Session 2010 - 12
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Health and Social Care Bill


Health and Social Care Bill
Schedule 10 — References by Monitor to the Competition Commission

388

 

(c)   

in subsection (9), for the words from “or (3)” to “section 65(3))” there

were substituted “, (3) or (5)”.

      (4)  

Section 110, in its application by virtue of sub-paragraph (2), has effect as

if—

(a)   

the modifications in sub-paragraph (3) were made,

5

(b)   

in subsection (4), for the words “the publication of the report of the

Commission on the reference concerned” there were substituted “the

relevant day”, and

(c)   

after that subsection there were inserted—

“(4A)   

The relevant day for the purposes of subsection (4) is—

10

(a)   

the day on which the Commission published a notice

under paragraph 8(12) of Schedule 10 to the Health

and Social Care Act 2012 in connection with the

reference concerned, or

(b)   

if it has not given a direction under paragraph 8(1) of

15

that Schedule in connection with the reference and

within the permitted period, the latest day on which

it was possible to give such a notice within that

period.”

      (5)  

Section 111, in its application by virtue of sub-paragraph (1) or (2), has effect

20

as if—

(a)   

in subsection (1), for “or (3)” there were substituted “, (3) or (5)”, and

(b)   

in subsections (3) and (6), after “110(3)” there were inserted “or (5)”.

      (6)  

Section 111(5)(b)(ii), in its application by virtue of sub-paragraph (1), has

effect as if—

25

(a)   

for the words from “published (or, in the case of a report under

section 50 or 65, given)” there were substituted “made”,

(b)   

for the words “published (or given)”, in each place they appear, there

were substituted “made”, and

(c)   

the words “by this Part” were omitted.

30

      (7)  

Section 111(5)(b)(ii), in its application by virtue of sub-paragraph (2), has

effect as if for sub-paragraph (ii) there were substituted—

“(ii)   

if earlier, the relevant day (which for the purposes of

this subsection is to be construed in accordance with

section 110(4A)).”

35

      (8)  

Section 112, in its application by virtue of sub-paragraph (1) or (2), has effect

as if, in subsection (1), for “or (3)” there were substituted “, (3) or (5)”.

      (9)  

Section 114, in its application by virtue of sub-paragraph (1) or (2), has effect

as if, in subsection (1), for “or (3)” there were substituted “, (3) or (5)”.

     (10)  

Section 115, in its application by virtue of sub-paragraph (1) or (2), has effect

40

as if for “or (3)” there were substituted “, (3) or (5)”.

     (11)  

Section 116, in its application by virtue of sub-paragraph (1) or (2), has effect

as if, in subsection (2), for “or (3)” there were substituted “, (3) or (5)”.

     (12)  

Provisions of Part 3 of the Enterprise Act 2002 which have effect for the

purposes of sections 109 to 116 of that Act (including, in particular,

45

provisions relating to the making of orders) have effect for the purposes of

the application of those sections by virtue of sub-paragraph (1) or (2) in

 
 

Health and Social Care Bill
Schedule 11 — Further provision about Monitor’s enforcement powers
Part 1 — Discretionary requirements

389

 

relation to those sections as applied by virtue of the sub-paragraph

concerned.

     (13)  

Accordingly, corresponding provisions of this Act do not have effect in

relation to those sections as applied by virtue of the sub-paragraph

concerned.

5

Schedule 11

Section 107

 

Further provision about Monitor’s enforcement powers

Part 1

Discretionary requirements

Procedure

10

1     (1)  

Where Monitor proposes to impose a discretionary requirement on a person,

Monitor must give notice to that person (a “notice of intent”).

      (2)  

A notice of intent must—

(a)   

state that Monitor proposes to impose the discretionary requirement

and set out its effect,

15

(b)   

set out the grounds for the proposal to impose the requirement,

(c)   

explain the effect of section 106 (enforcement undertakings), 

(d)   

set out the circumstances (if any) in which Monitor may not impose

the requirement, and

(e)   

specify the period (“the notice period”) within which representations

20

with respect to the proposal may be made to Monitor.

