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

5

(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

10

(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

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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

20

(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

45

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.

141     

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.

15

(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

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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—

40

(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

133

 

(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,

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

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

134

 

(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).

146     

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.

 
 

Health and Social Care Bill
Part 4 — NHS foundation trusts & NHS trusts

135

 

(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

15

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.

20

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

35

(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—

 
 

 
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