Health and Social Care Bill

Session 2010 - 12
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Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
104

(c)
if the Secretary of State considers it to be inappropriate for the
exemption to continue to have effect.
(2)
Regulations may revoke exemption regulations by which an exemption was
granted to persons of a prescribed description, or amend such regulations by
which more than one exemption was so granted so as to withdraw any of the
5
exemptions—
(a)
in accordance with any provision of the exemption regulations by
which the exemption was granted, or
(b)
if the Secretary of State considers it to be inappropriate for the
exemption to continue to have effect.
10
(3)
The Secretary of State may by direction withdraw an exemption granted to
persons of a description prescribed in exemption regulations for any person of
that description—
(a)
at the person’s request,
(b)
in accordance with any provision of the exemption regulations by
15
which the exemption was granted, or
(c)
if the Secretary of State considers it to be inappropriate for the
exemption to continue to have effect in the case of the person.
(4)
Subsection (5) applies where the Secretary of State proposes to—
(a)
make regulations under subsection (1)(b) or (c) or (2), or
20
(b)
give a direction under subsection (3)(b) or (c).
(5)
The Secretary of State must—
(a)
consult the following about the proposal—
(i)
Monitor;
(ii)
the National Health Service Commissioning Board;
25
(iii)
the Care Quality Commission and its Healthwatch England
committee;
(b)
where the Secretary of State is proposing to make regulations under
subsection (1)(b) or (c), give notice of the proposal to the person to
whom the exemption was granted;
30
(c)
where the Secretary of State is proposing to make regulations under
subsection (2), publish the notice;
(d)
where the Secretary of State is proposing to give a direction under
subsection (3)(b) or (c), give notice of the proposal to the person from
whom the Secretary of State proposes to withdraw the exemption.
35
(6)
The notice must—
(a)
state that the Secretary of State proposes to make the regulations or give
the direction (as the case may be),
(b)
set out the Secretary of State’s reasons for the proposal, and
(c)
specify the period within which representations with respect to the
40
proposal may be made.
(7)
The period so specified must be not less than 28 days beginning with the day
after that on which the notice is received or (as the case may be) published.

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
105

Licensing procedure
85
Application for licence
(1)
A person seeking to hold a licence under this Chapter must make an
application to Monitor.
(2)
The application must be made in such form, and contain or be accompanied by
5
such information, as Monitor requires.
86
Licensing criteria
(1)
Monitor must set and publish the criteria which must be met by a person in
order for that person to be granted a licence under this Chapter.
(2)
Monitor may revise the criteria and, if it does so, must publish them as revised.
10
(3)
Monitor may not set or revise the criteria unless the Secretary of State has by
order approved the criteria or (as the case may be) revised criteria.
87
Grant or refusal of licence
(1)
This section applies where an application for a licence has been made under
section 85.
15
(2)
If Monitor is satisfied that the applicant meets the criteria for holding a licence
for the time being published under section 86 it must as soon as reasonably
practicable grant the application; otherwise it must refuse it.
(3)
On granting the application, Monitor must issue a licence to the applicant.
(4)
A licence issued under this section is subject to—
20
(a)
such of the standard conditions (see section 94) as are applicable to the
licence,
(b)
such other conditions included in the licence by virtue of section 95
(referred to in this Chapter as “the special conditions”), and
(c)
any conditions included in the licence by virtue of section 111
25
(imposition of licence conditions on NHS foundation trusts during
transitional period).
88
Application and grant: NHS foundation trusts
(1)
This section applies where an NHS trust becomes an NHS foundation trust
pursuant to section 36 of the National Health Service Act 2006 (effect of
30
authorisation of NHS foundation trust).
(2)
The NHS foundation trust is to be treated by Monitor as having—
(a)
duly made an application for a licence under section 85, and
(b)
met the criteria for holding a licence for the time being published under
section 86.
35
(3)
An NHS foundation trust in existence on the day on which this section comes
into force is to be treated for the purposes of this section as having become an
NHS foundation trust pursuant to section 36 of the National Health Service Act
2006 on that day.

