(1) THE NORTH YORKSHIRE COUNCIL
- and –
(2) NHS HUMBER AND NORTH YORKSHIRE INTEGRATED CARE BOARD
Collaboration Agreement (including pursuant to Section 75 of the National Health Service Act 2006) relating to the alignment of services in North Yorkshire and the aligning of funds
CONTENTS
1. DEFINITIONS AND INTERPRETATION
4. partnership flexibilities, FUNCTIONS and the Joint Committee
5. GENERAL
6. COMMISSIOING ARRANGEMENTS
7. ALIGNED FUNDS
8. GOVERNANCE AND MONITORING ARRANGEMENTS
9. REPORTING
11. BEST VALUE DUTY
12. PUBLIC & PATIENT INVOLVEMENT AND GENERAL DUTIES UNDER THE aCT
14. CHANGES IN LAW
15. COMPLAINTS
17. TERMINATION
18. EFFECTS OF expiry or TERMINATION
19. CONFIDENTIALITY
20. DATA PROTECTION AND INFORMATION SHARING
22. FORCE MAJEURE
24. NOTICES
25. EXCLUSION OF PARTNERSHIP AND AGENCY
26. ASSIGNMENT AND SUB-CONTRACTING
28. ombudsmen
29. equality duties
30. ENTIRE AGREEMENT
31. SEVERABILITY
32. WAIVER
34. GOVERNING LAW AND JURISDICTION
35. FAIR DEALINGS
36. COUNTERPARTS
THIS Deed of AGREEMENT is made on the day of 2025
BETWEEN:
(1) NHS Humber and North Yorkshire Integrated Care Board, Health House, Grange Park Lane, Willerby, HU10 6DT (“the ICB”);
(2) The North Yorkshire Council of County Hall, Northallerton, DL7 8AD ("the Council")
The ICB and the Council are together the "Partners".
BACKGROUND
(A) Section 75 of the Act contains powers enabling NHS bodies to exercise certain local authority health related functions and for local authorities to exercise certain NHS functions. Such arrangements may include establishing one or more Aligned Funds between the ICB and the Council.
(B) The Partners have agreed to enter into this Agreement to enable better commissioning of Services for the population through a joint committee and the aligning of budgets as detailed in the Schedules.
(C) The Partners have developed a collaborative working arrangement for the benefit of local communities by joining up and coordinating services around local people’s needs, addressing social and economic factors that influence health and wellbeing and supporting high quality and sustainability of local services within the North Yorkshire Place.
(D) The Partners agree that the arrangements under this Agreement are likely to lead to an improvement in the way in which the Functions are exercised.
(E) The ICB has responsibility for commissioning the Services pursuant to the Act in its geographical area. The Council has responsibility for commissioning the Services on behalf of its population. The Parties acknowledge that this is a wider geographical area than North Yorkshire Place.
(F) The purpose of this Agreement is to set out the terms on which the Partners have agreed to collaborate to enable the use of the resources of each of the Partners to best support and serve the North Yorkshire Place.
(G) The aims and outcomes of the Partners entering into this Agreement are set out at Schedule 1 (Aims and Outcomes).
(H) The Partners are entering into this Agreement in exercise of the powers referred to in section 75 of the Act.
(I) The Partners agreed to enter into this Agreement to reflect flexibilities provided for in the Health and Care Act 2022.
(J) The Partners have approved the terms of this Agreement and agree to work together in accordance with the terms of this Agreement.
NOW IT IS HEREBY AGREEDas follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement unless the context otherwise requires the following words and expressions shall have the following meanings:
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"the Act" |
the National Health Service Act 2006; |
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"Agreement" |
this agreement between the Partners comprising these terms and conditions, together with all Schedules attached hereto; |
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“Aligned Fund(s)” |
expenditure on the Services by the relevant Partner responsible for the Service. An Aligned Fund shall not constitute a pooled fund for the purposes of Regulation 7 of the Regulations; |
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“Attendees”
“Attendee Organisations”
“Authorised Representative” |
Those attending the Joint Committee on behalf of the Attendee Organisations as non-voting participants; Means the system partners (detailed in Schedule 2) who are part of the Joint Committee but do not hold any recommendation or decision-making power, and are not a party to this Agreement; the authorised representatives of the ICB and the Council as set out at Schedule 6 (Notices); |
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"Board" |
Board of the ICB; |
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"Care Act" |
the Care Act 2014; |
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"Change in Law" |
the coming into effect or repeal (without re-enactment or consolidation) in England of any Law, or any amendment or variation to any Law, or any judgment of a relevant court of law which changes binding precedent in England; |
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“Commencement Date” |
10 July 2025; |
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"Confidential Information" |
means information, data and/or material of any nature which any Partner may receive or obtain in connection with the operation of this Agreement and the Services and: (a) which comprises Personal Data or which relate to any Service User or his treatment or medical history; (b) the release of which is likely to prejudice the commercial interests of a Partner or the interests of a Service User respectively; or (c) which is a trade secret; |
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"Controller" |
has the meaning set out in the Data Protection Legislation; |
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“Council Aligned Fund” |
the funds by the Council in respect of the Services as set out in Schedule 4, Annex 4.1 (Financial Contributions); |
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"Council Functions" |
those of the health related functions of the Council set out in Regulation 6 of the Regulations as are exercised in the commissioning of the Services; |
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"Council Personal Data" |
Personal Data Processed by the ICB on behalf of the Council under or in connection with this Agreement; |
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"Critical Success Factors" |
the critical success factors set out at Schedule 3 (Strategic Priorities for North Yorkshire Health Collaborative ); |
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"CQC" |
the Care Quality Commission or its successor organisation; |
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"Data Protection Legislation" |
means all applicable data protection and privacy legislation, regulations and guidance including but not limited to Regulation (EU) 2016/679 as it as it forms part of the law of England by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the "UK General Data Protection Regulation" or "UK GDPR"), the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any guidance or codes of practice issued by the Information Commissioner from time to time (all as amended, updated or re-enacted from time to time); |
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"Data Subject" |
