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 3 — Designated services
74

(6)
Monitor must grant an application under this section if—
(a)
having regard to the matters in subsection (4), it is satisfied that the
criterion in subsection (3) is met, and
(b)
it is satisfied that the commissioner carried out consultation in
accordance with subsection (2)(a).
5
(7)
Where Monitor grants an application under this section, it must give notice of
the designation of the service concerned to—
(a)
the commissioner, and
(b)
every relevant person.
(8)
A notice under subsection (7) given to a provider of a service for the purposes
10
of the NHS must explain the right of appeal conferred by section 70.
(9)
Where the applicant under this section is the National Health Service
Commissioning Board, the relevant persons are—
(a)
the Secretary of State,
(b)
the Care Quality Commission and its Healthwatch England committee,
15
(c)
every local authority in whose area the service is provided for the
purposes of the NHS,
(d)
every local Healthwatch organisation in whose area the service is
provided for those purposes,
(e)
every person who, in pursuance of arrangements with the Board,
20
provides the services for the purposes of the NHS, and
(f)
such other persons as the Board considers appropriate.
(10)
Where the applicant under this section is a commissioning consortium, the
relevant persons are—
(a)
every local authority in whose area the service is provided for the
25
purposes of the NHS,
(b)
every local Healthwatch organisation in whose area the service is
provided for those purposes,
(c)
every person who, in pursuance of arrangements with the consortium,
provides the service for the purposes of the NHS, and
30
(d)
such other persons as the consortium considers appropriate.
(11)
Where the applicant under this section is the Secretary of State, or a person
acting on the Secretary of State’s behalf, by virtue of section 13U of the National
Health Service Act 2006, the relevant persons are—
(a)
the Healthwatch England committee of the Care Quality Commission,
35
(b)
every local authority,
(c)
every local Healthwatch organisation in whose area the service in
question is provided,
(d)
the National Health Service Commissioning Board, and
(e)
such other persons as the Secretary of State or person acting on the
40
Secretary of State’s behalf considers appropriate.
70
Appeals to the Tribunal
(1)
An appeal by a provider of a designated service against Monitor’s decision to
designate that service lies to the First-tier Tribunal.
(2)
A person may bring an appeal under this section only if—
45
(a)
the person has made a complaint under section 71(8), and

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 3 — Designated services
75

(b)
Monitor has notified the person of its decision on the complaint.
(3)
The grounds for an appeal under this section are that the decision to make the
designation was—
(a)
based on an error of fact,
(b)
wrong in law, or
5
(c)
unreasonable.
(4)
On an appeal under this section, the First-tier Tribunal may confirm Monitor’s
decision or direct that it is not to have effect.
71
Reviews and removals of designations
(1)
The commissioner of a designated service must, during the relevant period,
10
review the designation so as to establish whether, having regard to the matters
in subsection (4) of that section, it is satisfied that the criterion in subsection (3)
of that section continues to be met.
(2)
The relevant period is—
(a)
for the first review under subsection (1), the period—
15
(i)
beginning with the expiry of the period of one year after the
date of the notice under section 69(7), and
(ii)
ending with the expiry of the period of ten years after that date,
and
(b)
for a subsequent review under subsection (1), the period—
20
(i)
beginning with the expiry of the period of one year after the
date on which the previous review under that subsection was
completed, and
(ii)
ending with the expiry of the period of ten years after that date.
(3)
The commissioner of a designated service may (whether or not in consequence
25
of a review under subsection (1)) apply to Monitor for the removal of the
designation.
(4)
The commissioner may make the application only if—
(a)
it has consulted the relevant persons, and
(b)
having regard to the matters in subsection (4) of section 69, it is satisfied
30
that the criterion in subsection (3) of that section is no longer met.
(5)
An application under subsection (3) must be accompanied by copies of the
responses the commissioner received to the consultation under subsection
(4)(a).
(6)
Monitor must grant an application under subsection (3) if—
35
(a)
having regard to the matters in subsection (4) of section 69, it is satisfied
that the criterion in subsection (3) of that section is no longer met, and
(b)
it is satisfied that the commissioner carried out consultation in
accordance with subsection (4)(a).
(7)
Where Monitor grants an application under subsection (3), it must give notice
40
of the removal of the designation to—
(a)
the commissioner, and
(b)
every relevant person.

