Guidance

NHS public health functions agreement 2022 to 2023

Published 22 February 2023

Applies to England

Introduction

The NHS has a vital role to play in securing good population health and preventing disease. This agreement with the Secretary of State for Health and Social Care enables NHS England to commission certain public health services that will drive improvements in population health, including our world-leading childhood and adult immunisation programmes, and screening programmes that span the many opportunities to detect, act and in some cases prevent serious diseases across the life-course. It is recognised that these services sit alongside and complement the work of wider public sector-commissioned health services.

Public health programmes are set against a backdrop of rapidly advancing technology and scientific developments, and opportunities are emerging that should enable us to develop more targeted approaches to some of our national public health programmes, so we are supporting people with information and services that are closely aligned to their circumstances and needs.

Through the recent programme of public health reforms – which has included the creation of the UK Health Security Agency (UKHSA) and the Office for Health Improvement and Disparities (OHID) within the Department of Health and Social Care (DHSC), and the transfer of some functions to NHS England (see Annex C) – the key has been building on lessons from the coronavirus (COVID-19) pandemic response and, wherever possible, to ‘build back better’.

Building on recommendations from the Levelling Up the United Kingdom white paper, the government’s bold vision for preventing ill-health, detecting ill-health earlier when it occurs and working better together in a more personalised way for individuals and families remain central to the ambition of (at least) 5 extra healthy, independent years of life by 2035, while narrowing the gap between richest and poorest.

NHS public health functions 2022 to 2023

This agreement sets out the arrangements under which the Secretary of State delegates to NHS England responsibility for certain elements of the Secretary of State’s public health functions, which add to the functions exercised by NHS England under the National Health Service Act 2006 (‘the 2006 act’). This agreement is made under section 7A of the 2006 act.

This agreement focuses on achieving positive health outcomes for the population and reducing disparities in health through provision of the services listed in Annex A (‘s.7A services’). This reflects the 2 high-level outcomes set out in the Public Health Outcomes Framework (‘PHOF’) referenced in Annex B.

NHS England is accountable to the Secretary of State for delivering its responsibilities under this agreement and how well it drives improvement in s.7A services.

Health and justice services are required to deliver on both national s.7A targets (for example, for immunisations and cancer screening) and unique indicators relevant to the population residing within prisons and prescribed places of detention (PPDs). This includes indicators on substance misuse services and infectious disease screening. These unique services are commissioned directly in PPDs by NHS England to address health disparities experienced by this vulnerable population group.

Objectives

NHS England’s first objective under this agreement is to:

• secure the operational delivery via its commissioning and accountability cycle or processes to ensure high-quality NHS public health services in England (see Annex A, list A1), with efficient use of s.7A resources, seeking to prevent avoidable ill-health
• achieve earlier diagnosis with positive health outcomes
• promote equality
• reduce health disparities

Achieving this objective would mean that:

• NHS England will have secured services by setting national NHS contract service specifications to commission providers (registered with the Care Quality Commission (CQC) for services delivered within this agreement). NHS England will have effectively managed the contracts so that providers deliver the required performance, and so that variation in local levels of performance between different geographical areas is reduced and services are transformed where required. The NHS Standard Contract, where appropriate, will include the key performance indicators (KPIs) set out in this agreement. Providers are expected to:
  • deliver the agreed programme standards
  • evaluate their performance
  • undergo appropriate training
  • follow all relevant clinical and professional guidance
• NHS England will have shown evidence in relation to quality and safety of services that effective contract and performance management has been exercised to ensure providers deliver and assure to the requisite quality standards, including the quality of patient experience, with patients able to access quality and equitable services delivered by providers with a suitably qualified and diverse workforce

NHS England’s second objective is to:

• be responsible for the operational delivery of changes in services or introduction of new services that are agreed with DHSC
• continue to transform these services (subsequent to UK National Screening Committee (UKNSC) and Joint Committee on Vaccination and Immunisation (JCVI) recommendations where relevant, informed by appropriate assessment of practical impact and feasibility for the NHS)

The programme should be carefully planned, taking account of relevant clinical or public health expert advice from UKHSA and OHID, while seeking to minimise NHS service disruption and improve overall outcomes.

