Health and Social Care Bill

House of Commons

Session 2010 - 11
Internet Publications
Other Bills before Parliament

Health and Social Care Bill

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 5 — Pricing
101

(5)
The decision by Monitor on the application takes effect on such date as Monitor
may determine; and a date determined for that purpose may be earlier than the
date of the decision (but not earlier than the date on which the national tariff
took effect).
(6)
Monitor must send a notice of the decision to such commissioning consortia,
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providers and other persons as it considers appropriate.
(7)
Monitor must also publish the notice.
(8)
The notice must specify—
(a)
the modification, and
(b)
the date on which it takes effect.
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(9)
The power to make an application under section 71(3) for the removal of the
designation in question is (as well as being exercisable by the commissioner of
the service in question) exercisable by the National Health Service
Commissioning Board where it is not the commissioner of the service.
(10)
Monitor may publish guidance on the modification of prices under this section.
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(11)
In making an application under this section, a provider of a designated service
must have regard to guidance under subsection (10).
(12)
In deciding whether to grant an application under this section, Monitor must
have regard to guidance under subsection (10).
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Correction of mistakes
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(1)
This section applies where the national tariff contains information that does
not accord with—
(a)
what Monitor and the National Health Service Commissioning Board
agreed on the matter concerned, or
(b)
where the matter was determined by arbitration, what was determined.
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(2)
Monitor must send a notice to—
(a)
each commissioning consortium,
(b)
each licence holder, and
(c)
such other persons as Monitor considers appropriate.
(3)
Monitor must also publish the notice.
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(4)
The notice must specify—
(a)
the information that does not accord with what was agreed or
determined,
(b)
the correction required to make the information so accord, and
(c)
the date on which the correction is to take effect.
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(5)
A date specified for the purposes of subsection (4)(c) may be earlier than the
date of the notice.

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 6 — Insolvency and health special administration
102

Chapter 6
Insolvency and health special administration
113
Application of insolvency law to NHS foundation trusts
(1)
Omit sections 53 to 55 of the National Health Service Act 2006 (voluntary
arrangements and dissolution).
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(2)
Before section 56 of that Act and the preceding cross-heading (accordingly,
under the cross-heading “Failure”) insert—
“55A
Application of insolvency law etc.
(1)
Regulations must provide for provisions of the Insolvency Act 1986
mentioned in subsection (2), and related provisions of that Act or of
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rules under section 411 of that Act, to apply (with or without
modifications) to NHS foundation trusts.
(2)
The provisions of the Insolvency Act 1986 referred to in subsection (1)
are—
(a)
Part 1 (company voluntary arrangements),
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(b)
Part 2 (administration),
(c)
Part 4 (winding-up of companies), and
(d)
Part 6 (miscellaneous provision about company insolvency).
(3)
The power to make rules under section 411 of that Act applies for the
purpose of giving effect to provision made by virtue of this section as it
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applies for the purpose of giving effect to Parts 1, 2, 4, 6 and 7 of that
Act.
(4)
For that purpose—
(a)
the power to make rules is exercisable by the Lord Chancellor
with the concurrence of the Secretary of State and, in the case of
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rules that affect court procedure, with the concurrence of the
Lord Chief Justice;
(b)
references in section 411 of that Act to those Parts are to be read
as including a reference to such of those Parts as are applied by
virtue of this section.
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(5)
Regulations under this section must also provide for provisions of Part
26 of the Companies Act 2006 (arrangements and reconstructions), or
any related provision of that Act, to apply (with or without
modifications) to NHS foundation trusts.
(6)
Before making regulations under this section, the Secretary of State
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must consult—
(a)
Monitor, and
(b)
such other persons as the Secretary of State considers
appropriate.”
(3)
In section 272 of that Act (orders, regulations, rules etc.), in subsection (6), after
40
paragraph (za) insert—
“(zb)
regulations under section 55A,”.
(4)
In Schedule 9 to that Act (NHS foundation trusts: transfer of staff), in
paragraph 1, omit “to which section 53 applies”.

