Health and Social Care Bill

Session 2010 - 11
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Health and Social Care Bill

Health and Social Care Bill
Schedule 10 — References by Monitor to the Competition Commission
339

     (11)
The Commission must also publish the notice.
     (12)
After making changes under this paragraph, the Commission must publish
a notice—
(a)
stating that it has made the changes and specifying them, and
(b)
stating the reason why it has made them.
5
Disclosure etc.
9     (1)
Before making a report on a reference, giving or sending a notice under
paragraph 8(5)(a) or (8) or publishing a notice under paragraph 8(12), the
Competition Commission must have regard to the following considerations.
      (2)
The first consideration is the need to exclude from disclosure (so far as
10
practicable) any information the disclosure of which the Commission
considers is contrary to the public interest.
      (3)
The second consideration is the need to exclude from disclosure (so far as
practicable)—
(a)
commercial information the disclosure of which the Commission
15
considers might significantly harm the legitimate business interests
of the undertaking to which it relates, or
(b)
information relating to the private affairs of an individual whose
disclosure the Commission considers might significantly harm the
individual’s interests.
20
      (4)
The third consideration is the extent to which the disclosure of the
information mentioned in sub-paragraph (3)(a) or (b) is necessary for the
purposes of the report.
      (5)
For the purposes of the law relating to defamation, absolute privilege
attaches to the report or notice.
25
Powers of investigation
10    (1)
The following sections of Part 3 of the Enterprise Act 2002 apply, with the
modifications in sub-paragraphs (3), (5), (6) and (8) to (11) for the purposes
of a reference as they apply for the purposes of references under that Part—
(a)
section 109 (attendance of witnesses and production of documents),
30
(b)
section 110 (enforcement of powers under section 109: general),
(c)
section 111 (penalties),
(d)
section 112 (penalties: main procedural requirements),
(e)
section 113 (payments and interest by instalments),
(f)
section 114 (appeals in relation to penalties),
35
(g)
section 115 (recovery of penalties),
(h)
section 116 (statement of policy),
(i)
section 117 (offence of supplying false or misleading information),
and
(j)
section 125 (offences by bodies corporate) so far as relating to section
40
117.
      (2)
Those sections of that Part of that Act apply, with the modifications in sub-
paragraphs (4), (5) and (7) to (11), for the purposes of an investigation by the
Competition Commission in the exercise of its functions under paragraph 8,

Health and Social Care Bill
Schedule 10 — References by Monitor to the Competition Commission
340

as they apply for the purposes of an investigation on references under that
Part.
      (3)
Section 110, in its application by virtue of sub-paragraph (1), has effect as
if—
(a)
subsection (2) were omitted,
5
(b)
for subsections (5) to (8) there were substituted—
“(5)
Where the Commission considers that a person has
intentionally altered, suppressed or destroyed a document
which he has been required to produce under section 109, it
may impose a penalty in accordance with section 111.”, and
10
(c)
in subsection (9), for the words from “or (3)” to “section 65(3))” there
were substituted “, (3) or (5)”.
      (4)
Section 110, in its application by virtue of sub-paragraph (2), has effect as
if—
(a)
the modifications in sub-paragraph (3) were made,
15
(b)
in subsection (4), for the words “the publication of the report of the
Commission on the reference concerned” there were substituted “the
relevant day”, and
(c)
after that subsection there were inserted—
“(4A)
The relevant day for the purposes of subsection (4) is—
20
(a)
the day on which the Commission published a notice
under paragraph 8(12) of Schedule 10 to the Health
and Social Care Act 2011 in connection with the
reference concerned, or
(b)
if it has not given a direction under paragraph 8(1) of
25
that Schedule in connection with the reference and
within the permitted period, the latest day on which
it was possible to give such a notice within that
period.”
      (5)
Section 111, in its application by virtue of sub-paragraph (1) or (2), has effect
30
as if—
(a)
in subsection (1), for “or (3)” there were substituted “, (3) or (5)”, and
(b)
in subsections (3) and (6), after “110(3)” there were inserted “or (5)”.
      (6)
Section 111(5)(b)(ii), in its application by virtue of sub-paragraph (1), has
effect as if—
35
(a)
for the words from “published (or, in the case of a report under
section 50 or 65, given)” there were substituted “made”,
(b)
for the words “published (or given)”, in each place they appear, there
were substituted “made”, and
(c)
the words “by this Part” were omitted.
40
      (7)
Section 111(5)(b)(ii), in its application by virtue of sub-paragraph (2), has
effect as if for sub-paragraph (ii) there were substituted—
“(ii)
if earlier, the relevant day (which for the purposes of
this subsection is to be construed in accordance with
section 110(4A)).”
45
      (8)
Section 112, in its application by virtue of sub-paragraph (1) or (2), has effect
as if, in subsection (1), for “or (3)” there were substituted “, (3) or (5)”.

