About this guidance

This guidance and its annexed model constitution updates the 13 May 2022 guidance and annex, issued by NHS England to clinical commissioning groups (CCGs) on preparing integrated care board (ICB) constitutions.

NHS England will refer to the updated model constitution when considering whether to approve amendments to ICB constitutions in accordance with its duties under the NHS Act 2006, as amended by the Health and Care Act 2022 (‘the Act’).

Action required of integrated care boards

Where an ICB has not already made the following amendments to their constitution, they are asked to do so at their next opportunity, recognising that a transition period may be needed in non-executive roles, which will be approved by NHS England in accordance with the Act:

• Making one of the non-executive board members – but not the audit committee chair – also the deputy chair of the board.
  • This is not intended to be a new appointment, but rather to ensure that if the chair is unavailable for a short or sustained period, it is clear who will chair meetings.
  • This person would not become the chair, as that is an appointment of the Secretary of State, but local quoracy rules should allow the board to meet without the chair.
• In line with the governance requirements of NHS trusts and foundation trusts regarding senior independent directors, ICBs should make one of their non-executive board members the senior non-executive member to support the NHS England regional director in the appraisal of the chair and their compliance with the fit and proper person test, and to act as a sounding board for the chair and – if necessary – to mediate between the chair and other board members.
  • The senior non-executive member may, unless they are the audit committee chair, be the deputy chair.
  • While the notes to the previous version of the model constitution stated that appointing a senior non-executive member was good practice, it is now expected that all ICBs ensure that one is in place.
• Ensuring that the chair’s period of office is expressed clearly as a maximum rather than a fixed term, recognising that interim chair appointments (approved by the Secretary of State) may be necessary.
• Confirming that a proposal for the chair or a non-executive to serve on the board for longer than 6 years will be subject to rigorous review to ensure their ongoing independence, and they will not serve as a board member for longer than 9 years in total, consistent with the Code of Governance for NHS provider trusts.
  • NHS England regional directors will make arrangements with ICB chairs so there is not a large wave of ICB chairs or of non-executive members stepping down at the same time.
• Updating the reference to procurement rules to take account of the introduction of the provider selection regime (PSR).
• Removing the clauses related to the establishment of ICBs.
• A small number of cross-references to other legislation.

In addition, certain sections of this guidance are updated to support ICBs to ensure:

• they are compliant with the duty under section 14Z49 of the Act to keep under review the skills, knowledge and experience of the board
  • ministers made a commitment to Parliament that NHS England would issue guidance to ICBs on complying with this duty. The updates to this guidance meet that commitment
• their conflicts of interest policy takes account of the introduction of the PSR and early findings on the management of conflicts of interest
• they recognise the options around flexibility to delegate ICB functions to, or jointly exercise them with, other public bodies
• portfolios of board members give board level executive leadership on care for specific population groups, as has been articulated in the Guidance on Executive Lead Roles in ICBs, set out in Appendix A

Summary

NHS England approved the initial ICB constitutions in line with the Act.

Constitutions are published on ICB websites and under the Act they can be amended only with the approval of NHS England.

Each ICB has set out its own process for agreeing amendments to propose to NHS England for approval. NHS England has set out a process for ICBs to propose and NHS England to approve amendments to ICB constitutions.

Please note that any proposal to change the boundaries of ICBs, including mergers or separations, are subject to a dedicated NHS England procedure, including a requirement for support from partners.

This guidance, including the annexed template model constitution, is the statutory guidance to which ICBs must have regard in maintaining and amending their constitutions.

The annexed model constitution clearly indicates where text is mandated to ensure compliance with legal and policy requirements. NHS England is unlikely to agree amendments to those mandatory sections of an ICB constitution.

This guidance and its annexed model constitution makes certain amendments (identified under Actions for ICBs above) to, and supersedes, the May 2022 statutory guidance to CCGs on the preparation of the ICB constitution.

Introduction

Integrated care systems (ICSs)

ICSs are partnerships of health and care organisations that come together to plan and deliver joined up services and to improve the health of people who live and work in their area.

They exist to achieve 4 aims:

1. improve outcomes in population health and healthcare
2. tackle inequalities in outcomes, experience and access
3. enhance productivity and value for money
4. help the NHS support broader social and economic development

Collaborating as ICSs helps health and care organisations tackle complex challenges, including:

• improving the health of children and young people
• supporting people to stay well and independent
• acting sooner to help those with preventable conditions
• supporting those with long-term conditions or mental health issues
• caring for those with multiple needs as populations age
• getting the best from collective resources so people get care as quickly as possible

The Act put ICSs on a statutory footing in every part of the country, as recommended by NHS England, by establishing ICBs and integrated care partnerships (ICPs).

Integrated care boards (ICBs)

ICBs have taken on functions which were previously performed by Clinical Commissioning Groups (CCGs). CCG staff, assets and liabilities have transferred to the relevant ICB, and some of NHS England’s direct commissioning functions are delegated to ICBs.

ICBs are bringing the NHS together locally to deliver shared priorities, with a greater emphasis on collaboration and shared responsibility for the health of the local population.

This requires governance arrangements that support collective accountability between partner organisations for whole-system delivery and performance.

These arrangements should be proportionate, and they must facilitate transparent decision-making and foster the culture and behaviours that enable system working.

Integrated care partnerships (ICPs)

The ICP is a joint committee of the ICB and the upper tier local authorities which are wholly or partly in the ICB area.

(For the purposes of this guidance, the term ‘upper tier local authorities’ has the same meaning as the definition of ‘local authority’ used in s.2B(5) National Health Service Act 2006.)

It is the role of the ICP to develop and publish the integrated care strategy for the ICB area, in particular focusing on how health and care can better integrate.

Under the Act, it is for the Secretary of State – rather than NHS England – to issue guidance on the integrated care strategy.

Integrated care board governance documents

ICB constitutions

To support the development of ICB constitutions, NHS England has produced an ICB model constitution with notes attached as an annex.

It mandates elements (legal or policy requirements) shown in black text, and elements that may be modified locally where green text shows example wording.

The model constitution includes the standing orders to set out the arrangements and procedures to be used for meetings and the processes to appoint to ICB committees.

The Act requires certain aspects, that would normally be in standing orders, to be in the constitution itself; and so producing standing orders separately to the constitution would result in duplication.

However, an ICB may choose to have standing orders separate to its constitution, provided the constitution includes the components prescribed by the Act.

Supporting documents

Documents that do not form part of the constitution, but which ICBs are required to publish, include the following: (please note that unlike the constitution, the Act does not make these documents subject to NHS England approval)

Scheme of reservation and delegation (SoRD)

Please note that ICBs must ensure their SoRD addresses the functions that are formally delegated to them by NHS England (for example, primary care commissioning).

This sets out:

1. functions that are reserved to the board
2. functions that have been delegated to an individual or to committees and sub-committees
3. functions delegated to another body or to be exercised jointly with another body

Functions and decision map

A high-level diagram to help stakeholders understand where decisions are made (for example, where delegated to place committees). It should:

• be locally defined
• set out where decisions are taken and outline the roles of different committees/partnerships
• be easily understood by the public

Standing financial instructions

These set out the arrangements for managing the financial affairs of the ICB.

Key policy and other documents

These include:

• terms of reference for all committees and sub-committees that exercise ICB functions
• the conflicts of interest policy for the ICB, procedures and register
• standards of business conduct policy
• policy for public involvement and engagement

ICBs will need a seal if they anticipate entering into any land transactions that are required to be executed under seal.

The standing orders of the ICB model constitution include a section on use of the seal in which arrangements for its safe keeping and authorisation of use can be set out.

The integrated care board

The ICB has a unitary board, which means all its members are collectively and corporately accountable for the organisational performance of the ICB, a statutory body charged with specific legal functions.

The board must promote the NHS Constitution and meet the triple aim. The triple aim – a legal duty on NHS England, ICBs, trusts and foundation trusts – is:

• the health and wellbeing of the people of England
• the quality of services provided or arranged by both themselves and other relevant bodies
• the sustainable and efficient use of resources by both themselves and other relevant bodies

The duty on ICBs is set out in section 13NA of the Act – ‘Duty to have regard to the wider effect of decisions.’

