The Health and Personal Social Services (Northern Ireland) Order 1991

[F1Health and Social Care trusts]N.I.

[F2Health and Social Care trusts]N.I.

10.—[F3(1) Subject to paragraph (2), the Department may by order establish bodies, to be known as [F2Health and Social Care trusts] (in this Order referred to as [F4HSC trusts])—

(a)to provide goods and services for the purposes of the health and [F5social care]; F6...

[F7(b)to exercise social care and children functions (see Article 10A); or

(c)to exercise, on behalf of the Department, such functions as the Department may direct under Article 10B.]

[F8(2) Before making an order under paragraph (1), the Department shall consult—

(a)the Patient and Client Council, and

(b)such other persons and bodies as the Department considers appropriate.]]

(3) In F9...Articles 11 to 13 and Schedule 3 “a relevant body” means—

F10[F11(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(aa)the Regional Agency;

(b)RBSO; or]

(c)a special agency.

(4) Every [F12HSC trust]—

(a)shall be a body corporate having a board of directors consisting of a chairman appointed by the Department and, subject to paragraph 5(2) of Schedule 3, executive and non-executive directors (that is to say, directors who, subject to paragraph (6), respectively are and are not employees of the trust);

(b)shall have the functions conferred on it by an order under paragraph (1) and by Schedule 3; and

(c)shall be a body to which section 19 of the Interpretation Act (Northern Ireland) 1954F13 applies.

[F3(5) The functions which may be specified in an order under paragraph (1) include a duty to provide goods or services so specified at or from a hospital or other establishment or facility so specified.]

[F14(5A) The functions of an [F12HSC trust] also include power to provide services in accordance with arrangements made under Article 15B of the principal Order, and to do so as a member of a qualifying body (within the meaning of Article 15C of that Order).]

(6) The Department may by regulations make general provision with respect to—

(a)the qualifications for and the tenure of office of the chairman and directors of an [F12HSC trust] (including the circumstances in which they shall cease to hold, or may be removed from, office or may be suspended from performing the functions of the office);

(b)the persons by whom the directors and any of the officers are to be appointed and the manner of their appointment;

(c)the maximum and minimum numbers of the directors;

(d)the circumstances in which a person who is not an employee of the trust is nevertheless, on appointment as a director, to be regarded as an executive rather than a non-executive director;

(e)the proceedings of the trust (including the validation of proceedings in the event of a vacancy or defect in appointment); and

(f)the appointment, constitution and exercise of functions by committees and sub-committees of the trust (whether or not consisting of or including any members of the board);

and, without prejudice to the generality of the power, any such regulations may make provision to deal with cases where the post of any officer of an [F12HSC trust] is held jointly by two or more persons or where the functions of such an officer are in any other way performed by more than one person.

(7) Part I of Schedule 3 shall have effect with respect to orders under paragraph (1); Part II of that Schedule shall have effect, subject to paragraph (8), with respect to the general duties and the powers and status of [F4HSC trusts]; the supplementary provisions of Part III of that Schedule shall have effect; and Part IV of that Schedule shall have effect with respect to the dissolution of [F4HSC trusts].

[F3(8) A power conferred by paragraph 14 or 15 of Part II of Schedule 3 may only be exercised—

(a)to the extent that its exercise does not to any significant extent interfere with the performance by the [F12HSC trust] of its functions or of its obligations under [F15HSC contracts]; and

(b)in circumstances specified in directions under paragraph 6 of that Schedule, with the consent of the Department.]

(9) The Department may by order confer on [F4HSC trusts] specific powers additional to those contained in paragraphs 10 to 15 of Schedule 3.

[F16Definition of social care and children functions”N.I.