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 3 — Designated services
76

(8)
Monitor may, on a complaint by a provider of a designated service, remove a
designation under section 69 if—
(a)
it has consulted the commissioner who applied for the designation, and
(b)
having regard to the matters in subsection (4) of section 69, it is satisfied
that the criterion in subsection (3) of that section is no longer met.
5
(9)
A complaint under subsection (8) must be made before the end of the period of
28 days beginning with the day on which the designation is made.
(10)
Where Monitor removes a designation on a complaint under subsection (8), it
must give notice of the removal of the designation to—
(a)
the provider who made the complaint,
10
(b)
the commissioner who applied for the designation, and
(c)
every relevant person.
(11)
The relevant persons for the purposes of this section are the persons who are
the relevant persons for the purposes of section 69.
72
Designations affecting more than one commissioner
15
(1)
The National Health Service Commissioning Board must make arrangements
for facilitating agreement between commissioning consortia as to—
(a)
whether to apply for designation of a service under section 69;
(b)
which consortium is to apply for designation of a service under that
section (and is accordingly, if the application is granted, to have power
20
to review and apply for the removal of the designation).
(2)
Where commissioning consortia fail to reach agreement on a matter in
pursuance of arrangements under subsection (1), the National Health Service
Commissioning Board may determine the matter; and the consortia concerned
must comply with that determination.
25
(3)
Regulations may make provision as to the determination of matters on which
commissioning consortia fail to reach agreement in pursuance of arrangements
under subsection (1).
(4)
Where regulations under subsection (3) are in force, the power conferred on the
National Health Service Commissioning Board by subsection (2) must be
30
exercised in accordance with the regulations.
73
Guidance
(1)
Monitor must publish guidance on—
(a)
applying for designation of a service under section 69;
(b)
reviewing a designation under section 71;
35
(c)
applying for removal of a designation under that section.
(2)
Before publishing guidance under this section, Monitor must—
(a)
consult the persons in subsection (3), and
(b)
obtain the approval of the National Health Service Commissioning
Board.
40
(3)
The persons to be consulted are—
(a)
the Secretary of State,
(b)
the Care Quality Commission and its Healthwatch England committee,

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Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
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(c)
every local authority in England,
(d)
every commissioning consortium,
(e)
every licence holder, and
(f)
such other persons as Monitor considers appropriate.
(4)
Monitor must give each consultee notice of the duration of the consultation
5
period in relation to the proposed guidance; and for that purpose the
consultation period is the period of 28 days beginning with the day after that
on which the notice is given.
(5)
Monitor may revise guidance under this section and, if it does so, must publish
the guidance as revised.
10
Chapter 4
Licensing
Licensing requirement
74
Requirement for health service providers to be licensed
(1)
Any person who provides a health care service for the purposes of the NHS
15
must hold a licence under this Chapter.
(2)
Regulations may make provision for the purposes of this Chapter for
determining, in relation to a service provided by two or more persons acting in
different capacities, which of those persons is to be regarded as the person who
provides the service.
20
75
Deemed breach of requirement to be licensed
(1)
This section applies where a licence holder—
(a)
in providing a health care service for the purposes of the NHS, carries
on a regulated activity (within the meaning of Part 1 of the Health and
Social Care Act 2008), but
25
(b)
is not registered under Chapter 2 of Part 1 of that Act in respect of the
carrying on of that activity.
(2)
The licence holder is to be regarded as providing the service in breach of the
requirement under section 74 to hold a licence.
76
Exemption regulations
30
(1)
Regulations (referred to in this section and section 77 as “exemption
regulations”) may provide for the grant of exemptions from the requirement in
section 74(1) in respect of—
(a)
a prescribed person or persons of a prescribed description;
(b)
the provision of a prescribed health care service or a health care service
35
of a prescribed description.
(2)
Exemption regulations may grant an exemption—
(a)
either generally or to the extent prescribed;
(b)
either unconditionally or subject to prescribed conditions;