has the meaning set out in the Data Protection Legislation; |
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"DHSC" |
the Department of Health and Social Care; |
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"Event of Force Majeure" |
an event or circumstance which is beyond the reasonable control of the Partner claiming relief under Clause 22 (Force Majeure), including without limitation war, civil war, armed conflict or terrorism, strikes or lock outs, riot, fire, flood or earthquake, and which directly causes that Partner to be unable to comply with all or a material part of its obligations under this Agreement; |
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"Executive Committee" |
the Executive Committee of the Council; |
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"Executive Place Lead" |
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"Financial Year" |
the financial year running from 1 April of one year to 31 March in the next year; |
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"First Partner" |
has the meaning set out in Clause 17.3; |
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"FOIA" |
the Freedom of Information Act 2000 and any subordinate legislation made under it from time to time, together with any guidance or codes of practice issued by the Information Commissioner or relevant government department concerning this legislation; |
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“Functions” |
the ICB Functions and the Council Functions; |
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"HMRC" |
His Majesty’s Revenue and Customs; |
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“ICB Aligned Fund” |
the funds by the ICB in respect of the Services as set out in Schedule 4, Annex 4.1 (Financial Contributions); |
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"ICB Functions" |
those of the functions of the ICB set out in Regulation 5 of the Regulations, as are exercised in the commissioning of the Services; |
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"ICB Personal Data" |
Personal Data Processed by the Council on behalf of the ICB under or in connection with this Agreement; |
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“Joint Committee” |
the joint committee established between the Council and the ICB responsible for review of performance and oversight of this Agreement as set out in Schedule 2; |
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"Just and Equitable" |
an apportionment which a fair, reasonable and proper apportionment or approach that takes all the relevant circumstances and events into account (including the acts and omissions of both Partners) and which, unless the Partners agree otherwise, does not (i) prejudice or (ii) favour one Partner to the (i) benefit or (ii) detriment of the other Partner; |
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"Law" |
(a) any statute or proclamation or any delegated or subordinate legislation or regulations; (b) any enforceable EU right within the meaning of Section 2(1) European Communities Act 1972; (c) any guidance, direction or determination with which the Partner(s) or relevant third party (as applicable) are bound to comply to the extent that the same are published and publicly available or the existence or contents of them have been notified to the Partner(s) or relevant third party (as applicable); and (d) any judgment of a relevant court of law which is a binding precedent in England. |
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"Month” |
a calendar month; |
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“Members”
“Nominated Deputy”
"North Yorkshire Place" |
Representatives nominated by the Partners to attend the Joint Committee as voting members, as detailed in Schedule 2; A person who attends the Joint Committee on behalf of a Member nominated by that Member, who has sufficiently similar standing; North Yorkshire Place as defined within the geographical boundaries of North Yorkshire within NHS Humber and North Yorkshire ICB; |
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“Place” |
one of the six local places as set out in the ICB governance and accountability structure which are: 1. East Riding; 2. Hull; 3. North East Lincolnshire; 4. North Lincolnshire; 5. North Yorkshire; and 6. York; |
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"Place Director" |
the Place Director for North Yorkshire Place for the Humber and North Yorkshire ICB, and any successors of such a role; |
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"Processing" |
has the meaning set out in the Data Protection Legislation (and “Process" and “Processed” shall be construed accordingly); |
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"Processor" |
has the meaning set out in the Data Protection Legislation; |
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"Proposer" |
has the meaning set out in Clause 16.1; |
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"Quarter" |
each of the following periods in the Financial Year: (a) 1 April to 30 June; (b) 1 July to 30 September; (c) 1 October to 31 December; (d) 1 January to 31 March, and "Quarterly" shall be construed accordingly; |
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"Regulations" |
the NHS Bodies and Local Authorities Partnerships Arrangements Regulations 2000 as amended from time to time; |
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"Regulators" |
the Information Commissioner's Office or any successor body from time to time and any other supervisory authority with jurisdiction over either party; |
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“Regulatory or Supervisory Body” |
any statutory or other body having authority to issue guidance, standards or recommendations with which the relevant Partner must comply or to which it must have regard; |
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"Report" |
has the meaning set out in Clause 16; |
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"Request for Information" |
has the meaning set out in the FOIA; |
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"Service(s)" |
the services which the Partners may recommend at the Joint Committee within the scope of this Agreement through the Joint Committee process as detailed in Schedule 2; |
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"Strategic Priorities" |
the priorities developed and updated by the Partners, setting out the North Yorkshire Place strategic objectives set out in Schedule 3; |
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"Term" |
the period commencing on the Commencement Date unless extended in accordance with Clause 2 or terminated in accordance with Clause 17; |
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"Variation" |
an addition, deletion or amendment in the Clauses of or Schedules to this Agreement, agreed to be made by the Partners in accordance with Clause 16 (Review and Variation); |
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"Working Day" |
any day other than Saturday, Sunday, a public or bank holiday in England; |
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1.4 References to Schedules are references to the schedules to this Agreement and a reference to a Paragraph is a reference to the paragraph in the Schedule containing such reference.
