CCG close down and ICB establishment due diligence: Your questions answered12/10/21
The Health and Care Bill provides for the abolition of clinical commissioning groups (CCGs) and the transfer of assets, rights, liabilities and staff to integrated care boards (ICBs). In order to ensure that relevant matters are identified and included in the transfer arrangements, CCGs are required to carry out an appropriate level of due diligence. This guide summarises the key milestones for due diligence, how CCGs should carry out their due diligence, and the main areas where legal support is recommended.
What are the key milestones for CCG due diligence?
NHS England and NHS Improvement (NHSE&I) has published the following indicative timeline for the required due diligence:
How should CCGs carry out their due diligence?
A due diligence spreadsheet has been published on the FutureNHS collaborative workspace. This highlights the following areas to be considered as part of the due diligence exercise:
- Staff and staff benefits
- Constitutional, corporate and regulatory matters
- Quality Governance
- Claims, litigation and insurance
- Contracts, leases and commercial agreements
- Real estates and other assets and liabilities
- Environmental issues
- Intellectual property
- Informatics, digital and information governance
The guidance indicates that the level of detail provided should be proportionate to local circumstances.
Are there particular issues to look out for?
This is likely to vary from CCG to CCG but below are some examples of complex issues you may identify:
- Where property is transferring any liabilities attached to that property will transfer with each asset. Legal advice should be sought where you think that an owner liability may arise. Where an insurance policy is / was in place to cover any liability, the insurer should be contacted to ensure that the policy follows the liability.
- Continuing healthcare (CHC) – ICBs will be responsible for managing and funding historic claims, so ideally should be provided with up-to-date information about any ongoing claims/disputes and their likelihood of establishing a valid claim.
- Don’t overlook terminated/expired contracts where these may contain continuing obligations such as holding records, payment of funds or ongoing indemnities. Legal advice may be needed to determine which contracts should be included in the due diligence.
- Employee related claims and disputes will follow the individual if they are transferring to an ICB but where individuals are not transferring to the ICB and/or their employment will cease any potential liabilities should be specifically identified.
- Bear in mind the applicable limitation periods for different types of claim/dispute as this will help to limit the scope of the due diligence. You may want to obtain legal advice on the maximum time period allowed for a claimant to bring different types of claim or dispute but note that the Court always has a discretion to waive limitation if it sees fit.
How Capsticks can help
We will tailor our support to meet your needs. This could comprise:
- a high level “sense check” of your completed due diligence checklist to provide assurance that all key assets rights and liabilities have been included
- a review of relevant legal documents such as leases and licences, contracts for goods and services and any actual or threatened litigation
- advice on the ownership of specific assets or rights such as intellectual property and data, and how best to capture this in your due diligence
- secondment of lawyers or paralegals to support your internal team with the due diligence process.
If you’d like an initial consultation to discuss how we can best support your due diligence work then please contact Peter Edwards, the partner leading our work with integrated care systems.