Types of ICB board member

The Act requires the board to consist of the chair, chief executive and ‘ordinary members’. All ordinary members of the board have equal standing, and all are appointed by the ICB.

NHS England and the model constitution use the following terms to identify different types of ordinary member, and these terms must not be departed from in ICB constitutions:

• ‘Partner members’: only board members who are jointly nominated in accordance with the Act and the relevant secondary legislation (regulations) by the relevant local authorities, trusts/foundation trusts or primary medical services providers.
• ‘Non-executive members’: only members who bring a perspective independent of local health and care organisations.
• ‘Executive members’: only those senior executive employees of the board who have ex officio board positions.
• ‘Other members’: any other ordinary members of the board who are not partner members, non-executive members or executive members.

The ICB constitution must set out exactly how many of each type of ordinary member will be on the board and for each position any enduring qualification criteria, such as particular registration, expertise or experience.

The description of each position in the constitution will be supplemented by a role description and person specification.

Please note that – except for executive members who are ICB employees – board positions cannot be in effect ex officio as this is not compatible with the requirement under the Act that the chair decides whether to approve the appointment of an ordinary member.

For example, the constitution, or role profile, cannot state that the person appointed must be the chief executive of a named foundation trust. It could, however, state that the person must have chief executive level experience of leading a trust/foundation trust.

NHS England employees (including commissioning support unit staff) may not be appointed as ICB board members unless there are exceptional reasons, and the appointment is agreed at NHS England board level.

To ensure their continuing independence, and consistent with the Code of Governance for NHS Provider Trusts, a proposal for an ICB chair or non-executive board member to serve for longer than 6 years should be subject to rigorous review, and they will not serve for longer than 9 years in total on the board.

Each NHS England regional director will make arrangements with respective ICB chairs to avoid the simultaneous stepping down of a large number of ICB chairs or non-executive board members.

Maximum periods in post for partner and ‘other’ board members may be set locally by the ICB.

Other individuals may be invited to participate or observe board meetings. The terms that must be used in ICB constitutions for these individuals are as follows:

• ‘participant’: a person who is invited to participate in the board meeting but is not a member of the board
• ‘observer’: a person who is invited to observe the board meeting, typically receiving the public board papers, and so differentiated from any member of the public choosing to observe the meeting

The constitution may identify regular participants and observers. However, the distinction must be clearly maintained in board meetings between board members – who make the decisions and are accountable for them – and participants who do not.

Membership of the ICB board

Every ICB board member must:

• comply with the criteria of the fit and proper person test
• uphold the Seven Principles of Public Life (known as the Nolan Principles)
• fulfil requirements relating to relevant experience, knowledge, skills and attributes set out in the ICB constitution, role descriptions and person specifications
• comply with the disqualification criteria set out in the ICB constitution
  • a person cannot be appointed to the board if the appointment could reasonably be regarded as undermining the independence of the health service because of the candidate’s involvement with the private healthcare sector or otherwise

Requirements of specific ICB board members

The ICB chair is appointed by NHS England, with Secretary of State approval.

The chair must be independent and cannot hold a role in another health and care organisation within the ICB area. The chair will look outwards maintaining the confidence of the population, ICS partners and ICP as well as their board.

There must be a minimum of 2 non-executive members: one to chair the audit committee; and one to chair the remuneration committee. They must not hold roles in other health and care organisations within the ICB area.

A non-executive member other than the audit committee chair must be appointed as deputy chair, to chair the ICB board if the chair is not available.

If the chair post will be vacant for a significant period, NHS England – with the approval of Secretary of State – may appoint an interim chair who can exercise the statutory powers of the chair.

Consistent with governance requirements of NHS trusts, a non-executive member must be appointed senior non-executive member. They may, unless they are the audit committee chair, be the deputy chair.

The NHS England regional director, to whom the ICB chair is accountable, will confirm the role of the senior non-executive member in the appraisal of the chair:

• It is expected that the senior non-executive member will collate the multi-stakeholder feedback for the regional director to undertake and sign off the appraisal conversation.
• Similarly, it is expected that the senior non-executive member will take responsibility for ensuring the compliance of the chair with the fit and proper person test and making the return to the regional director for their sign-off.

In addition the senior non-executive member is expected to act as a sounding board for the chair and, where necessary, mediate between the chair and other board members.

The ICB chair and non-executive members may hold roles with other health and care organisations outside the ICS but must ensure that their commitments allow them to fulfil their duties.

NHS England expects to issue appointments guidance to use in assessing whether proposed additional appointments for a trust or ICB chair should be considered appropriate.

The chief executive must be employed by, or seconded to, the ICB. They are appointed by – and accountable to – the chair, with the approval of NHS England.

The following executive members must be appointed to the board:

• chief finance officer, who must be employed by, or seconded to, the ICB
• director of nursing, who must be employed by, or seconded to, the ICB. They must be a registered nurse (not a registered midwife only)
• medical director, who must be employed by, or seconded to, the ICB. They must be a registered medical practitioner
  • the term ‘chief medical officer’ should only be used with the agreement of NHS England, to avoid confusion with the national role

ICB constitutions must include partner members on the board as follows:

(Please note that partner members are not delegates from their constituencies, but equal and accountable members of the ICB unitary board.)

• At least one member jointly nominated by the eligible NHS trusts and foundation trusts.
  • This partner member is normally expected to be the chief executive of one of those NHS trusts/foundation trusts.
  • They should bring the perspective of the sector, and it will be of benefit for them to additionally engage with other significant providers, notably social enterprises.
• At least one member jointly nominated by the eligible providers of primary medical services.
  • This partner member should bring the perspective of general practice and an understanding of wider primary care, including PCNs and primary dental, community pharmacy and optometry providers.
• At least one member jointly nominated by the local authorities whose areas coincide with, or include the whole or any part of, the area of the ICB.
  • This partner member will often be the chief executive of their organisation, or in a relevant executive local authority role; however, they may be a councillor where locally most appropriate.

Where ICBs wish to have more than one member from any of these categories, they may choose to include criteria in the constitution, and role description and person specification, so that the roles are populated by individuals who are able to bring different perspectives to the ICB board.

For example, it could be specified that one individual jointly nominated by trusts/foundation trusts should have experience such that they are able to give an informed view about the provision of community services.

Where the ICB has more than one partner member in a category and their roles are distinct, candidates should be nominated separately for each position so that nominating organisations can make nominations that have regard to the distinct requirements of each position.

The chair must exercise their approval function of the ordinary members with a view to ensuring that at least one of the ordinary members has “knowledge and experience in connection with services relating to the prevention, diagnosis and treatment of mental illness”.

For the ICB to achieve ongoing compliance with this requirement, the constitution should include a board position that can only be filled by candidates who meet these criteria; this board role may be:

• a partner member (jointly nominated by all trusts/foundation trusts)
  • this must be an additional partner member to the one required as a minimum by the Act
• an ‘other’ board member (that is, not jointly nominated but likewise normally a mental health trust/foundation trust chief executive)
• an ICB executive director for mental health

Executive responsibilities

The ICB is expected to have leadership structures and accountability that will deliver organisational responsibilities, including agreed local and national priorities.

This must include named executive board members leading on:

• children and young people (0 to 25)
• children and young people with special educational needs and disabilities (SEND)
• safeguarding (all ages, including looked after children and care leavers)
• learning disability and autism (all ages)
• Down’s syndrome (all ages)

These are not new statutory duties or additional board posts; rather, they are intended to secure visible board-level leadership of these issues, as set out in Appendix A (which replaces the standalone guidance published on 9 May 2023 on Executive Lead Roles within ICBs).

Given the importance of delivering the ICS people and digital plans, ICB leadership arrangements must include clear accountability within the organisation and provide named senior responsible officers (SROs; registered professionals or those with equivalent experience) for their people, workforce, and digital and data functions.