1.5 References to a person or body shall not be restricted to natural persons and shall include a company, corporation or organisation.
1.6 Words importing the singular number only shall include the plural.
1.7 A reference to one gender shall include a reference to the other genders.
1.8 Where anything in this Agreement requires the mutual agreement of the Partners, then unless the context otherwise provides, such agreement must be in writing.
1.9 Any reference to the Partners shall include their respective statutory successors, employees and agents.
1.10 In the event of a conflict, the conditions set out in the Clauses in this Agreement shall take priority over the Schedules.
1.11 Where a term of this Agreement provides for a list of items following the word "including" or "includes", then such list is not to be interpreted as being an exhaustive list.
1.12 If there is any conflict or inconsistency between the provisions of this Agreement, that conflict or inconsistency must be resolved according to the following order of priority:
1.12.2 the Schedules unless this Agreement expressly states otherwise.
2.1 This Agreement shall take effect on the Commencement Date and shall continue until 10 July 2026, unless extended in accordance with Clause 2.2 or until terminated in accordance with Clause 17 (Termination).
3.1 The Partners have agreed that the arrangements under this Agreement are to comprise:
3.1.1 the establishment and maintenance of the Aligned Funds by each Partner; and
3.1.2 the establishment of the Joint Committee;
3.2 Functions or Services expressed in this Agreement remains the responsibility of the Partner which is statutorily responsible for that Function or Service.
3.3.1 treat each other with respect and an equality of esteem;
3.3.2 be open with information including the availability of resources. The Partners acknowledge that:
(e) in the first instance that the ICB shall allocate its resources across the six Places into which the ICB informally organises itself; and
(f) that part of the resource allocation to the North Yorkshire Place may be used to commission Services across Places where it is more efficient and effective to do so and only in circumstances where:
(g) the Partners have not previously contractually agreed the mechanism for delivery of the relevant Service; or
(i) agreement is reached, in writing, between the Partners; and
3.3.3 provide early information and notice about relevant problems.
3.4 Without prejudice to the other provisions of this Agreement, the primary objective of the Partners entering into this Agreement is to improve the commissioning of the Services to achieve the aims and outcomes outlined in Schedule 1.
3.5 Nothing in this Agreement shall affect:
3.5.1 the liabilities of the Partners to any third parties for the exercise of their respective Functions and obligations; and
3.5.2 the power to charge or set charges by either of the Partners.
3.6 The Partners agree to ensure that the delivery of health care through the exercise of any Functions pursuant to this Agreement shall remain free at the point of delivery whilst ensuring that effective procedures exist to facilitate the exercise by the Council of its charging function.
4 partnership flexibilities, FUNCTIONS and the Joint Committee
4.1 This Agreement sets out the mechanism through which the Partners will work together in respect of the Services. This includes:
4.1.1 the establishment of a Joint Committee; and
4.1.2 the establishment of Aligned Funds.
5 General
5.1 The Partners shall comply with all Law applicable to, the Partners in relation to the Services being recommended for commissioning.
5.2 The Partners hereby represent that they have obtained all necessary consents sufficient to facilitate the establishment of the Joint Committee. Where the powers of a Partner to delegate any of its statutory powers or functions are restricted, such limitations will automatically be deemed to apply to the relevant Services.
6.1 As at the Commencement Date, the Partners agree that they will establish a Joint Committee under which they may make recommendations for future commissioning of Services.
7 establishment of the AlIGNED funds
7.1 In exercise of their respective powers under section 75 of the Act, the Partners have each agreed to establish and maintain Aligned Funds for revenue expenditure. At the Commencement Date there shall be the following Aligned Funds:
7.1.1 the ICB Aligned Fund; and
7.1.2 the Council Aligned Fund.
8 GOVERNANCE AND MONITORING ARRANGEMENTS
8.1 The Partners each undertake to conduct themselves in accordance with the requirements of their respective governance arrangements including, but not limited to, financial and contractual procedures, schemes of delegation and standing orders.
8.2 Overall strategic oversight is vested in the Executive Committee of the Council and the Board of the ICB, which shall respectively remain the statutory decision-making bodies in respect of the Services.
8.3 The Partners have established the Joint Committee to provide oversight, strategic direction and leadership of the s75 arrangements and as delegated by the Executive Committee and Board of the ICB. The terms of reference for the Joint Committee are set out in Schedule 2 (Governance Arrangements).