Health and Social Care Bill
Schedule 11 — Further provision about enforcement powers
Part 1 — Discretionary requirements
341

      (9)
Section 114, in its application by virtue of sub-paragraph (1) or (2), has effect
as if, in subsection (1), for “or (3)” there were substituted “, (3) or (5)”.
     (10)
Section 115, in its application by virtue of sub-paragraph (1) or (2), has effect
as if for “or (3)” there were substituted “, (3) or (5)”.
     (11)
Section 116, in its application by virtue of sub-paragraph (1) or (2), has effect
5
as if, in subsection (2), for “or (3)” there were substituted “, (3) or (5)”.
     (12)
Provisions of Part 3 of the Enterprise Act 2002 which have effect for the
purposes of sections 109 to 116 of that Act (including, in particular,
provisions relating to the making of orders) have effect for the purposes of
the application of those sections by virtue of sub-paragraph (1) or (2) in
10
relation to those sections as applied by virtue of the sub-paragraph
concerned.
     (13)
Accordingly, corresponding provisions of this Act do not have effect in
relation to those sections as applied by virtue of the sub-paragraph
concerned.
15
Schedule 11
Section 108

Further provision about enforcement powers
Part 1
Discretionary requirements
Procedure
20
1     (1)
Where Monitor proposes to impose a discretionary requirement on a person,
Monitor must give notice to that person (a “notice of intent”).
      (2)
A notice of intent must—
(a)
state that Monitor proposes to impose the discretionary requirement
and set out its effect,
25
(b)
set out the grounds for the proposal to impose the requirement,
(c)
explain the effect of section 107 (enforcement undertakings),
(d)
set out the circumstances (if any) in which Monitor may not impose
the requirement, and
(e)
specify the period (“the notice period”) within which representations
30
with respect to the proposal may be made to Monitor.
      (3)
The notice period must be not less than 28 days beginning with the day after
that on which the notice of intent is received.
      (4)
But where Monitor—
(a)
proposes to impose a compliance requirement or restoration
35
requirement, and
(b)
considers that a shorter notice period is necessary to prevent or
minimise further breaches of the kind referred to in section 106(1),

the notice period is to be such shorter period as Monitor may determine, but
not less than 5 days beginning with the day after that on which the notice of
40
intent is received.

Health and Social Care Bill
Schedule 11 — Further provision about enforcement powers
Part 1 — Discretionary requirements
342

