Health and Social Care Bill

Session 2010 - 11
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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 4 — Licensing
97

91
Grant or refusal of licence
(1)
This section applies where an application for a licence has been made under
section 89.
(2)
If Monitor is satisfied that the applicant meets the criteria for holding a licence
for the time being published under section 90 it must as soon as reasonably
5
practicable grant the application; otherwise it must refuse it.
(3)
On granting the application, Monitor must issue a licence to the applicant.
(4)
A licence issued under this section is subject to—
(a)
such of the standard conditions (see section 98) as are applicable to the
licence,
10
(b)
such other conditions included in the licence by virtue of section 99
(referred to in this Chapter as “the special conditions”), and
(c)
any conditions included in the licence by virtue of section 113
(imposition of licence conditions on designated NHS foundation
trusts).
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92
Application and grant: NHS foundation trusts
(1)
This section applies where an NHS trust becomes an NHS foundation trust
pursuant to section 36 of the National Health Service Act 2006 (effect of
authorisation of NHS foundation trust).
(2)
The NHS foundation trust is to be treated by Monitor as having—
20
(a)
duly made an application for a licence under section 89, and
(b)
met the criteria for holding a licence for the time being published under
section 90.
(3)
An NHS foundation trust in existence on the day on which this section comes
into force is to be treated for the purposes of this section as having become an
25
NHS foundation trust pursuant to section 36 of the National Health Service Act
2006 on that day.
93
Revocation of licence
Monitor may at any time revoke a licence under this Chapter—
(a)
on the application of the licence holder, or
30
(b)
if Monitor is satisfied that the licence holder has failed to comply with
a condition of the licence.
94
Right to make representations
(1)
Monitor must give notice—
(a)
to an applicant for a licence under this Chapter of a proposal to refuse
35
the application;
(b)
to the licence holder of a proposal to revoke a licence under
section 93(b).
(2)
A notice under this section must—
(a)
set out Monitor’s reasons for its proposal;
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(b)
specify the period within which representations with respect to the
proposal may be made to Monitor.

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
98

(3)
The period so specified must be not less than 28 days beginning with the day
after that on which the notice is received.
95
Notice of decisions
(1)
This section applies if Monitor decides to—
(a)
refuse an application for a licence under section 91, or
5
(b)
revoke a licence under section 93(b).
(2)
Monitor must give notice of its decision to the applicant or the licence holder
(as the case may be).
(3)
A notice under this section must explain the right of appeal conferred by
section 96.
10
(4)
A decision of Monitor to revoke a licence under section 93(b) takes effect on
such day as may be specified by Monitor, being a day no earlier than—
(a)
if an appeal is brought under section 96, the day on which the decision
on the appeal is confirmed or the appeal is abandoned,
(b)
where the licence holder notifies Monitor before the end of the period
15
for bringing an appeal under section 96 that the licence holder does not
intend to appeal, the day on which Monitor receives the notification, or
(c)
the day after the end of that period.
96
Appeals to the Tribunal
(1)
An appeal lies to the First-tier Tribunal against a decision of Monitor to—
20
(a)
refuse an application for a licence under section 91, or
(b)
revoke a licence under section 93(b).
(2)
The grounds for an appeal under this section are that the decision was—
(a)
based on an error of fact,
(b)
wrong in law, or
25
(c)
unreasonable.
(3)
On an appeal under this section, the First-tier Tribunal may—
(a)
confirm Monitor’s decision,
(b)
direct that the decision is not to have effect, or
(c)
remit the decision to Monitor.
30
97
Register of licence holders
(1)
Monitor must maintain and publish a register of licence holders.
(2)
The register may contain such information as Monitor considers appropriate
for the purpose of keeping members of the public informed about licence
holders including, in particular, information about the revocation of any
35
licence under this Chapter.
(3)
Monitor must secure that copies of the register are available at its offices for
inspection at all reasonable times by any person.
(4)
Any person who asks Monitor for a copy of, or an extract from, the register is
entitled to have one.
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Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
99