Appointment of partner members

The ICB constitution must set out the process for appointing the partner members, and those NHS trusts/foundation trusts and local authorities eligible to nominate.

The list of GP providers eligible to nominate will be maintained separately from the constitution, within the governance handbook, to avoid frequent applications to modify the constitution – for example, as alternative provider medical services (APMS) contracts come to an end.

As with other board roles, enduring requirements of each of the partner member roles should be set out in the constitution, with further detail provided in a role description and person specification.

The Act requires that partner members are to be “nominated jointly” (see next section on identifying those eligible to nominate) by their respective sector, and it requires that the ICB chair decides whether to approve the appointment of each ordinary board member, including partner members.

NHS England expects that all board members – including partner members – are selected based on the skills and experience required to fulfil the roles, and assessed to ensure they meet the fit and proper persons test and the eligibility criteria set out in the ICB constitution, role description and person specification.

Therefore, the appointment process for partner members must consist of the following stages:

1. joint nomination
2. assessment and selection
3. approval

Within these parameters, the process may be determined locally. The annexed model constitution includes suggested text (not mandated) for a compliant process.

All recruitment processes must comply with the requirements of the Equality Act 2010 and the board should also be mindful of relevant guidance published by the Equality and Human Rights Commission.

Integrated care board committees

ICBs must ensure they can effectively discharge their full range of functions.

This is likely to include establishing committees of the ICB to support the board and exercise any delegated functions.

Establishing committees

Committees are established by the board for the purpose of exercising ICB functions that the board chooses to delegate, providing assurance or formal advice to the board.

The detailed arrangements for committees will be set out in the SoRD, the standing orders and the committee’s terms of reference.

With the agreement of the board, a committee may establish sub-committees to assist with its responsibilities.

The board may establish advisory groups and task and finish groups, which have no decision-making powers, but may provide advice and propose solutions and recommendations.

The ICB has the power to establish joint committees with certain other organisations to exercise its and/or the other body’s/bodies’ functions jointly.

Committee membership

The Act gives significant flexibility on the membership of ICB committees and sub-committees, allowing individuals to be appointed who are neither ICB board members nor employees.

Boards are supported by an executive group including, for example, other professional and functional leads, to manage the day-to-day running of the organisation.

Individual directors of the ICB may be given delegated authority, which they may choose to exercise through a committee with the approval of the board.

Which committees the ICB board chooses to have will depend on decisions taken locally about how the functions will be exercised and how assurance will be generated and reported.

However, all ICBs are expected to have, as a minimum, remuneration, audit and quality committees (see below).

The remuneration committee

The remuneration committee is accountable to the board for matters relating to remuneration, fees and other allowances (including pension schemes) for employees and other individuals who provide services to the ICB.

It is chaired by a non-executive board member, other than the Chair or the chair of the audit committee; but non-executive members must recuse themselves where the committee has been charged with determining the remuneration of non-executive members.

It may make decisions itself, rather than only making recommendations to the ICB board. The remuneration of executives and non-executives is determined within national pay frameworks.

Note that the legislation allows for the partner or ‘other’ ordinary members to be remunerated where relevant; what is appropriate may vary for different members, depending on their circumstances.

No members should be paid twice for the same time by different organisations.

The audit committee

The audit committee is accountable to the board and provides an independent and objective view of the ICB’s compliance with its statutory responsibilities.

The committee is responsible for arranging appropriate internal and external audit.

It is chaired by a non-executive board member who has qualifications, expertise or experience that enables them to express credible opinions on finance and audit matters.

The quality committee

The ICB may choose to delegate responsibility for providing assurance on the quality of services commissioned to a quality committee, which may be combined with other assurance responsibilities, for example, performance/finance.

However, such a committee must be separate from the system quality group (SQG), although the SQG is chaired by the ICB executive director with responsibility for quality (for example, the medical director or director of nursing) – see the National Quality Board guidance for further information.

This separation is necessary because they have different remits, membership and lines of accountability.

(Quality committees are an internal quality assurance mechanism for ICBs to ensure they are effectively discharging their statutory duties; while SQGs are for intelligence sharing, engagement and improvement across system partners, including regulators.)

The roles and responsibilities of ICBs regarding management of quality risks will be confirmed in formal agreements with NHS England regional teams.

This includes defined governance, risk and response process for quality, which ensures that risks are managed in a timely and proactive way.

Particular regard should be given to the role of committees in discharging functions and duties relating to finance, performance, workforce/people, digital, transformation, transitions and place.

Where the ICB board decides to establish committees at place level to exercise delegated commissioning functions, these may be supplemented by consultative forums including a wider membership (a health and wellbeing board could take this role, as could a task and finish group of the ICP) to inform the decision-making of the ICB and potentially local authorities.

Please note – contracts are awarded and held, and payments made, by the ICB as the legal entity.

How key parties contribute at place level is for local determination, including:

• primary care provider leadership, represented by PCN clinical directors or other relevant primary care leaders
• providers of acute, community and mental health services, including representatives of provider collaboratives where appropriate
• people who use care and support services, and their representatives, including Healthwatch
• local authorities
• social care providers
• the voluntary, community and social enterprises (VCSE) sector

Delegation to other bodies and joint working freedoms

Delegation to other statutory bodies and joint exercise

The Act allows an ICB, an NHS trust, a foundation trust or NHS England to delegate its functions, or jointly exercise its functions with:

• one another
• a local authority
• a combined authority
• any other public body that may be prescribed in secondary legislation

It does not allow local authorities, combined authorities or any other prescribed public bodies to delegate their functions to be exercised by, or jointly with, an ICB, an NHS trust, a foundation trust or NHS England.

However, ‘health-related’ functions of local authorities can continue to be subject to partnership arrangements made under section 75 of the Act and the associated regulations.

Section 75 partnership arrangements, and arrangements made under the newer powers introduced by the Health and Care Act 2022, are discussed in NHS England’s guidance on Arrangements for delegation and joint exercise of statutory functions.

Delegation needs to be supported by a formal agreement that sets out the terms of the delegation from the ICB, including any conditions relating to the exercise of delegated functions.

In accordance with the constitution, the power to approve such delegation arrangements must be reserved to the board.

Where an ICB has resolved to jointly exercise functions with another such body/bodies, the ICB and the other body/bodies may arrange for those function(s) to be exercised by a joint committee and/or for the establishment of a pooled fund for those functions.

The power to delegate conferred by the Act includes the power to delegate ICB functions to NHS trusts or NHS foundation trusts.

However, it is important to note that trusts can take on a significant degree of responsibility and discretion in respect of the provision of services without delegation, under the terms of their contract (noting the specific provision in section 12ZA of the NHS Act 2006 for ICB commissioning arrangements to confer discretions on a provider in relation to anything provided under those arrangements) – an example being the lead provider arrangements for mental health.

Delegation of commissioning functions would involve going further and a trust taking on specific further responsibility for matters which would otherwise be reserved to a commissioner – for example:

• determining the ‘reasonable requirements’ (needs) of the relevant population and the extent to which the provision of services is necessary to meet them (see the ICB function under section 3 of the 2006 Act)
• determining whether certain healthcare services are appropriate as part of the health service locally (see ICB functions under section 3(1)(g) to (i) and 3A of the 2006 Act)
• undertaking ICB statutory planning functions

NHS England statutory guidance provides further explanation, including on accountability and liability, and imposes several restrictions on functions that cannot be delegated, or makes their delegation subject to certain conditions.

Where ICBs want partner organisations, or a provider collaborative, to directly inform the exercise of its functions, this form of delegation is not required.

In such circumstances, ICBs may choose to delegate exercise of the function to a committee or sub-committee of the ICB board and appoint leaders of those organisations or provider collaborative as members of the committee.

Another alternative would be for the ICB and its partner trusts/foundation trusts to establish committees in common, where a committee on behalf of each organisation makes legally separate but synchronised decisions. However, committees in common are often perceived as cumbersome.

