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
Schedule 8 — References by Monitor to the Competition Commission
289

      (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,
(b)
in subsection (4), for the words “the publication of the report of the
Commission on the reference concerned” there were substituted “the
5
relevant day”, and
(c)
after that subsection there were inserted—
“(4A)
The relevant day for the purposes of subsection (4) is—
(a)
the day on which the Commission published a notice
under paragraph 8(12) of Schedule 8 to the Health
10
and Social Care Act 2011 in connection with the
reference concerned, or
(b)
if it has not given a direction under paragraph 8(1) of
that Schedule in connection with the reference and
within the permitted period, the latest day on which
15
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
as if—
(a)
in subsection (1), for “or (3)” there were substituted “, (3) or (5)”, and
20
(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—
(a)
for the words from “published (or, in the case of a report under
section 50 or 65, given)” there were substituted “made”,
25
(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.
      (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—
30
“(ii)
if earlier, the relevant day (which for the purposes of
this subsection is to be construed in accordance with
section 110(4A).”
      (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)”.
35
      (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
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
40
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,
provisions relating to offences and the making of orders) have effect for the
purposes of the application of those sections by virtue of sub-paragraph (1)
45
or (2) in relation to those sections as applied by virtue of the sub-paragraph
concerned.

Health and Social Care Bill
Schedule 9 — Further provision about enforcement powers
Part 1 — Discretionary requirements
290

     (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.
Schedule 9
Section 97

Further provision about enforcement powers
5
Part 1
Discretionary requirements
Procedure
1     (1)
Where Monitor proposes to impose a discretionary requirement on a person,
Monitor must give notice to that person (a “notice of intent”).
10
      (2)
A notice of intent must—
(a)
state that Monitor proposes to impose the discretionary requirement
and set out its effect,
(b)
set out the grounds for the proposal to impose the requirement,
(c)
set out the circumstances (if any) in which Monitor may not impose
15
the requirement, and
(d)
specify the period (“the notice period”) within which representations
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.
20
      (4)
But where Monitor—
(a)
proposes to impose a compliance requirement or restoration
requirement, and
(b)
considers that a shorter notice period is necessary to prevent or
minimise further breaches of the kind referred to in section 95(1),
25

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
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
30
modifications, or
(b)
impose any other discretionary requirement.
      (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”).
35
      (3)
A final notice must—
(a)
state that Monitor has decided to impose the discretionary
requirement and set out its effect,
(b)
set out the grounds for imposing the requirement,
(c)
in the case of a variable monetary penalty, state—
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(i)
how payment may be made,

Health and Social Care Bill
Schedule 9 — Further provision about enforcement powers
Part 1 — Discretionary requirements
291

(ii)
the period within which payment must be made, and
(iii)
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 rights of appeal conferred by paragraph 3.
5
      (4)
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
breach, the last day) on which the breach giving rise to the imposition of the
discretionary requirement occurred.
10
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—
(a)
that the decision was based on an error of fact,
(b)
that the decision was wrong in law,
15
(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
restoration requirement, that the nature of the requirement is
unreasonable, or
20
(e)
that the decision was unreasonable for any other reason.
      (3)
The discretionary requirement is suspended pending determination of the
appeal.
      (4)
On an appeal under this paragraph, the Tribunal may—
(a)
confirm, vary or withdraw the discretionary requirement,
25
(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
relating to that decision, to Monitor.
Non-compliance penalties
30
4     (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
Monitor must give notice to that person (a “non-compliance notice”).
35
      (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,
(d)
state the period (“the payment period”) within which payment must
40
be made,
(e)
set out the consequences of a failure to pay within the payment
period (including any increase in the amount payable), and
(f)
explain the right of appeal conferred by paragraph 5.

Health and Social Care Bill
Schedule 9 — Further provision about enforcement powers
Part 2 — Enforcement undertakings
292

      (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
more than 50% of the amount of the penalty.
5
      (6)
A non-compliance penalty ceases to be payable if before the end of the
payment period the person on whom it was imposed complies with the
requirement in respect of which it was imposed.
5     (1)
A person may appeal to the First-tier Tribunal against a decision of Monitor
to impose a non-compliance penalty.
10
      (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
unreasonable.
15
      (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
(b)
remit the decision whether to confirm the penalty, or any matter
20
relating to that decision, to Monitor.
Recovery of financial penalties
6     (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
method of recovery).
25
      (2)
The amounts are—
(a)
a variable monetary penalty and any interest payable on it, or
(b)
a non-compliance penalty.
Payments of penalties etc. into Consolidated Fund
7
Monitor must pay any sums it receives in respect of any of the following into
30
the Consolidated Fund—
(a)
a variable monetary penalty and any interest payable on it, or
(b)
a non-compliance penalty.
Part 2
Enforcement undertakings
35
Procedure
8     (1)
Monitor 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.
40

Health and Social Care Bill
Schedule 9 — Further provision about enforcement powers
Part 2 — Enforcement undertakings
293

      (3)
Monitor must consult such persons as it considers appropriate before
establishing or revising the procedure.
9
Where Monitor accepts an enforcement undertaking, Monitor must publish
the undertaking.
Variation of terms
5
10
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
Monitor agree.
Compliance certificates
10
11    (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”).
      (2)
A person who has given an enforcement undertaking may at any time make
an application to Monitor for a compliance certificate.
15
      (3)
The application must be made in such form, and accompanied by such
information, as Monitor requires.
      (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.
20
12    (1)
An appeal lies to the First-tier Tribunal against a decision of Monitor to
refuse an application for a certificate of compliance.
      (2)
The grounds for an appeal under this paragraph are that the decision—
(a)
was based on an error of fact,
(b)
was wrong in law, or
25
(c)
was unfair or unreasonable.
      (3)
On 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
13
Where Monitor is satisfied that a person who has given an enforcement
30
undertaking has supplied Monitor with inaccurate, misleading or
incomplete information in relation to the undertaking—
(a)
the person is to be treated as having failed to comply with the
undertaking, and
(b)
accordingly, Monitor must by notice revoke any certificate of
35
compliance given to that person.