10A.—(1) In Article 10 and Schedule 3 “social care and children functions” means the following functions (so far as they are exercisable by HSC trusts under the provisions conferring them)—

(a)functions under sections 35 and 96 of the Children and Young Persons Act (Northern Ireland) 1968;

(b)functions under Articles 15, 36, 37, 38, 39, 99, 101 and 101A of, and Schedule 6 to, the Health and Personal Social Services (Northern Ireland) Order 1972;

(c)functions under sections 1(2), 2 and 12(1) of the Chronically Sick and Disabled Persons (Northern Ireland) Act 1978;

(d)functions under the Mental Health (Northern Ireland) Order 1986;

(e)functions under the Adoption (Northern Ireland) Order 1987;

(f)functions under sections 4 to 9 of the Disabled Persons (Northern Ireland) Act 1989;

(g)functions under the Children (Northern Ireland) Order 1995;

(h)the function of making or submitting pre-sentence reports within the meaning of Article 2(2) of the Criminal Justice (Northern Ireland) Order 1996 or Article 4(1) of the Criminal Justice (Northern Ireland) Order 2008;

(i)functions under the Carers and Direct Payments Act (Northern Ireland) 2002;

(j)functions under the Mental Capacity Act (Northern Ireland) 2016.

(2) The Department may by regulations amend the list of social care and children functions set out in paragraph (1).]

[F17Certain functions of the Department to be exercisable on its behalf by HSC trustsN.I.

10B.—(1) The Department may by direction provide for specified functions of the Department to be exercisable, in relation to the operational area of a specified HSC trust, by that trust on behalf of the Department.

(2) In this Article—

“delegation direction” means a direction under paragraph (1);

“specified” means specified in a delegation direction.

(3) A delegation direction comes into operation on such date as may be specified.

(4) A delegation direction may contain such transitional provisions as the Department thinks appropriate, including in particular provisions—

(a)for specified acts done by or in relation to the Department or an HSC trust at any time before the direction comes into operation to have effect after that time for specified purposes as if done by or in relation to the other of them;

(b)for any reference to the Department or an HSC trust in any statutory provision, statutory document (within the meaning of section 1(e) of the Interpretation Act (Northern Ireland) 1954) or order or direction of a court to have effect for specified purposes as a reference to the other of them;

and any such transitional provisions have effect, for those purposes, in relation to such acts, statutory provisions, statutory documents, orders or directions.

(5) An HSC trust is—

(a)entitled to enforce any rights acquired in the exercise of any delegated functions, and

(b)liable in respect of any liabilities incurred (including any liabilities in tort) in the exercise of any delegated functions,

in all respects as if it were acting as a principal; and all proceedings for the enforcement of such rights or liabilities are to be brought by or against the trust in its own name.

(6) In paragraph (5) “delegated functions” means functions exercised by the trust by virtue of a delegation direction.

(7) References in any other statutory provision to functions of an HSC trust include references to functions exercisable by an HSC trust on behalf of the Department by virtue of a delegation direction.

(8) The Department may by regulations make such amendments to any statutory provision as appear to the Department to be necessary or expedient to facilitate, or to be otherwise consequential on, the exercise by HSC trusts of functions of the Department by virtue of delegation directions.]

Transfer of staff to [F18HSC trusts]N.I.

11.—(1) Subject to paragraph (5), this Article applies to any person who, immediately before an [F18HSC trust's] operational date—

(a)is employed by a relevant body to work solely at, or for the purposes of, a hospital or other establishment or facility which is to become the responsibility of the trust; or

(b)is employed by a relevant body to work at, or for the purposes of, such a hospital, establishment or facility and is designated for the purposes of this Article by a scheme made by the relevant body specified as mentioned in paragraph 3(1)(f) of Schedule 3.

(2) A scheme under this Article shall not have effect unless approved by the Department.

(3) Subject to Article 12, the contract of employment between a person to whom this Article applies and the relevant body by which he is employed shall have effect from the operational date as if originally made between him and the [F19HSC trust].

(4) Without prejudice to paragraph (3)—

(a)all the relevant body's rights, powers, duties and liabilities under or in connection with a contract to which that paragraph applies shall by virtue of this Article be transferred to the [F19HSC trust] on its operational date; and

(b)anything done before that date by or in relation to the relevant body in respect of that contract or the employee shall be deemed from that date to have been done by or in relation to the [F19HSC trust].

(5) In any case where—

(a)an order under Article 10(1) provides for the establishment of an [F19HSC trust] with effect from a date earlier than the operational date of the trust, and

(b)on or after that earlier date but before its operational date the [F19HSC trust] makes an offer of employment by the trust to a person who at that time is employed by a relevant body to work (whether solely or otherwise) at, or for the purposes of, the hospital or other establishment or facility which is to become the responsibility of the trust, and

(c)as a result of the acceptance of the offer, the person to whom it was made becomes an employee of the [F19HSC trust],

paragraphs (3) and (4) shall have effect in relation to that person's contract of employment as if he were a person to whom this Article applies and any reference in those paragraphs to the operational date of the trust were a reference to the date on which he takes up employment with the trust.

