Health and Social Care Bill

House of Commons

Session 2010 - 11
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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 7 — Financial assistance in health special administration cases
112

(a)
one or more providers object to the proposals within the consultation
period, and
(b)
the objection percentage and the share of supply percentage are each
less than the prescribed percentage.
(3)
In subsection (2)—
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(a)
the “objection percentage” is the proportion (expressed as a percentage)
of the providers who objected to the proposals, and
(b)
the “share of supply percentage” is the proportion (expressed as a
percentage) of the providers who objected to the proposals, weighted
according to their share of the supply in England of such services as
10
may be prescribed.
(4)
A reference under subsection (1)(b) must be so framed as to require the
Competition Commission to investigate and report on the questions—
(a)
whether in making the proposals, Monitor failed to give sufficient
weight to the matters in section 54,
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(b)
if so, whether that failure operates, or may be expected to operate,
against the public interest, and
(c)
if so, whether the effects adverse to the public interest which that
failure has or may be expected to have could be remedied or prevented
by changes to the proposals.
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(5)
Schedule 8 (which makes further provision about references to the
Competition Commission) has effect in relation to a reference under subsection
(1)(b); and for that purpose—
(a)
paragraph 1 is to be ignored,
(b)
in paragraph 5(2), the reference to six months is to be read as a reference
25
to two months,
(c)
in paragraph 5(4), the reference to six months is to be read as a reference
to one month,
(d)
in paragraph 7, sub-paragraphs (4) to (7) and (9) are to be ignored (and,
in consequence of that, in sub-paragraph (8), the words from the
30
beginning to “sub-paragraph (4)(c)” are also to be ignored), and
(e)
the references to relevant persons are to be construed in accordance
with subsection (6).
(6)
The relevant persons referred to in Schedule 8 are—
(a)
in paragraphs 3 and 5(6)—
35
(i)
the National Health Service Commissioning Board, and
(ii)
the providers who objected to the proposals,
(b)
in paragraph 6(6), the providers who objected to the proposals, and
(c)
in paragraph 8(10)—
(i)
Monitor, and
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(ii)
the providers who objected to the proposals.
(7)
In investigating the question under subsection (4)(a), the Competition
Commission must have regard to the matters in relation to which Monitor has
duties under this Chapter.
(8)
Regulations prescribing a percentage for the purposes of subsection (2)(b) may
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include provision prescribing the method used for determining a provider’s
share of the supply in England of the services concerned.

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 7 — Financial assistance in health special administration cases
113

129
Amount payable
(1)
Monitor must—
(a)
calculate the amount which each provider who is to be subject to a levy
under section 125 for a financial year is to be liable to pay in respect of
that year, and
5
(b)
notify the provider of that amount and the date or dates on which it, or
instalments of it, will become payable.
(2)
If the provider is to be subject to the levy for only part of the financial year, it
is to be liable to pay only the amount which bears to the amount payable for
the whole financial year the same proportion as the part of the financial year
10
for which the provider is to be subject to the levy bears to the whole financial
year.
(3)
The amount which a provider is liable to pay may be zero.
(4)
Subsection (5) applies if, during a financial year in which Monitor is imposing
a levy under section 125, it becomes satisfied that the risk of a provider who is
15
subject to the levy going into health special administration has changed by
reference to what it was—
(a)
at the start of the year, or
(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.
20
(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.
(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.
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(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.
(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
30
recalculate the amount, Monitor must—
(a)
comply with the request, and
(b)
send the provider written notice of its recalculation.
(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.
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(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;
and the unpaid balance and accrued interest are recoverable summarily as a
civil debt.
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Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 7 — Financial assistance in health special administration cases
114

Supplementary
130
Investment principles and reviews
(1)
Monitor must prepare and publish a statement of the principles that govern its
decisions, or decisions made on its behalf, about making investments for the
purposes of this Chapter.
5
(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
(c)
if it revises the statement, publish the revised statement.
(3)
As soon as reasonably practicable after the end of each financial year, Monitor
10
must undertake and publish a review of the operation during that year of—
(a)
the procedure for health special administration under Chapter 6, and
(b)
such mechanisms as have been established under section 120.
(4)
The purposes of the review under subsection (3)(b) are—
(a)
to assess the operation of the mechanisms concerned,
15
(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
(d)
to review the extent of the protection which the mechanisms are
20
required to provide.
(5)
Where a fund established under section 121 has been in operation for the whole
or part of the year concerned, the review published under this section must
specify—
(a)
the income of the fund during that year, and
25
(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,
significantly harm the legitimate business interests of an undertaking
30
to which it relates;
(b)
information relating to the private affairs of an individual the
disclosure of which would, or might, in its opinion significantly harm
that person’s interests.
131
Borrowing
35
(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.
(2)
But Monitor may not borrow if the effect would be—
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(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