9.1 The Partners agree to carry out an annual review of delivery against the Strategic Priorities by no later than 90 calendar days after the end of each Financial Year of the operation and achievement of this Agreement or such alternative date as shall be agreed in writing between the Partners.
9.2 Each Partner shall provide any information necessary to enable the other Partner to comply with its statutory duties.
9.3 The annual review shall be formally reported to the Board and where required the Executive Committee (or such other ICB or Council body as may be directed) as soon as is reasonably practicable.
10.1 Each Partner shall remain responsible and liable for its Services and Aligned Fund, and no financial risk sharing is envisaged by the Partners.
10.2For the avoidance of doubt, neither party shall be liable to the other for any recommendations made under the Joint Committee.
11.1 The Council must comply with the Best Value Duty as set out within the Local Government Act 1999 and have regard to the Best Value Statutory Guidance when determining how to fulfil its best value duty, to make arrangements to secure continuous improvement in the way in which its functions are exercised. The ICB has a duty to ensure value for money in its commissioning arrangements. The Partners shall co-operate with each other to ensure that they are able to fulfil their duties.
11.2 Each Partner will co-operate with the other in carrying out any value for money and best value (or equivalent) reviews by providing appropriate information.
12 PUBLIC & PATIENT INVOLVEMENT AND GENERAL DUTIES UNDER THE aCT
12.1 Formal structures will be established by the Partners to support patient and public involvement in decision-making.
12.2 The Partners will encourage a culture of empowering Service Users, carers and the public to give their views about the services provided with the aim of giving communities a greater influence over the way local resources are being spent, to give Service Users, carers and the public a greater say in how care is provided and commissioned.
12.3 The Partners will be responsive to the needs of different groups and individuals within the local community, whatever their age, gender, ethnicity, religion, disability and sexuality.
12.4 Services will be centred on Service User needs but Service provision will reflect available funding and resources.
13.1 The Partners shall ensure that they comply with all Law in relation to the management of actual and potential conflicts of interest.
13.2 If a Party becomes aware of any actual, potential or perceived conflict of interest which is likely to affect the other Partner’s decision (that Partner acting reasonably) whether or not to continue to contract substantially on the terms of this Agreement, the Partner aware of the conflict must immediately declare it to the other. The other Partner may then, without affecting any other right it may have under Law, take whatever action under this Agreement as it deems necessary.
14 CHANGES IN LAW
14.1 The Partners shall ascertain, observe, perform and comply with all relevant Laws, and shall do and execute and cause to be done and executed all acts required to be done under or by virtue of any Laws.
14.2 On the occurrence of any Change in Law, the Partners shall agree in good faith any amendment required to this Agreement (in accordance with Clause 16 (Review and Variation)) as a result of the Change in Law subject to the Partners using all reasonable endeavours to mitigate the adverse effects of such Change in Law and taking all reasonable steps to minimise any increase in costs arising from such Change in Law.
14.3 In the event of failure by the Partners to agree the relevant amendments to the Agreement (as appropriate), Clause 23 (Dispute Resolution) will apply.
15.1 Any complaints relating wholly to the Council Functions or to the Council Services shall be dealt with in accordance with the statutory complaints procedure of the Council.
15.2 Any complaints relating wholly to the ICB Functions or to the ICB Services shall be dealt with in accordance with the statutory complaints procedure of the ICB.
15.3 Where a complaint relates partly to one or more of the Council Functions and partly to one or more of the ICB Functions then a joint response will be made to the complaint by the relevant Partners (to whose Functions the complaint relates in part).
15.4 Insofar as any complaint may relate to the content of this Agreement or to the operation of the Arrangements, such complaints shall be referred to the Joint Committee.
15.5 The Partners shall co-operate as to the resolution of complaints relating to the content or operation of this Agreement.
16.1 If at any time during the term of this Agreement any Partner requests in writing any change to the Arrangements (which may include changes required as a result in a change in law) then the provisions outlined in this Clause 16 (Review and Variation) shall apply.
16.2 The Partner proposing the Variation (the “Proposer”) shall provide a report in writing to the other Partners (the “Report”) setting out:
16.2.1 the Variation proposed;
16.2.2 the date upon which the Proposer requires it to take effect;
16.2.3 a statement on the individual responsibilities of the Partners for any implementation of the Variation;and
16.2.4 the date for expiry of the Report.
16.3 Following receipt by the receiving Partners (the “Recipients”) of the Report and allowing the Recipients ten (10) Working Days in which to consider the Report, (or such longer period as may be required to enable the Recipient to obtain necessary approvals from the Executive Committee/Board where required), the Partners shall meet to discuss the proposed Variation and acting reasonably and in good faith shall use reasonable endeavours to agree the Variation.
16.4 Where the Partners are unable to agree on the terms of the Variation then any Partner may refer the matter to dispute resolution under Clause 23 (Dispute Resolution).
16.5 All Variations made to this Agreement pursuant to this Clause 16 (Review and Variation) or otherwise shall be agreed between the Partners and made in writing.
17.1 This Agreement may be terminated by either Partner giving not less than six (6) months' notice in writing to terminate this Agreement.
17.2 Notice served by either Partner pursuant to Clauses 17.1 may be revoked at any time with the written agreement of both Partners.
