Health and Social Care Bill (HL Bill 92)

(4) Where the person that the regulations prescribe for the purposes of subsection
(3)(a) is a provider, the regulations may confer power on Monitor to require the
provider to pay Monitor the amount of the charge in question in accordance
with the regulations.

(5) 5Before making regulations under this section, the Secretary of State must
consult—

(a) Monitor, and

(b) the National Health Service Commissioning Board.

(6) Regulations under this section may apply with modifications provision made
10by sections 138 to 140 in relation to charges imposed by virtue of this section.

Levy on providers

136 Imposition of levy

(1) The power under section 132(2) includes, in particular, power to impose a levy
on providers for each financial year.

(2) 15Before deciding whether to impose a levy under this section for the coming
financial year, Monitor must estimate—

(a) the amount that will be required for the purpose of providing financial
assistance in accordance with this Chapter,

(b) the amount that will be collected from commissioners by way of
20charges imposed by virtue of section 135 during that year, and

(c) the amount that will be standing to the credit of the fund at the end of
the current financial year.

(3) Before the start of a financial year in which Monitor proposes to impose a levy
under this section, it must determine—

(a) 25the factors by reference to which the rate of the levy is to be assessed,

(b) the time or times by reference to which those factors are to be assessed,
and

(c) the time or times during the year when the levy, or an instalment of it,
becomes payable.

(4) 30Where the determinations under subsection (3) reflect changes made to the
factors by reference to which the levy is to be assessed, the notice under section
140(1)(b) must include an explanation of those changes.

(5) A levy under this section may be imposed at different rates for different
providers.

137 35Power of Secretary of State to set limit on levy and charges

(1) Before the beginning of each financial year, the Secretary of State may, with the
approval of the Treasury, specify by order—

(a) the maximum amount that Monitor may raise from levies it imposes
under section 136 for that year, and

(b) 40the maximum amount that it may raise from charges it imposes by
virtue of section 135 for that year.

(2) Where the Secretary of State makes an order under this section, Monitor must
secure that the levies and charges for that year are at a level that Monitor

estimates will, in each case, raise an amount not exceeding the amount
specified for that case in the order.

138 Consultation

(1) This section applies where Monitor is proposing to impose a levy under section
5136 for the coming financial year and—

(a) has not imposed a levy under that section for that or any previous year,

(b) has been imposing the levy for the current financial year but proposes
to make relevant changes to it for the coming financial year, or

(c) has been imposing the levy for the current financial year and the
10financial year preceding it, but has not been required to serve a notice
under this section in respect of the levy for either of those years.

(2) A change to a levy is relevant for the purposes of subsection (1)(b) if it is a
change to the factors by reference to which the levy is to be assessed.

(3) Before making the determinations under section 136(3) in respect of the levy,
15Monitor must send a notice to—

(a) the Secretary of State,

(b) the National Health Service Commissioning Board,

(c) each clinical commissioning group,

(d) each provider, and

(e) 20such other persons as it considers appropriate.

(4) Monitor must publish a notice that it sends under subsection (3).

(5) In a case within subsection (1)(a) or (c), the notice must state—

(a) the factors by reference to which Monitor proposes to assess the rate of
the levy,

(b) 25the time or times by reference to which it proposes to assess the rate of
levy, and

(c) the time or times during the coming financial year when it proposes
that the levy, or an instalment of it, will become payable.

(6) In a case within subsection (1)(b), the notice must specify the relevant changes
30Monitor proposes to make.

(7) A notice under this section must specify when the consultation period in
relation to the proposals ends; and for that purpose, the consultation period is
the period of 28 days beginning with the day on which the notice is published
under subsection (4).

139 35Responses to consultation

(1) If Monitor receives objections from one or more providers to its proposals, it
may not give notice under section 140(1)(b) unless—

(a) the conditions in subsection (2) are met, or

(b) where those conditions are not met, Monitor has made a reference to
40the Competition Commission.

(2) The conditions referred to in subsection (1)(a) are that—

(a) one or more providers object to the proposals within the consultation
period, and

(b) the objection percentage and the share of supply percentage are each
less than the prescribed percentage.