      (3)  

The notice period must be not less than 28 days beginning with the day after

that on which the notice of intent is received.

      (4)  

But where Monitor—

(a)   

proposes to impose a compliance requirement or restoration

25

requirement, and

(b)   

considers that a shorter notice period is necessary to prevent or

minimise further breaches of the kind referred to in section 105(1),

           

the notice period is to be such shorter period as Monitor may determine, but

not less than 5 days beginning with the day after that on which the notice of

30

intent is received.

2     (1)  

After the end of the notice period Monitor must decide whether to—

(a)   

impose the discretionary requirement, with or without

modifications, or

(b)   

impose any other discretionary requirement.

35

      (2)  

Where Monitor decides under sub-paragraph (1) to impose a discretionary

requirement on a person Monitor must give notice to that person (a “final

notice”).

      (3)  

A final notice must—

(a)   

state that Monitor has decided to impose the discretionary

40

requirement and set out its effect,

 
 

Health and Social Care Bill
Schedule 11 — Further provision about Monitor’s enforcement powers
Part 1 — Discretionary requirements

390

 

(b)   

set out the grounds for imposing the requirement,

(c)   

in the case of a variable monetary penalty, state—

(i)   

how payment may be made,

(ii)   

the period (“the payment period”) within which payment

must be made,

5

(iii)   

any discount applicable for early payment of the penalty, and

(iv)   

the rate of interest payable for late payment of the penalty,

(d)   

set out the consequences of failing to comply with the requirement,

and

(e)   

explain the right of appeal conferred by paragraph 3.

10

      (4)  

The payment period must be not less than 28 days beginning with the day

after that on which the final notice is received.

      (5)  

Monitor must not decide under sub-paragraph (1) to impose a variable

monetary penalty unless the notice of intent was given before the end of the

period of 5 years beginning with the day (or, in the case of a continuing

15

breach, the last day) on which the breach giving rise to the imposition of the

discretionary requirement occurred.

3     (1)  

A person may appeal to the First-tier Tribunal against a decision of Monitor

to impose a discretionary requirement.

      (2)  

The grounds for an appeal under this paragraph are—

20

(a)   

that the decision was based on an error of fact,

(b)   

that the decision was wrong in law,

(c)   

in the case of a decision imposing a variable monetary penalty, that

the amount of the penalty is unreasonable,

(d)   

in the case of a decision to impose a compliance requirement or a

25

restoration requirement, that the nature of the requirement is

unreasonable, or

(e)   

that the decision was unreasonable for any other reason.

      (3)  

The discretionary requirement is suspended pending determination of the

appeal.

30

      (4)  

On an appeal under this paragraph, the Tribunal may—

(a)   

confirm, vary or withdraw the discretionary requirement,

(b)   

take such steps as Monitor could take in relation to the breach giving

rise to the imposition of the requirement, or

(c)   

remit the decision whether to confirm the requirement, or any matter

35

relating to that decision, to Monitor.

4          

Monitor may by notice to a person on whom a discretionary requirement has

been imposed—

(a)   

withdraw the discretionary requirement,

(b)   

in the case of a variable monetary penalty, reduce the amount of the

40

penalty or extend the payment period, or

(c)   

in the case of a compliance requirement or a restoration requirement,

extend the period specified for taking the steps specified in the

requirement.

 
 

Health and Social Care Bill
Schedule 11 — Further provision about Monitor’s enforcement powers
Part 1 — Discretionary requirements

391

 

Non-compliance penalties

5     (1)  

If a person fails to comply with a compliance requirement or a restoration

requirement Monitor may impose a monetary penalty on that person of such

amount as Monitor may determine (a “non-compliance penalty”).

      (2)  

Where Monitor proposes to impose a non-compliance penalty on a person

5

Monitor must give notice to that person (a “non-compliance notice”).