17.3 Subject to Clause 17.4, either Partner ("the First Partner") may at any time by notice in writing to the other Partner ("the Other Partner") terminate this Agreement if:
17.3.1 the Other Partner commits a material breach of any of its obligations which is not capable of remedy; or
17.3.2 the Other Partner commits a material breach of any of its obligations which is capable of remedy but has not been remedied within a reasonable time following receipt of written notice from the terminating Partner serving notice requiring remedy of the breach.
17.4 This Agreement may only be terminated in accordance with Clause 17.3 where the Partners have referred the matter to dispute resolution in accordance with Clause 23 (Dispute Resolution) and the Partners have not been able to resolve the dispute in accordance with Clause 23.1.
17.5 Either Partner may at any time by notice in writing to the other Partner terminate this Agreement if:
17.5.1 as a result of any change in law or legislation it is unable to fulfil its obligations hereunder;
17.5.2 its fulfilment of its obligations hereunder would be in contravention of any guidance from any Secretary of State issued after the Commencement Date;
17.5.3 its fulfilment would be ultra vires;
17.5.4 and the Partners are unable to agree a modification or variation to this Agreement so as to enable the relevant Partner to fulfil its obligations in accordance with law and guidance.
18 EFFECTS OF expiry or TERMINATION
18.1 Any rights, duties or obligations of either of the Partners which are expressed to survive, or which otherwise by necessary implication survive the expiry or termination for any reason of this Agreement, will continue after expiry or termination, subject to any limitations of time expressed in this Agreement.
19.1 In respect of any Confidential Information a Partner receives from another Partner (the "Discloser") and subject always to the remainder of this Clause 19 (Confidentiality), each Partner (the "Recipient”) undertakes to keep secret and strictly confidential and shall not disclose any such Confidential Information to any third party, without the Discloser’s prior written consent provided that:
19.1.1 the Recipient shall not be prevented from using any general knowledge, experience or skills which were in its possession prior to the Commencement Date; and
19.1.2 the provisions of this Clause 19 (Confidentiality) shall not apply to any Confidential Information which:
(a) is in or enters the public domain other than by breach of the Agreement or other act or omission of the Recipient; or
(b) is obtained by a third party who is lawfully authorised to disclose such information.
19.2 Nothing in this Clause 19 (Confidentiality) shall prevent the Recipient from disclosing Confidential Information where it is required to do so in fulfilment of statutory obligations or by judicial, administrative, governmental or regulatory process in connection with any action, suit, proceedings or claim or otherwise by applicable Law.
19.3 Each Partner:
19.3.1 may only disclose Confidential Information to its employees and professional advisors to the extent strictly necessary for such employees to carry out their duties under the Agreement; and
19.3.2 will ensure that, where Confidential Information is disclosed in accordance with Clause 19.3.1, the recipient(s) of that information is made subject to a duty of confidentiality equivalent to that contained in this Clause 19 (Confidentiality);
19.3.3 shall not use Confidential Information other than strictly for the performance of its obligations under this Agreement.
20 DATA PROTECTION AND INFORMATION SHARING
Data Sharing
20.1 The Partners agree that each shall be a Controller in relation to Personal Data exchanged under this Agreement. Each Partner shall comply with its obligations as a Controller under the Data Protection Legislation.
20.2 Details of any Personal Data to be shared under this Agreement shall be recorded in the template data sharing decision form as set out in Part A of Schedule 7 (Data Protection and Information Sharing). The Partners shall Process the Personal Data in accordance with Part A of Schedule 7 (Data Protection and Information Sharing).
20.3 When one Partner is transferring Personal Data (the "Disclosing Partner") to the other Partner (the "Receiving Partner"), the Disclosing Partner shall ensure that any Personal Data that is transferred:
20.3.1 has been collected in accordance with the Data Protection Legislation; and
20.3.2 the privacy notice given to the relevant Data Subject entitles the Receiving Partner to Process such Personal Data for the purposes set out in this Agreement.
20.4 In the event that the Receiving Partner determines that it is required to provide its own privacy notice to Data Subjects, the Disclosing Partner will provide accurate and up to date contact details for the Data Subjects whose Personal Data has been transferred under this Agreement.
20.5 Where the Disclosing Partner relies on the consent of the Data Subject to meet its obligations under Clause 20.3, the Disclosing Partner warrants that:
20.5.1 the consent entitles the Receiving Partner to Process the Personal Data for the purposes set out in this Agreement;
20.5.2 the consent has been collected in accordance with the Data Protection Legislation; and
20.5.3 it will promptly notify the Receiving Partner in the event that the relevant Data Subject withdraws his or her consent.
20.7 No assurance is given by either Partner regarding the lawfulness of the Processing of any data obtained pursuant to this Agreement by the other Partner.
20.8 Without limitation to Clause 20.1, each Partner shall:
20.8.1 implement and maintain appropriate technical and organisational measures to protect such Personal Data against unauthorised or unlawful Processing and against accidental loss or destruction of, or damage;
20.8.2 ensure that employees who have access to Personal Data have undergone training in the Data Protection Legislation and in the care and handling of Personal Data;
20.8.3 not disclose Personal Data to any third party in any circumstances except as required or permitted by this Agreement; and
20.8.4 notify the other Partner promptly of any known breach of technical and organisational security measures where the breach has affected or could have affected Personal Data transferred under this Agreement.
