House of Commons portcullis
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 4 — Licensing

80

 

80      

Grant or refusal of licence

(1)   

This section applies where an application for a licence has been made under

section 78.

(2)   

If Monitor is satisfied that the applicant meets the criteria for holding a licence

for the time being published under section 79 it must as soon as reasonably

5

practicable grant the application; otherwise it must refuse it.

(3)   

On granting the application, Monitor must issue a licence to the applicant.

(4)   

A licence issued under this section is subject to—

(a)   

such of the standard conditions (see section 87) as are applicable to the

licence,

10

(b)   

such other conditions included in the licence by virtue of section 88

(referred to in this Chapter as “the special conditions”), and

(c)   

any conditions included in the licence by virtue of section 102

(imposition of licence conditions on designated NHS foundation

trusts).

15

81      

Application and grant: NHS foundation trusts

(1)   

This section applies where an NHS trust becomes an NHS foundation trust

pursuant to section 36 of the National Health Service Act 2006 (effect of

authorisation of NHS foundation trust).

(2)   

The NHS foundation trust is to be treated by Monitor as having—

20

(a)   

duly made an application for a licence under section 78, and

(b)   

met the criteria for holding a licence for the time being published under

section 79.

(3)   

An NHS foundation trust in existence on the day on which this section comes

into force is to be treated for the purposes of this section as having become an

25

NHS foundation trust pursuant to section 36 of the National Health Service Act

2006 on that day.

82      

Revocation of licence

Monitor may at any time revoke a licence under this Chapter—

(a)   

on the application of the licence holder, or

30

(b)   

if Monitor is satisfied that the licence holder has failed to comply with

a condition of the licence.

83      

Right to make representations

(1)   

Monitor must give notice—

(a)   

to an applicant for a licence under this Chapter of a proposal to refuse

35

the application;

(b)   

to the licence holder of a proposal to revoke a licence under

section 82(b).

(2)   

A notice under this section must—

(a)   

set out Monitor’s reasons for its proposal;

40

(b)   

specify the period within which representations with respect to the

proposal may be made to Monitor.

 
 

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

81

 

(3)   

The period so specified must be not less than 28 days beginning with the day

after that on which the notice is received.

84      

Notice of decisions

(1)   

This section applies if Monitor decides to—

(a)   

refuse an application for a licence under section 80, or

5

(b)   

revoke a licence under section 82(b).

(2)   

Monitor must give notice of its decision to the applicant or the licence holder

(as the case may be).

(3)   

A notice under this section must explain the right of appeal conferred by

section 85.

10

(4)   

A decision of Monitor to revoke a licence under section 82(b) takes effect on

such day as may be specified by Monitor, being a day no earlier than—

(a)   

if an appeal is brought under section 85, the day on which the decision

on the appeal is confirmed or the appeal is abandoned,

(b)   

where the licence holder notifies Monitor before the end of the period

15

of 28 days mentioned in section 85 that the licence holder does not

intend to appeal, the day on which Monitor receives the notification, or

(c)   

the day after the end of the period of 28 days so mentioned.

85      

Appeals to the Tribunal

(1)   

An appeal lies to the First-tier Tribunal against a decision of Monitor to—

20

(a)   

refuse an application for a licence under section 80, or

(b)   

revoke a licence under section 82(b).

(2)   

The grounds for an appeal under this section are that the decision was—

(a)   

based on an error of fact,

(b)   

wrong in law, or

25

(c)   

unreasonable.

(3)   

On an appeal under this section, the First-tier Tribunal may—

(a)   

confirm Monitor’s decision,

(b)   

direct that the decision is not to have effect, or

(c)   

remit the decision to Monitor.

30

86      

Register of licence holders

(1)   

Monitor must maintain and publish a register of licence holders.

(2)   

The register may contain such information as Monitor considers appropriate

for the purpose of keeping members of the public informed about licence

holders including in particular information about the revocation of any licence

35

under this Chapter.

(3)   

Monitor must secure that copies of the register are available at its offices for

inspection at all reasonable times by any person.

(4)   

Any person who asks Monitor for a copy of, or an extract from, the register is

entitled to have one.

40

 
 

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

82

 

(5)   

Regulations may provide that subsections (3) and (4) do not apply—

(a)   

in such circumstances as may be prescribed, or

(b)   

to such parts of the register as may be prescribed.

(6)   

A fee determined by Monitor is payable for the copy or extract except—

(a)   

in such circumstances as may be prescribed, or

5

(b)   

in any case where Monitor considers it appropriate to provide the copy

or extract free of charge.

Licence conditions

87      

Standard conditions

(1)   

Monitor must determine and publish the conditions to be included in each

10

licence under this Chapter (referred to in this Chapter as “the standard

conditions”).

(2)   

Different standard conditions may be determined for different descriptions of

licences.

(3)   

For the purposes of subsection (2) a description of licences may in particular be

15

framed wholly or partly by reference to—

(a)   

the nature of the licence holder,

(b)   

the services provided under the licence, or

(c)   

the areas in which those services are provided.