(5)
Regulations may provide that subsections (3) and (4) do not apply—
(a)
in such circumstances as may be prescribed, or
(b)
to such parts of the register as may be prescribed.
(6)
A fee determined by Monitor is payable for the copy or extract except—
(a)
in such circumstances as may be prescribed, or
5
(b)
in any case where Monitor considers it appropriate to provide the copy
or extract free of charge.
Licence conditions
98
Standard conditions
(1)
Monitor must determine and publish the conditions to be included in each
10
licence under this Chapter (referred to in this Chapter as “the standard
conditions”).
(2)
Different standard conditions may be determined for different descriptions of
licences.
(3)
For the purposes of subsection (2) a description of licences may in particular be
15
framed wholly or partly by reference to—
(a)
the nature of the licence holder,
(b)
the services provided under the licence, or
(c)
the areas in which those services are provided.
(4)
But different standard conditions must not be determined for different
20
descriptions of licences to the extent that the description is framed by reference
to the nature of the licence holder unless Monitor considers that at least one of
requirements 1 and 2 is met.
(5)
Requirement 1 is that—
(a)
the standard conditions in question relate to the governance of licence
25
holders, and
(b)
it is necessary to determine different standard conditions in order to
take account of differences in the status of different licence holders.
(6)
Requirement 2 is that it is necessary to determine different standard conditions
for the purpose of ensuring that the burdens to which different licence holders
30
are subject as a result of holding a licence are broadly consistent.
(7)
Before determining the first set of the standard conditions Monitor must
consult the persons mentioned in subsection (8) on the conditions it is
proposing to determine (“the draft standard conditions”).
(8)
Those persons are—
35
(a)
the Secretary of State,
(b)
the National Health Service Commissioning Board,
(c)
every commissioning consortium,
(d)
the Care Quality Commission and its Healthwatch England committee,
and
40
(e)
such other persons as are likely to be affected by the inclusion of the
conditions in licences under this Chapter as Monitor considers
appropriate.

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
100

(9)
Monitor must also publish the draft standard conditions.
(10)
The Secretary of State may direct Monitor not to determine that the standard
conditions will be the draft standard conditions.
99
Special conditions
(1)
Monitor may—
5
(a)
with the consent of the applicant, include a special condition in a
licence under this Chapter, and
(b)
with the consent of the licence holder, modify a special condition of a
licence.
(2)
Before including a special condition or making such modifications Monitor
10
must give notice to—
(a)
the applicant or the licence holder (as the case may be),
(b)
the Secretary of State,
(c)
the National Health Service Commissioning Board,
(d)
such commissioning consortia as are likely to be affected by the
15
proposed inclusion or modifications, and
(e)
the Care Quality Commission and its Healthwatch England committee.
(3)
Monitor must also publish the notice under subsection (2).
(4)
The notice under subsection (2) must—
(a)
state that Monitor proposes to include the special condition or make the
20
modifications and set out its or their proposed effect,
(b)
set out Monitor’s reasons for the proposal, and
(c)
specify the period (“the notice period”) within which representations
with respect to the proposal may be made to Monitor.
(5)
The notice period must be not less than 28 days beginning with the day after
25
that on which the notice is published under subsection (3).
(6)
In this section, a reference to modifying a condition includes a reference to
amending, omitting or adding a condition.
100
Limits on Monitor’s functions to set or modify licence conditions
(1)
This section applies to the following functions of Monitor—
30
(a)
the duty to determine the standard conditions to be included in each
licence under this Chapter or in licences of a particular description (see
section 98),
(b)
the powers to include a special condition in a licence and to modify
such a condition (see section 99),
35
(c)
the power to modify the standard conditions applicable to all licences,
or to licences of a particular description (see section 102).
(2)
Monitor may only exercise a function to which this section applies—
(a)
for the purpose of regulating the price payable for the provision of
health care services for the purposes of the NHS;
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(b)
for the purpose of promoting competition in the provision of health
care services for those purposes;

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
101

(c)
for the purpose of protecting and promoting the right of patients to
make choices with respect to treatment or other health care services;
(d)
for the purpose of ensuring the continued provision of designated
services;
(e)
for purposes connected with the governance of persons providing
5
health care services for the purposes of the NHS;
(f)
for purposes connected with Monitor’s functions in relation to the
register of NHS foundation trusts required to be maintained under
section 39 of the National Health Service Act 2006;
(g)
for purposes connected with the operation of the licensing regime
10
established by this Chapter;
(h)
for such purposes as may be prescribed for the purpose of enabling
Monitor to discharge its duties under section 56.
(3)
Monitor must not exercise a function to which this section applies in a way
which it considers would result in a particular licence holder or holders of
15
licences of a particular description being put at an unfair advantage or
disadvantage in competing with others in the provision of health care services
for the purposes of the NHS as a result of—
(a)
being in public or (as the case may be) private ownership, or
(b)
some other aspect of its or their status.
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101
Conditions: supplementary
(1)
The standard or special conditions of a licence under this Chapter may in
particular include conditions—
(a)
requiring the licence holder to pay to Monitor such fees of such
amounts as Monitor may determine in respect of the exercise by
25
Monitor of its functions under this Chapter,
(b)
requiring the licence holder to comply with any requirement imposed
on it by Monitor under Chapter 7 (financial assistance in health special
administration cases),
(c)
requiring the licence holder to do, or not to do, specified things or
30
things of a specified description (or to do, or not to do, any such things
in a specified manner) within such period as may be specified in order
to promote competition in the provision of health care services for the
purposes of the NHS,
(d)
requiring the licence holder to give notice to the Office of Fair Trading
35
before entering into an arrangement under which, or a transaction in
consequence of which, the licence holder’s activities, and the activities
of one or more other businesses, cease to be distinct activities,
(e)
requiring the licence holder to provide Monitor with such information
as Monitor considers necessary for the purposes of the exercise of its
40
functions under this Part,
(f)
requiring the licence holder to publish such information as may be
specified or as Monitor may direct,
(g)
requiring the licence holder to charge for the provision of health care
services for the purposes of the NHS in accordance with the national
45
tariff (see section 115),
(h)
requiring the licence holder to comply with other rules published by
Monitor about the charging for the provision of health care services for
the purposes of the NHS,
(i)
requiring the licence holder—
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Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
102