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 8 — General
115

(b)
to increase the amount by which the aggregate amount so outstanding
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
5
(b)
an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to
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—
10
(a)
section 22 of the Financial Services and Markets Act 2000,
(b)
any relevant order under that section, and
(c)
Schedule 2 to that Act.
132
Shortfall or excess of available funds, etc.
(1)
The Secretary of State may provide financial assistance to Monitor if the Secretary of
15
State is satisfied that—
(a)
there are insufficient funds available from a mechanism established under
section 120, or
(b)
the mechanism is otherwise unable to operate effectively.
(2)
If the Secretary of State is satisfied that the level of funds available from a
20
mechanism established under section 120 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
120 has become dormant, or if a mechanism so established is being wound up,
25
the Secretary of State may direct Monitor to transfer to the Secretary of State
such funds as are available from the mechanism.
Chapter 8
General
133
Service of documents
30
(1)
A notice required under this Part to be given or sent to or served on a person
(“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
35
Postal Services Act 2000, or
(ii)
by a postal service which provides for the delivery of the
document to be recorded, or
(c)
subject to section 134, by being sent to R by an electronic
communication.
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(2)
Where a notice is sent as mentioned in subsection (1)(b), it is, unless the
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 — Economic regulation of health and adult social care services
Chapter 8 — General
116

(3)
Where notice is sent as mentioned in subsection (1)(c) in accordance with
section 134, 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 4 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,
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(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 134—
“electronic communication” has the same meaning as in the Electronic
25
Communications Act 2000;
“notice” includes any other document.
134
Electronic communications
(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
30
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—
(a)
the person to whom the notice is given or sent or on whom it is served
35
must have indicated to Monitor the person’s willingness to receive
notices by an electronic communication and provided an address
suitable for that purpose, and
(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, sent or serve the notice is not
40
Monitor, the notice must be given, sent or served in such manner as Monitor
may require.
(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 by Monitor
under this Part or may be limited to notices of a particular description.
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Health and Social Care Bill
Part 4 — NHS Foundation trusts & NHS trusts
117

(5)
Monitor must publish such requirements as it imposes under subsection (3).
135
Interpretation and consequential amendments
(1)
In this Part—
“commissioner”, in relation to a health care service, means the person who
arranges for the provision of the service (and “commission” is to be
5
construed accordingly);
“designated service” means a service designated under section 69;
“enactment” includes an enactment contained in subordinate legislation
(within the meaning of the Interpretation Act 1978);
“financial year” means a period of 12 months ending with 31 March;
10
“health care” and “health care service” each have the meaning given in
section 52;
“the NHS” has the meaning given in that section;
“prescribed” means prescribed in regulations;
“service” includes facility.
15
(2)
Schedule 11 (which contains minor and consequential amendments) has effect.
Part 4
NHS Foundation trusts & NHS trusts
Governance and management
136
Governors
20
(1)
In paragraph 7 of Schedule 7 to the National Health Service Act 2006 (public
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
25
council”.
(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
30
this sub-paragraph may appoint one or more members of the council
(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—
35
(a)
to hold the non-executive directors individually and
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.”
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Health and Social Care Bill
Part 4 — NHS Foundation trusts & NHS trusts
118

(5)
After paragraph 10A of that Schedule insert—
“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—
5
“10C
For the purpose of obtaining information about the corporation’s
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.”
10
(7)
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
report relates on which the council of governors exercised its
power under paragraph 10C,”.
15
(8)
In consequence of subsection (1)—
(a)
in sections 33(4)(a), 35(2)(c) and (5)(c), 39(3)(a), 59(1), (2)(b) and (5) and
60(1), for “board of governors” substitute “council of governors”,
(b)
in paragraphs 8 to 14, 17, 18, 20, 21, 23, 27 and 28 of Schedule 7, for “the
board”, in each place it appears, substitute “the council”,
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(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
“board” substitute “council”, and
(e)
in paragraphs 4(2) and 5(1) of Schedule 10, for “board of governors”
25
substitute “council of governors”.
137
Directors
(1)
After paragraph 18 of Schedule 7 to the National Health Service Act 2006
insert—
“18A
The general duty of the board of directors, and of each director
30
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.”
(2)
After paragraph 18A of that Schedule insert—
“18B  (1)
The duties that a director of a public benefit corporation has by virtue
35
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
may conflict) with the interests of the corporation;
(b)
a duty not to accept a benefit from a third party by reason of
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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—
(a)
the situation cannot reasonably be regarded as likely to give
rise to a conflict of interest, or
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