(4)   

But different standard conditions must not be determined for different

20

descriptions of licences to the extent that the description is framed by reference

to the nature of the licence holder unless Monitor considers that at least one of

requirements 1 and 2 is met.

(5)   

Requirement 1 is that—

(a)   

the standard conditions in question relate to the governance of licence

25

holders, and

(b)   

it is necessary to determine different standard conditions in order to

take account of differences in the status of different licence holders.

(6)   

Requirement 2 is that it is necessary to determine different standard conditions

for the purpose of ensuring that the burdens to which different licence holders

30

are subject as a result of holding a licence are broadly consistent.

(7)   

Before determining the first set of the standard conditions Monitor must

consult the persons mentioned in subsection (8) on the conditions it is

proposing to determine (“the draft standard conditions”).

(8)   

Those persons are—

35

(a)   

the Secretary of State,

(b)   

the National Health Service Commissioning Board,

(c)   

every commissioning consortium,

(d)   

the Care Quality Commission and its Healthwatch England committee,

and

40

(e)   

such other persons as are likely to be affected by the inclusion of the

conditions in licences under this Chapter as Monitor considers

appropriate.

 
 

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

83

 

(9)   

Monitor must also publish the draft standard conditions.

(10)   

The Secretary of State may direct Monitor not to determine that the standard

conditions will be the draft standard conditions.

88      

Special conditions

(1)   

Monitor may—

5

(a)   

with the consent of the applicant, include a special condition in a

licence under this Chapter, and

(b)   

with the consent of the licence holder, modify a special condition of a

licence.

(2)   

Before including a special condition or making such modifications Monitor

10

must give notice to—

(a)   

the applicant or the licence holder (as the case may be),

(b)   

the Secretary of State,

(c)   

the National Health Service Commissioning Board,

(d)   

such commissioning consortia as are likely to be affected by the

15

proposed inclusion or modifications, and

(e)   

the Care Quality Commission and its Healthwatch England committee.

(3)   

Monitor must also publish the notice under subsection (2).

(4)   

The notice under subsection (2) must—

(a)   

state that Monitor proposes to include the special condition or make the

20

modifications and set out its or their proposed effect,

(b)   

set out Monitor’s reasons for the proposal, and

(c)   

specify the period (“the notice period”) within which representations

with respect to the proposal may be made to Monitor.

(5)   

The notice period must be not less than 28 days beginning with the day after

25

that on which the notice is published under subsection (3).

(6)   

In this section, a reference to modifying a condition includes a reference to

amending, omitting or adding a condition.

89      

Limits on Monitor’s functions to set or modify licence conditions

(1)   

This section applies to the following functions of Monitor—

30

(a)   

the duty to determine the standard conditions to be included in each

licence under this Chapter or in licences of a particular description (see

section 87),

(b)   

the powers to include a special condition in a licence and to modify

such a condition (see section 88),

35

(c)   

the power to modify the standard conditions applicable to all licences,

or to licences of a particular description (see section 91).

(2)   

Monitor may only exercise a function to which this section applies—

(a)   

for the purpose of regulating the price payable for the provision of

health care services for the purposes of the NHS;

40

(b)   

for the purpose of promoting competition in the provision of health

care services for those purposes;

 
 

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

84

 

(c)   

for the purpose of protecting and promoting the right of patients to

make choices with respect to treatment or other health care services;

(d)   

for the purpose of ensuring the continued provision of designated

services;

(e)   

for purposes connected with the governance or accountability of

5

persons providing health care services for the purposes of the NHS;

(f)   

for purposes connected with Monitor’s functions in relation to the

register of NHS foundation trusts required to be maintained under

section 39 of the National Health Service Act 2006;

(g)   

for purposes connected with the operation of the licensing regime

10

established by this Chapter;

(h)   

for such purposes as may be prescribed for the purpose of enabling

Monitor to discharge its duties under section 52.

90      

Conditions: supplementary

(1)   

The standard or special conditions of a licence under this Chapter may in

15

particular include conditions—

(a)   

requiring the licence holder to pay to Monitor such fees of such

amounts as Monitor may determine in respect of the exercise by

Monitor of its functions under this Chapter,

(b)   

requiring the licence holder to comply with any requirement imposed

20

on it by Monitor under Chapter 7 (financial assistance in health special

administration cases),

(c)   

requiring the licence holder to do, or not to do, specified things (or to

do, or not to do, specified things in a specified manner) in order to

promote competition in the provision of health care services for the

25

purposes of the NHS,

(d)   

requiring the licence holder to give notice to the Office of Fair Trading

before entering into an arrangement under which, or transaction in

consequence of which, the licence holder’s activities, and the activities

of one or more other businesses, cease to be distinct activities,

30

(e)   

requiring the licence holder to provide Monitor with such information

as Monitor considers necessary for the purposes of the exercise of its

functions under this Part,

(f)   

requiring the licence holder to publish such information as may be

specified or as Monitor may direct,

35

(g)   

requiring the licence holder to charge for the provision of health care

services for the purposes of the NHS in accordance with the national

tariff (see section 104),

(h)   

requiring the licence holder to comply with other rules published by

Monitor about the charging for the provision of health care services for

40

the purposes of the NHS,

(i)   

requiring the licence holder—

(i)   

to give Monitor notice (of such period as may be determined by

or under the licence) of the licence holder’s intention to cease

providing a designated service, and

45

(ii)   

if Monitor so directs, to continue providing that service for a

period determined by Monitor,

(j)   

about the use or disposal by the licence holder of assets used in the

provision of designated services, and

 
 

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

85

 

(k)   

about the making by the licence holder of investment in relation to the

provision of designated services.