20.9 In the event of a request relating to Personal Data transferred under this Agreement from a Data Subject for the rectification or erasure of Personal Data or restriction of Processing, the Partner who has received the request shall determine whether such request is valid under the Data Protection Legislation. In the event that the Partner which has received the request determines that the relevant Personal Data should be rectified or erased or that any Processing shall be restricted, it shall notify the other Partner promptly. The Partner receiving the notification shall rectify or erase the Personal Data or restrict Processing (as applicable) promptly.
20.10 On receipt of any request or enquiry from a Regulator that relates to Personal Data transferred under this Agreement, each Partner shall provide the other with all reasonable assistance to allow the Partner in receipt of the request to respond.
20.11 Each Partner shall bear its own costs incurred in providing the assistance set out in Clauses 20.9 and 20.10.
20.12 Without prejudice to Clauses 20.1 to 20.11 above, the Partners acknowledge that for the purposes of the Data Protection Legislation, there may be situations when one of the Partners is the Controller (the "Controller Partner") and the other Partner is the Processor (the "Processor Partner"). In such situations, these Clauses 20.12 to 20.31 apply. The only Processing that the Processor Partner is authorised to do in these situations is listed in Part B of Schedule 7 (Data Protection and Information Sharing) to this Agreement.
20.13 The Partners acknowledge that:
20.13.1 the Council is the Controller Partner of the Council Personal Data and the ICB is the Council's Processor; and
20.13.2 the ICB is the Controller Partner of the ICB Personal Data and the Council is the ICB's Processor,
20.13.3 and the details of the Processing carried out by the Partners on behalf of the other Partner in relation to the other Partner's Personal Data (the "Controller Partner Personal Data") are set out in Part B of Schedule 7 (Data Protection and Information Sharing) which forms part of this Agreement.
20.14 The Processor Partner warrants and undertakes to the Controller Partner that it will, where required by the Controller Partner, assist the Controller Partner in ensuring that any due diligence is accurate and will remain accurate for the duration of this Agreement. The Processor Partner agrees to vary this Agreement to include the detail of any due diligence if required by the Controller Partner. The Processor Partner will notify the Controller Partner of any changes to its security or data processing activities which affect any answers given in respect of any due diligence. If the Controller Partner reasonably believes that as a result of the change, the protection given to the Controller Partner Personal Data is decreased, the Processor Partner will make any changes reasonably required by the Controller Partner, to make the security and processes no lower than the standards of the original due diligence.
20.15 The Processor Partner warrants and undertakes to the Controller Partner that:
20.15.1 it shall only Process the Controller Partner Personal Data in accordance with the instructions of the Controller Partner which are set out in Part B of Schedule 7 (Data Protection and Information Sharing) of this Agreement, or as provided in writing by the Controller Partner to the Processor Partner from time to time;
20.15.2 it shall comply with its obligations under the Data Protection Legislation when Processing Controller Partner Personal Data;
20.15.3 it shall assist and fully co-operate with the Controller Partner as requested by the Controller Partner from time to time to ensure the Controller Partner's compliance with its obligations under the Data Protection Legislation which shall include, but not be limited to:
(a) completing and reviewing data protection impact assessments;
(b) implementing measures to mitigate against any data protection risks;
(c) implementing such technical and organisational measures to enable the Controller Partner to respond to requests from Data Subjects exercising their rights under the Data Protection Legislation which shall include but not be limited to:
(i) providing Controller Partner Personal Data and details of the Processing of Controller Partner Personal Data to the Controller Partner in response to a subject access request; and
(ii) deleting and/or rectifying Controller Partner Personal Data in response to a request on behalf of a Data Subject; and
(d) assisting with any enquiries from Regulators.
20.16 The Processor Partner shall notify the Controller Partner promptly (but in any event within 24 hours) should it:
20.16.1 receive notice of any complaint made to a Regulator or any finding by a Regulator in relation to its Processing of Personal Data, whether it is Controller Partner Personal Data or otherwise;
20.16.2 be under a legal obligation to Process the Controller Partner Personal Data, other than under the instructions of the Controller Partner. In which case it shall inform the Controller Partner of the legal obligation, unless the law prohibits such information being shared on important grounds of public interest;
20.16.3 receives any request on behalf of a Data Subject of the Controller Partner Personal Data, exercising their rights under the Data Protection Legislation;
20.16.4 become aware that in following the instructions of the Controller Partner, it shall be breaching Data Protection Legislation; and/or
20.16.5 become aware of any circumstance which may cause the Processor Partner to breach this Clause 20 (Data Protection and Information Sharing) or which may cause either Partner to breach the Data Protection Legislation.