(3) In subsection (2)—

(a) the “objection percentage” is the proportion (expressed as a percentage)
5of the providers who objected to the proposals, and

(b) the “share of supply percentage” is the proportion (expressed as a
percentage) of the providers who objected to the proposals, weighted
according to their share of the supply in England of such services as
may be prescribed.

(4) 10A reference under subsection (1)(b) must be so framed as to require the
Competition Commission to investigate and report on the questions—

(a) whether in making the proposals, Monitor failed to give sufficient
weight to the matters in section 62,

(b) if so, whether that failure operates, or may be expected to operate,
15against the public interest, and

(c) if so, whether the effects adverse to the public interest which that
failure has or may be expected to have could be remedied or prevented
by changes to the proposals.

(5) Schedule 10 (which makes further provision about references to the
20Competition Commission) has effect in relation to a reference under subsection
(1)(b); and for that purpose—

(a) paragraph 1 is to be ignored,

(b) in paragraph 5(2), the reference to six months is to be read as a reference
to two months,

(c) 25in paragraph 5(4), the reference to six months is to be read as a reference
to one month,

(d) in paragraph 7, sub-paragraphs (4) to (7) and (9) are to be ignored (and,
in consequence of that, in sub-paragraph (8), the words from the
beginning to “sub-paragraph (4)(c)” are also to be ignored), and

(e) 30the references to relevant persons are to be construed in accordance
with subsection (6).

(6) The relevant persons referred to in Schedule 10 are—

(a) in paragraphs 3 and, 5(6) and 6(6)—

(i) the National Health Service Commissioning Board, and

(ii) 35the providers who objected to the proposals, and

(b) in paragraph 8(10)—

(i) Monitor, and

(ii) the providers who objected to the proposals.

(7) In investigating the question under subsection (4)(a), the Competition
40Commission must have regard to the matters in relation to which Monitor has
duties under this Chapter.

(8) Regulations prescribing a percentage for the purposes of subsection (2)(b) may
include provision prescribing the method used for determining a provider’s
share of the supply in England of the services concerned.

140 45Amount payable

(1) Monitor must—

(a) calculate the amount which each provider who is to be subject to a levy
under section 136 for a financial year is to be liable to pay in respect of
that year, and

(b) notify the provider of that amount and the date or dates on which it, or
5instalments of it, will become payable.

(2) If the provider is to be subject to the levy for only part of the financial year, it
is to be liable to pay only the amount which bears to the amount payable for
the whole financial year the same proportion as the part of the financial year
for which the provider is to be subject to the levy bears to the whole financial
10year.

(3) The amount which a provider is liable to pay may be zero.

(4) Subsection (5) applies if, during a financial year in which Monitor is imposing
a levy under section 136, it becomes satisfied that the risk of a provider who is
subject to the levy going into special administration has changed by reference
15to what it was—

(a) at the start of the year, or

(b) if Monitor has already exercised the power under subsection (5) in
relation to the levy in the case of that provider, at the time it did so.

(5) Monitor may notify the provider that Monitor proposes to adjust the amount
20that the provider is liable to pay so as to reflect the change; and the notice must
specify the amount of the proposed adjustment.

(6) Following the expiry of the period of 28 days beginning with the day after that
on which Monitor sends the notice, it may make the adjustment.

(7) In a case within subsection (2), subsection (4) has effect as if references to the
25financial year were references to the part of the financial year for which the
provider is to be subject to the levy.

(8) Where a provider who reasonably believes that Monitor has miscalculated the
amount notified to the provider under subsection (1) or (5) requests Monitor to
recalculate the amount, Monitor must—

(a) 30comply with the request, and

(b) send the provider written notice of its recalculation.

(9) Subsection (8) does not apply to a request to recalculate an amount in respect
of a financial year preceding the one in which the request is made.

(10) If the whole or part of the amount which a person is liable to pay is not paid by
35the date by which it is required to be paid, the unpaid balance carries interest
at the rate for the time being specified in section 17 of the Judgments Act 1838;
and the unpaid balance and accrued interest are recoverable summarily as a
civil debt.

