Revised NHS ‘Who Pays?’ Guidance

NHS England has published its updated guidance for establishing which NHS organisation has responsibility for commissioning an individual’s care and which has responsibility for paying for that care.

The guidance consolidates updates that have been issued since the last version of the guidance in 2013 and provides further clarification concerning (among other things):

  • responsibilities for funding care on discharge from hospital (including ‘discharge to assess’ arrangements; and
  • NHS responsibilities for commissioning and payment, where patients fall under the provisions of the Mental Health Act section 117.


The guidance contains helpful scenarios concerning such issues as continuing healthcare responsibilities, members of the armed forces and prisoners, as well as details of the NHS England National Team dispute resolution process.

Welcoming the revised publication (and the extent to which NHS England engaged with ADASS in the revision process) Paul Morgan, Head of Continuing Care, Surrey County Council, highlighted three significant new sections, namely:

1.4 The safety and well-being of patients is paramount. No necessary assessment, care or treatment should be refused or delayed because of uncertainty or ambiguity as to which NHS commissioner is responsible for funding an individual’s healthcare provision.

  • This is of importance as it confirms that the duty extends to ‘assessments’ and accordingly includes Continuing Healthcare assessments. This will address significant problems that have arisen in the past where local authorities have not been successful in getting CCGs to assess for Continuing Healthcare eligibility or to commit to attend a section 117 aftercare discharge planning meeting.


7.4 Where substantive disagreements arise, which cannot be resolved swiftly at local level, the commissioners involved must agree a) that one of them will make arrangements for the patient to be assessed and to receive necessary care or treatment and b) that they will share the costs equally between them, on a “without prejudice” basis, pending resolution of the disagreement. That way, the patient’s assessment, care and treatment will not be delayed, and the provider will be paid promptly.

  • This is of importance since it requires a CCG (or CCGs) to accept interim responsibility while a dispute is resolved. This brings CCGs into line with the duties on local authorities in relation to ‘Ordinary Residence’ disputes (whereby the authority where the person is physically present must accept interim responsibility until the dispute is resolved).

Principle 4
    c) Disagreements about payment responsibility between NHS commissioners must not

    • delay a patient’s necessary assessment, care or treatment;
    • result in the patient or family, or a local authority, having to pay for care or treatment which should have been funded by the NHS; or
    • mean that a provider which is properly providing clinically appropriate services to a patient remains unpaid.


The revised guidance can be accessed by clicking here.

Posted 27 August 2020