(i)
to do, or not to do, specified things or things of a specified
description (or to do, or not to do, any such things in a specified
manner) within such period as may be specified in order to
ensure the continued provision of designated services,
(ii)
to give Monitor notice (of such period as may be determined by
5
or under the licence) of the licence holder’s intention to cease
providing a designated service, and
(iii)
if Monitor so directs, to continue providing that service for a
period determined by Monitor,
(j)
about the use or disposal by the licence holder of assets used in the
10
provision of designated services, and
(k)
about the making by the licence holder of investment in relation to the
provision of designated services.
(2)
In subsection (1) “specified” means specified in a condition.
(3)
Subsection (4) applies where Monitor includes a condition under subsection
15
(1)(c) that requires the licence holder (A), when directed to do so by Monitor,
to provide another licence holder (B) with access to a service which A uses in
providing health care services for the purposes of the NHS.
(4)
In deciding whether to give a licence holder a direction in reliance on that
condition, Monitor must have regard to—
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(a)
the practicability of B installing a comparable service,
(b)
the practicability of A providing the proposed access,
(c)
the investment that A has made in order to put itself in a position to use
the service, and
(d)
the need to secure effective long-term competition in the provision of
25
health care services for the purposes of the NHS.
(5)
A condition under subsection (1)(d)—
(a)
may be included only in the licence of an NHS foundation trust or a
body which (or part of which) used to be an NHS trust established
under section 25 of the National Health Service Act 2006, and
30
(b)
ceases to have effect at the end of the period of five years beginning
with the day on which it is included in the licence.
(6)
The references in subsection (1)(d) to the activities of a licence holder or other
business include a reference to part of the activities concerned.
(7)
The references in subsections (1)(d) and (6) to the activities of a business
35
include a reference to the activities of an NHS foundation trust in so far as its
activities would not otherwise be the activities of a business.
(8)
A condition of a licence under this Chapter may provide that it is to have effect,
or cease to have effect, at such times and in such circumstances as may be
determined by or under the conditions.
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102
Modification of standard conditions
(1)
Monitor may, subject to the requirements of this section, modify the standard
conditions applicable to all licences under this Chapter or to licences of a
particular description.
(2)
Before making any such modifications Monitor must give notice to—
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(a)
each relevant licence holder,

Health and Social Care Bill
Part 3 — Economic regulation of health and adult social care services
Chapter 4 — Licensing
103

(b)
the Secretary of State,
(c)
the National Health Service Commissioning Board,
(d)
every commissioning consortium, and
(e)
the Care Quality Commission and its Healthwatch England committee.
(3)
Monitor must also publish the notice under subsection (2).
5
(4)
The notice under subsection (2) must—
(a)
state that Monitor proposes to make the modifications,
(b)
set out the proposed effect of the modifications,
(c)
set out Monitor’s reasons for the proposal, and
(d)
specify the period (“the notice period”) within which representations
10
with respect to the proposal may be made to Monitor.
(5)
The notice period must be not less than 28 days beginning with the day after
that on which the notice is published under subsection (3).
(6)
Monitor may not make any modifications under this section unless—
(a)
no relevant licence holder has made an objection to Monitor about the
15
proposal within the notice period, or
(b)
subsection (7) applies to the case.
(7)
This subsection applies where—
(a)
one or more relevant licence holders make an objection to Monitor
about the proposal within the notice period,
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(b)
the objection percentage is less than the percentage prescribed for the
purposes of this paragraph, and
(c)
the share of supply percentage is less than the percentage prescribed for
the purposes of this paragraph.
(8)
In subsection (7)—
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(a)
the “objection percentage” is the proportion (expressed as a percentage)
of the relevant licence holders who objected to the proposals;
(b)
the “share of supply percentage” is the proportion (expressed as a
percentage) of the relevant licence holders who objected to the
proposals, weighted according to their share of the supply in England
30
of such services as may be prescribed.
(9)
Regulations prescribing a percentage for the purposes of subsection (7)(c) may
include provision prescribing the method to be used for determining a licence
holder’s share of the supply in England of the services concerned.
(10)
Where Monitor modifies the standard conditions applicable to all licences or
35
(as the case may be) to licences of a particular description under this section,
Monitor—
(a)
may also make such incidental or consequential modifications as it
considers necessary or expedient of any other conditions of a licence
which is affected by the modifications,
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(b)
must make (as nearly as may be) the same modifications of those
conditions for the purposes of their inclusion in all licences or (as the
case may be) licences of that description granted after that time, and
(c)
must publish the modifications.
(11)
In this section and section 103, “relevant licence holder”—
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