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
106

89
Revocation of licence
Monitor may at any time revoke a licence under this Chapter—
(a)
on the application of the licence holder, or
(b)
if Monitor is satisfied that the licence holder has failed to comply with
a condition of the licence.
5
90
Right to make representations
(1)
Monitor must give notice—
(a)
to an applicant for a licence under this Chapter of a proposal to refuse
the application;
(b)
to the licence holder of a proposal to revoke a licence under
10
section 89(b).
(2)
A notice under this section must—
(a)
set out Monitor’s reasons for its proposal;
(b)
specify the period within which representations with respect to the
proposal may be made to Monitor.
15
(3)
The period so specified must be not less than 28 days beginning with the day
after that on which the notice is received.
91
Notice of decisions
(1)
This section applies if Monitor decides to—
(a)
refuse an application for a licence under section 87, or
20
(b)
revoke a licence under section 89(b).
(2)
Monitor must give notice of its decision to the applicant or the licence holder
(as the case may be).
(3)
A notice under this section must explain the right of appeal conferred by
section 92.
25
(4)
A decision of Monitor to revoke a licence under section 89(b) takes effect on
such day as may be specified by Monitor, being a day no earlier than—
(a)
if an appeal is brought under section 92, the day on which the decision
on appeal is confirmed or the appeal is abandoned,
(b)
where the licence holder notifies Monitor before the end of the period
30
for bringing an appeal under section 92 that the licence holder does not
intend to appeal, the day on which Monitor receives the notification, or
(c)
the day after that period.
92
Appeals to the Tribunal
(1)
An appeal lies to the First-tier Tribunal against a decision of Monitor to—
35
(a)
refuse an application for a licence under section 87, or
(b)
revoke a licence under section 89(b).
(2)
The grounds for an appeal under this section are that the decision was—
(a)
based on an error of fact,
(b)
wrong in law, or
40
(c)
unreasonable.

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
107

(3)
On an appeal under this section, the First-tier Tribunal may—
(a)
confirm Monitor’s decision,
(b)
direct that the decision is not to have effect, or
(c)
remit the decision to Monitor.
93
Register of licence holders
5
(1)
Monitor must maintain and publish a register of licence holders.
(2)
The register may contain such information as Monitor considers appropriate
for the purpose of keeping members of the public informed about licence
holders including, in particular, information about the revocation of any
licence under this Chapter.
10
(3)
Monitor must secure that copies of the register are available at its offices for
inspection at all reasonable times by any person.
(4)
Any person who asks Monitor for a copy of, or an extract from, the register is
entitled to have one.
(5)
Regulations may provide that subsections (3) and (4) do not apply—
15
(a)
in such circumstances as may be prescribed, or
(b)
to such parts of the register as may be prescribed.
(6)
A fee determined by Monitor is payable for the copy or extract except—
(a)
in such circumstances as may be prescribed, or
(b)
in any case where Monitor considers it appropriate to provide the copy
20
or extract free of charge.
Licence conditions
94
Standard conditions
(1)
Monitor must determine and publish the conditions to be included in each
licence under this Chapter (referred to in this Chapter as “the standard
25
conditions”).
(2)
Different standard conditions may be determined for different descriptions of
licences.
(3)
For the purposes of subsection (2) a description of licences may, in particular,
be framed wholly or partly by reference to—
30
(a)
the nature of the licence holder,
(b)
the services provided under the licence, or
(c)
the areas in which those services are provided.
(4)
But different standard conditions must not be determined for different
descriptions of licences to the extent that the description is framed by reference
35
to the nature of the licence holder unless Monitor considers that at least one of
requirements 1 and 2 is met.
(5)
Requirement 1 is that—
(a)
the standard conditions in question relate to the governance of licence
holders, and
40

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
108

(b)
it is necessary to determine different standard conditions in order to
take account of differences in the status of different licence holders.
(6)
Requirement 2 is that it is necessary to determine different standard conditions
for the purpose of ensuring that the burdens to which different licence holders
are subject as a result of holding a licence are broadly consistent.
5
(7)
Before determining the first set of the standard conditions Monitor must
consult the persons mentioned in subsection (8) on the conditions it is
proposing to determine (“the draft standard conditions”).
(8)
Those persons are—
(a)
the Secretary of State,
10
(b)
the NHS Commissioning Board Authority,
(c)
every Primary Care Trust,
(d)
the Care Quality Commission, and
(e)
such other persons as are likely to be affected by the inclusion of the
conditions in licences under this Chapter as Monitor considers
15
appropriate.
(9)
Monitor must also publish the draft standard conditions.
(10)
The Secretary of State may direct Monitor not to determine that the standard
conditions will be the draft standard conditions.
(11)
If, at the time Monitor discharges the function under subsection (7), the day
20
specified by the Secretary of State for the purposes of section 14A of the
National Health Service Act 2006 has passed or section 9 or 181 has come into
force—
(a)
in the case of section 14A of the National Health Service Act 2006, the
reference in subsection (8)(c) to every Primary Care Trust is to be read
25
as a reference to every clinical commissioning group;
(b)
in the case of section 9, the reference in subsection (8)(b) to the NHS
Commissioning Board Authority is to be read as a reference to the
National Health Service Commissioning Board;
(c)
in the case of section 181, the reference in subsection (8)(d) to the Care
30
Quality Commission is to be read as including a reference to its
Healthwatch England committee.
95
Special conditions
(1)
Monitor may—
(a)
with the consent of the applicant, include a special condition in a
35
licence under this Chapter, and
(b)
with the consent of the licence holder, modify a special condition of a
licence.
(2)
Before including a special condition or making such modifications Monitor
must give notice to—
40
(a)
the applicant or the licence holder (as the case may be),
(b)
the Secretary of State,
(c)
the National Health Service Commissioning Board,
(d)
such clinical commissioning groups as are likely to be affected by the
proposed inclusion or modifications, and
45
(e)
the Care Quality Commission and its Healthwatch England committee.