      (3)  

A non-compliance notice must—

(a)   

specify the amount of the non-compliance penalty,

(b)   

set out the grounds for imposing the penalty,

(c)   

state how payment of the penalty may be made,

10

(d)   

state the period (“the payment period”) within which payment must

be made,

(e)   

state any discount applicable for early payment of the penalty,

(f)   

set out the consequences of a failure to pay within the payment

period (including any increase in the amount payable), and

15

(g)   

explain the right of appeal conferred by paragraph 6.

      (4)  

The payment period must be not less than 28 days beginning with the day

after that on which the non-compliance notice is received.

      (5)  

If the whole or any part of a non-compliance penalty is not paid by the time

it is required to be paid Monitor may increase the amount payable by no

20

more than 50% of the amount of the penalty.

      (6)  

Monitor may by notice to a person on whom a non-compliance penalty has

been imposed reduce the amount of the penalty or extend the payment

period.

6     (1)  

A person may appeal to the First-tier Tribunal against a decision of Monitor

25

to impose a non-compliance penalty.

      (2)  

The grounds for such an appeal are—

(a)   

that the decision was based on an error of fact,

(b)   

that the decision was wrong in law, or

(c)   

that the decision was, or the amount of the penalty is, unfair or

30

unreasonable.

      (3)  

The non-compliance penalty is suspended pending determination of the

appeal.

      (4)  

On an appeal, the Tribunal may—

(a)   

confirm, vary or withdraw the non-compliance penalty, or

35

(b)   

remit the decision whether to confirm the penalty, or any matter

relating to that decision, to Monitor.

Recovery of financial penalties

7     (1)  

Amounts payable to Monitor of the kind mentioned in sub-paragraph (2) are

recoverable summarily as a civil debt (but this does not affect any other

40

method of recovery).

      (2)  

The amounts are—

(a)   

a variable monetary penalty and any interest payable on it, or

 
 

Health and Social Care Bill
Schedule 11 — Further provision about Monitor’s enforcement powers
Part 2 — Enforcement undertakings

392

 

(b)   

a non-compliance penalty.

Payments of penalties etc. into Consolidated Fund

8          

Monitor must pay any sums it receives in respect of any of the following into

the Consolidated Fund—

(a)   

a variable monetary penalty and any interest payable on it, or

5

(b)   

a non-compliance penalty.

Part 2

Enforcement undertakings

Procedure

9     (1)  

Monitor must publish a procedure for entering into enforcement

10

undertakings.

      (2)  

Monitor may revise the procedure and if it does so, Monitor must publish

the procedure as revised.

      (3)  

Monitor must consult such persons as it considers appropriate before

publishing or revising the procedure.

15

10    (1)  

Where Monitor accepts an enforcement undertaking, Monitor must publish

the undertaking.

      (2)  

But Monitor must not under sub-paragraph (1) publish any part of an

enforcement undertaking which contains information which it is satisfied

is—

20

(a)   

commercial information the disclosure of which would, or might,

significantly harm the legitimate business interests of the person to

whom it relates;

(b)   

information relating to the private affairs of an individual the

disclosure of which would, or might, significantly harm that

25

person’s interests.

Variation of terms

11         

The terms of an enforcement undertaking (including, in particular, the

action specified under it and the period so specified within which the action

must be taken) may be varied if both the person giving the undertaking and

30

Monitor agree.

Compliance certificates

12    (1)  

Where Monitor is satisfied that an enforcement undertaking has been

complied with, Monitor must issue a certificate to that effect (referred to in

this Schedule as a “compliance certificate”).

35

      (2)  

A person who has given an enforcement undertaking may at any time make

an application to Monitor for a compliance certificate.

      (3)  

The application must be made in such form, and accompanied by such

information, as Monitor requires.

 
 

Health and Social Care Bill
Schedule 12 — Procedure on references under section 120

393

 

      (4)  

Monitor must decide whether or not to issue a compliance certificate, and

give notice to the applicant of its decision, before the end of the period of 14

days beginning with the day after that on which the application is received.