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 6 — Insolvency and health special administration
103

(5)
In consequence of the repeals made by subsections (1) and (4), omit section
18(2) to (6) and (11) of the Health Act 2009.
114
Health special administration orders
(1)
In this Chapter “health special administration order” means an order which—
(a)
is made by the court in relation to a relevant provider, and
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(b)
directs that the affairs, business and property of the provider are to be
managed by one or more persons appointed by the court.
(2)
An application to the court for a health special administration order may be
made only by Monitor.
(3)
A person appointed as mentioned in subsection (1)(b) is referred to in this
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Chapter as a “health special administrator”.
(4)
A health special administrator of a relevant provider must manage its affairs,
business and property, and exercise the health special administrator’s
functions, so as to—
(a)
achieve the objective set out in section 115 as quickly and as efficiently
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as is reasonably practicable,
(b)
in seeking to achieve that objective, ensure that any regulated activity
carried on in providing the designated services provided by the
provider is carried on in accordance with any requirements or
conditions imposed by virtue of Chapter 2 of Part 1 of the Health and
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Social Care Act 2008,
(c)
so far as is consistent with the objective set out in section 115, protect
the interests of the creditors of the provider as a whole, and
(d)
in the case of a provider which is a company, so far as is consistent with
that objective and subject to those interests, protect the interests of the
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members of the company as a whole.
(5)
In relation to a health special administration order applying to a non-GB
company, references in this Chapter to the affairs, business and property of the
company are references only to its affairs and business so far as carried on in
Great Britain and to its property in Great Britain.
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(6)
In this section “regulated activity” has the same meaning as in Part 1 of the
Health and Social Care Act 2008 (see section 8 of that Act).
(7)
In this Chapter—
“business” and “property” each have the same meaning as in the
Insolvency Act 1986 (see section 436 of that Act);
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“company” includes a company not registered under the Companies Act
2006;
“court”—
(a)
in relation to an NHS foundation trust, means the High Court;
(b)
in relation to a company, means the court—
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(i)
having jurisdiction to wind up the company, or
(ii)
that would have such jurisdiction apart from section
221(2) or 441(2) of the Insolvency Act 1986 (exclusion of
winding up jurisdiction in case of companies
incorporated in, or having principal place of business in,
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Northern Ireland);

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 6 — Insolvency and health special administration
104

“member”, in relation to a company, is to be read in accordance with
section 250 of the Insolvency Act 1986;
“non-GB company” means a company incorporated outside Great Britain;
“relevant provider” means an NHS foundation trust, or a company, which
is providing designated services;
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“wholly-owned subsidiary” has the meaning given by section 1159 of the
Companies Act 2006.
115
Objective of a health special administration
(1)
The objective of a health special administration is to secure—
(a)
the continued provision of the designated services provided by the
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NHS foundation trust or company subject to the health special
administration order, and
(b)
that it becomes unnecessary, by one or both of the means set out in
subsection (2), for the health special administration order to remain in
force for that purpose.
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(2)
Those means are—
(a)
the rescue as a going concern of the NHS foundation trust or company
subject to the health special administration order, and
(b)
one or more transfers falling within subsection (3).
(3)
A transfer falls within this subsection if it is a transfer as a going concern—
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(a)
to another licence holder, or
(b)
as respects different parts of the undertaking of the NHS foundation
trust or company subject to the health special administration order, to
two or more other licence holders,

of so much of that undertaking as it is appropriate to transfer for the purpose
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of achieving the objective of the health special administration.
(4)
The means by which a transfer falling within subsection (3) may be effected in
the case of a company include in particular—
(a)
a transfer of the undertaking of the company subject to the health
special administration order, or of part of its undertaking, to a wholly-
30
owned subsidiary of that company, and
(b)
a transfer to a company of securities of a wholly-owned subsidiary to
which there has been a transfer falling within paragraph (a).
(5)
The objective of a health special administration may be achieved by transfers
to the extent only that—
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(a)
the rescue as a going concern of the NHS foundation trust or company
subject to the health special administration order is not reasonably
practicable or is not reasonably practicable without such transfers,
(b)
the rescue of the trust or company as a going concern will not achieve
that objective or will not do so without such transfers,
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(c)
such transfers would produce a result for the trust’s or company’s
creditors as a whole that is better than the result that would be
produced without them, or
(d)
in the case of a company, such transfers would, without prejudicing the
interests of its creditors as a whole, produce a result for its members as
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a whole that is better than the result that would be produced without
them.