Health and Social Care Bill (HL Bill 119)

(5) The power to recover an overpayment under subsection (4) includes a power
to recover interest, at such rate as Monitor may determine, on the amount of
the overpayment for the period beginning with the making of the overpayment
and ending with its recovery.

5Charges on commissioners

137 Power to impose charges on commissioners

(1) The Secretary of State may by regulations confer power on Monitor to require
commissioners to pay charges relating to such of Monitor’s functions that
relate to securing the continued provision of health care services for the
10purposes of the NHS.

(2) The regulations must provide that the amount of a charge imposed by virtue
of this section is to be such amount—

(a) as may be prescribed, or

(b) as is determined by reference to such criteria, and by using such
15method, as may be prescribed.

(3) The regulations must—

(a) prescribe to whom the charge is to be paid;

(b) prescribe when the charge becomes payable;

(c) where the amount of the charge is to be determined in accordance with
20subsection (2)(b), require Monitor to carry out consultation in
accordance with the regulations before imposing the charge;

(d) provide for any amount that is not paid by the time prescribed for the
purposes of paragraph (b) to carry interest at the rate for the time being
specified in section 18 of the Judgments Act 1838;

(e) 25provide for any unpaid balance and accrued interest to be recoverable
summarily as a civil debt (but for this not to affect any other method of
recovery).

(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
30provider to pay Monitor the amount of the charge in question in accordance
with the regulations.

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

(a) Monitor, and

(b) 35the National Health Service Commissioning Board.

(6) Regulations under this section may apply with modifications provision made
by sections 140 to 142 in relation to charges imposed by virtue of this section.

Levy on providers

138 Imposition of levy

(1) 40The power under section 134(2) includes, in particular, power to impose a levy
on providers for each financial year.

(2) Before 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) 5the amount that will be collected from commissioners by way of
charges imposed by virtue of section 137 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
10under this section, it must determine—

(a) the 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,
15becomes payable.

(4) Where the determinations under subsection (3) reflect changes made to the
factors by reference to which the rate of the levy is to be assessed, the notice
under section 142(1)(b) must include an explanation of those changes.

(5) A levy under this section may be imposed at different rates for different
20providers.

139 Power 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
25under section 138 for that year, and

(b) the maximum amount that it may raise from charges it imposes by
virtue of section 137 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
30estimates will, in each case, raise an amount not exceeding the amount
specified for that case in the order.

140 Consultation

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

(a) 35has not imposed a levy under that section for the current financial year
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
40financial 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 rate of the levy is to be assessed.

(3) Before making the determinations under section 138(3) in respect of the levy,
45Monitor must send a notice to—

(a) the Secretary of State,

(b) the National Health Service Commissioning Board,

(c) each clinical commissioning group,

(d) each potentially liable provider, and

(e) 5such 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) 10the time or times by reference to which it proposes to assess those
factors, 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
15Monitor 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).

(8) 20In this section and section 141 a “potentially liable provider” means a provider
on whom Monitor is proposing to impose the levy for the coming financial year
(regardless of the amount (if any) that the provider would be liable to pay as a
result of the proposal).

141 Responses to consultation

(1) 25If Monitor receives objections from one or more potentially liable providers to
its proposals, it may not give notice under section 142(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
the Competition Commission.

(2) 30The conditions referred to in subsection (1)(a) are that—

(a) one or more potentially liable 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) 35In subsection (2)—

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

(b) the “share of supply percentage” is the proportion (expressed as a
percentage) of the potentially liable providers who objected to the
40proposals, weighted according to their share of the supply in England
of such services as may be prescribed.

(4) A 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
45weight to the matters in section 64,

(b) if so, whether that failure operates, or may be expected to operate,
against 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
5by changes to the proposals.

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

(a) paragraph 1 is to be ignored,

(b) 10in paragraph 5(2), the reference to six months is to be read as a reference
to two months,

(c) in 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,
15in consequence of that, in sub-paragraph (8), the words from the
beginning to “sub-paragraph (4)(c)” are also to be ignored), and

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

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

(a) 20in paragraphs 3, 5(6) and 6(6)—

(i) the National Health Service Commissioning Board, and

(ii) the potentially liable providers who objected to the proposals,
and

(b) in paragraph 8(10)—

(i) 25Monitor, and

(ii) the potentially liable providers who objected to the proposals.

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

(8) 30Regulations 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.

142 Amount payable

(1) Monitor must—

(a) 35calculate the amount which each provider who is to be subject to a levy
under section 138 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
instalments of it, will become payable.

(2) 40If 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
year.