Supplementary

141 40Investment principles and reviews

(1) Monitor must prepare and publish a statement of the principles that govern its
decisions, or decisions made on its behalf, about making investments for the
purposes of this Chapter.

(2) Monitor must—

(a) in each financial year, review the statement,

(b) if it considers necessary in light of the review, revise the statement, and

(c) if it revises the statement, publish the revised statement.

(3) As soon as reasonably practicable after the end of each financial year, Monitor
5must undertake and publish a review of the operation during that year of—

(a) the procedure for health special administration under Chapter 5,

(b) the procedure for trust special administration for NHS foundation
trusts under Chapter 5A of Part 2 of the National Health Service Act
2006, and

(c) 10such mechanisms as have been established under section 131.

(4) The purposes of the review under subsection (3)(c) are—

(a) to assess the operation of the mechanisms concerned,

(b) to assess the accuracy of the estimates given by Monitor in relation to
the operation of the mechanisms,

(c) 15to assess what improvements can be made to the process for making
estimates in relation to the operation of the mechanisms, and

(d) to review the extent of the protection which the mechanisms are
required to provide.

(5) Where a fund established under section 132 has been in operation for the whole
20or part of the year concerned, the review published under this section must
specify—

(a) the income of the fund during that year, and

(b) the expenditure from the fund during that year.

(6) Monitor must exclude from a review published under this section information
25which it is satisfied is—

(a) commercial information the disclosure of which would, or might,
significantly harm the legitimate business interests of an undertaking
to which it relates;

(b) information relating to the private affairs of an individual the
30disclosure of which would, or might, significantly harm that person’s
interests.

142 Borrowing

(1) Monitor may—

(a) borrow from a deposit-taker such sums as it may from time to time
35require for exercising its functions under this Chapter;

(b) give security for sums that it borrows.

(2) But Monitor may not borrow if the effect would be—

(a) to take the aggregate amount outstanding in respect of the principal of
sums borrowed by it over such limit as the Secretary of State may by
40order specify, or

(b) to increase the amount by which the aggregate amount so outstanding
exceeds that limit.

(3) In this section, “deposit-taker” means—

(a) a person who has permission under Part 4 of the Financial Services and
45Markets Act 2000, or

(b) an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to
that Act which has permission under paragraph 15 of that Schedule (as
a result of qualifying for authorisation under paragraph 12 of that
Schedule) to accept deposits.

(4) 5The definition of “deposit-taker” in subsection (3) must be read with—

(a) section 22 of the Financial Services and Markets Act 2000,

(b) any relevant order under that section, and

(c) Schedule 2 to that Act.

143 Shortfall or excess of available funds, etc.

(1) 10The Secretary of State may provide financial assistance to Monitor if the
Secretary of State is satisfied that—

(a) there are insufficient funds available from a mechanism established
under section 131, or

(b) the mechanism is otherwise unable to operate effectively.

(2) 15If the Secretary of State is satisfied that the level of funds available from a
mechanism established under section 131 exceeds the level that is necessary,
the Secretary of State may direct Monitor to transfer the excess to the Secretary
of State.

(3) If the Secretary of State is satisfied that a mechanism established under section
20131 has become dormant, or if a mechanism so established is being wound up,
the Secretary of State may direct Monitor to transfer to the Secretary of State
such funds as are available from the mechanism.

CHAPTER 7 Miscellaneous and general

144 Secretary of State’s duty as respects variation in provision of health services

25After section 12D of the National Health Service Act 2006 insert—

“Miscellaneous

12E Secretary of State’s duty as respects variation in provision of health
services

(1) The Secretary of State must not exercise the functions mentioned in
30subsection (2) for the purpose of causing a variation in the proportion
of services provided as part of the health service that is provided by
persons of a particular description if that description is by reference
to—

(a) whether the persons in question are in the public or (as the case
35may be) private sector, or

(b) some other aspect of their status.

(2) The functions mentioned in this subsection are the functions of the
Secretary of State under—

(a) sections 6E and 13A, and

(b) section 71 of the Health and Social Care Act 2011 (requirements
as to procurement, patient choice and competition).”