NHS England will ensure there is an NHS screening and immunisation strategy that reflects requirements of this agreement and programme standards while enabling regional operational delivery models that are designed with integrated care systems (ICSs). Key deliverables for implementing new or changed services in 2022 to 2023 are listed in Annex B list B2.

Roles and responsibilities

As part of the ‘comprehensive health service’, fully effective achievement of the desired public health outcomes envisioned in this agreement is predicated on a range of organisations at national, regional and local levels fulfilling their roles. DHSC is the overall steward of the system and holds NHS England to account for commissioning and operational delivery under this agreement as set out further in Chapter 3 of the 2006 act.

UKHSA provides DHSC with expert health protection evidence and advice, and provides NHS England with immunisation national statistics and expert advice at national, regional and local level. Similarly, OHID provides advice on matters of health improvement.

NHS England develops and promulgates national NHS contract documentation in a timely manner within the appropriate contracting timetable for the programmes set out in Annex A.

Legal framework

Pursuant to this agreement, NHS England will exercise functions of the Secretary of State described (at the time of writing) in sections 2, 2A, 2B and 12 of the 2006 act so as to provide or secure the provision of s.7A services. Where NHS England exercises these functions, they are referred to in this document as ‘NHS public health functions’.

NHS England was established as the National Health Service Commissioning Board by section 1H(1) of the 2006 act. NHS England is a commissioning organisation, as made clear by its principal functions set out in section 1H(3) of the 2006 act.

Following commencement of the Health and Care Act 2022, a range of joint working and delegation arrangements will be permissible involving diverse NHS and non-NHS bodies as detailed in powers under new section 65Z5 of the National Health Service Act 2006 and related provisions. These powers are applicable to public health functions exercisable by arrangements under section 7A (subject to any regulations made under section 65Z5(3) and the terms of agreed delegation themselves).

In order to assure the ongoing coherence and consistency of national public health programmes covered by this agreement, NHS England will discuss any plans for onward delegation of section 7A services (for example, to integrated care boards (ICBs)) at a formative stage and obtain the consent of the Secretary of State to those arrangements before proceeding.

Under any such agreed delegation arrangements, NHS England will remain accountable to the Secretary of State for the delivery and performance of section 7A services via the mechanisms set out in this agreement.

The services listed in Annex A are to be provided or secured from 1 April 2022 to 31 March 2023.

The provision of the services listed in Annex A are steps that the Secretary of State considers appropriate for the purpose of protecting the public in England from disease or other dangers to health, and may therefore be provided and arranged pursuant to the Secretary of State’s duty under section 2A of the 2006 act. Alternatively, or in addition, the provision of a number of the services listed in Annex A are steps the Secretary of State considers appropriate to improve the health of the people of England and may therefore be provided or arranged pursuant to the Secretary of State’s power under section 2B of the 2006 act.

This agreement is intended to include functions of the Secretary of State mentioned above. By virtue of section 13Z4 of the 2006 act (interpretation), references in the statutory provisions listed in that section to NHS England’s functions include functions exercisable under section 7A arrangements. The effect is that the provisions listed in section 13Z4 – including the provisions on NHS England’s general duties as to improvement in quality of services and reducing inequalities – apply to the functions exercised by NHS England under this agreement as they do to its other functions.

The objectives in this agreement are in addition to those objectives set for NHS England by the Secretary of State under section 13A of the 2006 act (‘the mandate’).

Furthermore, this agreement applies only to the exercise of Secretary of State NHS public health functions referred to above and does not apply to other functions of NHS England including in particular:

• arranging the provision of services under NHS England’s primary care functions – that is arrangements made under the following provisions of the 2006 act:

  • sections 83, 84 and 92 (primary medical services)
  • sections 99, 100 and 107 (primary dental services)
  • section 115 and 117 (primary ophthalmic services)
  • sections 126 127, 132 and 144 (pharmaceutical services)
• arranging the provision of services under regulations made under section 3B of the 2006 act (specialised and other services), and high secure psychiatric services (section 4 of the 2006 act)
• NHS England’s responsibilities for emergency preparedness or emergencies, including steps taken and arrangements made under section 252A of the 2006 act
• NHS England’s responsibilities in relation to clinical commissioning groups (to be superseded by ICBs under the Health and Care Act 2022), including functions and duties under Chapter A2 of Part 2 of the 2006 act

NHS England may, however, exercise its other functions in order to deliver the objectives set out in Chapter 1 of the 2006 act.

