National Health Service Bill [HL]

House of Commons

Session 2005 - 06
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National Health Service Bill [HL]

National Health Service Bill [HL]
Part 11 — Property and finance
Chapter 2 — Trusts
129

(d)
section 218,
(e)
section 220,
(f)
paragraphs 12 and 13 of Schedule 2,
(g)
paragraph 12 of Schedule 3,
(h)
paragraph 10 of Schedule 4, and
5
(i)
paragraphs 8 and 9 of Schedule 6.
(2)
A provision—
(a)
contained in a provision to which this section applies,
(b)
for the transfer of any property,

includes provision for the transfer of any rights and liabilities arising from that
10
property.
(3)
Where a transfer of property by virtue of a provision to which this section
applies is of, or includes—
(a)
land held on lease from a third party, or
(b)
any other asset leased or hired from a third party or in which a third
15
party has an interest,

the transfer is binding on the third party notwithstanding that, apart from this
subsection, it would have required his consent or concurrence.
(4)
“Third party” means a person other than the Secretary of State or an NHS body.
(5)
Nothing in a provision to which this section applies affects any power of Her
20
Majesty, the court (as defined in the Charities Act 1993 (c. 10)) or any other
person, to alter the trusts of any charity.
(6)
Nothing in section 12 of the Finance Act 1895 (c. 16) (which requires certain
Acts and certain instruments relating to the vesting of property by virtue of an
Act to be stamped as conveyances on sale) applies to—
25
(a)
a provision to which this section applies, or
(b)
an order made in pursuance of any such provision.
(7)
Stamp duty is not payable on an order falling within subsection (6)(b).
218
Private trusts for hospitals
(1)
Subsection (2) applies where the terms of a trust instrument authorise or
30
require the trustees, whether immediately or in the future, to apply any part of
the capital or income of the trust property for the purposes of any health
service hospital.
(2)
The trust instrument must be construed as authorising or requiring the trustees
to apply the trust property to the like extent, and at the like times, for the
35
purpose of making payments, whether of capital or income, to the appropriate
hospital authority.
(3)
Any sum paid to the appropriate hospital authority must, so far as practicable,
be applied by it for the purpose specified in the trust instrument.
(4)
“The appropriate hospital authority” means—
40
(a)
where special trustees are appointed for the hospital, those trustees,
(b)
where the hospital is managed by, and trustees have been appointed
for, an NHS trust, an NHS foundation trust or Primary Care Trust, the
trustees,

National Health Service Bill [HL]
Part 11 — Property and finance
Chapter 3 — Property transferred under the National Health Service Act 1946
130

(c)
where the hospital is managed by an NHS trust, an NHS foundation
trust or Primary Care Trust and neither paragraph (a) nor paragraph
(b) applies, the NHS trust, NHS foundation trust or Primary Care Trust,
and
(d)
in any other case, the Strategic Health Authority or Special Health
5
Authority exercising functions of the Secretary of State in respect of the
hospital, or the Special Health Authority or Local Health Board
exercising functions of the Welsh Ministers in respect of the hospital.
(5)
Nothing in this section applies to property transferred under section 24 of the
National Health Service Reorganisation Act 1973.
10
(6)
In this section—
“health service hospital” includes such a hospital within the meaning of
section 206 of the National Health Service (Wales) Act 2006 (c. 00), and
“special trustees” includes special trustees within the meaning of section
160 of that Act.
15
Chapter 3
Property transferred under the National Health Service Act 1946
219
Transferred property free of trusts
(1)
All property vested in the Secretary of State in consequence of the transfer of
that property under section 6 of the National Health Service Act 1946 (c. 81)
20
(transfer of hospitals) is vested free of any trust existing immediately before
that transfer.
(2)
The Secretary of State may use any such property for the purpose of any of his
functions under this Act, but he must so far as practicable secure that the
objects for which any such property was used immediately before that transfer
25
are not prejudiced by the exercise of the power conferred by this subsection.
220
Trust property previously held for general hospital purposes
(1)
This section applies to property—
(a)
transferred under section 23 of the National Health Service
Reorganisation Act 1973 (c. 32) (winding-up of hospital endowment
30
funds), or
(b)
transferred under section 24 of that Act (transfer of trust property from
abolished authorities) and which immediately before the day
appointed for the purposes of that section was, in accordance with any
provision contained in or made under section 7 of the National Health
35
Service Act 1946, applicable for purposes relating to hospital services or
relating to some form of research,

including any such property which has been further transferred under section
92 of the National Health Service Act 1977 (c. 49).
(2)
This section continues to apply to any such property after any further transfer
40
under section 213 or 214.
(3)
The person holding the property after the transfer or last transfer must secure,
so far as is reasonably practicable, that the objects of any original endowment,
and the observance of any conditions attached to that endowment, including