(2)   

In subsection (1) “specified” means specified in a condition.

(3)   

Subsection (4) applies where Monitor includes a condition under subsection

(1)(c) that requires the licence holder (A), when directed to do so by Monitor,

5

to provide another licence holder (B) with access to a service which A uses in

providing health care services for the purposes of the NHS.

(4)   

In deciding whether to give a licence holder a direction in reliance on that

condition, Monitor must have regard to—

(a)   

the practicability of B installing a comparable service,

10

(b)   

the practicability of A providing the proposed access,

(c)   

the investment that A has made in order to put itself in a position to use

the service, and

(d)   

the need to secure effective long-term competition in the provision of

health care services for the purposes of the NHS.

15

(5)   

A condition under subsection (1)(d)—

(a)   

may be included only in the licence of an NHS foundation trust or a

body which (or part of which) used to be an NHS trust established

under section 25 of the National Health Service Act 2006, and

(b)   

ceases to have effect at the end of the period of five years beginning

20

with the day on which it is included in the licence.

(6)   

The references in subsection (1)(d) to the activities of a licence holder or other

business include a reference to part of the activities concerned.

(7)   

A condition of a licence under this Chapter may provide that it is to have effect,

or cease to have effect, at such times and in such circumstances as may be

25

determined by or under the conditions.

91      

Modification of standard conditions

(1)   

Monitor may, subject to the requirements of this section, modify the standard

conditions applicable to all licences under this Chapter or to licences of a

particular description.

30

(2)   

Before making any such modifications Monitor must give notice to—

(a)   

each relevant licence holder,

(b)   

the Secretary of State,

(c)   

the National Health Service Commissioning Board,

(d)   

every commissioning consortium, and

35

(e)   

the Care Quality Commission and its Healthwatch England committee.

(3)   

Monitor must also publish the notice under subsection (2).

(4)   

The notice under subsection (2) must—

(a)   

state that Monitor proposes to make the modifications,

(b)   

set out the proposed effect of the modification,

40

(c)   

set out Monitor’s reasons for the proposal, and

(d)   

specify the period (“the notice period”) within which representations

with respect to the proposal may be made to Monitor.

 
 

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

86

 

(5)   

The notice period must be not less than 28 days beginning with the day after

that on which the notice is published under subsection (3).

(6)   

Monitor may not under this section make any modifications unless—

(a)   

no relevant licence holder has made an objection to Monitor about the

proposal within the notice period, or

5

(b)   

subsection (7) applies to the case.

(7)   

This subsection applies where—

(a)   

one or more relevant licence holders make an objection to Monitor

about the proposal within the notice period,

(b)   

the objection percentage is less than the percentage prescribed for the

10

purposes of this paragraph, and

(c)   

the share of supply percentage is less than the percentage prescribed for

the purposes of this paragraph.

(8)   

In subsection (7)—

(a)   

the “objection percentage” is the proportion (expressed as a percentage)

15

of the relevant licence holders who objected to the proposals;

(b)   

the “share of supply percentage” is the proportion (expressed as a

percentage) of the relevant licence holders who objected to the

proposals, weighted according to their share of the supply in England

of such services as may be prescribed.

20

(9)   

Regulations prescribing a percentage for the purposes of subsection (7)(c) may

include provision prescribing the method to be used for determining the

licence holder’s share of the supply in England of the services concerned.

(10)   

Where Monitor modifies the standard conditions applicable to all licences or

(as the case may be) to licences of a particular description under this section,

25

Monitor—

(a)   

may also make such incidental or consequential modifications as it

considers necessary or expedient of any other conditions of a licence

which is affected by the modifications,

(b)   

must make (as nearly as may be) the same modifications of those

30

conditions for the purposes of their inclusion in licences granted after

that time, and

(c)   

must publish the modifications.

(11)   

In this section and section 92, “relevant licence holder”—

(a)   

in relation to proposed modifications of the standard conditions

35

applicable to all licences, means any licence holder, and

(b)   

in relation to proposed modifications of the standard conditions

applicable to licences of a particular description, means a holder of a

licence of that description.

(12)   

In this section, a reference to modifying a condition includes a reference to

40

amending, omitting or adding a condition.

92      

Modification references to the Competition Commission

(1)   

Subsection (2) applies where—

(a)   

Monitor has given notice under section 88(2) of a proposal to include a

special condition in a licence or modify such a condition, and

45

 
 

 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2011
Revised 19 January 2011