Health and Social Care Bill

Session 2010 - 11
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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
129

(a)
the maximum amount that Monitor may raise from levies it imposes
under section 137 for that year, and
(b)
the maximum amount that it may raise from charges it imposes by
virtue of section 136 for that year.
(2)
Where the Secretary of State makes an order under this section, Monitor must
5
secure that the levies and charges for that year are at a level that Monitor
estimates will, in each case, raise an amount not exceeding the amount
specified for that case in the order.
139
Consultation
(1)
This section applies where Monitor is proposing to impose a levy under section
10
137 for the coming financial year and—
(a)
has not imposed a levy under that section for that or any previous year,
(b)
has been imposing the levy for the current financial year but proposes
to make relevant changes to it for the coming financial year, or
(c)
has been imposing the levy for the current financial year and the
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financial year preceding it, but has not been required to serve a notice
under this section in respect of the levy for either of those years.
(2)
A change to a levy is relevant for the purposes of subsection (1)(b) if it is a
change to the factors by reference to which the levy is to be assessed.
(3)
Before making the determinations under section 137(3) in respect of the levy,
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Monitor must send a notice to—
(a)
the Secretary of State,
(b)
the National Health Service Commissioning Board,
(c)
each commissioning consortium,
(d)
each provider, and
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(e)
such other persons as it considers appropriate.
(4)
Monitor must publish a notice that it sends under subsection (3).
(5)
In a case within subsection (1)(a) or (c), the notice must state—
(a)
the factors by reference to which Monitor proposes to assess the rate of
the levy,
30
(b)
the time or times by reference to which it proposes to assess the rate of
levy, and
(c)
the time or times during the coming financial year when it proposes
that the levy, or an instalment of it, will become payable.
(6)
In a case within subsection (1)(b), the notice must specify the relevant changes
35
Monitor proposes to make.
(7)
A notice under this section must specify when the consultation period in
relation to the proposals ends; and for that purpose, the consultation period is
the period of 28 days beginning with the day on which the notice is published
under subsection (4).
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140
Responses to consultation
(1)
If Monitor receives objections from one or more providers to its proposals, it
may not give notice under section 141(1)(b) unless—
(a)
the conditions in subsection (2) are met, or

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
130

(b)
where those conditions are not met, Monitor has made a reference to
the Competition Commission.
(2)
The conditions referred to in subsection (1)(a) are that—
(a)
one or more providers object to the proposals within the consultation
period, and
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(b)
the objection percentage and the share of supply percentage are each
less than the prescribed percentage.
(3)
In subsection (2)—
(a)
the “objection percentage” is the proportion (expressed as a percentage)
of the providers who objected to the proposals, and
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(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
may be prescribed.
(4)
A reference under subsection (1)(b) must be so framed as to require the
15
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 58,
(b)
if so, whether that failure operates, or may be expected to operate,
against the public interest, and
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(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.
(5)
Schedule 10 (which makes further provision about references to the
Competition Commission) has effect in relation to a reference under subsection
25
(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
to two months,
(c)
in paragraph 5(4), the reference to six months is to be read as a reference
30
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
beginning to “sub-paragraph (4)(c)” are also to be ignored), and
(e)
the references to relevant persons are to be construed in accordance
35
with subsection (6).
(6)
The relevant persons referred to in Schedule 10 are—
(a)
in paragraphs 3 and, 5(6) and 6(6)—
(i)
the National Health Service Commissioning Board, and
(ii)
the providers who objected to the proposals, and
40
(b)
in paragraph 8(10)—
(i)
Monitor, and
(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
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duties under this Chapter.

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
131

(8)
Regulations prescribing a percentage for the purposes of subsection (2)(b) may
include provision prescribing the method used for determining a provider’s
share of the supply in England of the services concerned.
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Amount payable
(1)
Monitor must—
5
(a)
calculate the amount which each provider who is to be subject to a levy
under section 137 for a financial year is to be liable to pay in respect of
that year, and
(b)
notify the provider of that amount and the date or dates on which it, or
instalments of it, will become payable.
10
(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
for which the provider is to be subject to the levy bears to the whole financial
year.
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(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 137, it becomes satisfied that the risk of a provider who is
subject to the levy going into health special administration has changed by
reference to what it was—
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(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.
(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
25
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.
(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
30
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
recalculate the amount, Monitor must—
(a)
comply with the request, and
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(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.
(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
40
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.

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
132

Supplementary
142
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 132.
(4)
The purposes of the review under subsection (3)(b) are—
(a)
to assess the operation of the mechanisms concerned,
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(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 133 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, significantly harm that person’s
interests.
143
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
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(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.
144
Shortfall or excess of available funds, etc.
(1)
The Secretary of State may provide financial assistance to Monitor if the
15
Secretary of State is satisfied that—
(a)
there are insufficient funds available from a mechanism established
under section 132, 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 132 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
132 has become dormant, or if a mechanism so established is being wound up,
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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
145
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 146, by being sent to R by an electronic
communication.
40
(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
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(3)
Where notice is sent as mentioned in subsection (1)(c) in accordance with
section 146, 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 146—
“electronic communication” has the same meaning as in the Electronic
25
Communications Act 2000;
“notice” includes any other document.
(9)
This section is subject to paragraph 4(3) of Schedule 8 (delivery of notice from
Secretary of State of suspension of non-executive member of Monitor).
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Electronic communications
30
(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
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
35
or the Competition Commission—
(a)
the person to whom the notice is given or sent or on whom it is served
must have indicated to Monitor or (as the case may be) the Commission
the person’s willingness to receive notices by an electronic
communication and provided an address suitable for that purpose, and
40
(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, send or serve the notice is not
Monitor or the Competition Commission, the notice must be given, sent or
served in such manner as Monitor may require.

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Part 4 — NHS foundation trusts & NHS trusts
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(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, sent or served
by Monitor or (as the case may be) the Competition Commission under this
Part or may be limited to notices of a particular description.
(5)
Monitor must publish such requirements as it imposes under subsection (3).
5
147
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
construed accordingly);
10
“designated service” means a service designated under section 76;
“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;
“health care” and “health care service” each have the meaning given in
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section 56;
“the NHS” has the meaning given in that section;
“prescribed” means prescribed in regulations;
“service” includes facility.
(2)
Schedule 13 (which contains minor and consequential amendments) has effect.
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Part 4
NHS foundation trusts & NHS trusts
Governance and management
148
Governors
(1)
In paragraph 7 of Schedule 7 to the National Health Service Act 2006 (public
25
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
council”.
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(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
this sub-paragraph may appoint one or more members of the council
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(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—