National Health Service Bill [HL]
Part 11 — Property and finance
Chapter 4 — Raising money
131

in particular conditions intended to preserve the memory of any person or
class of persons, are not prejudiced by this Part of this Act.
(4)
“Original endowment” means a hospital endowment which was transferred
under section 7 of the National Health Service Act 1946 (c. 81) and from which
the property in question is derived.
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(5)
Subject to subsection (3), the property must be held on trust for such purposes
relating to hospital services (including research), or to any other part of the
health service associated with any hospital, as the person holding the property
considers appropriate.
(6)
Where the person holding the property is a body of special trustees, the power
10
conferred by subsection (5) must be exercised as respects the hospitals for
which they are appointed.
221
Voluntary hospitals
(1)
Subsection (2) applies where—
(a)
any hospital provided by the Secretary of State in accordance with this
15
Act was a voluntary hospital transferred by virtue of the National
Health Service Act 1946, and
(b)
the character and associations of that hospital before its transfer were
such as to link it with a particular religious denomination.
(2)
Regard must be had in the general administration of the hospital to the
20
preservation of that character and those associations.
Chapter 4
Raising money
222
Power to raise money
(1)
This section applies to any NHS body other than a Local Health Board.
25
(2)
A body to which this section applies has power to engage in activities intended
to stimulate the giving (whether on trust or otherwise) of money or other
property to—
(a)
assist the body in providing or improving any services or any facilities
or accommodation which is or are, or will be, provided as part of the
30
health service, or
(b)
assist it in connection with its functions with respect to research.
(3)
Subject to any directions of the Secretary of State excluding specified
descriptions of activity, the activities authorised by this section include—
(a)
public appeals or collections,
35
(b)
competitions,
(c)
entertainments,
(d)
bazaars,
(e)
sales of produce or other goods, and
(f)
other similar activities.
40
(4)
The activities may involve the use of land, premises or other property held by
or for the benefit of the body exercising the power.

National Health Service Bill [HL]
Part 11 — Property and finance
Chapter 5 — Formation of companies
132

(5)
Subsection (4) is subject to any restrictions on the purposes for which trust
property may be used.
(6)
Subject to this section and section 215, the body at whose instance property is
given in pursuance of this section must, after defraying out of it any expenses
incurred in obtaining it, hold, administer and apply the property on trust for
5
or for the purpose for which it was given.
(7)
Where property held by a body under this section is more than sufficient to
enable the purpose for which it was given to be fulfilled, the excess is
applicable, in default of any provision for its application made by the trust or
other instrument under or in accordance with which the property comprising
10
the excess was given, for such purposes connected with any of the functions of
the body as it considers appropriate.
(8)
Where property held by a body under this section is insufficient to enable the
purpose for which it was given to be fulfilled the body may apply so much of
the capital or income at its disposal as is needed to enable the purpose to be
15
fulfilled.
(9)
Subsection (8) is subject in the case of trust property to any restrictions on the
purpose for which the trust property may be applied and, in the case of money
paid or payable by the Secretary of State under section 224 or 226, to any
directions he may give.
20
(10)
Where the capital or income applicable under subsection (8) is insufficient or is
not applied to enable the purpose to be fulfilled, the property held by the body
is applicable, in default of any provision for its application made by the trust
or other instrument under or in accordance with which the property was given,
for such purposes connected with any of the functions of the body as it
25
considers appropriate.
(11)
Where under subsection (7) or (10) property becomes applicable for purposes
other than that for which it was given the body applying the property must
have regard to the desirability of applying it for a purpose similar to that for
which it was given.
30
(12)
References in this section to the purposes for which trust property may be used
or applied include, in the case of trust property which has been transferred
under section 213 or 214, references to those purposes as enlarged by section
216.
Chapter 5
35
Formation of companies
223
Public-private partnerships
(1)
The Secretary of State may form, or participate in forming, companies to
provide facilities or services to persons or bodies exercising functions, or
otherwise providing services, under this Act.
40
(2)
The Secretary of State may, with a view to securing or facilitating the provision
by companies of facilities or services to persons or bodies falling within
subsection (1)—
(a)
invest in the companies (whether by acquiring assets, securities or
rights or otherwise), or
45

National Health Service Bill [HL]
Part 11 — Property and finance
Chapter 6 — Finance
133