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
109

(3)
Monitor must also publish the notice under subsection (2).
(4)
The notice under subsection (2) must—
(a)
state that Monitor proposes to include the special condition or make the
modifications and set out its or their proposed effect,
(b)
set out Monitor’s reasons for the proposal, and
5
(c)
specify the period (“the notice period”) within which representations
with respect to the proposal may be made to Monitor.
(5)
The notice period must be not less than 28 days beginning with the day after
that on which the notice is published under subsection (3).
(6)
In this section, a reference to modifying a condition includes a reference to
10
amending, omitting or adding a condition.
96
Limits on Monitor’s functions to set or modify licence conditions
(1)
This section applies to the following functions of Monitor—
(a)
the duty to determine the standard conditions to be included in each
licence under this Chapter or in licences of a particular description (see
15
section 94);
(b)
the powers to include a special condition in a licence and to modify
such a condition (see section 95);
(c)
the power to modify the standard conditions applicable to all licences,
or to licences of a particular description (see section 100).
20
(2)
Monitor may only exercise a function to which this section applies—
(a)
for the purpose of regulating the price payable for the provision of
health care services for the purposes of the NHS;
(b)
for the purpose of preventing anti-competitive behaviour in the
provision of health care services for those purposes which is against the
25
interests of people who use such services;
(c)
for the purpose of protecting and promoting the right of patients to
make choices with respect to treatment or other health care services
provided for the purposes of the NHS;
(d)
for the purpose of ensuring the continued provision of health care
30
services for the purposes of the NHS;
(e)
for the purpose of enabling health care services provided for the
purposes of the NHS to be provided in an integrated way where
Monitor considers that this would achieve one or more of the objectives
referred to in subsection (3);
35
(f)
for the purpose of enabling the provision of health care services
provided for the purposes of the NHS to be integrated with the
provision of health-related services or social care services where
Monitor considers that this would achieve one or more of the objectives
referred to in subsection (3);
40
(g)
for the purpose of enabling co-operation between providers of health
care services for the purposes of the NHS where Monitor considers that
this would achieve one or more of the objectives referred to in
subsection (3);
(h)
for purposes connected with the governance of persons providing
45
health care services for the purposes of the NHS;

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 3 — Licensing
110

(i)
for purposes connected with Monitor’s functions in relation to the
register of NHS foundation trusts required to be maintained under
section 39 of the National Health Service Act 2006;
(j)
for purposes connected with the operation of the licensing regime
established by this Chapter;
5
(k)
for such purposes as may be prescribed for the purpose of enabling
Monitor to discharge its duties under section 62.
(3)
The objectives referred to in subsection (2)(e), (f) and (g) are—
(a)
improving the quality of health care services provided for the purposes
of the NHS (including the outcomes that are achieved from their
10
provision) or the efficiency of their provision,
(b)
reducing inequalities between persons with respect to their ability to
access those services, and
(c)
reducing inequalities between persons with respect to the outcomes
achieved for them by the provision of those services.
15
(4)
Monitor must not exercise a function to which this section applies in a way
which it considers would result in a particular licence holder or holders of
licences of a particular description being put at an unfair advantage or
disadvantage in competing with others in the provision of health care services
for the purposes of the NHS as a result of—
20
(a)
being in the public or (as the case may be) private sector, or
(b)
some other aspect of its or their status.
(5)
In subsection (2)(f), “health-related services” and “social care services” each
have the meaning given in section 62(11).
97
Conditions: supplementary
25
(1)
The standard or special conditions of a licence under this Chapter may, in
particular, include conditions—
(a)
requiring the licence holder to pay to Monitor such fees of such
amounts as Monitor may determine in respect of the exercise by
Monitor of its functions under this Chapter,
30
(b)
requiring the licence holder to comply with any requirement imposed
on it by Monitor under Chapter 6 (financial assistance in special
administration cases),
(c)
requiring the licence holder to do, or not to do, specified things or
things of a specified description (or to do, or not to do, any such things
35
in a specified manner) within such period as may be specified in order
to prevent anti-competitive behaviour in the provision of health care
services for the purposes of the NHS which is against the interests of
people who use such services,
(d)
requiring the licence holder to give notice to the Office of Fair Trading
40
before entering into an arrangement under which, or a transaction in
consequence of which, the licence holder’s activities, and the activities
of one or more other businesses, cease to be distinct activities,
(e)
requiring the licence holder to provide Monitor with such information
as Monitor considers necessary for the purposes of the exercise of its
45
functions under this Part,
(f)
requiring the licence holder to publish such information as may be
specified or as Monitor may direct,