13    (1)  

An appeal lies to the First-tier Tribunal against a decision of Monitor to

refuse an application for a certificate of compliance.

5

      (2)  

The grounds for an appeal under this paragraph are that the decision was—

(a)   

based on an error of fact,

(b)   

wrong in law, or

(c)   

unfair or unreasonable.

      (3)  

On an appeal under this paragraph, the Tribunal may confirm Monitor’s

10

decision or direct that it is not to have effect.

Inaccurate, incomplete or misleading information

14         

Where Monitor is satisfied that a person who has given an enforcement

undertaking has supplied Monitor with inaccurate, misleading or

incomplete information in relation to the undertaking—

15

(a)   

Monitor may treat the person as having failed to comply with the

undertaking, and

(b)   

if Monitor decides so to treat the person, Monitor must by notice

revoke any compliance certificate given to that person.

Schedule 12

20

Section 120

 

Procedure on references under section 120

Contents etc. of reference

1     (1)  

A reference under section 120 must specify—

(a)   

Monitor’s reasons for proposing the method to which the reference

relates, and

25

(b)   

its representations as to why the grounds referred to in section 121(4)

do not apply.

      (2)  

Monitor must give notice of the reference to—

(a)   

the National Health Service Commissioning Board, and

(b)   

each objector.

30

      (3)  

The notice must be accompanied by a copy of the reference.

      (4)  

In this Schedule, “objector” means—

(a)   

in relation to a reference made where the condition in section

120(2)(a) is not met, each clinical commissioning group who objected

to the proposed method to which the reference relates, and

35

(b)   

in relation to a reference made where the condition in section

120(2)(b) or (c) is not met, each relevant provider who objected to

that proposed method.

 
 

Health and Social Care Bill
Schedule 12 — Procedure on references under section 120

394

 

Representations by objectors

2     (1)  

If an objector wishes to make representations to the Competition

Commission on the matters specified in the reference for the purposes of

paragraph 1(1), the objector must do so before the end of the period of 10

working days beginning with the day on which the objector receives the

5

notice under paragraph 1(2).

      (2)  

The objector must give Monitor a copy of the representations.

      (3)  

If Monitor wishes to reply to representations under sub-paragraph (1), it

must do so before the end of the period of 10 working days beginning with

the day on which it receives the copy under sub-paragraph (2).

10

      (4)  

Monitor must send a copy of its reply to the objector who made the

representations.

      (5)  

In this Schedule, “working day” means any day other than—

(a)   

a Saturday or a Sunday,

(b)   

Christmas Day or Good Friday, or

15

(c)   

a bank holiday in England and Wales under the Banking and

Financial Dealings Act 1971.

Functions of Commission in relation to reference

3     (1)  

The following functions of the Competition Commission must be

performed, in accordance with rules under paragraph 11, by a group

20

selected for the purpose by the Chairman of the Commission—

(a)   

considering a reference under section 120;

(b)   

making a determination on the reference;

(c)   

giving directions and taking other steps to give effect to the

Commission’s determination on the reference.

25

      (2)  

A group selected under this paragraph must consist of three members of the

Commission.

      (3)  

The Chairman of the Commission must appoint one of the members as chair

of the group.

      (4)  

The Chairman of the Commission may select a member of the Commission

30

to replace a person as a member of group if—

(a)   

the person being replaced has ceased to be a member of the

Commission,

(b)   

the Chairman is satisfied that the person being replaced will be

unable, for a substantial period, to perform duties as a member of the

35

group, or

(c)   

it appears to the Chairman that it is inappropriate, because of a

particular interest of the person being replaced, for that person to

remain a member of the group.

      (5)  

The replacement of a member of a group does not prevent the group from

40

continuing after the replacement with anything begun before it.

      (6)  

The Chairman of the Commission may be appointed as, or may be selected

to replace a person as, a member of a group (including as chair of the group).

      (7)  

A decision of a group is effective only if—

 
 

 
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Revised 15 March 2012