(b)
provide loans and guarantees and make other kinds of financial
provision to or in respect of them,

or both.
(3)
For the purposes of subsections (1) and (2) it is immaterial that the facilities or
services provided or to be provided by the companies in question are not
5
provided or to be provided—
(a)
only to persons or bodies falling within subsection (1), or
(b)
to persons or bodies falling within subsection (1) only in their
capacities as persons or bodies such as are mentioned in that provision.
(4)
“Companies” means companies within the meaning of the Companies Act 1985
10
(c. 6).
(5)
This section does not affect any powers of the Secretary of State exercisable
otherwise than by virtue of this section.
Chapter 6
Finance
15
Strategic Health Authorities and Special Health Authorities
224
Means of meeting expenditure of Strategic Health Authorities out of public
funds
(1)
The Secretary of State must pay in respect of each financial year to each
Strategic Health Authority sums not exceeding the amount allotted for that
20
year by the Secretary of State to the Strategic Health Authority towards
meeting the expenditure of the Strategic Health Authority which is attributable
to the performance by it of its functions in that year.
(2)
Where the Secretary of State has made an initial determination of the amount
(“the initial amount”) to be allotted for any year to a Strategic Health Authority
25
under subsection (1), he may increase the initial amount by a further sum if it
appears to him that over a period notified to the Strategic Health Authority—
(a)
it satisfied any objectives notified to it as objectives to be met in
performing its functions, or
(b)
it performed well against any criteria notified to it as criteria relevant to
30
the satisfactory performance of its functions (whether or not the
method of measuring its performance against those criteria was also
notified to it).
(3)
“Notified” means specified or referred to in a notice given to the Strategic
Health Authority by the Secretary of State.
35
(4)
In making any increase under subsection (2), the Secretary of State may
(whether by directions under subsection (9) or otherwise) impose any
conditions he considers appropriate on the application or retention by the
Strategic Health Authority of the sum in question.
(5)
Subsection (6) applies where—
40
(a)
the Secretary of State has, under subsection (2), increased by any sum
the amount to be allotted for any year to a Strategic Health Authority,

National Health Service Bill [HL]
Part 11 — Property and finance
Chapter 6 — Finance
134

(b)
the Secretary of State has notified the Strategic Health Authority of the
allotment, and
(c)
it subsequently appears to the Secretary of State that the Strategic
Health Authority has failed (wholly or in part) to satisfy any conditions
imposed in making that increase.
5
(6)
Where this subsection applies, the Secretary of State may reduce—
(a)
the allotment made to that Strategic Health Authority for that year, or
(b)
when he has made an initial determination of the amount (“the initial
amount”) to be allotted for any subsequent year to the Strategic Health
Authority under subsection (1), the initial amount,
10

by an amount not exceeding the sum mentioned in subsection (5)(a).
(7)
An amount is allotted to a Strategic Health Authority for a year under this
section when it is notified by the Secretary of State that the amount is allotted
to it for that year.
(8)
The Secretary of State may, subject to subsection (6), make an allotment under
15
this section increasing or reducing an allotment previously so made; and the
reference to a determination in subsection (2) includes a determination made
with a view to increasing or reducing an allotment previously so made.
(9)
The Secretary of State may give directions to a Strategic Health Authority with
respect to—
20
(a)
the application of sums paid to it under this section, or
(b)
the payment of sums by it to the Secretary of State in respect of
charges or other sums referable to the valuation or disposal of assets.
(10)
Sums falling to be paid to Strategic Health Authorities under this section are
payable subject to such conditions as to records, certificates or otherwise as the
25
Secretary of State may determine.
225
Means of meeting expenditure of Special Health Authorities out of public
funds
(1)
The Secretary of State must pay in respect of each financial year to each Special
Health Authority sums not exceeding the amount allotted for that year by the
30
Secretary of State to the Special Health Authority towards meeting the
expenditure of the Special Health Authority which is attributable to the
performance by it of its functions in that year.
(2)
An amount is allotted to a Special Health Authority for a year under this
section when it is notified by the Secretary of State that the amount is allotted
35
to it for that year.
(3)
The Secretary of State may make an allotment under this section increasing or
reducing an allotment previously so made.
(4)
The Secretary of State may give directions to a Special Health Authority with
respect to—
40
(a)
the application of sums paid to it under this section, or
(b)
the payment of sums by it to the Secretary of State in respect of charges
or other sums referable to the valuation or disposal of assets.
(5)
Sums falling to be paid to Special Health Authorities under this section are
payable subject to such conditions as to records, certificates or otherwise as the
45
Secretary of State may determine.