Review of section 75 arrangements: Local Government Association response

• Thank you for the opportunity to comment on the scope and effectiveness of section 75 arrangements.  We have chosen not to answer all 30 specific questions included in the supporting document to the call for evidence. Instead, the high-level views of the LGA about the scope and effectiveness of section 75 financial flexibilities are summarised in paragraphs 5 – 19 below. 
• Department of Health and Social Care (DHSC) colleagues may be aware that the LGA has already provided views on the effectiveness and scope of section 75 financial flexibilities as part of the previous Government reviews, most recently in 2021, prior to the drafting of the Health and Care Bill 2021. In 2021, the LGA provided written evidence and facilitated discussions between DHSC officers and senior officers in local government. On this occasion, the consensus from local government stakeholders was that section 75 is used widely by local government and NHS partners to support integrated commissioning and the joining up of health and care services.  Local government stakeholders were broadly in favour of section 75 financial flexibilities remaining unchanged. 
• Based on LGA advice, and presumably the views of other stakeholders, the Government decided not to include revision of section 75 financial flexibilities in the Health and Care Bill, which became the Health and Care Act 2022.
• In relation to the current review, the LGA invited DHSC colleagues to the DHSC and LGA Local Government Health and Care Sounding Board in June 2023 to hear the local government perspective. We also arranged a one-off meeting for DHSC colleagues to seek the views of LGA and the Association of Directors of Adult Social Services (ADASS) senior officers in August 2023. The general views set out in the paragraphs below are drawn from these discussions with the LGA and senior local government stakeholders. 

Should the scope of section 75 be widened to include additional health-related functions of local authorities and NHS bodies?

The LGA does not see any need to widen the scope of section 75 to include any additional health-related functions of local authorities and NHS bodies. 

Should the scope of section 75 be widened to include additional public health functions delegated to local authorities and NHS bodies by the Secretary of State?

There has been no widespread call from Directors of Public Health to include additional public health functions.   That said, the LGA can see that there could be benefits in expanding the scope of S75 to include some local authority public health functions. 

• Vaccine: responsibility for vaccines is currently fragmented between GPs who provide pre-school vaccines, and NHS England who commission the school-aged services. Councils are not directly responsible for commissioning or delivering vaccine programmes, but they are in a unique position to understand the health needs of their local population and support vaccination services to reach them. Public health teams are responsible for provision of 0-19 public health services, and they commission health visitors, school nurses and provide services via family hubs. Vaccines could technically be considered as part of Section 75, but it remains unclear how section 7a funded services (NHS public health services commissioned by NHS England) would work within a pooled system.
• Sexual and reproductive health services: Nationally and locally the sexual health system is diverse, fragmented and, at times, complex. For example, local authorities have responsibility for STI testing and treatment, and HIV prevention, including pre-exposure prophylaxis (PrEP), but HIV treatment rests with NHS England. Meanwhile, integrated care boards run abortion, vasectomy and gynaecology services. Section 75 agreements are used by councils and partners to deliver integrated sexual health services. That said, NHS and local authority collaboration can take place without section 75 pooled budgets, the delivery of the HPV vaccine and cervical screening through sexual health services are examples of joint working without pooled budgets.
• 0-19 Services: Local authorities took on responsibility for commissioning the Healthy Child Programme 5-19 (School Nursing) in April 2013, and subsequently 0-5 years (Health Visiting and Family Nursing Partnership) in October 2015. The funding associated with these services is included in the Public Health Grant. Section 75 agreements are used extensively within this service.

Should the scope of organisations that can enter into arrangements under section 75 be widened?

Section 75 arrangements require NHS and local authority partners to enter into risk pooling agreements.  Local authorities are unlikely to want to include organisations or services in S75 arrangement for which they have no statutory powers or duties.

It is also important to note that there is a difference between local authorities and NHS bodies engaging other organisations such as the community and voluntary sector, local Healthwatch organisations and advocacy groups in the development and co-design of S75 arrangements and these organisations being part of a formal S75 agreement. The clear view of local authorities is that the formal agreement should be between the risk-sharers and accountable organisations - the local authorities and the NHS bodies.

We are not convinced of the benefits of extending S75 arrangements to combined authorities because they do not currently have health or social care statutory duties. These are exercised by local authorities and NHS, the constituent members of combined authorities.  In the interests of local democratic accountability and in line with the principle of subsidiarity, it is appropriate for the constituent local authorities in a combined authority to continue to retain their section 75 responsibilities. 

Are there perceived barriers to pooling budgets, and could the provisions within the regulations be simplified to reduce the administrative burden on NHS bodies and local authorities?

The LGA view is that the legal framework for S75 is not a barrier to greater pooling of budgets.  The key barrier for local authorities and NHS bodies is the growing financial and demand pressures on health and care services, which can make partners less willing to pool resources. Furthermore, the frequently short-term and incremental nature of funding for adult social care hampers longer-term planning and investment, particularly in preventative services. 

Local government stakeholders have told us that it might be helpful for health and local authority partners to have examples which illustrate how widely section 75 pooled budgets can be used. For example, S75 financial flexibilities to support children and young people’s services. 

How could the government strengthen and/or simplify the governance of section 75 arrangements to further support the commissioning of integrated care services? 

The general view of the LGA and supported by the Local Government Health and Care Sounding Board is to keep arrangements as they are. 

• The LGA view is that section 75 financial flexibilities are not perfect but they generally work well as a vehicle for pooling shared budgets between NHS and local government commissioners. 
• Local authorities are unlikely to want to expand section 75 arrangements for services that they have no control over, including primary care, since the contracts and specifications for such services are nationally directed. 
• The LGA is clear that section 75 is simply a legal mechanism for bringing local authority and NHS financial resources into a pooled budget for a defined purpose. As such, it is fit for purpose. The government may risk undermining the effectiveness of section 75 financial arrangements by expanding or over-complicating them.
• Section 75 pooled budgets are currently used extensively for a range of care and support services.  Every area has a section 75 agreement to support their Better Care Fund arrangements, but many local authority and NHS partners use section 75 pooled budges for public health services, children and young people’s services, care and support for people with learning disabilities and autism, prevention and reablement. This demonstrates that section 75 is already used creatively in many areas.