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
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(c)
indefinitely, for a prescribed period or for a period determined by or
under the exemption.
(3)
Conditions subject to which an exemption may be granted include, in
particular, conditions requiring a person providing a service pursuant to the
exemption—
5
(a)
to comply with any direction given by Monitor about such matters as
are specified in the exemption or are of a description so specified,
(b)
except to the extent that Monitor otherwise approves, to do, or not to
do, such things as are specified in the exemption or are of a description
so specified (or to do, or not to do, such things in a specified manner),
10
and
(c)
to refer for determination by Monitor such questions arising under the
exemption as are specified in the exemption or are of a description so
specified.
(4)
Before making exemption regulations the Secretary of State must give
15
notice to—
(a)
Monitor,
(b)
the National Health Service Commissioning Board, and
(c)
the Care Quality Commission and its Healthwatch England committee.
(5)
The Secretary of State must also publish the notice under subsection (4).
20
(6)
The notice under subsection (4) must—
(a)
state that the Secretary of State proposes to make exemption
regulations and set out their proposed effect,
(b)
set out the Secretary of State’s reasons for the proposal, and
(c)
specify the period (“the notice period”) within which representations
25
with respect to the proposal may be made.
(7)
The notice period must be not less than 28 days beginning with the day after
that on which the notice is published under subsection (4).
(8)
Where an exemption is granted to a person, the Secretary of State—
(a)
must give the person notice of the exemption, and
30
(b)
must publish the exemption.
77
Exemption regulations: supplementary
(1)
Regulations may revoke exemption regulations by which an exemption was
granted to a person, or amend such regulations by which more than one
exemption was so granted so as to withdraw any of the exemptions—
35
(a)
at the person’s request,
(b)
in accordance with any provision of the exemption regulations by
which the exemption was granted, or
(c)
if the Secretary of State considers it to be inappropriate for the
exemption to continue to have effect.
40
(2)
Regulations may revoke exemption regulations by which an exemption was
granted to persons of a prescribed description, or amend such regulations by
which more than one exemption was so granted so as to withdraw any of the
exemptions—
(a)
in accordance with any provision of the exemption regulations by
45
which the exemption was granted, or

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
79

(b)
if the Secretary of State considers it to be inappropriate for the
exemption to continue to have effect.
(3)
The Secretary of State may by direction withdraw an exemption granted to
persons of a description prescribed in exemption regulations for any person of
that description—
5
(a)
at the person’s request,
(b)
in accordance with any provision of the exemption regulations by
which the exemption was granted, or
(c)
if the Secretary of State considers it to be inappropriate for the
exemption to continue to have effect in the case of the person.
10
(4)
Subsection (5) applies where the Secretary of State proposes to—
(a)
make regulations under subsection (1)(b) or (c) or (2), or
(b)
give a direction under subsection (3)(b) or (c).
(5)
The Secretary of State must—
(a)
consult the following about the proposal—
15
(i)
Monitor;
(ii)
the National Health Service Commissioning Board;
(iii)
the Care Quality Commission and its Healthwatch England
committee;
(b)
where the Secretary of State is proposing to make regulations under
20
subsection (1)(b) or (c), give notice of the proposal to the person to
whom the exemption was granted;
(c)
where the Secretary of State is proposing to make regulations under
subsection (2), publish the notice.
(6)
The notice must—
25
(a)
state that the Secretary of State proposes to make the regulations or give
the direction (as the case may be),
(b)
set out the Secretary of State’s reasons for the proposal, and
(c)
specify the period within which representations with respect to the
proposal may be made.
30
Licensing procedure
78
Application for licence
(1)
A person seeking to hold a licence under this Chapter must make an
application to Monitor.
(2)
The application must be made in such form, and contain or be accompanied by
35
such information, as Monitor requires.
79
Licensing criteria
(1)
Monitor must set and publish the criteria which must be met by a person in
order for that person to be granted a licence under this Chapter.
(2)
Monitor may revise the criteria and, if it does so, must publish them as revised.
40
(3)
Before setting or revising the criteria, Monitor must obtain the approval of the
Secretary of State.