In exercising the Secretary of State’s public health functions referred to above, NHS England must comply with the public sector equality duty (section 149 of the Equality Act 2010).

NHS England’s duty to make an annual report on how it has exercised its functions (section 13U of the 2006 act) applies to the functions exercised under this agreement. NHS England may include any part of the statement required under ‘Accountability and partnership’ below as part of that annual report or as a separate document provided to DHSC as soon as practicable after the end of the financial year to which it relates.

This agreement is not a contract in law and should not be regarded as giving rise to contractual rights or liabilities. The Secretary of State and NHS England will jointly aim to resolve any dispute that might arise in relation to this agreement as quickly as possible through the processes outlined in this agreement.

As set out in section 7A(5) of the 2006 act, any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by NHS England of any functions exercisable by it by virtue of this section are enforceable by or against that body (and no other person).

In this agreement, references to ‘DHSC’ are to parts of the Department of Health and Social Care, including the Office for Health Improvement and Disparities (OHID), other than the UK Health Security Agency (UKHSA).

The Secretary of State and NHS England may be collectively referred to in this document as ‘the parties’ where this is convenient.

Accountability and partnership

The agreed set of shared principles that supports development of the relationship between DHSC and NHS England are:

• working together with each other and with the DHSC’s other arm’s length bodies (for example, UKHSA) for all patients, people who use and deliver these services and the public, and secondary users of information (commissioners, service providers and the research or academic community), demonstrating our commitment to the values of the NHS set out in its constitution
• respect for the freedom of individual organisations to exercise their functions in the way they consider most appropriate
• recognition that the Secretary of State is ultimately accountable to Parliament and the public for the system overall
• working together openly and positively. This will include working constructively and collaboratively with other organisations within and beyond the health and social care system – for example, executive agencies

DHSC, NHS England and UKHSA will continue to work centrally and with NHS England regional teams, as well as local areas that are considering how system and place-based models of commissioning or delivery may support improved safe and clinically appropriate provision of s.7A to their local population.

DHSC, NHS England and UKHSA will continue to work with NHS Digital (pending the latter’s merger with NHS England) as appropriate to plan and deliver the digital enablement that will secure screening and immunisation and child health information system (CHIS) service transformation that is required to support efficient and effective operational delivery.

DHSC recognises that the transition of functions from Public Health England to new homes requires all receiving organisations to assess the best way to deliver the functions they have received with the resources they have available. DHSC will continue to support NHS England to manage the handover of screening functions including, where appropriate, changes to how they are delivered to optimise available resources, including through specified handover support in the period up to September 2022.

Oversight arrangements

DHSC will convene meetings of an oversight group, which will be chaired by the responsible DHSC director general. The oversight group is called the ‘NHS public health Section 7A accountability meeting’. This accountability meeting is expected to be convened twice a year and:

• provides arrangements for accountability in relation to this agreement
• may make recommendations to the Secretary of State and NHS England, including any recommendations in relation to proposed updates of, or variations to, this agreement

In addition, an annual ministerial accountability meeting will be arranged at a convenient point.

Membership of the accountability meeting will include DHSC, NHS England and UKHSA. Membership otherwise will be determined by the chair with the consent of NHS England. The accountability meeting will determine its own working arrangements, including the functions of any subgroups.

The accountability meeting is expected to have regard to the views of NHS England on the exercise of its functions under this agreement, having regard to its other functions.

