Health and Social Care Bill

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 3 — Designated services
92

81
Complaint about refusal of application for removal of designation
(1)
Where an application for the removal of a designation under section 79(3) is
refused, Monitor must, on a complaint by the commissioner who applied for
the removal of the designation or by a provider mentioned in subsection (2),
reconsider its decision to refuse the application.
5
(2)
The providers are—
(a)
the provider of the designated service,
(b)
any other provider of health care services who has sufficient interest in
the application.
(3)
For the purposes of the reconsideration, Monitor must—
10
(a)
where the commissioner made the complaint, consult the provider of
the designated service;
(b)
where the provider mentioned in subsection (2)(a) made the complaint,
consult the commissioner;
(c)
where a provider mentioned in subsection (2)(b) made the complaint,
15
consult the commissioner and the provider of the designated service.
(4)
Monitor may grant the application if, having regard to the matters in
subsection (4) of section 76, it is satisfied that the criterion in subsection (3) of
that section is no longer met.
(5)
If Monitor grants the application—
20
(a)
the service ceases to be designated, and
(b)
an appeal by the provider mentioned in subsection (2)(a) against the
decision to grant the application lies to the First-tier Tribunal.
(6)
If Monitor does not grant the application—
(a)
an appeal by the commissioner or the provider mentioned in
25
subsection (2)(a) against the decision not to grant the application lies to
the First-tier Tribunal, and
(b)
where the provider mentioned in subsection (2)(b) made the complaint,
an appeal by that provider against the decision also lies to the First-tier
Tribunal.
30
82
Complaints: general provisions
(1)
This section applies in relation to a complaint under section 77, 78, 80 or 81.
(2)
The complaint must be made before the end of the period of 28 days beginning
with the day on which notice of the decision to which the complaint relates was
received.
35
(3)
No individual involved in the decision to which the complaint relates may be
involved in the reconsideration of the decision.
(4)
Monitor must give notice of its decision on the reconsideration to—
(a)
the commissioner who applied for the designation of the service or (as
the case may be) for the removal of the designation,
40
(b)
the provider of the designated service, and
(c)
where, in a case within section 77 or 81, the person who makes the
complaint is the provider mentioned in subsection (2)(b) of that section,
that provider.

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 3 — Designated services
93

(5)
The grounds for an appeal against Monitor’s decision on the reconsideration
are that the decision was—
(a)
based on an error of fact,
(b)
wrong in law, or
(c)
unreasonable.
5
(6)
On the appeal, the First-tier Tribunal may confirm Monitor’s decision or direct
that it is not to have effect.
83
Designations affecting more than one commissioner
(1)
The National Health Service Commissioning Board must make arrangements
for facilitating agreement between commissioning consortia as to—
10
(a)
whether to apply for designation of a service under section 76;
(b)
which consortium is to apply for designation of a service under that
section (and is accordingly, if the application is granted, to have power
to review and apply for the removal of the designation).
(2)
Where commissioning consortia fail to reach agreement on a matter in
15
pursuance of arrangements under subsection (1), the National Health Service
Commissioning Board may determine the matter; and the consortia concerned
must comply with that determination.
(3)
Regulations may make provision as to the determination of matters on which
commissioning consortia fail to reach agreement in pursuance of arrangements
20
under subsection (1).
(4)
Where regulations under subsection (3) are in force, the power conferred on the
National Health Service Commissioning Board by subsection (2) must be
exercised in accordance with the regulations.
84
Guidance
25
(1)
Monitor must publish guidance on—
(a)
applying for designation of a service under section 76;
(b)
reviewing a designation under section 79;
(c)
applying for removal of a designation under that section.
(2)
Before publishing guidance under this section, Monitor must—
30
(a)
consult the persons mentioned in subsection (3), and
(b)
obtain the approval of the National Health Service Commissioning
Board.
(3)
The persons to be consulted are—
(a)
the Secretary of State,
35
(b)
the Care Quality Commission and its Healthwatch England committee,
(c)
every local authority in England,
(d)
every commissioning consortium,
(e)
every licence holder, and
(f)
such other persons as Monitor considers appropriate.
40
(4)
Monitor must give each consultee notice of the duration of the consultation
period in relation to the proposed guidance; and for that purpose the