145 Service of documents

(1) A notice required under this Part to be given or sent to or served on a person
5(“R”) may be given or sent to or served on R—

(a) by being delivered personally to R,

(b) by being sent to R—

(i) by a registered post service, as defined by section 125(1) of the
Postal Services Act 2000, or

(ii) 10by a postal service which provides for the delivery of the
document to be recorded, or

(c) subject to section 146, by being sent to R by an electronic
communication.

(2) Where a notice is sent as mentioned in subsection (1)(b), it is, unless the
15contrary is proved, to be taken to have been received on the third day after the
day on which it is sent.

(3) Where notice is sent as mentioned in subsection (1)(c) in accordance with
section 146, it is, unless the contrary is proved, to be taken to have been
received on the next working day after the day on which it is transmitted.

(4) 20In subsection (3) “working day” means a day other than—

(a) a Saturday or a Sunday;

(b) Christmas Day or Good Friday; or

(c) a day which is a bank holiday in England under the Banking and
Financial Dealings Act 1971.

(5) 25A notice required under this Part to be given or sent to or served on a body
corporate or a firm is duly given, sent or served if it is given or sent to or served
on the secretary or clerk of that body or a partner of that firm.

(6) For the purposes of section 7 of the Interpretation Act 1978 in its application to
this section, the proper address of a person is—

(a) 30in the case of a person who holds a licence under Chapter 3 who has
notified Monitor of an address for service, that address, and

(b) in any other case, the address determined in accordance with
subsection (7).

(7) That address is—

(a) 35in the case of a secretary or clerk of a body corporate, the address of the
registered or principal office of the body,

(b) in the case of a partner of a firm, the address of the principal office of
the firm, and

(c) in any other case, the last known address of the person.

(8) 40In this section and in section 146—

• “electronic communication” has the same meaning as in the Electronic
  Communications Act 2000;

• “notice” includes any other document.

(9) This section is subject to paragraph 4(3) of Schedule 8 (delivery of notice from
45Secretary of State of suspension of non-executive member of Monitor).

146 Electronic communications

(1) If a notice required or authorised by this Part to be given or sent by or to a
person or to be served on a person is sent by an electronic communication, it is
to be treated as given, sent or served only if the requirements of subsection (2)
5or (3) are met.

(2) If the person required or authorised to give, send or serve the notice is Monitor
or the Competition Commission—

(a) the person to whom the notice is given or sent or on whom it is served
must have indicated to Monitor or (as the case may be) the Commission
10the person’s willingness to receive notices by an electronic
communication and provided an address suitable for that purpose, and

(b) the notice must be sent to or given or served at the address so provided.

(3) If the person required or authorised to give, send or serve the notice is not
Monitor or the Competition Commission, the notice must be given, sent or
15served in such manner as Monitor may require.

(4) An indication given for the purposes of subsection (2) may be given generally
for the purposes of notices required or authorised to be given, sent or served
by Monitor or (as the case may be) the Competition Commission under this
Part or may be limited to notices of a particular description.

(5) 20Monitor must publish such requirements as it imposes under subsection (3).

147 Interpretation and consequential amendments

(1) In this Part—

• “anti-competitive behaviour” has the meaning given in section 60 and
  references to preventing anti-competitive behaviour are to be read in
  25accordance with subsection (2) of that section;

• “commissioner”, in relation to a health care service, means the person who
  arranges for the provision of the service (and “commission” is to be
  construed accordingly);

• “enactment” includes an enactment contained in subordinate legislation
  30(within the meaning of the Interpretation Act 1978);

• “facilities” has the same meaning as in the National Health Service Act
  2006 (see section 275 of that Act);

• “financial year” means a period of 12 months ending with 31 March;

• “health care” and “health care service” each have the meaning given in
  35section 60;

• “the NHS” has the meaning given in that section;

• “prescribed” means prescribed in regulations;

• “service” includes facility.

(2) Schedule 13 (which contains minor and consequential amendments) has effect.

