|
| |
|
(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. |
| |
| |
(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 |
| 15 |
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, |
| 20 |
Monitor must send a notice to— |
| |
(a) | the Secretary of State, |
| |
(b) | the National Health Service Commissioning Board, |
| |
(c) | each commissioning consortium, |
| |
| 25 |
(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 |
| |
| 30 |
(b) | the time or times by reference to which it proposes to assess the rate of |
| |
| |
(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 |
| |
| 40 |
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 |
| |
|
| |
|
| |
|
(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 |
| |
| 5 |
(b) | the objection percentage and the share of supply percentage are each |
| |
less than the prescribed percentage. |
| |
| |
(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 |
| |
| |
(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 |
| 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 |
| |
| |
(c) | in paragraph 5(4), the reference to six months is to be read as a reference |
| 30 |
| |
(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 |
| |
(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 |
| |
| |
(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. |
| |
|
| |
|
| |
|
(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. |
| |
| |
| 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 |
| |
| |
(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 |
| |
| 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— |
| 20 |
(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 |
| 35 |
(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 |
| |
| |
|
| |
|
| |
|
| |
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 |
| |
(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, |
| 15 |
(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 |
| |
(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 |
| |
| |
(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 |
| |
(b) | information relating to the private affairs of an individual the |
| |
disclosure of which would, or might, significantly harm that person’s |
| |
| |
| 35 |
| |
(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 |
| |
| |
|
| |
|
| |
|
(b) | to increase the amount by which the aggregate amount so outstanding |
| |
| |
(3) | In this section, “deposit-taker” means— |
| |
(a) | a person who has permission under Part 4 of the Financial Services and |
| |
| 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 |
| |
| |
(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 |
| |
| |
(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. |
| |
| |
| |
| 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, |
| |
| |
(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 |
| |
| 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 |
| |
| |
|
| |
|
| |
|
(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 |
| |
| |
| |
(a) | in the case of a secretary or clerk of a body corporate, the address of the |
| |
registered or principal office of the body, |
| 20 |
(b) | in the case of a partner of a firm, the address of the principal office of |
| |
| |
(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 |
| |
“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) |
| |
| |
(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. |
| |
|
| |
|
| |
|
(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 |
| |
| |
“commissioner”, in relation to a health care service, means the person who |
| |
arranges for the provision of the service (and “commission” is to be |
| |
| 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 |
| |
“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 |
| |
NHS foundation trusts & NHS trusts |
| |
Governance and management |
| |
| |
(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 |
| |
| |
(b) | in sub-paragraphs (2), (3) and (4), for “the board” substitute “the |
| |
| 30 |
(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 |
| |
| |
(4) | After paragraph 10 of that Schedule insert— |
| |
“10A | The general duties of the council of governors are— |
| |
|
| |
|