ICBs can also use section 75 arrangements with local authorities to delegate functions to, or jointly exercise them with, local authorities.

Similarly, where ICBs want to give providers greater decision-making freedoms on how the needs of the population are met, this can be achieved via contractual mechanisms (outcomes-based contracts and conferral discretions) and delegation is not required.

ICBs should also be aware that regulations can restrict the use of the power to delegate functions or exercise them jointly.

[See the National Health Service (Joint Working and Delegation Arrangements) (England) Regulations 2022, as amended by the National Health Service (Joint Working and Delegation Arrangements) (England) (Amendment) Regulations 2023.]

Currently, there are regulations in place which prohibit ICBs from delegating – or exercising jointly – eligibility decisions relating to continuing healthcare (CHC) and NHS funded nursing care (FNC). This is explained further in the statutory guidance.

Joint appointments

A joint appointment does not by itself create an arrangement of the joint exercise of functions between two or more NHS bodies.

For example, an individual may be appointed to the role of director of finance for two foundation trusts. This does not mean by default that all decisions made by that individual are binding on both organisations.

Instead, the default position is that the joint appointee will take separate decisions for each of the organisations.

It is only where the organisations choose to combine a joint appointment with an arrangement for the joint exercise of their functions, with the joint appointee taking decisions as part of that arrangement, that they will have authority to take single decisions binding on both organisations.

The Act does not contain express provisions either permitting or preventing joint appointments.

However, the Act contains a provision allowing NHS England to issue guidance about joint appointments between NHS England, ICBs and NHS trusts/foundation trusts, and between NHS organisations and local and combined authorities.

NHS England will issue such guidance only if there is a clear need to do so.

Organisations will need to check their individual legal and governance arrangements for restrictions specific to their circumstances.

For example, the ICB model constitution prevents the chair and non-executive members from holding a role in another health and care organisation within the ICB area and the chief executive may not hold any other employment or executive role.

Joint appointments risk that the duties, interests and priorities of the different organisations could on occasion be opposed or in conflict with one another. All conflicts of interest must be identified and actively managed in line with each organisation’s governance.

All joint appointments must also consider the Seven Principles of Public Life (the Nolan Principles) which outline the ethical standards those working in the public sector are expected to adhere to.

Consideration of the following questions acts as a framework to support organisations in testing the suitability and practicability of a joint appointment in their circumstances:

• what expertise is required for the role?
• would an individual have the capacity to undertake both roles?
• what is the cost/benefit analysis for the joint appointment (including qualitative and quantitative benefits)?
• when carrying out their (multiple) roles, could the person find themselves in a situation where the duties, interests and priorities of the two organisations are opposed or in conflict with one another?

It is essential that both actual and potential conflicts, or the appearance that there may be a conflict, are transparently and effectively managed, such that all stakeholders can have confidence in the rigour and objectivity of decision-making processes.

The guiding principle for NHS organisations is to ensure that decisions are made in the public interest, avoiding any undue influence by other interests.

An assessment of the potential for conflicting duties being placed on an individual, and making arrangements to manage them, does not imply that there are concerns any individual will act improperly.

This reflects good governance, and part of the value of such arrangements is that they can protect individuals from unjustified accusations that they have acted improperly. Further information can be found in the conflicts of interest section below in this guidance.

Board duties to note

Equality, diversity and inclusion

An inclusive culture improves retention, supporting the NHS to grow our workforce, to deliver the improvements to services set out in our Long Term Workforce Plan, and reduce the costs of filling staffing gaps.

The NHS equality, diversity and inclusion (EDI) improvement plan builds on the People promise and the People Plan, using the latest data and evidence to identify 6 high impact actions organisations across the NHS can take to considerably improve EDI.

The ICB board is expected to show leadership in advancing EDI by implementing the EDI plan, which will ensure that:

• the workforce (at all levels) reflects the diversity of the NHS
• people working and learning in the ICB can develop and thrive in a compassionate and inclusive environment
• there is a whole-system view of population health needs, health inequalities and expected improvements in outcomes, including:
  • clear priorities for tackling discrimination
  • advancing equality of opportunity
  • fostering good relations
  • reducing health inequalities
  • addressing overlap between workforce and wider population inequalities
• there is an organisational culture that promotes equality and inclusion and embraces diversity
• members of the unitary board and employees display the highest standards of inclusive behaviour
• the organisation is using data to improve its performance, including use of the NHS Workforce Race Equality Standard (WRES), Workforce Disability Equality Standard (WDES) and any future information and equality standards as a key performance indicator

ICBs are subject to section 149 of the Equality Act 2010 (the Public Sector Equality Duty) and the specific equality duties as well as the wider provisions in the Equality Act 2010.

In accordance with this Act, ICBs must have due regard to the need to:

• eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act
• advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it
• foster good relations between person who share a relevant protected characteristic and persons who do not share it

A reference document is due to be published shortly by NHS England on the Public Sector Equality Duty (PSED) and the Specific Equality Duties (SEDs).

This reference document provides guidance on how to comply with the health inequalities duties, the PSED and the SEDs.

Under the SEDs, ICBs must publish equality information annually. ICBs should be mindful of the technical guidance on the PSED and the relevant statutory codes of practice, published by the Equality and Human Rights Commission.

Health inequalities

The Act includes a range of ICB obligations in relation to health inequalities, which should underpin the discharge of functions in each ICB, including:

• the health inequalities duty on ICBs:
  • “Each integrated care board must, in the exercise of its functions, have regard to the need to – (a) reduce inequalities between persons with respect to their ability to access health services, and (b) reduce inequalities between patients with respect to the outcomes achieved for them by the provision of health services”
• that the inequality of outcome that must be considered includes, in particular, outcomes in relation to service effectiveness and safety and the quality of the experience of patients, as specified under the duty in relation to improving service quality
• the collection, analysis and publication of information relating to inequalities, in line with NHS England’s views set out in the national statement
• the duty to promote integration where this would reduce inequalities in access to services or outcomes achieved
• duties on ICBs in relation to several other areas that require consideration of health inequalities – in making wider decisions, planning, performance reporting, publishing certain reports and plans, annual reports and forward planning

In addition, each ICB is subject to an annual assessment of its performance by NHS England which must include, but is not limited to, how well the ICB has discharged several specific duties including:

• the duty to reduce inequalities of access and outcomes
• the duty to improve the quality of services
• the duty to have regard to the wider effect of decisions (the triple aim)
• the duty to consult patients and the public about decisions that affect them

The skills, knowledge and experience of the board

Introduction

ICBs have a statutory duty under the Act to keep the skills, knowledge and experience of their board under review.

Parliament introduced this duty to ensure the board can make high quality decisions that take account of the perspectives of its communities and partners. Meeting the duty presents a development opportunity rather than simply ensuring compliance.

The Act mandates as a minimum a board that brings together a range of different perspectives.

In addition, all members of the ICB board, including the chair and chief executive, are appointed against a role and person specifications to ensure the board has the necessary mix of skills, knowledge and experience.

In appointing to board roles, ICBs should consider not only what candidates bring to enable the ICB to discharge its statutory duties, but also to provide wider system leadership and engagement.

Those appointed to the chair, chief executive and other mandatory board roles are expected to have a close relationship and dialogue with their equivalent peers across the system.

All board appointments are subject to approval by the ICB chair, who has regard to the importance of ensuring that the board as a whole functions effectively, with a diversity of perspectives bringing constructive challenge to considerations of the board.

Context

The skills, knowledge and experience an ICB board will require depends upon its specific local context and arrangements: what it has delegated to its sub/committees and executives, and how the ICB works with its ICS partners including its relative geographical scale.

It is important that the board itself has a clear, shared view of its position within the system, including what the focus of its public board meetings and board development sessions should be.

Before reviewing its skills, knowledge and experience, the board will want to take stock of how ICB decision-making – by the board itself and by those with delegated authority – is currently informed; not only the data flows, but critically the routes of meaningful dialogue with relevant parties.

Public health colleagues should have a formal role within the ICB.

