NHSE publishes updated technical guidance in relation to Activity Management mechanisms

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On 10 September 2025, NHS England (“NHSE”) published an updated Version 3 of the NHS Standard Contract 2025/26 technical guidance (the “Technical Guidance”) which was first published on 3 April 2025.
These updates to the Technical Guidance are relevant for all providers who perform services for the NHS that are paid for on an activity basis. They predominantly relate to recent changes in respect of Indicative Activity Plans (“IAPs”), Activity Management Plans (“AMPs”), and the Escalation Procedure.
What has changed?
The footnotes in Version 3 (September 2025) of the Technical Guidance state that updates made by NHSE since Version 1 (April 2025) are highlighted in grey.
However, to see the changes between Version 2 (May 2025) and Version 3 (September 2025) to identify the exact changes made in the most recent version, we have produced a redline of the changes, which you can view here:
Updates to the NHS Standard Contract 2025/26 Technical Guidance (September 2025).
The substantive changes are to Paragraph 42 (Managing activity and referrals). In addition, there are some general updates to terminology and corrections of typos throughout.
What are the key clarifications?
Updates in relation to Indicative Activity Plans (“IAPs”)
Reference | Summary of Update |
42.20
| Process for agreeing/setting IAP Where the parties cannot agree an IAP within three months of the “Services Commencement Date” the commissioner will have the right to set an IAP on or after that date. The updates clarify that “Services Commencement Date” for “unsigned contracts” can be the “date that the parties moved from a signed contract into an implied contract”. This appears to contemplate the scenario where an existing signed contract has expired, and a provider continues to provide services despite a new contract not yet being signed. The updates further clarify that an IAP can either be agreed for multiple years in advance or a new IAP can be agreed for each contract year, in which case it should be agreed before 30 June in the relevant year (i.e. within three months of the start of the NHS financial year) after which date the commissioner will have the right to set an IAP. Key update:The following statement has been added: “It should also be noted that an IAP is effective when set by the commissioner in accordance with the contract and cannot be blocked by a provider refusing to sign a variation to include it in the contract”. This confirms that where the parties disagree on the IAP for the coming financial year, the commissioner is able to unilaterally set the IAP regardless of whether a formal contract variation is in place and/or whether the provider chooses to escalate the disagreement to NHSE. |
42.24 | Management of waiting lists The original Technical Guidance always contained a statement that the “underlying requirement within the Contract” remains for providers to manage their waiting lists as demand fluctuates, “accepting referrals” and “treating patients in line with the IAP rather than turning them away”. This is consistent with the provider’s obligations under SC13 to accept any Referral made in accordance with the Referral processes and clinical thresholds set out or referred to in this Contract (and in any event where necessary for a Service User to exercise their legal right to choice). A reference is added in Version 3 to “maintaining a waiting list”. This could be interpreted to mean that, going forwards, providers will be expected to take more responsibility in maintaining an internal waiting list of patients referred to them for treatment, in order to treat such patients in line with the planned level of activity under the IAP. |
42.30
| Activity Planning Assumptions Clarifies that the list of Activity Planning Assumptions (APAs) included in the Technical Guidance is illustrative only and non-exhaustive. |
42.32 | Activity Query Notices On receipt of an activity report which indicates variances against the thresholds set out in the IAP, any party may issue an Activity Query Notice (“AQN”). The updates clarify that either party may also issue an AQN in relation to either breaches of APA thresholds or “unexpected or unusual patterns of referral and/or activity”. This suggests that a party is able to issue an AQN is based on their subjective judgement. |
Updates in relation to Activity Management Plans (“AMPs”)
Reference | Summary of Update |
42.34 | Survival of AMP provisions Updates to state that the provisions of an AMP can continue to apply beyond the contract period “where they relate to financial consequences of activity not yet charged for”. We interpret this to mean that financial consequences set out in an AMP would continue to apply beyond the contract period where activity is performed within the contract period and the provider then charges the commissioner for that activity in the period immediately after expiry. |
42.37 | Use of AMPs to reduce activity Key update: Clarifies that commissioners may use an AMP to reduce activity to “or below” the levels set out in the IAP. This suggests that an AMP may go beyond managing activity levels in line with an IAP and be used by commissioners to reduce activity levels even further during a financial year. |
42.38 | Updates to (non-mandatory) examples of ways in which AMPs can be used Key update: In relation to the issue: “GP referrals driving increase in elective Activity (above IAP) at provider”, the statement “Note that commissioner cannot require provider to “slow down” rate of treatment” has been deleted in the most recent version. Further, the wording has been updated so that the commissioner may request (rather than agree with) the provider to “increase waiting times to reduce the level of activity to align with the IAP”. Whilst this does not give commissioners the power to mandate any action from the provider, it strongly suggests that a provider’s management of their internal waiting list to align with IAPs will be an expectation going forwards. |
42.45 | Clarifies that the timings in the process diagram (which illustrates how an Activity Management Process might work) are illustrative – the parties may meet earlier than timings given, an AQN can be issued at any point during the contract year and does not have to be issued immediately on receipt of data but should always be issued in a timely way. |
Updates in relation to the Escalation Procedure
Reference | Summary of Update |
42.26 42.40
| Escalation Form: timescales for completion and process for submission to NHSE (in relation to both IAPs and AMPs) Clarifies that in relation to the ten working day period in which a provider may send an Escalation Form to the commissioner (after which date the escalation route it no longer available): “the date on which the IAP[/AMP] is set is Day 0, the next working day is Day 1 and the escalation must then be submitted to the commissioner by 23.59 on Day 10”. Clarifies that neither party may make any amendments to the form after the ten working days available to each of them for its completion. Clarifies that the provider must copy the commissioner in when the Escalation Form is subsequently sent to NHSE (within 25 working days of an IAP/AMP being set). Clarifies that an escalation will not be accepted by NHSE if the provider and commissioner have completed two different forms. Information from both parties must be included on a single Escalation Form. (Note that if the commissioner does not complete the form within the 10 working day timescale, the provider may escalate without including the commissioner’s position). Clarifies that attachments of evidence may be accepted if necessary but, ideally, evidence should be included within the body of the Escalation Form. Note that: in Paragraph 42.40 there appears to be a typo as this refers to “the date on which the IAP is set” and we assume this should refer to “the date on with the AMP is set”. We would expect NHSE to clarify this in due course. |
42.26
| Review process Clarifies that where the commissioner is NHSE, the case will be referred to an “external” panel. |
Appendix 5 | The Escalation Form has been removed from Appendix 5 and is now available on the NHSE website: 08a-activity-escalation-form-v2-sept-25.docx. Presumably this will allow NHSE to make changes to the Escalation Form without updating the Technical Guidance. Providers should take care to use the latest version of the Escalation Form published on NHSE’s website. |
Other terminology updates
Our thoughts:
The updated guidance provides some additional clarity regarding certain aspects of activity management mechanisms. In particular, we note the removal of the statement that commissioners could not require providers to slow down activity.
Whilst technically, this remains the case (as a commissioner may only request that a provider manages a waiting list to slow down activity) in practice, there are many instances where providers are being informed that if they do not slow down activity, financial consequences (likely in the form of non-payment) will apply.
The effect of this is that providers will be left with little alternative but to slow down activity. The clarification of the timescales that apply to the escalation procedure are also useful.
If you would like to discuss any of the detail provided in this article, please contact a member of our Healthcare Team.
This article was written by Lizzy Marke and Lowri Scott.