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Health and Social Care BillPage 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
5must be made,

(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) 10explain the right of appeal conferred by paragraph 3.

(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
15period of 5 years beginning with the day (or, in the case of a continuing
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) 20The grounds for an appeal under this paragraph are—

(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) 25in the case of a decision to impose a compliance requirement or a
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
30appeal.

(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) 35remit the decision whether to confirm the requirement, or any matter
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) 40in the case of a variable monetary penalty, reduce the amount of the
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.

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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) 5Where Monitor proposes to impose a non-compliance penalty on a person
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) 10state how payment of the penalty may be made,

(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
15period (including any increase in the amount payable), and

(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
20it is required to be paid Monitor may increase the amount payable by no
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) 25A person may appeal to the First-tier Tribunal against a decision of Monitor
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) 30that the decision was, or the amount of the penalty is, unfair or
unreasonable.

(3) The non-compliance penalty is suspended pending determination of the
appeal.

(4) On an appeal, the Tribunal may—

(a) 35confirm, vary or withdraw the non-compliance penalty, or

(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
40recoverable summarily as a civil debt (but this does not affect any other
method of recovery).

(2) The amounts are—

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

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(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) 5a variable monetary penalty and any interest payable on it, or

(b) a non-compliance penalty.

Part 2 Enforcement undertakings

Procedure

9 (1) 10Monitor must publish a procedure for entering into enforcement
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
15publishing or revising the procedure.

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
20is—

(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
25disclosure of which would, or might, significantly harm that
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
30must be taken) may be varied if both the person giving the undertaking and
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
35this Schedule as a “compliance certificate”).

(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.

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(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
5refuse an application for a certificate of compliance.

(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) 10On an appeal under this paragraph, the Tribunal may confirm Monitor’s
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
15incomplete information in relation to the undertaking—

(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.

Section 120

20SCHEDULE 12 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
25relates, and

(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) 30each objector.

(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
35to the proposed method to which the reference relates, and

(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.

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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
5working days beginning with the day on which the objector receives the
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
10the day on which it receives the copy under sub-paragraph (2).

(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) 15Christmas Day or Good Friday, or

(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
20performed, in accordance with rules under paragraph 11, by a group
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
25Commission’s determination on the reference.

(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) 30The Chairman of the Commission may select a member of the Commission
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
35unable, for a substantial period, to perform duties as a member of the
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) 40The replacement of a member of a group does not prevent the group from
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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(a) all the members of the group are present when it is made, and

(b) at least two members of the group are in favour of it.

Timetable for determination on reference

4 (1) The group with the function of making a determination on a reference must
5make the determination before the end of the period of 30 working days
following the last day for the making by Monitor of a reply in accordance
with paragraph 2.

(2) If that group is satisfied that there are good reasons for departing from the
normal requirements, it may (on one occasion only) extend that period by
10not more than 20 working days.

(3) The Competition Commission must ensure that an extension under sub-
paragraph (2) is notified to—

(a) Monitor,

(b) the National Health Service Commissioning Board, and

(c) 15every objector who made representations in accordance with
paragraph 2.

Matters to be considered on determination

5 (1) If the group with the function of determining a reference considers it
necessary to disregard the matters referred to in sub-paragraph (2) in order
20to secure the making of the determination of the appeal within the period
allowed by paragraph 4, it may do so.

(2) The matters mentioned in sub-paragraph (1) are—

(a) all matters raised by an objector in representations under paragraph
2 that the objector did not raise at the time of the consultation under
25section 118, and

(b) all matters raised by Monitor in replies under paragraph 2 that it did
not include in the reference.

Production of documents

6 (1) The Competition Commission may by notice require a person to produce to
30it the documents specified or otherwise identified in the notice.

(2) The power to require the production of a document is a power to require its
production—

(a) at the time and place specified in the notice, and

(b) in a legible form.

(3) 35The Competition Commission may take copies of a document produced to
it under this paragraph.

Oral hearings

7 (1) For the purposes of this Schedule, an oral hearing may be held, and evidence
may be taken on oath by a group with the function of making a
40determination on a reference under section 120.

(2) A group with that function may administer oaths for the purposes of this
Schedule.

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(3) The Competition Commission must give notice to each objector who has
made representations in accordance with paragraph 2 of the time and place
at which an oral hearing is to be held.