The board should be confident that the ICB is taking the advice of the director(s) of public health in its decision-making and drawing on the expertise of local public health team(s), avoiding duplication of functions within the system.

See the population health academy group on FutureNHS (login required) for further information.

The ICB board partner members nominated by general practice, partner local authorities and trust/foundation trusts may be informed directly by their nominating constituencies.

In addition to board members’ individual peer and personal dialogues, the board will be informed through discussion in forums and bodies which have a formal role in the system, including those supporting wider engagement, such as:

• public, patient and carer engagement forums
• Healthwatch
• VCSE representative bodies/forums
• social care provider representative bodies/forums
• clinical and care professional leadership

These forums will be in addition to statutory forums such as integrated care partnerships and health and wellbeing boards; they will include working groups, such as workforce boards and digital boards

To support ICBs in this, NHS England has developed guidance with stakeholders and ICBs, including:

• NHS England statutory guidance on working in partnership with people and communities
• Building strong ICSs everywhere: guidance on working with people and communities (FutureNHS login required)
• Building strong ICSs everywhere: guidance on partnerships with the VCSE sector (FutureNHS login required)
• Adult Social Care Provider Partnerships in ICSs: A guide for adult social care providers on ICSs and opportunities for partnership working

ICS partners have highlighted the risk associated with having a single named board member with responsibility for overseeing the contribution to decision-making of a whole sector, such as VCSE or social care; boards should ensure that where this is the case, the risk is appropriately mitigated.

The board will want to be assured that there is effective clinical and care professional leadership, and that ICB decision-making is well informed by it. Guidance is available to support the board review in this aspect:

• Building strong ICSs everywhere: guidance on effective clinical and care professional leadership

Deciding when to review

The ICB chair and board may decide to review the skills, knowledge and experience of the board when, for example:

• new board appointments are to be made
• there is a planned change in the balance of responsibilities (such as when places and provider collaboratives are ready to take on greater responsibilities)
• other related development activities are planned

The board will want to have regard to the timing of other development or assessment activity, referencing:

• Care Quality Commission assessment framework for ICSs
• Fit and proper person test framework (NHS England website)
• Standards for NHS board members, including a board appraisal framework and leadership competency framework to be published by NHS England
  • as these materials are published in 2024, they will be presented with the Fit and Proper Person Test resources as a single coherent suite of documents
• ICB self-assessment on the development of their governance, drawing on materials co-developed with ICB governance leads’ self-assessment materials and peer learning resources (FutureNHS login required)

Acting upon the outcome of the review

As a statutory requirement, ICBs must take necessary steps to address or mitigate any shortcomings in terms of skills, knowledge and experience.

The result of the review is therefore expected to be a strengthening of the development plan for the board, including succession planning and the development of future role/person specifications for when new appointments are to be made.

It is further expected that this will be aligned to the steps the board will take to ensure ICB decision-making is well informed by both data and high quality dialogue with its communities and ICS partners.

Conflicts of interest

Introduction

The May 2022 version of this guidance recommended principles for managing conflicts of interest, in the context of the ICB having a unitary board which includes partner members, and the ICB having great flexibility in appointing to its committees and sub-committees those individuals who are not ICB board members or employees. These principles still stand.

However, the principles are now supplemented by further explanation to take account of developments relating to the PSR, and early findings on how conflicts of interest are being managed in practice.

Why is it important to manage conflicts of interest?

Conflicts of interest are inevitable; it is how we manage them that matters. It is important that real, potential and perceived conflicts are considered and managed appropriately to ensure decisions are robust, fair, transparent, and offer value for money.

The statutory framework means that ICBs and partners organisations have joint responsibilities for the planning of local services set out in the ICS Strategy and the Joint Forward Plan.

Therefore it is more important than ever that ICBs have robust processes in place for the ongoing management of conflicts of interest.

While it should not be assumed that individuals have a conflict of interest based on their capacity within any organisation, the possibility of actual, potential or perceived conflicts remains and these should be managed appropriately, including appropriate periods of review, record-keeping and ongoing oversight.

Statutory requirements

ICBs are required under the Act to manage conflicts of interest robustly and appropriately. The Act addresses ICB duties on conflicts of interest:

• the constitution must set out the arrangements the ICB has made for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of board decision-making processes
• the process by which any appointment of a member to the board or any appointment to any committee or sub-committee of the board that has a commissioning function must be made so as to avoid the appointment of anyone who would be perceived to have a conflict or a potential conflict of interest
• the arrangements for ensuring that no member of any committee or sub-committee of the board who has a conflict or a potential conflict of interest obtains access to information that might be perceived to favour the interest or potential interest
• that a person is disqualified from board membership if they could reasonably be regarded as undermining the independence of the health service because of their involvement with the private healthcare sector or otherwise
• that the chair approves or appoints the members of any committee or sub-committee exercising commissioning functions; and the ICB’s constitution must prohibit the chair from approving or appointing someone as a member of any such committee or sub-committee if the chair considers that the appointment could reasonably be regarded as undermining the independence of the health service because of the candidate’s involvement with the private healthcare sector or otherwise

In addition, the Act requires each ICB to maintain, and publish/make available to the public, one or more registers of the interests of board members, members of its committees or sub-committees, and its employees; and that the ICB ensures:

• those individuals declare any conflict or potential conflict of interest they have in relation to a decision to be made in the exercise of the commissioning functions of the ICB
• those individuals make any such declaration as soon as practicable after the person becomes aware of the conflict or potential conflict and, in any event, within 28 days of the person becoming aware
• the declaration is included in the registers maintained

Principles for managing conflicts of interest

The overarching principle for NHS organisations is that decisions must be made in the public interest, avoiding any undue influence from other interests.

While it is crucial that ICBs ensure that the board and committees are composed with the right representation from partners to inform decision-making, this does give rise to the risk of real and perceived conflicts of interest and these should be assessed on a case-by-case basis, in line with the principles below.

NHS England recommends the following principles for ICBs in the management of conflicts of interest:

1. Decision-making must be geared towards meeting the statutory duties of ICBs at all times, including the triple aim.

• any individual involved in decisions relating to ICB functions must be acting clearly in the interests of the ICB and of the public, rather than furthering direct or indirect financial, personal, professional or organisational interests

2. ICBs have been created to give trust/foundation trust, local authority, and primary medical services (general practice) provider nominees a role in decision-making.

• these individuals will be expected to act in accordance with the first principle, and while it should not be assumed that they are personally or professionally conflicted just by virtue of being an employee, director, partner or otherwise holding a position with a local health or care organisation, the possibility of actual and perceived conflicts of interests arising will remain
• for all decisions, ICBs will need to carefully consider whether an individual’s role in another organisation could result in actual or perceived conflicts of interest, and whether these outweigh the value of the knowledge they bring to the process; and to ensure appropriate records are kept detailing the rationale behind these decisions

3. The personal and professional interests, including any directorships, of all ICB board members, ICB committee members and ICB staff who are involved in decision-taking need to be declared, recorded and managed appropriately.

• declarations must be made as soon as practicable after the person becomes aware of the conflict or potential conflict and, in any event, within 28 days of them becoming aware
• ICBs should assure their boards at least annually on compliance with the above. This is established practice in NHS organisations
• this includes being clear and specific about the nature of any interest, and about the nature of any conflict that may arise regarding a particular decision

4. If an interest is declared but there is no risk of a conflict arising, then no further action need be taken (although the interest will still need to be recorded).

• however, if a material interest is declared, then it should be considered to what extent it affects the balance of the discussion and decision-making process
• in doing so the ICB should ensure conflicts of interest (and potential or perceived conflicts of interest) do not, and do not appear to, affect the integrity of ICB decision-making processes

5. ICBs should consider the composition of decision-making forums and clearly distinguish between those individuals who should be involved in formal decision-taking and those whose input informs decisions.

