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Health and Social Care Bill


Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General

40

 

(4)   

Before making provision under subsection (1) the Commission must consult

such persons as it thinks appropriate.

(5)   

The Secretary of State may by regulations make provision as to—

(a)   

the manner in which provision under subsection (1) is to be made and

published;

5

(b)   

the matters to be taken into account by the Commission before making

provision under that subsection.

(6)   

If the Secretary of State considers it necessary or desirable to do so, the

Secretary of State may by regulations make provision determining the amount

of a fee payable to the Commission by virtue of this section, and the time at

10

which it is payable, instead of those matters being determined in accordance

with provision made under subsection (1).

(7)   

Before making any regulations under this section, the Secretary of State must

consult the Commission and such other persons as the Secretary of State thinks

appropriate.

15

(8)   

For the purpose of determining the fee payable by a person by virtue of this

section, the person must provide the Commission with such information, in

such form, as the Commission may require.

(9)   

A fee payable by virtue of this section may, without prejudice to any other

method of recovery, be recovered summarily as a civil debt.

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Enforcement

82      

Penalty notices

(1)   

Where the Commission is satisfied that a person has committed a fixed penalty

offence, the Commission may give the person a penalty notice in respect of the

offence.

25

(2)   

A fixed penalty offence is any Part 1 offence that is prescribed for the purposes

of this section.

(3)   

A penalty notice is a notice offering the person the opportunity of discharging

any liability to conviction for the offence to which the notice relates by payment

of a penalty in accordance with the notice.

30

(4)   

Where a person is given a penalty notice, proceedings for the offence to which

the notice relates may not be instituted before the end of such period as may be

prescribed.

(5)   

Where a person is given a penalty notice, the person cannot be convicted of the

offence to which the notice relates if the person pays a penalty in accordance

35

with the notice.

(6)   

Penalties under this section are payable to the Commission.

(7)   

Penalties received by the Commission under this section must be paid to the

Secretary of State.

83      

Penalty notices: supplementary provision

40

(1)   

Regulations may make—

 
 

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General

41

 

(a)   

provision as to the form and content of penalty notices,

(b)   

provision as to the monetary amount of the penalty and the time by

which it is to be paid,

(c)   

provision determining the methods by which penalties may be paid,

(d)   

provision as to the records to be kept in relation to penalty notices,

5

(e)   

provision for or in connection with the withdrawal, in prescribed

circumstances, of a penalty notice, including—

(i)   

repayment of any amount paid by way of penalty under a

penalty notice which is withdrawn, and

(ii)   

prohibition of the institution or continuation of proceedings for

10

the offence to which the withdrawn notice relates,

(f)   

provision for a certificate—

(i)   

purporting to be signed by or on behalf of a prescribed person,

and

(ii)   

stating that payment of any amount paid by way of penalty was

15

or, as the case may be, was not received on or before a date

specified in the certificate,

   

to be received in evidence of the matters so stated,

(g)   

provision as to the action to be taken if a penalty is not paid in

accordance with a penalty notice, and

20

(h)   

such other provision in relation to penalties or penalty notices as the

Secretary of State thinks necessary or expedient.

(2)   

Regulations under subsection (1)(b)—

(a)   

may make provision for penalties of different amounts to be payable in

different cases, including provision for the penalty payable under a

25

penalty notice to differ according to the time by which it is paid, but

(b)   

must secure that the amount of any penalty payable in respect of any

offence does not exceed one half of the maximum amount of the fine to

which a person committing the offence would be liable on summary

conviction.

30

(3)   

In this section—

“penalty” means a penalty under a penalty notice;

“penalty notice” has the meaning given by section 82(3).

84      

Guidance by the Commission in relation to enforcement action

(1)   

The Commission must issue guidance about how it will exercise its functions

35

under any of the following provisions of this Part—

(a)   

section 8(5) (variation, removal or imposition of condition in relation to

registration as a service provider),

(b)   

section 11(5) (variation, removal or imposition of condition in relation

to registration as a manager),

40

(c)   

sections 13 and 14 (cancellation or suspension of registration),

(d)   

section 25 (warning notice),

(e)   

section 82 (penalty notices), and

(f)   

section 85 (publication of information).

(2)   

The guidance may also include guidance, in relation to any Part 1 offence, as to

45

the circumstances in which the Commission is likely to take criminal

proceedings for the offence.

 
 

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General

42

 

(3)   

The Commission may from time to time revise guidance published by it under

this section and issue the revised guidance.

(4)   

Before issuing any guidance or revised guidance under this section, the

Commission must consult—

(a)   

such persons as may be prescribed, and

5

(b)   

such other persons as the Commission considers appropriate.

85      

Publication of information relating to enforcement action etc.

(1)   

Regulations may authorise or require the publication by the Commission of

prescribed information relating to—

(a)   

the cancellation or suspension of a person’s registration under Chapter

10

2;

(b)   

the conviction of any person in respect of a Part 1 offence and the

penalty imposed;

(c)   

the variation or removal under section 8(5)(a) or 11(5)(a) of any

condition for the time being in force in relation to a person’s

15

registration;

(d)   

the imposition under section 8(5)(b) or 11(5)(b) of any additional

condition;

(e)   

a warning notice under section 25;

(f)   

the payment by any person of a penalty in accordance with a penalty

20

notice issued under section 82, and the offence to which the notice

relates.