(4) The Competition Commission may by notice require a person—

(a) 5to attend at a time and place specified in the notice, and

(b) to give evidence at that time and place to a group with that function.

(5) At an oral hearing, the group conducting the hearing may require a person
who comes within sub-paragraph (6), if present at the hearing, to give
evidence or to make representations.

(6) 10A person comes within this sub-paragraph if the person is—

(a) an objector who has made representations in accordance with
paragraph 2,

(b) a person attending the hearing as a representative of a person
mentioned in paragraph (a), or

(c) 15a person attending the hearing as a representative of Monitor.

(7) A person who gives oral evidence at the hearing may be cross-examined by
or on behalf of any other person who is present at the hearing and comes
within sub-paragraph (6).

(8) If a person is not present at a hearing and so cannot be made subject to a
20requirement under sub-paragraph (5)

(a) the Competition Commission is not obliged to require the person to
attend the hearing, and

(b) the group conducting the hearing may make a determination on the
reference without hearing that person’s evidence or representations.

(9) 25Where a person is required under this paragraph to attend at a place more
than 10 miles from that person’s place of residence, the Competition
Commission must pay the person the necessary expenses of attending.

Written statements

8 (1) The Commission may by notice require a person to produce a written
30statement with respect to a matter specified in the notice to a group with the
function of making a determination on a reference under section 120.

(2) The power to require the production of a written statement includes power
to specify the time and place at which it is to be produced.

(3) The written statement must be verified in accordance with a statement of
35truth.

(4) In this paragraph and paragraph 9, “statement of truth” means a statement
that the person producing the document which includes the statement
believes the matters stated as facts in the document to be true.

Defaults in relation to evidence

9 (1) 40This paragraph applies if a person (“the defaulter”)—

(a) fails to comply with a notice or other requirement under paragraph
6, 7 or 8,

(b) in complying with a notice under paragraph 8, makes a statement
that is false in a material particular, or

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(c) in providing information otherwise verified in accordance with a
statement of truth required by rules under paragraph 11, provides
information that is false in a material particular.

(2) A member of the Commission may certify the failure, or the fact that a false
5statement has been made, to the High Court.

(3) The High Court may inquire into a matter so certified.

(4) If the High Court, having heard any witness on behalf of or against the
defaulter and any statement in the defaulter’s defence, is satisfied that the
defaulter did, without reasonable excuse, the act referred to in sub-
10paragraph (1), it may punish the defaulter as if the defaulter had been guilty
of contempt of court.

General provisions relating to evidence

10 (1) No person may be compelled to give evidence under paragraph 6, 7 or 8
which the person could not be compelled to give in civil proceedings in the
15High Court.

(2) A notice under paragraph 6, 7 or 8 may be given on the Competition
Commission’s behalf by a member of the Commission or its secretary.

Procedural rules

11 (1) The Competition Commission may make rules of procedure for
20determinations on references under section 120.

(2) Those rules may include provision supplementing the provisions of this
Schedule in relation to any notice, hearing or requirement for which this
Schedule provides; and that provision may, in particular, impose time limits
or other restrictions on—

(a) 25the taking of evidence at an oral hearing, or

(b) the making of representations at an oral hearing.

(3) The rules may apply, with or without modification, provision included in
appeal rules under Schedule 22 to the Energy Act 2004.

(4) The Commission must publish rules made under this paragraph.

(5) 30Before making rules under this paragraph, the Commission must consult
such persons as it considers appropriate.

(6) Rules under this paragraph may make different provision for different cases.

Costs

12 (1) A group that makes a determination on a reference under section 120 must
35make an order requiring the payment to the Competition Commission of the
costs incurred by the Commission in connection with the reference.

(2) Where it is determined that the method to which the reference relates is not
appropriate, the order must require those costs to be paid by Monitor.

(3) Where it is determined that the method to which the reference relates is
40appropriate, the order must require those costs to be paid by such objectors
as are specified in the order.

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(4) Where the order specifies more than one objector, it may specify the
proportions in which the objectors are to be liable for the costs.

(5) The group that makes a determination on a reference under section 120 may
also make an order requiring Monitor or an objector who made
5representations in accordance with paragraph 2 to make payments to the
other in respect of costs incurred by the other in connection with the
determination.