(6) Paragraphs (3) and (4) are without prejudice to any right of an employee to terminate his contract of employment if a substantial change is made to his detriment in his working conditions; but no such right shall arise by reason only of the change in employer effected by this Article.

(7) A scheme under this Article may designate a person either individually or as a member of a class or description of employees.

Supplementary provisions as to transfer of staffN.I.

12.—(1) In the case of a person who falls within Article 11(1)(b), a scheme under that Article may provide that, with effect from the [F20HSC trust's] operational date, his contract of employment (in this Article referred to as “his original contract”) shall be treated in accordance with the scheme as divided so as to constitute—

(a)a contract of employment with the [F21HSC trust]; and

(b)a contract of employment with the relevant body by which he was employed before that date.

(2) Where a scheme makes provision as mentioned in paragraph (1),—

(a)the scheme shall secure that the benefits to the employee under the two contracts referred to in that paragraph, when taken together, are not less favourable than the benefits under his original contract;

(b)Article 11 shall apply in relation to the contract referred to in paragraph (1)(a) as if it were a contract transferred under that Article from the relevant body mentioned in paragraph (1)(b) to the [F21HSC trust];

(c)so far as necessary to preserve any rights and obligations, the contract referred to in paragraph (1)(b) shall be regarded as a continuation of the employee's original contract; and

(4) Where, as a result of the provisions of Article 11, by virtue of his employment during any period after the operational date of the [F21HSC trust],—

(a)an employee has contractual rights against an [F21HSC trust] to benefits in the event of his redundancy, and

(b)he also has statutory rights against the trust under[F22 Part XII of the Employment Rights (Northern Ireland) Order 1996] (redundancy payments),

any benefits provided to him by virtue of the contractual rights referred to in sub-paragraph (a) shall be taken as satisfying his entitlement to benefits under the said[F22 Part].

Transfer of assets and liabilities to [F23HSC trusts]N.I.

13.—(1) The Department may by order transfer or provide for the transfer to an [F24HSC trust], with effect from such date as may be specified in the order, of such of the assets and liabilities of the Department or of a relevant body as, in the Department's opinion, need to be transferred to the trust for the purpose of enabling it to carry out its functions.

(2) An order under this Article may create or impose such new rights or liabilities in respect of what is transferred or what is retained by the Department or a relevant body as appear to the Department to be necessary or expedient.

(3) Nothing in this Article affects the power of the Department or any power of a relevant body to transfer assets or liabilities to an [F24HSC trust] otherwise than under paragraph (1).

(4) Stamp duty shall not be chargeable in respect of any transfer to an [F24HSC trust] effected by or by virtue of an order under this Article.

(5) Where an order under this Article provides for the transfer—

(a)of land held on lease from a third party, or

(b)of any other asset leased or hired from a third party or in which a third party has an interest,

the transfer shall be binding on the third party notwithstanding that, apart from this paragraph, it would have required his consent or concurrence.

(6) Any assets and liabilities which are to be transferred to an [F24HSC trust] shall be identified by agreement between the trust and a relevant body or, in default of agreement, by direction of the Department.

(7) Where, for the purpose of a transfer pursuant to an order under this Article, it becomes necessary to apportion any assets or liabilities, the order may contain such provisions as appear to the Department to be appropriate for the purpose; and where any such assets fall within paragraph (5), the order shall contain such provisions as appear to the Department to be appropriate to safeguard the interests of third parties, including, where appropriate, provision for the payment of compensation of an amount to be determined in accordance with the order.

(8) In the case of any transfer made by or pursuant to an order under this Article, a certificate issued by the Department that any asset or liability specified in the certificate is vested in the [F24HSC trust] specified in the order shall be conclusive evidence of that fact for all purposes.

(9) An order under this Article may include provision for matters to be settled by arbitration by a person determined in accordance with the order.

(10) In this Article “third person” means a person other than the Department or a relevant body.

Originating capital debt of, and other financial provisions relating to, [F25HSC trusts]N.I.