• ICBs should consider the perspective the individual brings and the value they add to both discussions around particular decisions and in actually taking part in the decision, including the ability to shape the understanding in the ICB of how best to meet patients’ needs and deliver care for their populations
• the way conflicts of interest are managed should reflect this distinction. For example, where independent providers (including the VCSE sector) hold contracts for services, it would be appropriate and reasonable for the ICB to involve them in discussions – for example, about pathway design and service delivery – particularly at place level
• However, this would be clearly distinct from any considerations around contracting and commissioning, from which they would be excluded

6. Actions to mitigate conflicts of interest should be proportionate and should seek to preserve the spirit of collective decision-making wherever possible.

• mitigation should take account of a range of factors, including the perception of any conflicts and how a decision may be received if an individual with a perceived conflict is involved in that decision, and the risks and benefits of having a particular individual involved in making the decision
• potential options in relation to mitigation could include:

a. including a conflicted person in the discussion but not in decision-making

b. excluding a conflicted person from both the discussion and the decision-making

c. including a conflicted person in the discussion and decision where there is a clear benefit to them being included in both – however, including the conflicted person in the actual decision should be done after careful consideration of the risk and with proper mitigation in place; the rationale for inclusion should also be properly documented and included in minutes

d. excluding the conflicted individual and securing technical or local expertise from an alternative, unconflicted source

7. The way conflicts of interest are declared and managed should contribute to a culture of transparency about how decisions are made.

• in particular, when adopting a specific approach to mitigate any conflicts of interest (including perceived conflicts), ICBs should ensure that the reason for the chosen action is documented in minutes or records

8. These factors should be read in conjunction with other relevant NHS England statutory guidance, including guidance on the PSR and guidance on joint working and delegation arrangements, and should be taken into account when updating ICB conflict of interest policies.

• in relation to the PSR, as is already established practice in the NHS, where decisions are being taken as part of a formal competitive procurement of services, any individual who is associated with an organisation that has a vested interest in the procurement should recuse themselves from the process

Other considerations

Early reviews of how conflicts of interest are being managed by ICBs has identified particular risks related to those individuals who serve on committees and sub-committees of the board, but who are not ICB board members nor ICB employees, and in relation to direct awards.

ICBs should ensure:

• those who are members of ICB sub-/joint-/committees of the ICB board (or an individual given delegated decision-making authority by the ICB board) have registered their interests, and must comply with the ICB’s conflicts of interest policy more broadly – this must include those employed by other organisations
  • where this is the case, the individuals should take into account both the ICB’s and their employing organisation’s policies on conflicts of interest and declare requirements accordingly
• individuals fully understand the ICB’s policy and in particular the importance of fully registering and updating their interests, even if they serve relatively briefly on sub-/committees.
  • it is important that the ICB chair gives their staff sufficient support to impress upon such appointees the seriousness of complying with these requirements
• they are particularly vigilant when there is a proposed direct award to a private business, which would result in a personal gain for an ICB board or sub-/committee member, employee, or their associates
  • in those circumstances, the ICB should ensure that the individual is recused from the decision-making process, and that record-keeping is especially clear and thorough
  • where the PSR permits discretion as to which procurement process to follow, ICBs would be advised to follow the competitive process

Online conflicts of interest training modules for CCG staff and governing body members lapsed with the dissolution of those bodies and the 2017 national conflicts of interest guidance specific to them.

At the request of ICBs, NHS England has commissioned new online conflicts of interest training modules for ICBs. ICBs should ensure:

• staff and board/committee members undertake training to understand their key conflicts of interest responsibilities
• internal auditors can access key information to examine uptake of this training

The PSR replaced existing procurement rules on 1 January 2024. The principles and approach recommended in this guidance is consistent with the conflicts of interest sections of the PSR statutory guidance.

The PSR allows for providers to make representations to the ICB about its contract award decisions in certain circumstances within a specified timeframe (‘standstill period’).

ICBs should ensure that they have in place appropriate internal governance mechanisms to deal with representations made against PSR.

To this end, ICBs should ensure that at least one individual not involved in the original decisions is included in the review process.

Further information about considering representations is contained in the statutory guidance.

Under s65Z5 of the Act, delegation and joint exercise of functions arrangements can be made between relevant bodies, NHS, local authorities and/or combined authorities.

NHS organisations convening joint committees can determine the membership of committees – which organisations are represented and on what basis. Joint committees may therefore include individuals who are not employees of the ‘convening organisations’.

For example, the joint committee could include a clinician who has expertise relevant to matters delegated to the committee, but who is not an employee of any of the bodies participating in the joint committee.

ICBs should ensure any joint committee appropriately manages of conflicts of interest relating to any and all of its members.

NHS England may issue further statutory guidance on delegation and joint working arrangements, including the management of conflicts of interest within these arrangements, in the future.

Relevant resources

• Managing conflicts of interest in the NHS: Guidance for staff and organisations (NHS England website))
• Guidance for delegation and joint working arrangements (FutureNHS login required)
• Managing conflicts of interest online training for ICBs (NHS England HR and OD training module)
• PSR statutory guidance (NHS England website)
• Integrated care boards: Counter fraud statutory guidance (NHS England website)
• Government Functional Standard 013 Counter Fraud (NHS Counter Fraud Authority website)
• Government Functional Standard GovS 013: Counter Fraud (gov.uk website)

Enabling understanding of governance arrangements

As a minimum, the constitution must be published as a requirement of law.

Constitutions and supporting documents should be published on ICB websites, as a single and easily navigable set of documents to enable transparency and engagement.

This full set of documents – with an introduction and any other documents determined locally – is referred to as the ICB ‘governance handbook’.

The governance handbook introduction should make it clear to a general reader, such as a member of the public:

• how they can inform decision-making, including by understanding who makes decisions as per the functions and decisions map
• how they can find out what matters are being considered
• how they can influence them
• the role of the local Healthwatch

The ICS implementation guidance for working with people and communities (FutureNHS login required) describes considerations that ICBs should give to the involvement of people and communities in ICB governance.

It guides systems to define, adequately resource and support the role of members of the public in governance arrangements.

Therefore, the ICB governance documents (including in the governance handbook) should make clear how delivery of the people and community engagement strategy will be assured. This should include:

• how the board has strategic oversight and assurance of involvement of people and communities in the exercise of its functions
• how the ICB will take responsibility to respond to community feedback and priorities identified through the engagement strategy in timely and accessible ways
• what arrangements have been/are being made to work with and alongside local partners such as Healthwatch and VCSE partners
  • an explanation of how the VCSE alliance will inform the ICB should be included in the ICB’s governance handbook
  • system leaders should work with their VCSE alliance to agree how the alliance will inform the ICB’s planning and decision-making, including understanding of the VCSE provider landscape
• how the board and its committees will consider the diversity of the population, including those who experience the greatest health inequalities, and how they have been involved in decision-making (including delegated decisions)
  • the latter includes through formal collaboration with local Healthwatch to ensure that its statutory functions are considered and how people’s voices and experiences across providers and partners are co-ordinated and heard
• in compliance with the Act, setting out how decision-making and governance will be transparent to the wider public
  • for example, publishing papers, holding meetings in public, undertaking direct community engagement

The ICB strategy for working with people and communities should be easy to find in the handbook; and it should be clearly explained how the board has strategic oversight and assurance of involvement of people and communities in the exercise of its functions.

This explanation should include the process of keeping the skills, knowledge and experience of the ICB board under review and with an assessment in the ICB annual report of how this is being discharged.

The ICB website should include up-to date information on board meetings and members, including a register of interests.

It should also give details of how to get involved in the work of the ICB, for example by:

• attending public board meetings and asking questions
• submitting complaints and comments
• submitting Freedom of Information requests
• contacting local Healthwatch, with links provided
• other ways to get involved, as detailed

In addition, NHS England’s Statutory guidance on working in partnership with people and communities should be consulted.

The ICB needs to ensure transparency, as the Act requires, and to decide which meetings should be held in public to achieve this.

The ICB will be subject to the Public Bodies (Admission to Meetings) Act 1960, which has several associated requirements that ICB governance leads will wish to familiarise themselves with.

The legal requirements apply to board meetings or committees at which all board members are present, or which are made up of board members only.