(6) A person required by an order under this paragraph to pay a sum to another
person must comply with the order before the end of the period of 28 days
10beginning with the day after the making of the order.

(7) Sums required to be paid by an order under this paragraph but not paid
within that period are to carry interest at such rate as may be determined in
accordance with provision in the order.

Power to modify time limits

13 15The Secretary of State may by order vary any period specified in this
Schedule as the period within which something must be done.

Section 150

SCHEDULE 13 Part 3: minor and consequential amendments

General

1 (1) 20Any reference in an instrument or document to the Independent Regulator
of NHS Foundation Trusts is to be read, in relation to any time after the
commencement of section 61, as a reference to Monitor.

(2) Any reference in this Act or in any other enactment, instrument or document
to Monitor is to be read, in relation to any time before that commencement,
25as a reference to the Independent Regulator of NHS Foundation Trusts.

Public Bodies (Admission to Meetings) Act 1960 (c. 67)Public Bodies (Admission to Meetings) Act 1960 (c. 67)

2 In the Schedule to the Public Bodies (Admission to Meetings) Act 1960, after
paragraph (bj) insert—

(bk) Monitor;.

30Parliamentary Commissioner Act 1967 (c. 13)Parliamentary Commissioner Act 1967 (c. 13)

3 (1) In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc.
subject to investigation)—

(a) at the appropriate place insert—

(b) 35omit the entry for the Independent Regulator of NHS Foundation
Trusts.

(2) In consequence of the repeal made by sub-paragraph (1)(b), omit paragraph
17 of Schedule 2 to the Health and Social Care (Community Health and
Standards) Act 2003 (which inserted the entry in question).

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Superannuation Act 1972 (c. 11)Superannuation Act 1972 (c. 11)

4 (1) In Schedule 1 to the Superannuation Act 1972 (kinds of employment to
which a scheme under section 1 of that Act can apply), omit the entry for the
Independent Regulator of NHS Foundation Trusts.

(2) 5In consequence of that repeal, omit paragraph 5(3) of Schedule 2 to the
Health and Social Care (Community Health and Standards) 2003 (which
inserted the entry in question).

House of Commons Disqualification Act 1975 (c. 24)House of Commons Disqualification Act 1975 (c. 24)

5 (1) In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975
10(other disqualifying offices)—

(a) at the appropriate place insert—

(b) omit the entry for the Chairman and other members of the
Independent Regulator of NHS Foundation Trusts.

(2) 15In consequence of the repeal made by sub-paragraph (1)(b), omit paragraph
18 of Schedule 2 to the Health and Social Care (Community Health and
Standards) Act 2003 (which inserted the entry in question).

Northern Ireland Assembly Disqualification Act 1975 (c. 25)Northern Ireland Assembly Disqualification Act 1975 (c. 25)

6 (1) In Part 3 of Schedule 1 to the Northern Ireland Assembly Disqualification
20Act 1975 (other disqualifying offices)—

(a) at the appropriate place insert—

(b) omit the entry for the Chairman and other members of the
Independent Regulator of NHS Foundation Trusts.

(2) 25In consequence of the repeal made by sub-paragraph (1)(b), omit paragraph
19 of Schedule 2 to the Health and Social Care (Community Health and
Standards) Act 2003 (which inserted the entry in question).

Freedom of Information Act 2000 (c. 36)Freedom of Information Act 2000 (c. 36)

7 In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (other public
30bodies and offices: general)—

(a) at the appropriate place insert—

(b) omit the entry for the Independent Regulator of NHS Foundation
Trusts.

35National Health Service Act 2006 (c. 41)National Health Service Act 2006 (c. 41)

8 The National Health Service Act 2006 is amended as follows.

9 (1) Omit section 31 and Schedule 8 (continuation and constitution of the
Independent Regulator of NHS Foundation Trusts).

(2) In consequence of that repeal, omit paragraph 12 of Schedule 3 to the Health
40Act 2009 (which amended Schedule 8).

10 (1) Omit section 32 (general duty of regulator).

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Contents page 290-299 300-309 310-319 320-329 330-339 340-349 350-359 360-369 370-379 380-389 390-399 400-408 410-419 420-429 430-439 440-449 450-452 Last page