulation 30 makes provision for electronic communications.

Each responsible body must ensure that its complaints arrangements are made available to the public (regulation 31); must maintain records for the purpose of monitoring complaints arrangements (regulation 32); and must prepare and make available an annual report, although that report may form part of a wider report relating to other prescribed complaints procedures (regulation 33).

Part 6 concerns Local Healthwatch organisations. Section 222(2) of the 2007 Act requires that contractual arrangements made by a local authority under section 221 of that Act for patient and public involvement in health and social care (“local authority arrangements”) must be made with a body corporate which is a social enterprise and which satisfies any criteria prescribed by regulations. Section 222(8) of that Act sets out that a body is a social enterprise for these purposes if it could reasonably be considered to act for the benefit of the community in England and it satisfies any criteria prescribed by regulations. Section 222(2A) of the 2007 Act provides that such a body is to be known as the Local Healthwatch organisation for the area of the local authority. Regulations 35 to 38 make related provision.

Regulation 35 prescribes criteria to be satisfied in order for a body to be a social enterprise under section 222(8) of the 2007 Act. It also sets out bodies to which those criteria do not apply and which will therefore be social enterprises for the purposes of these Regulations if they act for the benefit of the community in England. Regulation 36 sets out certain political activities which are not to be treated as carried on for the benefit of the community for the purposes of section 222(8). Regulation 37 makes provision about what constitutes a section of the community for those purposes. Regulation 38 prescribes the criterion to be satisfied by a social enterprise for the purposes of section 222(2) of the 2007 Act.

Regulations 40 to 43 require local authorities to ensure that local authority arrangements and arrangements (“Local Healthwatch arrangements”) made pursuant to those arrangements by Local Healthwatch organisations with other persons (“Local Healthwatch contractors)” include certain provisions about procedures, decision-making and the use of a trade mark of which the Care Quality Commission is the registered proprietor. This includes provision about who may be an authorised representative for the purposes of entering and viewing the premises of certain providers of health and social care services and how such a person may be authorised.

Regulation 44 imposes duties on certain commissioners and providers of health and social care services where a Local Healthwatch organisation or Local Healthwatch contractor has made a report or recommendation to them. Regulation 45 disapplies the duty under regulation 44 in relation to a report or recommendation which relates to services which are not care services in respect of which the Local Healthwatch organisation or contractor which made the report or recommendation is to carry on activities under local authority arrangements or Local Healthwatch arrangements.

Regulation 46 sets out the time limit for an overview and scrutiny committee of a local authority to acknowledge receipt of a referral of a social care matter by a Local Healthwatch organisation or Local Healthwatch contractor.

Regulation 47 revokes the Local Involvement Networks Regulations 2008. It also makes savings provision in respect of reports and recommendations made by local involvement networks prior to the commencement of these Regulations to which a response was outstanding as at the date of commencement of these Regulations.

A full Impact Assessment has not been produced for this instrument as no or minimal impact on the private sector or civil society organisations is foreseen. A full impact assessment has been produced in relation to the relevant provisions of the 2012 Act and a copy is available at http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsLegislation/DH_123583.