Health and Social Care Bill

Session 2010 - 12
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Health and Social Care Bill

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 6 — Financial assistance in special administration cases
145

(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
specify the amount of the proposed adjustment.
5
(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
provider is to be subject to the levy.
10
(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)
send the provider written notice of its recalculation.
15
(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
at the rate for the time being specified in section 17 of the Judgments Act 1838;
20
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
144
Investment principles and reviews
(1)
Monitor must prepare and publish a statement of the principles that govern its
25
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
30
(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)
the procedure for trust special administration for NHS foundation
35
trusts under Chapter 5A of Part 2 of the National Health Service Act
2006, and
(c)
such mechanisms as have been established under section 134.
(4)
The purposes of the review under subsection (3)(c) are—
(a)
to assess the operation of the mechanisms concerned,
40
(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
estimates in relation to the operation of the mechanisms, and

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 6 — Financial assistance in special administration cases
146

(d)
to review the extent of the protection which the mechanisms are
required to provide.
(5)
Where a fund established under section 135 has been in operation for the whole
or part of the year concerned, the review published under this section must
specify—
5
(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)
commercial information the disclosure of which would, or might,
10
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
interests.
15
145
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)
give security for sums that it borrows.
20
(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)
to increase the amount by which the aggregate amount so outstanding
25
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)
an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to
30
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)
section 22 of the Financial Services and Markets Act 2000,
35
(b)
any relevant order under that section, and
(c)
Schedule 2 to that Act.
146
Shortfall or excess of available funds, etc.
(1)
The Secretary of State may provide financial assistance to Monitor if the
Secretary of State is satisfied that—
40
(a)
there are insufficient funds available from a mechanism established
under section 134, or
(b)
the mechanism is otherwise unable to operate effectively.

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 7 — Miscellaneous and general
147

(2)
If the Secretary of State is satisfied that the level of funds available from a
mechanism established under section 134 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
5
134 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
10
147
Secretary of State’s duty as respects variation in provision of health services
After 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
15
(1)
The Secretary of State must not exercise the functions mentioned in
subsection (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—
20
(a)
whether the persons in question are in the public or (as the case
may 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—
25
(a)
sections 6E and 13A, and
(b)
section 75 of the Health and Social Care Act 2012 (requirements
as to procurement, patient choice and competition).”
148
Service of documents
(1)
A notice required under this Part to be given or sent to or served on a person
30
(“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
35
(ii)
by a postal service which provides for the delivery of the
document to be recorded, or
(c)
subject to section 149, 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
40
contrary is proved, to be taken to have been received on the third day after the
day on which it is sent.

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 7 — Miscellaneous and general
148

(3)
Where a notice is sent as mentioned in subsection (1)(c) in accordance with
section 149, 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;
5
(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)
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
10
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)
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
15
(b)
in any other case, the address determined in accordance with
subsection (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,
20
(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)
In this section and in section 149—
“electronic communication” has the same meaning as in the Electronic
25
Communications Act 2000;
“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).
149
Electronic communications
30
(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)
or (3) are met.
(2)
If the person required or authorised to give, send or serve the notice is Monitor
35
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
the person’s willingness to receive notices by an electronic
communication and provided an address suitable for that purpose, and
40
(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.

Health and Social Care Bill
Part 3 — Regulation of health and adult social care services
Chapter 7 — Miscellaneous and general
149

(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)
Monitor must publish such requirements as it imposes under subsection (3).
5
150
Interpretation, transitional provision and consequential amendments
(1)
In this Part—
“anti-competitive behaviour” has the meaning given in section 64 and
references to preventing anti-competitive behaviour are to be read in
accordance with subsection (2) of that section;
10
“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
(within the meaning of the Interpretation Act 1978);
15
“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
section 64;
20
“the NHS” has the meaning given in that section;
“prescribed” means prescribed in regulations;
“service” includes facility.
(2)
Until section 9 comes into force, the references in this Part to the National
Health Service Commissioning Board (other than the reference in section
25
94(11)(b)) are to be read as references to the NHS Commissioning Board
Authority.
(3)
Until the day specified by Secretary of State for the purposes of section 14A of
the National Health Service Act 2006, the references in this Part to a clinical
commissioning group (other than the reference in section 94(11)(a)) are to be
30
read as references to a Primary Care Trust.
(4)
Until section 181 comes into force, the following provisions in this Part are to
be read as if the words “and its Healthwatch England committee” were
omitted—
(a)
section 83(4)(c);
35
(b)
section 84(5)(a)(iii);
(c)
section 95(2)(e);
(d)
section 100(2)(e).
(5)
Schedule 13 (which contains minor and consequential amendments) has effect.

Health and Social Care Bill
Part 4 — NHS foundation trusts & NHS trusts
150

Part 4
NHS foundation trusts & NHS trusts
Governance and management
151
Governors
(1)
In paragraph 7 of Schedule 7 to the National Health Service Act 2006 (public
5
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
council”.
10
(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
15
(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)
to hold the non-executive directors individually and
20
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)
After paragraph 10A of that Schedule insert—
25
“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
For the purpose of obtaining information about the corporation’s
30
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)
In paragraph 23(4) of that Schedule (persons eligible for appointment as
35
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)
information on any occasions in the period to which the
40
report relates on which the council of governors exercised its
power under paragraph 10C,”.

Health and Social Care Bill
Part 4 — NHS foundation trusts & NHS trusts
151

(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) of that Act, for “board of governors”
substitute “council of governors”,
(b)
in section 60(2) and (3) and paragraphs 8 to 14, 17, 18, 20, 21, 23, 27 and
5
28 of Schedule 7 to that Act, 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)
in the cross-heading preceding paragraph 28 of that Schedule, for
10
“board” substitute “council”, and
(e)
in paragraphs 4(2) and 5(1) of Schedule 10 to that Act, for “board of
governors” substitute “council of governors”.
152
Directors
(1)
After paragraph 18 of Schedule 7 to the National Health Service Act 2006
15
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
corporation as a whole and for the public.”
20
(2)
After paragraph 18A of that Schedule insert—
“18B  (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
have) a direct or indirect interest that conflicts (or possibly
25
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)
The duty referred to in sub-paragraph (1)(a) is not infringed if—
30
(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)
The duty referred to in sub-paragraph (1)(b) is not infringed if
35
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)
a person acting on its behalf.”
40
(3)
After paragraph 18B of that Schedule insert—
“18C  (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
interest to the other directors.
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