NHS ICB mergers: a practical guide to HOSC protocols

When an ICB merger or clustering arrangement creates a body that spans more than one local authority area, the legal duty to consult Health Overview and Scrutiny Committees (HOSCs) does not disappear or simplify. It multiplies. Each affected HOSC retains its statutory remit. Without a published protocol establishing how joint scrutiny will work, no ICB can demonstrate it is meeting that duty.

What is a joint HOSC protocol and when is it required?

A joint HOSC protocol is a formal agreement between an ICB and the Health Overview and Scrutiny Committees of the local authorities within its area. It establishes the mechanism by which the ICB will discharge its duty to consult HOSCs on substantial developments or variations in health services, in situations where a proposed change affects more than one local authority area.

The Local Authority (Health Scrutiny) Regulations 2013 allow local authorities to form a joint overview and scrutiny committee to scrutinise a proposed change that affects two or more council areas. The Health Overview and Scrutiny Committee Principles guidance confirms this power and sets out the expectation that NHS bodies will facilitate its exercise proactively.

All of the ICBs formed or clustered during the 2026 to 2027 NHS reorganisation meet all three criteria. NHS Surrey and Sussex ICB spans Surrey, East Sussex, and West Sussex. NHS Norfolk and Suffolk ICB spans two counties. The Midlands cluster covering Derbyshire, Lincolnshire, and Nottinghamshire will, when formally merged in April 2027, span multiple county HOSC areas. None has yet published a protocol.

What must a joint HOSC protocol contain?

A protocol that is legally sufficient and operationally useful needs to address five questions.

Scope: which HOSCs are covered? The protocol must name every local authority HOSC that has a legitimate scrutiny interest in the ICB’s decisions. For a merged ICB spanning three counties, that means all three county HOSCs, and potentially district or unitary HOSCs where they exist and have relevant powers.

Triggers: which decisions activate the joint mechanism? The protocol should specify the categories of decision that require HOSC engagement at cluster or system level. These will include proposed closures or significant reconfigurations of acute, mental health, or community services; changes to urgent and emergency care pathways; and any decision the ICB classifies as a major service change. The protocol should also specify that where the ICB is in doubt about whether a decision meets the threshold, it will consult the relevant HOSC leads before proceeding.

Process: how does the joint committee operate? The protocol must set out how the joint HOSC is constituted when a qualifying decision is made. This includes the convening authority, the quorum, the chair arrangement, and the timescale within which the ICB is expected to engage. It should also confirm that the joint HOSC’s conclusions will be reported to the ICB Board before any final decision is taken.

Referral: what happens if the ICB and HOSC disagree? The 2013 Regulations preserve the right of a HOSC to refer a disputed NHS decision to the Secretary of State. A well-drafted protocol acknowledges this right and sets out the process by which a formal disagreement would be escalated, including the information that the HOSC would need to make a referral.

Review: how often is the protocol updated? A protocol that was adequate when a merger was completed may not reflect the ICB’s governance arrangements after twelve months of operation. The protocol should specify a review cycle, typically annual, and should be updated whenever the ICB’s committee structure or decision-making thresholds change materially.

What is the risk of operating without a protocol?

The absence of a joint HOSC protocol does not suspend the ICB’s legal duty. The duty to consult on substantial changes is statutory. An ICB that makes a significant service change decision without engaging the relevant HOSCs has breached that duty regardless of whether a protocol exists. The absence of a protocol means that the breach is more likely, because no internal mechanism directs decision-makers to consider which HOSCs must be engaged before a decision is announced.

The consequences are real. A HOSC that has not been consulted on a decision affecting its area can refer the matter to the Secretary of State under the Health and Care Act 2022. It can also support a judicial review challenge by the affected community or a third party. The judicial review ground in these cases is typically that the consultation was not genuine: either because the relevant HOSC was not engaged at all, or because it was engaged too late, after the commitment had already been made in substance.

Devon County Council’s Health and Adult Care Scrutiny Committee has formally written to the relevant ICBs to record that no arrangement has been published to ensure HOSC involvement when services are reconfigured across county boundaries. The published correspondence of March 2026 records no satisfactory response. ICBs that have not published a protocol are on notice that their arrangements are being watched.

What should ICBs do now?

ICBs without a published joint HOSC protocol should treat this as urgent. The practical steps are these.

• Identify the affected HOSCs. Map the local authority boundaries within the ICB area and confirm which HOSCs have a statutory scrutiny interest in ICB decisions.
• Engage HOSC leads directly. The protocol requires agreement with HOSC chairs and the local authorities they represent. A protocol written unilaterally by the ICB risks rejection by the very bodies it is meant to work with.
• Draft against the legal standard. Use the Health Overview and Scrutiny Committee Principles and the 2013 Regulations as the baseline. The protocol must address scope, triggers, process, referral, and review specifically.
• Publish it. A protocol that is not published gives neither the HOSC nor the public the certainty it is meant to provide. The Cheshire and Merseyside joint HOSC protocol was published as part of ICB Board papers. That is the standard.
• Act before the next significant decision. If the ICB is aware of a service change approaching decision stage that will affect more than one local authority area, the protocol must be in place before the decision is made, not after.

How tCI Can Help

Advice and Guidance
A tCI faculty member will work alongside you to support the development of your decisions and engagement approach. We provide independent, constructive advice at critical stages, helping you strengthen stakeholder mapping, test communication strategies, and plan robust post-decision engagement. Our role is to act as a critical friend, offering practical recommendations grounded in consultation law and good practice that build confidence in your process.

Risk Assessment
Early identification of legal, political or reputational risks in your engagement approach. Using tCI’s five-risk methodology, we spot gaps before challenge arises, helping you strengthen stakeholder communication and demonstrate procedural fairness from the outset.

Executive Briefings
Concise updates for senior leaders on consultation law, engagement duties and post-decision risks. Helps boards and leadership teams make confident, defensible decisions when under pressure, with clear guidance on what good engagement looks like after difficult choices are made.

Whether you’re preparing for a high stakes service change or building defensible evidence for complex decisions, we can help.

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