Security
20.18 When Processing Controller Partner Personal Data under this Agreement the Processor Partner shall take all necessary technical and organisational precautions and measures to preserve the confidentiality and integrity of Controller Partner Personal Data and prevent any unlawful Processing or disclosure taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of the Data Subjects. These shall include, but not be limited to:
20.18.1 encrypting the Controller Partner Personal Data stored on any mobile media or transmitted over public or wireless networks;
20.18.2 implementing and maintaining business continuity, disaster recovery and other relevant policies and procedures to ensure:
(a) the confidentiality, integrity, availability and resilience of Processing systems and services; and
(b) the availability and access to Controller Partner Personal Data in a timely manner in the event of a physical or technical incident;
20.18.3 ensuring that all employees and contractors who are involved in the Processing of Controller Partner Personal Data are trained in the policies and procedures set out in Clause 20.18.2 and are under contractual or statutory obligations of confidentiality concerning Controller Partner Personal Data;
20.18.4 pseudonymise the Controller Partner Personal Data on request by the Controller Partner;
20.19 The Protective Measures shall be regularly tested by the Processor Partner to assess the effectiveness of the measures in ensuring the security, confidentiality, integrity, availability and resilience of the Controller Partner Personal Data and shall maintain records of the testing.
20.20 The Processor Partner shall maintain accurate written records of the Processing it undertakes in connection with this Agreement which shall contain as a minimum:
20.20.1 its details, the Controller Partner's details, the details of its data protection officer;
20.20.2 the categories of Processing carried out on behalf of the Controller Partner;
20.20.3 the details of any transfers to any third countries, where applicable, and the safeguards in place for that transfer; and
20.20.4 an accurate record of the Protective Measures it has in place.
20.21 The Processor Partner shall provide the records set out in Clauses 20.18, 20.19 and 20.20 to the Controller Partner or a Regulator on request.
20.22 The Processor Partner shall notify the Controller Partner promptly (and in any event no later than 24 hours of discovery) if it becomes aware of any actual, suspected or threatened unauthorised exposure, access, disclosure, Processing, use, communication, deletion, revision, encryption, reproduction or transmission of any component of the Controller Partner Personal Data, unauthorised access or attempted access or apparent attempted access (physical or otherwise) to the Controller Partner Personal Data or any loss of, damage to, corruption of or destruction of such Personal Data ("Data Loss Event").
20.23 The notification in Clause 20.22 shall include:
20.23.1 the nature of the Data Loss Event, including the categories and approximate number of Data Subjects and records concerned;
20.23.2 the contact at the Processor Partner who will liaise with the Controller Partner concerning the Data Loss Event; and
20.23.3 the remediation measures being taken to mitigate and contain the Data Loss Event.
20.24 In the event of a Data Loss Event, the Controller Partner shall at its sole discretion determine whether to provide notification to the Data Subject, any third party or Regulator and the Processor Partner shall not notify the Data Subject, any third party or Regulator unless such disclosure by the Processor Partner is required by law or is otherwise approved by the Controller Partner. The Controller Partner shall approve all notifications to Data Subjects, third parties or Regulators which it determines are required or appropriate.
20.25 In the event of a Data Loss Event, the Processor Partner shall promptly provide all assistance as required by the Controller Partner.
20.26 The Processor Partner shall not provide any third party with access to Controller Partner Personal Data or sub-contract any of its obligations under this Agreement without the prior written approval of the Controller Partner.
20.27 Where authority has been granted by the Controller Partner to the Processor Partner to engage any sub-contractor in accordance with Clause 20.26, the Processor Partner shall:
20.27.1 undertake due diligence on the sub-contractor equivalent to the due diligence undertaken on the Processor Partner by the Controller Partner under this Agreement; and
20.27.2 put in place contractual Processing provisions equivalent to those in place between the Processor Partner and the Controller Partner under this Agreement.
Audit
20.29 The Processor Partner shall provide all necessary information and assistance to the Controller Partner in order for the Controller Partner to verify the Processor Partner's compliance with its obligations under this Agreement and the Data Protection Legislation including, without limitation:
20.29.1 allowing the Controller Partner and its advisors to inspect and make copies of the records required under this Clause 20.29; and
20.29.2 allowing access to Processor Partner premises on reasonable notice and provide all reasonable assistance to the Controller Partner to enable the Controller Partner to audit the Processor Partner's compliance with the Protective Measures.
Termination
20.30 Unless required by law, the Processor Partner shall, upon termination or expiry of the Agreement for whatever reason, at the option of the Controller Partner, either securely delete or return all Controller Partner Personal Data to the Controller Partner. If required by law to retain a copy, the Processor Partner shall inform the Controller Partner what it is retaining and the legal reason why it needs to be retained.
21.1 Each Partner acknowledges that the other Partner is subject to the requirements of the FOIA and each Partner shall assist and co-operate with the other (at their own expense) to enable the other Partner to comply with its information disclosure obligations.
21.2 Where a Partner receives a Request for Information in relation to information which it is holding on behalf of another Partner, it shall (and shall procure that its sub-contractors shall):
21.2.1 transfer the Request for Information to the other Partner as soon as practicable after receipt and in any event within five (5) Working Days of receiving the request for information;
21.2.2 provide the other Partner with a copy of all information in its possession or power in the form that the other Partner requires within five (5) Working Days (or such other period as may be agreed) of the other Partner requesting that information; and
21.2.3 provide all necessary assistance as reasonably requested to enable the other Partner to respond to the request for information within the time for compliance set out in section 10 of the FOIA.
21.3 Where a Partner receives a Request for Information which relates to the Agreement, it shall inform the other Partners of the Request for Information as soon as practicable after receipt and in any event within five (5) Working Days of receiving the Request for Information.