2     (1)
After the end of the notice period Monitor must decide whether to—
(a)
impose the discretionary requirement, with or without
modifications, or
(b)
impose any other discretionary requirement.
      (2)
Where Monitor decides under sub-paragraph (1) to impose a discretionary
5
requirement on a person Monitor must give notice to that person (a “final
notice”).
      (3)
A final notice must—
(a)
state that Monitor has decided to impose the discretionary
requirement and set out its effect,
10
(b)
set out the grounds for imposing the requirement,
(c)
in the case of a variable monetary penalty, state—
(i)
how payment may be made,
(ii)
the period (“the payment period”) within which payment
must be made,
15
(iii)
any discount applicable for early payment of the penalty, and
(iv)
the rate of interest payable for late payment of the penalty,
(d)
set out the consequences of failing to comply with the requirement,
and
(e)
explain the right of appeal conferred by paragraph 3.
20
      (4)
The payment period must be not less than 28 days beginning with the day
after that on which the final notice is received.
      (5)
Monitor must not decide under sub-paragraph (1) to impose a variable
monetary penalty unless the notice of intent was given before the end of the
period of 5 years beginning with the day (or, in the case of a continuing
25
breach, the last day) on which the breach giving rise to the imposition of the
discretionary requirement occurred.
3     (1)
A person may appeal to the First-tier Tribunal against a decision of Monitor
to impose a discretionary requirement.
      (2)
The grounds for an appeal under this paragraph are—
30
(a)
that the decision was based on an error of fact,
(b)
that the decision was wrong in law,
(c)
in the case of a decision imposing a variable monetary penalty, that
the amount of the penalty is unreasonable,
(d)
in the case of a decision to impose a compliance requirement or a
35
restoration requirement, that the nature of the requirement is
unreasonable, or
(e)
that the decision was unreasonable for any other reason.
      (3)
The discretionary requirement is suspended pending determination of the
appeal.
40
      (4)
On an appeal under this paragraph, the Tribunal may—
(a)
confirm, vary or withdraw the discretionary requirement,
(b)
take such steps as Monitor could take in relation to the breach giving
rise to the imposition of the requirement, or
(c)
remit the decision whether to confirm the requirement, or any matter
45
relating to that decision, to Monitor.

Health and Social Care Bill
Schedule 11 — Further provision about enforcement powers
Part 1 — Discretionary requirements
343

4
Monitor may by notice to a person on whom a discretionary requirement has
been imposed—
(a)
withdraw the discretionary requirement,
(b)
in the case of a variable monetary penalty, reduce the amount of the
penalty or extend the payment period, or
5
(c)
in the case of a compliance requirement or a restoration requirement,
extend the period specified for taking the steps specified in the
requirement.
Non-compliance penalties
5     (1)
If a person fails to comply with a compliance requirement or a restoration
10
requirement Monitor may impose a monetary penalty on that person of such
amount as Monitor may determine (a “non-compliance penalty”).
      (2)
Where Monitor proposes to impose a non-compliance penalty on a person
Monitor must give notice to that person (a “non-compliance notice”).
      (3)
A non-compliance notice must—
15
(a)
specify the amount of the non-compliance penalty,
(b)
set out the grounds for imposing the penalty,
(c)
state how payment of the penalty may be made,
(d)
state the period (“the payment period”) within which payment must
be made,
20
(e)
state any discount applicable for early payment of the penalty,
(f)
set out the consequences of a failure to pay within the payment
period (including any increase in the amount payable), and
(g)
explain the right of appeal conferred by paragraph 6.
      (4)
The payment period must be not less than 28 days beginning with the day
25
after that on which the non-compliance notice is received.
      (5)
If the whole or any part of a non-compliance penalty is not paid by the time
it is required to be paid Monitor may increase the amount payable by no
more than 50% of the amount of the penalty.
      (6)
Monitor may by notice to a person on whom a non-compliance penalty has
30
been imposed reduce the amount of the penalty or extend the payment
period.
6     (1)
A person may appeal to the First-tier Tribunal against a decision of Monitor
to impose a non-compliance penalty.
      (2)
The grounds for such an appeal are—
35
(a)
that the decision was based on an error of fact,
(b)
that the decision was wrong in law, or
(c)
that the decision was, or the amount of the penalty is, unfair or
unreasonable.
      (3)
The non-compliance penalty is suspended pending determination of the
40
appeal.
      (4)
On an appeal, the Tribunal may—
(a)
confirm, vary or withdraw the non-compliance penalty, or
(b)
remit the decision whether to confirm the penalty, or any matter
relating to that decision, to Monitor.
45