(2)   

Any regulations made by virtue of subsection (1)(e) must require the

Commission, before publishing information relating to a warning notice under

section 25, to provide the person to whom the notice was given with an

25

opportunity to make representations to the Commission relating to the matters

dealt with in the notice.

(3)   

The regulations may prescribe the time when, and manner in which, any

information is to be published.

86      

Proceedings for offences

30

(1)   

Proceedings in respect of a Part 1 offence may not, without the written consent

of the Attorney General, be taken by any person other than—

(a)   

the Commission, or

(b)   

in relation to any functions of the Commission which the Secretary of

State is for the time being discharging by virtue of section 78, the

35

Secretary of State.

(2)   

Proceedings for a Part 1 offence may be brought within a period of 12 months

from the date on which evidence sufficient in the opinion of the prosecutor to

warrant the proceedings came to the prosecutor’s knowledge; but no such

proceedings are to be brought by virtue of this subsection more than 3 years

40

after the commission of the offence.

87      

Offences by bodies corporate

(1)   

This section applies where a Part 1 offence is committed by a body corporate.

 
 

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General

43

 

(2)   

If the offence is proved to have been committed by, or with the consent or

connivance of, or to be attributable to any neglect on the part of—

(a)   

any director, manager or secretary of the body corporate, or

(b)   

any person who was purporting to act in any such capacity,

that director, manager, secretary or person purporting to act as such (as well as

5

the body corporate) is guilty of the offence and liable to be proceeded against

and punished accordingly.

(3)   

The reference in subsection (2) to a director, manager or secretary of a body

corporate includes a reference—

(a)   

to any other similar officer of the body, and

10

(b)   

where the body is an English NHS body or English local authority, to

any officer or member of the NHS body or local authority.

88      

Unincorporated associations

(1)   

Proceedings for a Part 1 offence alleged to have been committed by an

unincorporated association are to be brought in the name of the association

15

(and not in that of any of the members).

(2)   

Rules of court relating to the service of documents have effect as if the

unincorporated association were a body corporate.

(3)   

In proceedings for a Part 1 offence brought against an unincorporated

association, section 33 of the Criminal Justice Act 1925 (c. 86) and Schedule 3 to

20

the Magistrates’ Courts Act 1980 (c. 43) apply as they apply in relation to a

body corporate.

(4)   

A fine imposed on an unincorporated association on its conviction for a Part 1

offence is to be paid out of the funds of the association.

(5)   

If a Part 1 offence committed by an unincorporated association is proved—

25

(a)   

to have been committed with the consent or connivance of an officer of

the association or a member of its governing body, or

(b)   

to be attributable to any neglect on the part of such an officer or

member,

   

the officer or member (as well as the association) is guilty of the offence and

30

liable to be proceeded against and punished accordingly.

Service of documents

89      

Service of documents

(1)   

Any notice required under this Part to be given to a person (“R”) may be given

to R—

35

(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

Postal Services Act 2000 (c. 26), or

(ii)   

by a postal service which provides for the delivery of the

40

document to be recorded, or

(c)   

subject to section 90, by being sent to R by an electronic communication.

 
 

Health and Social Care Bill
Part 1 — The Care Quality Commission
Chapter 6 — Miscellaneous and General

44

 

(2)   

Where a notice is given 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.

(3)   

Any notice required under this Part to be given to a body corporate or firm is

duly given if it is given to the secretary or clerk of that body or a partner of that

5

firm.

(4)   

For the purposes of section 7 of the Interpretation Act 1978 (c. 30) in its

application to this section, the proper address of a person is—

(a)   

in the case of a person registered under Chapter 2 who has notified the

Commission under regulations under section 12 (regulations about

10

registration) of an address for service, that address, and

(b)   

in any other case, the address determined in accordance with

subsection (5).

(5)   

That address is—

(a)   

in the case of a secretary or clerk of a body corporate, the address of the

15

registered or principal office of the body,

(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.

(6)   

In this section and in section 90

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(a)   

“electronic communication” has the same meaning as in the Electronic

Communications Act 2000 (c. 7),

(b)   

“notice” includes any other document, and

(c)   

a reference to a notice being given by or to a person includes a reference

to a notice being served by or on a person.

25

90      

Electronic communications

(1)   

If a notice required or authorised under this Part to be given by or to a person

is sent by an electronic communication, it is to be treated as given only if the

requirements of subsection (2) or (3) are met.

(2)   

If the person required or authorised to give the notice is the Commission—

30

(a)   

the person to whom the notice is required or authorised to be given

must have indicated to the Commission the person’s willingness to

receive notices by an electronic communication and provided an

address suitable for that purpose, and

(b)   

the notice must be sent to the address provided by that person.

35

(3)   

If the person required or authorised to give the notice is not the Commission,

the notice must be sent in such manner as the Commission 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 by the

Commission under this Part or may be limited to notices of a particular

40

description.

(5)   

A requirement imposed by the Commission under subsection (3) must be

published in such manner as the Commission thinks appropriate for the

purpose of bringing it to the attention of persons who are likely to be affected

by it.

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