A body/committee that usually meets in public may, if it passes a resolution, exclude the public from all or part of a meeting if the item is of a confidential nature or for other special reasons stated in the resolution.

There is no expectation that remuneration or audit committees are held in public.

The Freedom of Information Act requires every public authority to have a publication scheme, approved by the Information Commissioner’s Office (ICO), and to publish information covered by the scheme.

The ICO publishes a model publication scheme that sets out the minimum information that every public authority, including ICBs, should publish.

It has also produced a definition document for health bodies in England that gives examples of the kinds of information the ICO expects organisations to provide to meet their commitments under the model publication scheme.

The ICB model constitution references the following documents in particular:

• register of interests
• board papers and minutes of all meetings held in public
• audited annual accounts
• complaints process
• the annual report
• the five-year joint forward plan

Those eligible to nominate partner members

The government set out secondary legislation (regulations) determining which trusts and which primary medical services providers may participate in the process for nominating at least one ‘ordinary member’ for appointment to the ICB board.

ICBs must keep the lists of eligible trusts and primary medical services providers up-to-date. This section outlines how NHS England expects those regulations to be applied, including:

• identification of NHS trusts/foundation trusts that are eligible to jointly nominate the trust board member(s) of the ICB board
• identification of general practices that are eligible to jointly nominate the primary care board member(s) of the ICB board

For the purpose of this section:

• the term ‘trust’ refers to NHS trusts and foundation trusts
• the term ‘regulations’ or ‘partner member regulations’ refers to the Integrated Care Boards (Nomination of Ordinary Members) Regulations 2022.

Nominating trusts and general practices

Nominating trusts

• trusts are eligible to jointly nominate the trust partner member(s) of the ICB board if:
  • they provide services for the purposes of the health service within the ICB’s area (as per primary legislation)
  • the relevant ICB considers them to be essential to the development and delivery of the five-year joint forward plan (‘forward plan condition’, as described in regulations)
• where a trust providing services for the purposes of the health service within the ICB’s area does not meet the forward plan condition, it becomes a nominating organisation for the ICB from which the trust receives the largest proportion of its ICB income for the provision of local NHS services (‘level of services provided’ condition)

Nominating general practices

• all primary medical services contract holders responsible for the provision of essential services within core hours to a list of registered persons for whom the ICB has core responsibility are eligible to jointly nominate the primary care partner member(s) of the ICB board

The Act requires that trusts and providers of primary medical services provide services “for the purposes of the health service within the integrated care board’s area” to be eligible to take part in the ordinary member nomination process.

For the avoidance of doubt, this does not require the services provided by a trust or a provider of primary medical services to be physically located within the area of an ICB.

It is sufficient that the services they provide are accessed by patients for whom the relevant ICB is responsible, and those services are being provided for the purposes of the health service within the area of the ICB.

This, for example, allows a trust that has no physical presence inside the geographical boundaries of an ICB to be eligible to nominate the trust ordinary member if its services are accessed by individuals for whom the ICB is responsible (and the trust also qualifies under the ‘forward plan condition’ or the ‘level of services provided condition’).

GP providers are eligible to nominate only for the ICB with which they are associated, and which has core responsibility for their registered list.

GP providers may hold more than one contract with a list conferring eligibility to nominate.

Where they have multiple contracts with lists associated with the same ICB, they nominate as if they held one such contract.

Where they hold contracts with lists associated with different ICBs, they are eligible to nominate to each of those ICBs.

Nominating local authorities

• any local authorities responsible for the provision of social care whose areas coincide with, or include the whole or any part of, the ICB’s area are eligible to jointly nominate the local authority ICB board partner ordinary member(s) for that ICB
• eligibility of local authorities to nominate relevant ordinary member(s) is written into the Act and is not subject to regulations

Process for identifying nominating organisations

• the trusts and local authorities which are eligible to nominate ICB board partner members must be named as such in the ICB constitution
• eligible general practices should be listed in the ICB’s governance handbook (this list must be kept up to date but does not form part of the constitution)

If there is any difference in view between a trust and an ICB on whether the trust should be a nominating organisation, then NHS England will support the parties to reach agreement.

It is expected that this will rarely be necessary, with ICBs and trusts guided by their shared commitments, including as articulated in the triple aim duty.

Role of nominating organisations

Nominating organisations are eligible to jointly nominate the relevant ICB board partner members.

Nominating trusts are also defined as formal “partners” to the ICB in the Act.

The legislation outlines further implications of “partner” status for trusts (see below) and there may be further implications described in NHS England policy.

Roles of nominating organisations defined in the Act

Trusts:

• are party to the nomination of the trust ICB board partner member(s)
• must develop and agree the ICB’s five-year joint forward plan
• must agree the system capital plan
• may receive grants from the ICB
• may have their resources apportioned to the ICB for the purposes of statutory financial duties
  • trusts have a statutory duty (with ICBs) to ensure their collective use of resources does not exceed an agreed limit
  • for this purpose, NHS England is able to apportion a trust’s resources to one or more of its partner ICBs, but has decided to apportion each trust to one ICB only

Primary medical care providers:

• are party to the nomination of the primary care ICB board partner member(s)

Local authorities:

• are party to the nomination of the local authority ICB partner board member(s)
• establish the integrated care partnership with the ICB as a statutory joint committee

There will be other organisations which are important to engage in collaborative working at system, place or neighbourhood level. However, these are not the ‘nominating organisations’ specifically addressed in this guidance.

In some systems, social enterprises are very significant providers, in particular of community services, and it will be important to engage them in the development and agreement of the five-year joint forward plan and on the role of the trust ICB board ordinary member(s).

While this is strongly advised, it is not a requirement under the legislation.

Trust partner members

Regulations overview

The Integrated Care Boards (Nomination of Ordinary Members) Regulations 2022 determine that a trust becomes a nominating organisation for an ICB if the relevant ICB is satisfied that the trust is essential for the purposes of assisting the ICB in development and delivery of the five-year joint forward plan (forward plan condition).

The wording of regulations refers to whether the ICB is satisfied that the trust is essential to enabling the ICB to exercise its functions in the next 5 years, in relation to delivery of several required elements of the five-year joint forward plan (as described in the Act).

As a consequence of a trust meeting this condition in respect of an ICB, the trust also falls within the definition of ‘partner trust’ of an ICB for the purposes of the new section 14Z48 of the NHS Act 2006.

Trusts which are nominating organisations are also defined as formal ‘partners’ to the ICB in the Act.

This reflects their role in agreeing the five-year joint forward plan and capital plan, and their ability to receive grants from the ICB and be apportioned to it for the purposes of financial control.

While the regulations set out the ‘prescribed description’ of trust partners, the way in which the forward plan condition has been drafted in the regulations allows for some local discretion in its application.

Where a trust does not meet this condition for any ICB, it becomes a partner to, and nominating organisation for, the ICB from which the trust receives the largest proportion of its ICB income for the provision of local NHS services (level of services provided condition).

Application of the level of services provided condition requires an assessment of income received by trusts in the past financial year from any ICB for local NHS services.

Rationale for each of the 2 conditions

Forward plan condition:

• To enable relevant ICBs to identify the relevant partner trusts, guided by whether they are essential to the development and delivery of the five-year joint forward plan, and allowing for local discretion.

Level of services provided condition:

• To ensure that all trusts are partners to at least one ICB, even if they do not meet the forward plan condition for any ICB. For example, this could apply to some specialist trusts.

All trusts must be a partner trust in relation to at least one ICB and the application of these rules is expected to result in most trusts being partners to one ICB only.

A minority of trusts will be partners to 2 ICBs (for example, those close to ICB borders), and a small number to 3 or more ICBs.

Forward plan condition

Rationale

The forward plan condition, in formal terms, requires that a trust is a partner to an ICB where the ICB is satisfied that the provision of services, or arrangement of the provision of such services, by the trust – for the purposes of the health service within the ICB’s area to persons for whom the ICB is responsible – is essential for the purposes of enabling the ICB to exercise its functions in the next five years.