(3) 45The 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 138, it becomes satisfied that the risk of a provider who is
subject to the levy going into special administration has changed by reference
to what it was—

(a) 5at 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
that the provider is liable to pay so as to reflect the change; and the notice must
10specify 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
financial year were references to the part of the financial year for which the
15provider 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) comply with the request, and

(b) 20send 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
the date by which it is required to be paid, the unpaid balance carries interest
25at 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 (but this does not affect any other method of recovery).

Supplementary

143 Investment principles and reviews

(1) 30Monitor 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) 35if 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
must undertake and publish a review of the operation during that year of—

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

(b) 40the procedure for trust special administration for NHS foundation
trusts under Chapter 5A of Part 2 of the National Health Service Act
2006, and

(c) such mechanisms as have been established under section 133.

(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) to assess what improvements can be made to the process for making
5estimates 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 134 has been in operation for the whole
or part of the year concerned, the review published under this section must
10specify—

(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
which it is satisfied is—

(a) 15commercial 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
disclosure of which would, or might, significantly harm that person’s
20interests.

144 Borrowing

(1) Monitor may—

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

(b) 25give 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
order specify, or

(b) 30to 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
Markets Act 2000, or

(b) 35an 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) The definition of “deposit-taker” in subsection (3) must be read with—

(a) 40section 22 of the Financial Services and Markets Act 2000,

(b) any relevant order under that section, and

(c) Schedule 2 to that Act.

145 Shortfall or excess of available funds, etc.

(1) The Secretary of State may provide financial assistance to Monitor if the
45Secretary of State is satisfied that—

(a) there are insufficient funds available from a mechanism established
under section 133, or

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

(2) If the Secretary of State is satisfied that the level of funds available from a
5mechanism established under section 133 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
133 has become dormant, or if a mechanism so established is being wound up,
10the 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

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

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

15“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
subsection (2) for the purpose of causing a variation in the proportion
20of 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
may be) private sector, or

(b) 25some 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 73 of the Health and Social Care Act 2012 (requirements
30as to procurement, patient choice and competition).”

147 Service of documents

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

(a) by being delivered personally to R,

(b) 35by being sent to R—

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

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

(c) 40subject to section 148, 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
contrary is proved, to be taken to have been received on the third day after the
day on which it is sent.

(3) Where a notice is sent as mentioned in subsection (1)(c) in accordance with
5section 148, 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) In subsection (3) “working day” means a day other than—

(a) a Saturday or a Sunday;

(b) Christmas Day or Good Friday; or

(c) 10a day which is a bank holiday in England under the Banking and
Financial Dealings Act 1971.

(5) A 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) 15For the purposes of section 7 of the Interpretation Act 1978 in its application to
this section, the proper address of a person is—

(a) in 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
20subsection (7).

(7) That address is—

(a) in 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
25the firm, and

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

(8) In this section and in section 148—

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

• 30“notice” includes any other document.

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

148 Electronic communications

(1) If a notice required or authorised by this Part to be given or sent by or to a
35person 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)
or (3) are met.

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

(a) 40the 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
the 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
served in such manner as Monitor may require.

(4) An indication given for the purposes of subsection (2) may be given generally
5for 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) Monitor must publish such requirements as it imposes under subsection (3).

149 Interpretation and consequential amendments

(1) 10In this Part—

• “anti-competitive behaviour” has the meaning given in section 62 and
  references to preventing anti-competitive behaviour are to be read in
  accordance with subsection (2) of that section;

• “commissioner”, in relation to a health care service, means the person who
  15arranges for the provision of the service (and “commission” is to be
  construed accordingly);

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

• “facilities” has the same meaning as in the National Health Service Act
  202006 (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
  section 62;

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

• 25“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

30Governance and management

150 Governors

(1) In 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
35governors”, and

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

(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
this sub-paragraph may appoint one or more members of the council
(but no more than the number specified for those purposes in the
5constitution).”

(4) After paragraph 10 of that Schedule insert—

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

(a) to hold the non-executive directors individually and
collectively to account for the performance of the board of
10directors, and

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

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

“10B A public benefit corporation must take steps to secure that the
15governors are equipped with the skills and knowledge they require
in their capacity as such.”

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

“10C For the purpose of obtaining information about the corporation’s
performance of its functions or the directors’ performance of their
20duties (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) In paragraph 23(4) of that Schedule (persons eligible for appointment as
auditor by governors), in sub-paragraph (c), for “the regulator” substitute “the
25Secretary of State”.

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

“(aa) information on any occasions in the period to which the
report relates on which the council of governors exercised its
30power 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) 35in 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) 40in 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”.

151 Directors

(1) 45After paragraph 18 of Schedule 7 to the National Health Service Act 2006