Introduction
This page sets out the powers held by scrutiny committees in respect of health service bodies and community safety partnerships (CSPs).
Local authorities have particular rights and responsibilities in respect of National Health Service bodies in England. In Wales, although councils have overview and scrutiny arrangements which can consider matters relating to health and care, specific duties relating to oversight of the NHS continue to be held by Community Health Councils.
These “health scrutiny” powers do not need to be carried out by an overview and scrutiny committee (for example, in a committee system authority with no overview and scrutiny committee) but Government’s approach, and guidance, assumes that for the vast majority of councils the best way to carry out these duties will be through an OSC.
Some of these scrutiny powers changed significantly in early 2024. At the time, CfGS produced an explainer to summarise the key elements of these changes. Earlier in 2023 CfGS produced a more detailed document explaining health scrutiny in more detail. You can find references to further statutory and non-statutory guidance in those documents.
Introduction
The creation, in England, of statutory Integrated Care Systems (ICSs), comprised of Integrated Care Boards (ICBs) and Integrated Care Partnerships (ICPs) has replaced a system where health services were commissioned at local level to one where design and commissioning happens across a far wider geographical footprint.
This creates challenges for scrutiny – with major decision-making happening in a way that is arguably more remote from local communities, the need for local accountability is greater. But more of that accountability may need to be exerted jointly with neighbours – and in a way that takes account of the inevitable area-based tradeoffs that come of making decisions at a more regional level.
Scrutiny’s powers of oversight relate to local health partners, described generally in the legislation as “responsible persons” – these bodies include:
- Integrated Care Systems (this includes area- and place-based teams within ICSs);
- NHS Trusts. This includes foundation trusts; it includes trusts provides acute and community services;
- Other elements of the health service operating locally – for example, Primary Care Networks.
Powers do not extend to national decision-making undertaken by bodies such as NHS England, even where that has local impacts.
In connection to this overall power, health scrutiny has some other functions and powers.
Functions and powers of scrutiny committee in respect of the health service
- Taking referrals (Regulation 21). The health scrutiny function is obliged to have regard to information provided to it by a local referrer (Local Healthwatch or a Healthwatch contractor) – suggesting the need for a close relationship between health scrutiny and Healthwatch. Where a referral is made, the council must acknowledge it within 20 working days and keep the referrer informed of any action taken.
- As a statutory consultee (Regulation 23). Where a local health service body (in the legislation a “responsible person”) proposes to make a substantial variation to local health services, health scrutiny must be consulted; timescales for the consultation and the decision must be given.
Since January 2024, the Secretary of State for Health and Social Care may proactively intervene where the health service locally proposes a substantial variation. There is a general power held by anyone to notify the Secretary of State of concerns with regard to a substantial variation. The Secretary of State may make a decision to intervention, based on such a notice – but in doing so should have regard to the extent to which local attempts to resolve the issue have been exhausted. These local attempts will, it is expected, involve scrutiny.
Scrutiny continues to be an important partner for health service bodies where substantial variations are proposed, not least because it remains a statutory consultee.
- Attendance by health service partners at meetings. A member or employee of a local health service partner can be required to attend – given reasonable notice of the requirement.
- Access to information (Regulation 26). Local health service bodies must provide health scrutiny with information “about the planning, provision and operation of health services in the area of that authority”. Requests for information must be “reasonable”.
- Responses to reports and recommendations (Regulation 22). Health scrutiny may make reports and recommendations to local health service bodies – a response to those reports and recommendations is required within 28 days. Reports have to include an explanation of the matter reviewed, a summary of the evidence, a list of participants involved and an explanation of any recommendations.
The powers and duties set out above may also be transacted by a joint health overview and scrutiny committee (subject to certain requirements) (Regulation 30).
"Memoranda of understanding": working together
In some areas, overview and scrutiny functions and local health bodies have established “memoranda of understanding” to determine how they will work together (including arrangements for the resolution of disputes).
This is particularly valuable where a large number of organisations might be involved – so they might be especially useful where a number of local authorities want to agree how they will collectively work to scrutinise an ICB. There is no standard “form” to these memoranda or which organisations need to be party to them. In our view, they can be important because otherwise the quality of relationships can be unduly influenced by the character of the individuals involved – particularly in the health service, where awareness of health scrutiny and its powers is decidedly variable.
Councils need to have in place arrangements for scrutiny of community safety partnerships (CSPs) – the bodies that co-ordinate action between the council and its partners on matters relating to crime and disorder.
This is a duty conferred on councils by ss19 and 20 of the Police and Justice Act 2006, and the Crime and Disorder (Overview and Scrutiny) Regulations 2009. In advance of the power coming into force in 2009, the Home Office issued statutory guidance on this form of scrutiny, which remains in force. This material should therefore be read in the context of that guidance.
Scrutiny of the community safety partnership (CSP) is not the same as scrutiny of all the activities of the organisations that make up that partnership. Scrutiny is limited to the contribution that those partners make to the work of the partnership (so, CSP scrutiny does not involve generalised scrutiny of policing, which is the role of the relevant Police and Crime Panel).
Community safety scrutiny has a range of functions and powers.
Overall, councils’ duties here include:
- The obligation to review and scrutinise decisions made by CSP partners relating to their crime and disorder functions;
- The obligation to designate a scrutiny committee as the one that will be carrying out this work;
- The obligation to undertake scrutiny of the CSP at least annually (Regulation 4).
- Attendance by partners at meetings. With reasonable notice, a representative of a partner organisation can be required to attend meetings of the committee (Regulation 6);
- Access to information. Partners are required to provide information where requested, subject to (reasonable) deadlines set by the committee. Information provided should where necessary be depersonalised and should not include information that might prejudice future legal proceedings or operational policing/crime and disorder activity (Regulation 5);
- Responses to reports and recommendations. Reports and recommendations can be made to a partner (or co-operating person or body), and responses to those reports and recommendations must be made in writing and within 28 days (Regulation 7).
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