The parties recognise that the objectives set out in Chapter 1 of the 2006 act, which are terms of this agreement, may be delivered by a combination of the performance by NHS England of functions under this agreement and the exercise of its other functions, including primary care functions. For purposes of accountability, the Secretary of State and NHS England recognise that the funding provided under this agreement in accordance with the ‘Finance’ section below is intended to provide the resources necessary to achieve the objectives of this agreement, having regard to contributions expected to be made by the exercise of NHS England’s other functions.

Assurance and reports

Assurance in relation to performance under this agreement will be consistent with the principles mentioned in the above section ‘Accountability and partnership’, without imposing excessive burdens. In particular, NHS England is committed to openness and transparency in providing a breakdown of the total funding. Achieving this is subject to NHS England having sufficient capacity and access to reliable data.

NHS England works in partnership with DHSC and UKHSA, including through representation at NHS England screening and immunisation programme boards and the national NHS England Public Health Oversight Group. Collectively, we will work together to provide or secure the following information for assurance:

• regular reports of relevant indicators of the Public Health Outcomes Framework in relation to national levels of performance of s.7A services
• reports of progress in relation to achievement of objectives of this agreement, including introduction of service changes (including where relevant those recommended by UKNSC and JCVI) that will enable continued transformation of these services, and in reducing variation in local levels of performance, and securing the full implementation of service specifications in contracts with providers
• progress reports to demonstrate the delivery of statutory duties on promoting equality and reducing health inequalities in relation to s.7A programmes, including data on performance variation between different areas and populations
• reports of financial information of the financial year that show a breakdown of planned and actual expenditure on s.7A services

The accountability meeting may determine what, if any, further information is suitable for the purpose of assurance of progress in relation to achievement of the objectives of this agreement.

NHS England will report annually to the Secretary of State in relation to this agreement on its achievement of the objectives set out in Chapter 1 of the 2006 act. NHS England will report to the Secretary of State as soon as practicable after the end of each financial year on the use of the funding allocated under ‘Finance’ below and, if different, the total expenditure attributable to the performance of functions pursuant to this agreement. This annual statement will include a breakdown showing expenditure for each programme category or programme listed in Annex A.

NHS England will work with partners to support improvement in areas where significant performance issues are identified, ensuring action plans are developed and that progress is made in implementing these plans through the joint assurance process, including actions on addressing inequalities.

Modifications to Section 7A programmes

This agreement is intended to support priorities DHSC has identified that it requires NHSE to deliver in the financial year of 2022 to 2023 or to prepare to deliver in future financial years, and that need to be enabled by the annual NHS commissioning cycle.

This agreement may be varied by the Secretary of State and NHS England by written agreement. However, variations that would have an impact on the commissioning obligations of NHS England should rarely occur in-year, and the parties note that the achievement of the objectives of this agreement could potentially be jeopardised by unplanned changes.

Circumstances may require consideration of a prospective variation to this agreement and the accountability meeting may recommend a variation. A prospective variation will include any change that would have an impact on the commissioning obligations of NHS England under this agreement or that is required for clinical reasons at the direction of the Secretary of State. The circumstances in which a prospective variation to this agreement may be considered include any of the following:

• a significant new threat to the health of the people of England
• an unexpected and significant new opportunity to protect their health
• a recommendation that would provide significant freeing up of resource

Consideration of a prospective variation should be based on joint DHSC, NHS England and UKHSA assessment of the following factors, which are similar to considerations made before reaching this agreement:

• evidence of impact (including NHS service provision and participant), cost-effectiveness and (where relevant) cost savings
• other evidence of rationale, including obligations under the NHS Constitution for England and NHS England mandate
• assessment of NHS deliverability (taking into account existing operational resources, including commissioning capacity and service, and workforce capacity, estate, capital and/or service reconfiguration requirements)
• any mitigating measures, such as lower expectations of performance in other services while delivery is implemented
• any alternative options or timelines for delivery
• affordability and confirmation of the availability of sufficient financial resources for delivery

The parties would expect to engage in thorough consideration of the affordability and financial matters mentioned above. DHSC expects that this will involve the views of the DHSC Director General of Finance and the NHS England Chief Financial Officer at a formative stage before recommendations on programme decisions are considered by ministers.