In other words: the relevant ICB must be satisfied that the trust will be essential for the purposes of assisting in development and delivery of the joint forward plan for the next 5 years.

For the forward plan condition, the persons for whom an ICB is responsible are persons for whom the ICB has responsibility for the purposes of section 3 or 3A (or both) of the NHS Act 2006.

In particular, the relevant ICBs should consider whether the trust is essential to the development and delivery of at least one of the following duties to be addressed in the five-year joint forward plan as specified in legislation:

• improvement in quality of services
• reducing inequalities
• promoting innovation
• in respect of research
• promoting education and training
• promoting integration
• having regard to wider effect of decisions (triple aim)
  • the Act requires that, in making a decision about the exercise of its functions, an ICB must have regard to all likely effects of the decision in relation to the health and wellbeing of the population, quality of care and sustainable use of NHS resources
• climate change
• financial duties

The forward plan condition enables ICBs to apply some discretion in identification of partner trusts according to local factors.

Application

In determining which trusts are essential to the development and delivery of the five-year joint forward plan, relevant ICBs are required in particular to consider:

a. the nature of the services provided by the trust for the purposes of the health service within the ICB’s area

• for example, it may not be appropriate for a provider of specialised, low volume services to the whole population in the future ICB’s area to be a partner trust; while it may be appropriate for a trust providing community services to part of the population in the ICB’s area to be a partner, although the overall value is lower than for those specialised services

b. the volume of services provided by the relevant trust for the purposes of the health service within the ICB’s area, including whether it is the sole or a main provider of services

• for example, where a trust is the only, main or a major provider of services for a specific sector (such as acute, community, mental health or ambulance services), then the relevant ICB may be satisfied that it should be a formal partner to the ICB
• relevant ICBs may also wish to consider the proportion of ICB-derived income the trust receives from the ICB

c. the nature of any hospitals or other NHS facilities of, or managed by, pursuant to arrangements made by, the relevant trust at which services are provided to persons for whom the ICB is responsible

• for example, if a trust has or manages key NHS hospitals or facilities which provide services for the population within the ICB’s area, the ICB may be satisfied that it is an important partner to the ICB, even if the great majority of the trust’s services are provided to the population within a neighbouring ICB’s area

If a trust is considered by the ICB to be essential to development and delivery of the joint forward plan in the next 5 years in respect of any one or more of the 3 considerations above, then it should be a formal partner to the ICB.

It is generally expected that there will be mutual agreement on trust partner status between ICBs and trusts.

As stated earlier, if there is any difference in view between these parties on whether a specific trust should be a nominating organisation, then NHS England will support them to reach agreement.

It is expected that this will rarely be necessary, with ICBs and trusts guided by their shared commitments, including as articulated in the triple aim duty.

Table 3 provides examples of scenarios in which trusts are expected to be formal partners to an ICB under the forward plan condition.

Across systems there will be a range of circumstances and local factors to consider.

ICBs should apply discretion in considering whether they are satisfied that the nature of a trust’s relationship with the ICB means it will be essential for the purposes of assisting the ICB in development and delivery of the joint forward plan, with reference to the 3 considerations outlined above.

Examples of scenarios in which trusts would be expected to be partners to an ICB

1. Consideration: Nature of services

Examples of trusts expected to be ICB partners:

• Acute, community or mental health trust that provides NHS services for most or all of the population within the ICB’s area.
• Ambulance trust that provides NHS services for most or all of the population within the ICB’s area.
• Acute trust that provides NHS community and/or mental health services for all or most of the population within the ICB’s area.

2. Consideration: Volume of services, including if the trusts is the sole of main provider

Examples of trusts expected to be ICB partners:

• Trust that is the sole or main provider of NHS services for the population within the ICB’s area.
• Trust that is the sole or main provider of NHS services for a specific sector (acute, mental health, community or ambulance) for the population within the ICB’s area.
• Trust that is a major provider of services for a specific sector (acute, mental health, community or ambulance) for the population within the ICB’s area.

3. Consideration: Hospitals, establishments and facilities

Examples of trusts expected to be ICB partners:

• Trust that has, or manages, hospitals, establishments and facilities that provide services to persons for whom the ICB has responsibility.

Ambulance trusts are important to the strategic planning and integration of care across multiple ICSs, particularly in relation to urgent and emergency care. ICBs should therefore identify their ambulance trust as a formal partner.

There may also be circumstances in which a trust will play an important role in arranging provision of services for the relevant ICB, such as in lead provider arrangements.

The forward plan condition allows for trusts to be identified as partners where the relevant ICBs are satisfied that their role in arranging provision of services is essential for the purposes of assisting the ICB in development and delivery of the five-year joint forward plan.

However, this only applies where the relevant trust also provides at least some services for the purposes of the health service within the ICB’s area.

Relationship with trust income from ICBs

The income that a trust receives for the provision of services to persons for whom the ICB is responsible is a good indicator of its expected relationship with that ICB; this can be taken into account when considering the volume of services provided.

Therefore, it may be helpful to consider what percentage of ICB-derived income the trust received from provision of NHS services to the ICB’s population.

While there is no threshold value at which a trust should become a partner, analysis indicates that acute, community or mental health trusts with ≥10% of their current ICB income received from a single ICB tend to be appropriate partners to that future ICBs.

However, the applicability of this will depend on local factors.

Level of services provided condition

Rationale

The level of services provided condition requires that where a trust/foundation trust does not meet the forward plan condition for any future ICB, it becomes a formal partner to the ICB from which the trust receives the largest proportion of its ICB income for the provision of local NHS services.

This condition ensures that all trusts are partners to at least one future ICB, based on the ICB with which they have the most significant financial relationship.

It is not expected that this condition will be required often. However, it could apply, for example, to specialist trusts, which provide services across many ICBs.

Application

Application of this condition requires trusts to calculate the percentage of their historical ICB income for the provision of local NHS services in respect of each relevant ICB.

This should be based on the best information available from the most recent full financial year.

This calculation should include income from ICBs only. Any income from other sources, including NHS England, should be excluded from the calculation.

Practically, this will likely be based on funds moving from an ICB’s financial ledger to a trust’s ledger, which is reported in their respective accounts.

NHS trust income is reported through standard accounting, and this enables sources of income to be identified. Providers can calculate what proportion of the income they receive in respect of each ICB.

Providers may also receive income from sources other than ICBs for a local population or area, for example income received from NHS England for specialised services and public health. These other sources of income should be excluded from the calculation.

Furthermore, NHS trusts may receive income from other NHS providers through a sub-contract, which relates to a contract that provider holds with an ICB.

NHS England would expect this to be added to any income received from the ICB directly for the sub-contractor, and correspondingly subtracted from the sub-contracting trust (for example, lead provider), for the purpose of the level of services provided condition.

On some occasions, the contract might not explicitly identify payment from one ICB that is then funded through to sub-contracts – for example, if there are multiple ICBs contracting collaboratively – and it may not be possible then to include this income in the calculation.

Primary medical services partner members

All primary medical services contract holders which are responsible for the provision of essential services to a list of registered persons within core hours – including persons for whom the ICB has core responsibility – are eligible to jointly nominate the primary care partner member(s) of the ICB board.

Note that the regulations use the general medical services (GMS), personal medical services (PMS) and alternative provider medical services (APMS) contract definitions of ‘essential services’, ‘core hours’ and ‘registered patients’ in this context.

Eligible nominators will therefore include individuals, partnerships or corporate bodies which hold a GMS, PMS or APMS contract, where those contracts are for the provision of essential services to a list of registered persons within core hours, which include persons for whom the ICB has core responsibility.

The regulations specifically exclude trusts that provide such services from this definition.

For clarity, the nominator is the contract holder (for example, a partnership or company), rather than individual general practitioners or other employees of the contract holder.

Contracts for primary medical services without a patient list – for example, serving the homeless – do not confer eligibility. The population of each ICB is comprised of these patient lists and therefore there will be alignment.

Publication reference: PRN00831_i