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
94

consultation period is the period of 28 days beginning with the day after that
on which the notice is given.
(5)
Monitor may revise guidance under this section and, if it does so, must publish
the guidance as revised.
Chapter 4
5
Licensing
Licensing requirement
85
Requirement for health service providers to be licensed
(1)
Any person who provides a health care service for the purposes of the NHS
must hold a licence under this Chapter.
10
(2)
Regulations may make provision for the purposes of this Chapter for
determining, in relation to a service provided by two or more persons acting in
different capacities, which of those persons is to be regarded as the person who
provides the service.
86
Deemed breach of requirement to be licensed
15
(1)
This section applies where a licence holder—
(a)
in providing a health care service for the purposes of the NHS, carries
on a regulated activity (within the meaning of Part 1 of the Health and
Social Care Act 2008), but
(b)
is not registered under Chapter 2 of Part 1 of that Act in respect of the
20
carrying on of that activity.
(2)
The licence holder is to be regarded as providing the service in breach of the
requirement under section 85 to hold a licence.
87
Exemption regulations
(1)
Regulations (referred to in this section and section 88 as “exemption
25
regulations”) may provide for the grant of exemptions from the requirement
under section 85 in respect of—
(a)
a prescribed person or persons of a prescribed description;
(b)
the provision of a prescribed health care service or a health care service
of a prescribed description.
30
(2)
Exemption regulations may grant an exemption—
(a)
either generally or to the extent prescribed;
(b)
either unconditionally or subject to prescribed conditions;
(c)
indefinitely, for a prescribed period or for a period determined by or
under the exemption.
35
(3)
Conditions subject to which an exemption may be granted include, in
particular, conditions requiring a person providing a service pursuant to the
exemption—
(a)
to comply with any direction given by Monitor about such matters as
are specified in the exemption or are of a description so specified,
40

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
95

(b)
except to the extent that Monitor otherwise approves, to do, or not to
do, such things as are specified in the exemption or are of a description
so specified (or to do, or not to do, such things in a specified manner),
and
(c)
to refer for determination by Monitor such questions arising under the
5
exemption as are specified in the exemption or are of a description so
specified.
(4)
Before making exemption regulations the Secretary of State must give
notice to—
(a)
Monitor,
10
(b)
the National Health Service Commissioning Board, and
(c)
the Care Quality Commission and its Healthwatch England committee.
(5)
The Secretary of State must also publish the notice under subsection (4).
(6)
The notice under subsection (4) must—
(a)
state that the Secretary of State proposes to make exemption
15
regulations and set out their proposed effect,
(b)
set out the Secretary of State’s reasons for the proposal, and
(c)
specify the period (“the notice period”) within which representations
with respect to the proposal may be made.
(7)
The notice period must be not less than 28 days beginning with the day after
20
that on which the notice is published under subsection (5).
(8)
Where an exemption is granted to a person, the Secretary of State—
(a)
must give the person notice of the exemption, and
(b)
must publish the exemption.
88
Exemption regulations: supplementary
25
(1)
Regulations may revoke exemption regulations by which an exemption was
granted to a person, or amend such regulations by which more than one
exemption was so granted so as to withdraw any of the exemptions—
(a)
at the person’s request,
(b)
in accordance with any provision of the exemption regulations by
30
which the exemption was granted, or
(c)
if the Secretary of State considers it to be inappropriate for the
exemption to continue to have effect.
(2)
Regulations may revoke exemption regulations by which an exemption was
granted to persons of a prescribed description, or amend such regulations by
35
which more than one exemption was so granted so as to withdraw any of the
exemptions—
(a)
in accordance with any provision of the exemption regulations by
which the exemption was granted, or
(b)
if the Secretary of State considers it to be inappropriate for the
40
exemption to continue to have effect.
(3)
The Secretary of State may by direction withdraw an exemption granted to
persons of a description prescribed in exemption regulations for any person of
that description—
(a)
at the person’s request,
45

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
96

(b)
in accordance with any provision of the exemption regulations by
which the exemption was granted, or
(c)
if the Secretary of State considers it to be inappropriate for the
exemption to continue to have effect in the case of the person.
(4)
Subsection (5) applies where the Secretary of State proposes to—
5
(a)
make regulations under subsection (1)(b) or (c) or (2), or
(b)
give a direction under subsection (3)(b) or (c).
(5)
The Secretary of State must—
(a)
consult the following about the proposal—
(i)
Monitor;
10
(ii)
the National Health Service Commissioning Board;
(iii)
the Care Quality Commission and its Healthwatch England
committee;
(b)
where the Secretary of State is proposing to make regulations under
subsection (1)(b) or (c), give notice of the proposal to the person to
15
whom the exemption was granted;
(c)
where the Secretary of State is proposing to make regulations under
subsection (2), publish the notice;
(d)
where the Secretary of State is proposing to give a direction under
subsection (3)(b) or (c), give notice of the proposal to the person from
20
whom the Secretary of State proposes to withdraw the exemption.
(6)
The notice must—
(a)
state that the Secretary of State proposes to make the regulations or give
the direction (as the case may be),
(b)
set out the Secretary of State’s reasons for the proposal, and
25
(c)
specify the period within which representations with respect to the
proposal may be made.
(7)
The period so specified must be not less than 28 days beginning with the day
after that on which the notice is received or (as the case may be) published.
Licensing procedure
30
89
Application for licence
(1)
A person seeking to hold a licence under this Chapter must make an
application to Monitor.
(2)
The application must be made in such form, and contain or be accompanied by
such information, as Monitor requires.
35
90
Licensing criteria
(1)
Monitor must set and publish the criteria which must be met by a person in
order for that person to be granted a licence under this Chapter.
(2)
Monitor may revise the criteria and, if it does so, must publish them as revised.
(3)
Before setting or revising the criteria, Monitor must obtain the approval of the
40
Secretary of State.