The parties are committed to undertaking timely and efficient consideration of any prospective variation. The parties consider that public announcements about the likelihood of any additional commissioning being implemented by a prospective variation should be avoided until a recommendation has been formulated with all appropriate inputs and considered by ministers. DHSC will seek to ensure that public communications are consistent with this approach in relation to advisory committees’ advice or recommendations on s.7A services or any prospective variation to this agreement.

Information

To fulfil the purposes of this agreement, DHSC, NHS England and UKHSA should each have the requisite timely and objective data and information available to them to fulfil their respective roles. It is necessary that public health experts and officials responsible to the Secretary of State, including the government’s Chief Medical Officer, receive information in relation to matters of expert, clinical or Parliamentary concern at the earliest possible time.

DHSC will ensure that UKHSA shares operational information with NHS England on activity, emerging evidence and the work of the advisory committees, in line with the arrangements described under ‘Assurance and reports’ that will support strategic planning and transformation of NHS services.

DHSC will work with NHS England, UKHSA and NHS Digital in line with their respective roles and responsibilities to improve timely sharing of activity and service data as appropriate in relation to s.7A services, including to support NHS England’s commissioning and transformation functions.

NHS England will also work to ensure early and effective communication of clinically accurate and safe information and guidance around any programme changes takes place with service providers.

NHS England will without delay inform DHSC in writing of any significant concerns it has in relation to the performance of s.7A services.

Dispute resolution

Any differences should be resolved quickly and constructively. The following provisions describe procedures to be followed to resolve any dispute in relation to:

• the exercise of functions under this agreement
• any aspect of collaboration in relation to this agreement

At their discretion, an authorised senior representative of NHS England or DHSC may at any time declare a dispute under this agreement by a written notice to the chair of the accountability meeting. The notice should provide information about the dispute, and how resolution of the matter has been attempted and failed. The day when the chair is notified is the ‘date of notification’. The chair will have joint responsibility with the responsible NHS England director to resolve the dispute.

Any dispute remaining unresolved after a maximum of 5 working days from the date of notification shall be reported to the Chief Executive of NHS England, the DHSC Director General of Finance and the DHSC Permanent Secretary. They shall take steps to resolve the dispute within no more than 10 working days from the date of notification.

If the matter is not resolved in accordance with this, the matter must be referred to the Secretary of State for final determination. The Secretary of State must, after consultation with NHS England, appoint a person independent of DHSC, UKHSA and NHS England to consider the dispute and make recommendations within a period specified by the Secretary of State on appointment. The Secretary of State must make a final decision within 10 days of receiving the recommendations. DHSC and NHS England agree to be bound by the decision of the Secretary of State and to implement any decision within a reasonable period.

This agreement is without prejudice to the exercise of the Secretary of State’s powers in respect of NHS England, including his powers in relation to any failure by NHS England to discharge, or to discharge properly, any of its functions (section 13Z2 of the 2006 act).

Finance

Prior to the COVID-19 pandemic, ring-fenced funding was provided by the Secretary of State to NHS England from the public health budget for the purposes of performing the Secretary of State’s functions pursuant to this agreement (in addition to the funding referred to below). However, due to uncertainties arising from the pandemic, no ring-fence was set in financial directions for the services for 2020 to 2021 and 2021 to 2022.

Similarly, the intention for this transitional year is that NHS England will manage the provision of the services as appropriate within the totality of its resources (including additional funding for the COVID-19 vaccinations programme and targeted mpox (monkeypox) vaccinations programme) working closely with the DHSC to share such financial data as is available to assure of its spending plans and provide appropriate financial monitoring information. Should a ring-fence be deemed appropriate, DHSC may reinstate the ring-fence in future financial years.

Imposition of any ring-fence does not preclude NHS England from choosing to allocate additional resources to prioritise public health spend within its overall resource limits.

As mentioned in ‘Oversight arrangements’ above, there are contributions expected to be made by the exercise of NHS England’s other functions. Accordingly, there is an additional sum attributable to the public health budget for services provided through primary care that is included within the total allocation of resources to NHS England under sections 223B and 223D of the 2006 act.