Health and Social Care Bill
Schedule 11 — Further provision about enforcement powers
Part 2 — Enforcement undertakings
344

Recovery of financial penalties
7     (1)
Amounts payable to Monitor of the kind mentioned in sub-paragraph (2) are
recoverable summarily as a civil debt (but this does not affect any other
method of recovery).
      (2)
The amounts are—
5
(a)
a variable monetary penalty and any interest payable on it, or
(b)
a non-compliance penalty.
Payments of penalties etc. into Consolidated Fund
8
Monitor must pay any sums it receives in respect of any of the following into
the Consolidated Fund—
10
(a)
a variable monetary penalty and any interest payable on it, or
(b)
a non-compliance penalty.
Part 2
Enforcement undertakings
Procedure
15
9     (1)
Monitor must publish a procedure for entering into enforcement
undertakings.
      (2)
Monitor may revise the procedure and if it does so, Monitor must publish
the procedure as revised.
      (3)
Monitor must consult such persons as it considers appropriate before
20
publishing or revising the procedure.
10    (1)
Where Monitor accepts an enforcement undertaking, Monitor must publish
the undertaking.
      (2)
But Monitor must not under sub-paragraph (1) publish any part of an
enforcement undertaking which contains commercial information the
25
disclosure of which Monitor considers would or might significantly harm
the legitimate business interests of any person to whom it relates.
Variation of terms
11
The terms of an enforcement undertaking (including in particular the action
specified under it and the period so specified within which the action must
30
be taken) may be varied if both the person giving the undertaking and
Monitor agree.
Compliance certificates
12    (1)
Where Monitor is satisfied that an enforcement undertaking has been
complied with, Monitor must issue a certificate to that effect (referred to in
35
this Schedule as a “compliance certificate”).
      (2)
A person who has given an enforcement undertaking may at any time make
an application to Monitor for a compliance certificate.

Health and Social Care Bill
Schedule 12 — Procedure on references under section 118
345

      (3)
The application must be made in such form, and accompanied by such
information, as Monitor requires.
      (4)
Monitor must decide whether or not to issue a compliance certificate, and
give notice to the applicant of its decision, before the end of the period of 14
days beginning with the day after that on which the application is received.
5
13    (1)
An appeal lies to the First-tier Tribunal against a decision of Monitor to
refuse an application for a certificate of compliance.
      (2)
The grounds for an appeal under this paragraph are that the decision—
(a)
was based on an error of fact,
(b)
was wrong in law, or
10
(c)
was unfair or unreasonable.
      (3)
On an appeal under this paragraph, the Tribunal may confirm Monitor’s
decision or direct that it is not to have effect.
Inaccurate, incomplete or misleading information
14
Where Monitor is satisfied that a person who has given an enforcement
15
undertaking has supplied Monitor with inaccurate, misleading or
incomplete information in relation to the undertaking—
(a)
Monitor may treat the person as having failed to comply with the
undertaking, and
(b)
if Monitor decides so to treat the person, Monitor must by notice
20
revoke any compliance certificate given to that person.
Schedule 12
Section 118

Procedure on references under section 118
Contents etc. of reference
1     (1)
A reference under section 118 must specify—
25
(a)
Monitor’s reasons for proposing the method to which the reference
relates, and
(b)
its representations as to why the grounds referred to in section 119(4)
do not apply.
      (2)
Monitor must give notice of the reference to—
30
(a)
the National Health Service Commissioning Board, and
(b)
each licence holder (referred to in this Schedule as an “objector”) who
objected to the proposed method to which the reference relates.
      (3)
The notice must be accompanied by a copy of the reference.
Representations by objectors
35
2     (1)
If an objector wishes to make representations to the Competition
Commission on the matters specified in the reference for the purposes of
paragraph 1(1), the objector must do so before the end of the period of 10
working days beginning with the day on which the objector receives the
notice under paragraph 1(2).
40