Part 4 NHS foundation trusts & NHS trusts

Governance and management

148 Governors

(1) 5In paragraph 7 of Schedule 7 to the National Health Service Act 2006 (public
benefit corporation to have governors)—

(a) in sub-paragraph (1), for “a board of governors” substitute “a council of
governors”, and

(b) in sub-paragraphs (2), (3) and (4), for “the board” substitute “the
10council”.

(2) Omit paragraph 9(3) of that Schedule (requirement for at least one member of
council of governors to be appointed by PCT).

(3) For paragraph 9(7) of that Schedule (partnership organisations) substitute—

“(7) Any organisation specified in the constitution for the purposes of
15this sub-paragraph may appoint one or more members of the council
(but no more than the number specified for those purposes in the
constitution).”

(4) After paragraph 10 of that Schedule insert—

“10A The general duties of the council of governors are—

(a) 20to hold the non-executive directors individually and
collectively to account for the performance of the board of
directors, and

(b) to represent the interests of the members of the corporation as
a whole and the interests of the public.”

(5) 25After paragraph 10A of that Schedule insert—

“10B A public benefit corporation must take steps to secure that the
governors are equipped with the skills and knowledge they require
in their capacity as such.”

(6) After paragraph 10B of that Schedule insert—

“10C 30For the purpose of obtaining information about the corporation’s
performance of its functions or the directors’ performance of their
duties (and deciding whether to propose a vote on the corporation’s
or directors’ performance), the council of governors may require one
or more of the directors to attend a meeting.”

(7) 35In paragraph 23(4) of that Schedule (persons eligible for appointment as
auditor by governors), in sub-paragraph (c), for “the regulator” substitute “the
Secretary of State”.

(8) In paragraph 26(2) of that Schedule (information that must be given in annual
reports etc.), after paragraph (a) insert—

“(aa) 40information on any occasions in the period to which the
report relates on which the council of governors exercised its
power under paragraph 10C,”.

(9) In consequence of subsection (1)—

(a) in sections 33(4)(a) (in each place it appears), 35(2)(c) and (5)(c), 39(3)(a),
59(1), (2)(b) and (5) and 60(1), for “board of governors” substitute
“council of governors”,

(b) 5in section 60(2) and (3) and paragraphs 8 to 14, 17, 18, 20, 21, 23, 27 and
28 of Schedule 7, for “the board”, in each place it appears, substitute
“the council”,

(c) for the cross-heading preceding paragraph 7 of that Schedule substitute
“Council of Governors”,

(d) 10in the cross-heading preceding paragraph 28 of that Schedule, for
“board” substitute “council”, and

(e) in paragraphs 4(2) and 5(1) of Schedule 10, for “board of governors”
substitute “council of governors”.

149 Directors

(1) 15After paragraph 18 of Schedule 7 to the National Health Service Act 2006
insert—

“18A The general duty of the board of directors, and of each director
individually, is to act with a view to promoting the success of the
corporation so as to maximise the benefits for the members of the
20corporation as a whole and for the public.”

(2) After paragraph 18A of that Schedule insert—

(1) The duties that a director of a public benefit corporation has by virtue
of being a director include in particular—

(a) a duty to avoid a situation in which the director has (or can
25have) a direct or indirect interest that conflicts (or possibly
may conflict) with the interests of the corporation;

(b) a duty not to accept a benefit from a third party by reason of
being a director or doing (or not doing) anything in that
capacity.

(2) 30The duty referred to in sub-paragraph (1)(a) is not infringed if—

(a) the situation cannot reasonably be regarded as likely to give
rise to a conflict of interest, or

(b) the matter has been authorised in accordance with the
constitution.

(3) 35The duty referred to in sub-paragraph (1)(b) is not infringed if
acceptance of the benefit cannot reasonably be regarded as likely to
give rise to a conflict of interest.

(4) In sub-paragraph (1)(b), “third party” means a person other than—

(a) the corporation, or

(b) 40a person acting on its behalf.”

(3) After paragraph 18B of that Schedule insert—

(1) If a director of a public benefit corporation has in any way a direct or
indirect interest in a proposed transaction or arrangement with the
corporation, the director must declare the nature and extent of that
45interest to the other directors.