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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

41

 

Fees

85      

Fees

(1)   

The Commission may with the consent of the Secretary of State from time to

time make and publish provision—

(a)   

requiring a fee to be paid in respect of—

5

(i)   

an application for registration as a service provider or manager

under Chapter 2,

(ii)   

the grant or subsistence of any such registration, or

(iii)   

an application under section 19(1);

(b)   

requiring English NHS bodies, English local authorities, persons

10

registered under Chapter 2 and such other persons as may be

prescribed to pay a fee in respect of the exercise by the Commission of

such of its other functions under this Part as may be prescribed.

(2)   

The amount of a fee payable under provision under subsection (1) is to be such

as may be specified in, or calculated or determined under, the provision.

15

(3)   

Provision under subsection (1) may include provision—

(a)   

for different fees to be paid in different cases,

(b)   

for different fees to be paid by persons of different descriptions,

(c)   

for the amount of a fee to be determined by the Commission in

accordance with specified factors, and

20

(d)   

for determining the time by which a fee is to be payable.

(4)   

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

such persons as it thinks appropriate.

(5)   

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

25

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

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

with provision made under subsection (1).

(6)   

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

30

appropriate.

(7)   

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.

(8)   

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

35

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

Enforcement

86      

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

40

offence.

 
 

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

42

 

(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.

5

(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

10

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.

87      

Penalty notices: supplementary provision

15

(1)   

Regulations may make—

(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,

20

(d)   

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

(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

25

(ii)   

prohibition of the institution or continuation of proceedings for

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

30

(ii)   

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

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

35

accordance with a penalty notice, and

(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

40

different cases, including provision for the penalty payable under a

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

45

conviction.

 
 

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

43

 

(3)   

In this section—

“penalty” means a penalty under a penalty notice;

“penalty notice” has the meaning given by section 86(3).

88      

Guidance by the Commission in relation to enforcement action

(1)   

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

5

under any of the following provisions of this Part—

(a)   

section 12(5) (variation, removal or imposition of condition in relation

to registration as a service provider),

(b)   

section 15(5) (variation, removal or imposition of condition in relation

to registration as a manager),

10

(c)   

sections 17 and 18 (cancellation or suspension of registration),

(d)   

section 29 (warning notice),

(e)   

section 86 (penalty notices), and

(f)   

section 89 (publication of information).

(2)   

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

15

the circumstances in which the Commission is likely to take criminal

proceedings for the offence.

(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

20

Commission must consult—

(a)   

such persons as may be prescribed, and

(b)   

such other persons as the Commission considers appropriate.

89      

Publication of information relating to enforcement action etc.

(1)   

Regulations may authorise or require the publication by the Commission of

25

prescribed information relating to—

(a)   

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

2;

(b)   

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

penalty imposed;

30

(c)   

the variation or removal under section 12(5)(a) or 15(5)(a) of any

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

registration;

(d)   

the imposition under section 12(5)(b) or 15(5)(b) of any additional

condition;

35

(e)   

a warning notice under section 29;

(f)   

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

notice issued under section 86, and the offence to which the notice

relates.

(2)   

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

40

Commission, before publishing information relating to a warning notice under

section 29, to provide the person to whom the notice was given with an

opportunity to make representations to the Commission relating to the matters

dealt with in the notice.

 
 

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

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(3)   

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

information is to be published.

90      

Proceedings for offences

(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—

5

(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 82, the

Secretary of State.

(2)   

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

10

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

after the commission of the offence.

91      

Offences by bodies corporate

15

(1)   

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

(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,

20

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

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—

25

(a)   

to any other similar officer of the body, and

(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.

92      

Unincorporated associations

(1)   

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

30

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

(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

35

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

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.

40

(5)   

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

(a)   

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

the association or a member of its governing body, or

 
 

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

45

 

(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

liable to be proceeded against and punished accordingly.

Service of documents

5

93      

Service of documents

(1)   

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

to R—

(a)   

by being delivered personally to R,

(b)   

by being sent to R—

10

(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

document to be recorded, or

(c)   

subject to section 94, by being sent to R by an electronic communication.

15

(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

20

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 16 (regulations about

25

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

30

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 94

35

(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.

40

94      

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.

 
 

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

46

 

(2)   

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

(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

5

(b)   

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

(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

10

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

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

15

by it.

Further amendments

95      

Further amendments relating to Part 1

Schedule 5 (which contains further amendments relating to the provisions of

this Part) has effect.

20

Crown application

96      

Application of Part 1 to Crown

(1)   

Any provision made by or under Chapter 2 or 3 or this Chapter binds the

Crown, but does not affect Her Majesty in her private capacity.

(2)   

Subsection (1)—

25

(a)   

does not require regulations made under section 8 to be made so as to

apply to activities carried on by or on behalf of the Crown, and

(b)   

is to be read as if section 38(3) of the Crown Proceedings Act 1947 (c. 44)

(references to Her Majesty in her private capacity) were contained in

this Act.

30

(3)   

No contravention of any provision made by or under Chapter 2 or 3 or this

Chapter is to make the Crown criminally liable; but the High Court may

declare unlawful any act or omission of the Crown which constitutes such a

contravention.

(4)   

The provisions of Chapters 2 and 3 and this Chapter apply to persons in the

35

public service of the Crown as they apply to other persons.

(5)   

If the Secretary of State certifies that it appears to the Secretary of State requisite

or expedient in the interests of national security that the powers of entry and

inspection conferred by sections 62 and 63

(a)   

should not be exercisable in relation to any premises which are used by

40

or on behalf of the Crown and are specified in the certificate, or

 
 

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

47

 

(b)   

should not be exercisable in relation to any premises which are so used

and are specified in the certificate, except in circumstances specified in

the certificate,

   

those powers are not exercisable in relation to those premises or (as the case

may be) are not exercisable in relation to those premises except in those

5

circumstances.

   

Interpretation

97      

General interpretation of Part 1

(1)   

In this Part—

10

“adult social services” means—

(a)   

services which are provided or commissioned by an English

local authority in the exercise of its adult social services

functions, and

(b)   

services which are provided or commissioned by an English

15

local authority under section 2(1)(b) of the Local Government

Act 2000 (c. 22) and which are similar in nature to a service

which could be provided by the authority in the exercise of any

of its adult social services functions;

“adult social services functions” means social services functions (within

20

the meaning of the Local Authority Social Services Act 1970 (c. 42)) so

far as relating to persons aged 18 or over, excluding any function to

which Chapter 4 of Part 8 of the Education and Inspections Act 2006

(c. 40) applies;

“the Commission” means the Care Quality Commission;

25

“cross-border Special Health Authority” means a Special Health

Authority not performing functions only or mainly in respect of

England or only or mainly in respect of Wales;

“enactment” includes an enactment comprised in subordinate legislation

(within the meaning of the Interpretation Act 1978 (c. 30));

30

“English local authority” means—

(a)   

a county council in England,

(b)   

a metropolitan district council,

(c)   

a non-metropolitan district council for an area for which there is

no county council,

35

(d)   

a London borough council,

(e)   

the Common Council of the City of London, or

(f)   

the Council of the Isles of Scilly;

“English NHS body” means—

(a)   

a Primary Care Trust,

40

(b)   

a Strategic Health Authority,

(c)   

a National Health Service trust all or most of whose hospitals,

establishments and facilities are situated in England,

(d)   

an NHS foundation trust, or

(e)   

a Special Health Authority performing functions only or mainly

45

in respect of England;

“English NHS provider” means—

 
 

 
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