New “Call In” powers for NHS service changes

What has changed?

As of 31 January 2024, the Secretary of State for Health and Social Care now has ‘call-in’ powers to scrutinize and intervene in specific proposed reconfigurations of NHS services. These additional powers granted to the SoS removes significant constraints associated with the previous guidance.

What are the new powers / duties and how are they different?

The first notable change is that the ‘call-in’ power is that both individuals and organisations can now request the Secretary of State to use ‘call-in’ powers.(1) Previously, only local authority (tier 1) Health Overview and Scrutiny Committees would have the power to refer reconfigurations to the Secretary of State.

The second notable change is that the Secretary of State now has the ability within the ‘call-in’ power to determine whether a service change is substantial. This has significant implications for NHS Commissioners, not least in terms of the requirement to undertake the NHS England assurance process and for a public consultation. Previously, both NHS Commissioner and Scrutiny Committee would need to have agreed where a change is substantive. Should a change not be considered substantive the Secretary of State would not have the power to directly intervene.

The third notable change, is that the ‘call-in’ request can be made at any point within the process, including during implementation or during public consultation. Previously, a referral could only be made, once NHS Commissioners had made a decision, and where a judicial review was being undertaken, the Secretary of State would have only have considered the referral once the judicial review was complete.

(1) There are limited circumstances where transitional arrangements apply, where Scrutiny Committees may be able to exercise a power to refer a service change to the Secretary of State.

What will be the immediate implication?

There are a number of immediate differences from the previous guidance.

  • NHS Commissioners have a duty to notify the Secretary of State of a reconfiguration whether it is leading the reconfiguration itself, or if a provider in its area is proposing to do so. Only service reconfigurations that NHS Commissioners have agreed with the local Scrutiny Committee, need to be notified. Previously, NHS Commissioners had to duty to notify NHS England.

  • Prior to accepting a request for a ‘call-in’, the Secretary of State requires evidence that reasonable attempts have been made to try to resolve concerns locally, a call-in request must also state how it meets one of the following criteria:

    • There are concerns with the process that has been followed by the NHS Commissioner or NHS Trust; or

    • A decision has been made and there are concerns that the proposal is not in the best interests of the local health service.

The Department for Health and Social Care has provided the following commentary about how the powers are intended to be used which includes that: 

  • Most reconfigurations will continue to be managed at local level by local organisations best placed to do so and will not require ministerial intervention. 

  • Call-in requests are only intended to be used in ‘exceptional circumstances’ where local agreement cannot be reached. The guidance refers to it being used to ‘help unblock issues…’

  • The aim of the call-in powers is to ‘support local partners to find a way forward’, to enable improvement to happen faster, and produce ‘sustainable’ solutions to NHS services facing challenges.

  • A call-in request will not automatically lead to intervention and is highly unlikely to be considered before local bodies have taken ‘all reasonable steps’ to resolve issues.

  • Ministerial decisions will continue to be informed by the impartial expert advice of the Independent Reconfiguration Panel (IRP).

What might be the outcomes where a service change (as it does not have to be service reconfiguration) has been called-in?

A call-in is a formal intervention by the Secretary of State. If the Secretary of State ‘calls-in’ a service change, it means they can take or retake any decision which the NHS commissioner of the service could have taken.

  • That the proposal should or shouldn’t proceed, or should proceed in a modified form;

  • That particular results must be achieved by a commissioner in making a decision;

  • Procedural/other steps that should/shouldn’t be taken;

  • Re-taking any decision taken by the commissioner.

Where can I find out additional information?

For the NHS, the following updates the guidance and legislation

For local authorities, the following updates the guidance and legislation

Some useful links to other organisations, provide a further analysis and different views on the revised guidance