21.4 If any Partner determines that information must be disclosed pursuant to Clause 21.3, it shall notify the other Partners of that decision at least five (5) Working Days before disclosure.
21.5 Each Partner shall be responsible for determining at its absolute discretion whether the relevant information is exempt from disclosure or is to be disclosed in response to a Request for Information.
21.6 Each Partner acknowledges that the other Partners may be obliged under the FOIA to disclose information:
21.6.1 without consulting with the other Partners; or
21.6.2 following consultation with the other Partners and having taken its views into account.
22.1 No Partner shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from an Event of Force Majeure. In such circumstances the affected Partner shall serve written notice on the other Partner immediately it becomes aware of the Event of Force Majeure. In such circumstances the affected Partner shall be entitled to a reasonable extension of the time for performing such obligations.
22.2 If the period of delay or non-performance continues for more than twenty (20) Working Days from the date of the written notice referred to in Clause 22.1 then a Partner not affected may terminate this Agreement by serving not less than three (3) months notice on the other Partners and no compensation shall be payable by any Partner as a result of termination under this Clause 22 (Force Majeure).
23.1 In the event of a dispute between the Partners in connection with this Agreement the Partner’s Authorised Representatives shall meet to resolve the matter.
23.2 In the event that a dispute cannot be resolved within a reasonable period of time (having regard to the nature of the dispute), in accordance with Clause 23.1 the Partners shall refer the matter for mediation in accordance with Schedule 5 (Mediation).
24.1 Any notice or communication in relation to this Agreement shall be in writing.
24.2 Any notice or communication to a Partner shall be deemed effectively served if sent by registered post or delivered by hand to a Partner at the relevant address set out in Schedule 6 (Notices) and marked for the attention of the Authorised Representative or to such other addressee and address notified from time to time to the other Partners for service on the relevant Partner.
24.3 Any notice served by hand delivery shall be deemed to have been served on the date it is delivered to the addressee. Where notice is posted, it shall be sufficient to prove that the notice was properly addressed and posted and the addressee shall be deemed to have been served with the notice forty-eight (48) hours after the time it was posted.
24.4 Any notice served by e-mail shall be deemed to have been served on the date sent, but only if, following transmission, the sender does not receive a non-delivery message.
25. EXCLUSION OF PARTNERSHIP AND AGENCY
25.1 Nothing in this Agreement shall create or be deemed to create a legal partnership under the Partnership Act 1890 or the relationship of employer and employee between the Partners or render any Partner directly liable to any third party for the debts, liabilities or obligations of any other Partner.
25.2 Save as specifically authorised under the terms of this Agreement, no Partner shall hold itself out as the agent of any other Partner.
26. ASSIGNMENT AND SUB-CONTRACTING
26.1 This Agreement, and any right and conditions contained in it, may not be assigned or transferred by either Partner, without the prior written consent of the other Partner, except to any statutory successor to the relevant function.
27.1 The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and accordingly the Partners to this Agreement do not intend that any third party should have any rights in respect of this Agreement by virtue of that Act.
28.1 The Partners will co-operate with any investigation undertaken by the Health Service Commissioner for England or the Local Government Commissioner for England (or both of them) in connection with this Agreement.
29.1 The Partners acknowledge their respective duties under equality legislation to eliminate unlawful discrimination, harassment and victimisation, and to advance equality of opportunity and foster good relations between different groups.
30.1 This Agreement constitutes the entire agreement and understanding of the Partners relating to the Joint Committee.
31.1 If any term, condition or provision contained in this Agreement shall be held to be invalid, unlawful or unenforceable to any extent, such term, condition or provision shall not affect the validity, legality or enforceability of the remaining parts of this Agreement.
32.1 No failure or delay by a Partner to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
33.1 Each Partner shall be responsible for paying its own costs and expenses incurred in connection with the negotiation, preparation and execution of this Agreement.
34. GOVERNING LAW AND JURISDICTION
34.1 Subject to the provisions of Clause 23 (Dispute Resolution) this Agreement shall be governed by and construed in accordance with English Law, and the Partners irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement.
35.1 The Partners recognise that it is impracticable to make provision for every contingency which may arise during the life of this Agreement and they declare it to be their intention that this Agreement shall operate between them with fairness and without detriment to the interests of either of them and that if in the course of the performance of this Agreement, unfairness to either of them does or may result then the other shall use its reasonable endeavours to agree upon such action as may be necessary to remove the cause or causes of such unfairness.
36.1 This Agreement may be executed in one or more counterparts. Any single counterpart or a set of counterparts executed, in either case, by all Partners shall constitute a full original of this Agreement for all purposes.
IN WITNESS WHEREOF this Agreement has been executed as a Deed and is delivered and takes effect on the date first above written.
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by the affixing of the COMMON SEAL of |
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THE NORTH YORKSHIRE COUNCIL
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in the presence of: |
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Authorised Signatory |
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SIGNED as a Deed by (Authorised Signatory) for and on behalf of Humber and North Yorkshire Integrated Care Board
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SIGNED by (Authorised Signatory) for and on behalf of Humber and North Yorkshire Integrated Care Board
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