14.—(1) Each [F26HSC trust] shall have an[F27 originating capital] of an amount specified in an order made by the Department, being an amount representing, subject to paragraph (2), the excess of the valuation of the assets which, on or in connection with the establishment of the trust, are or are to be transferred to it (whether before, on or after its operational date) over the amounts of the liabilities which are or are to be so transferred.

(2) In determining the[F27 originating capital] of an [F26HSC trust], there shall be left out of account such assets or, as the case may be, liabilities as are, or are of a class, determined for the purposes of this Article by the Department.

(3) An [F25HSC trust's][F27 originating capital] shall be deemed to have been issued out of moneys appropriated by Measure and shall constitute an asset of the Consolidated Fund.

[F27(4) An [F25HSC trust's] orginating capital shall be public dividend capital.]

(7) The Department may determineF27

[F27(a)the dividend which is to be payable at any time on any public dividend capital issued, or treated as issued, under this Order;

(b)the amount of any such public dividend capital which is to be repaid at any time;

(c)any other terms on which any public dividend capital is so issued or treated as issued.]

(8) An order under paragraph (1) and a determination under paragraph (2)F27. . . or (7) shall be made with the consent of the Department of Finance and Personnel.

(9) Schedule 4 shall have effect with respect to—

(a)borrowing by [F25HSC trusts];

(b)the limits on their indebtedness;

(c)the payment of additional public dividend capital to them; and

(d)the application of any surplus funds of [F25HSC trusts].

Financial obligations of [F28HSC trusts]N.I.

15.—(1) Every [F29HSC trust] shall ensure that its revenue is not less than sufficient, taking one financial year with another, to meet outgoings properly chargeable to revenue account.

(2) It shall be the duty of every [F29HSC trust] to achieve such financial objectives as may from time to time be set by the Department with the consent of the Department of Finance and Personnel and as are applicable to it; and any such objectives may be made applicable to [F28HSC trusts] generally, or to a particular [F29HSC trust] or to [F28HSC trusts] of a particular description.

Trust funds and trustees for [F30HSC trusts]N.I.

16.—(1) The Department may by order provide for the appointment of trustees for an [F31HSC trust]; and any trustees so appointed shall have power to accept, hold and administer any property on trust for the general or any specific purposes of the [F31HSC trust] (including the purposes of any specific hospital or other establishment or facility[F32 at or from which services are provided] by the trust).

(2) An order under paragraph (1) may—

(a)make provision as to the persons by whom trustees are to be appointed and generally as to the method of their appointment;

(b)make any appointment subject to such conditions as may be specified in the order (including conditions requiring the consent of the Department);

(c)make provision as to the number of trustees to be appointed, including provision under which that number may from time to time be determined by the Department after consultation with such persons as it considers appropriate; and

(d)make provision with respect to the term of office of any trustee and his removal from office.

(3) Where, under paragraph (1), trustees have been appointed for an [F31HSC trust]—

(a)the Department may by order transfer or provide for the transfer of endowments or other property held on trust from the [F31HSC trust] to the trustees so appointed; and

(b)an order under Article 13 may transfer or provide for the transfer of endowments or other property held on trust by a Health and Social Services Board to the trustees for an [F31HSC trust] and, accordingly, in relation to such endowments or other property, references in Article 13 to an [F31HSC trust] shall be construed as including references to the trustees for that trust.

(4) Paragraphs (4), (5) and (8) of Article 13 apply, with appropriate modifications, in relation to an order under paragraph (3)(a) as they apply in relation to an order under that Article.

(5) Subject to paragraphs (6) to (8) and to any provision made by an order under Article 13, the transfer under Article 13 or paragraph (3)(a) of any property held on trust shall not affect the trusts on which the property is held.

(6) Any discretion given by a trust instrument to the trustees of property transferred under Article 13 or paragraph (3)(a) shall be exercisable by the body to which or persons to whom the property is so transferred.

(7) Where—

(a)Schedule 14 to the principal Order applies to an endowment held by a Health and Social Services Board; and

(b)that endowment is transferred—

(i)to an [F31HSC trust] or the trustees for an [F31HSC trust] under Article 13; or

(ii)to the trustees for an [F31HSC trust] under paragraph (3)(a), having previously been transferred to the [F31HSC trust] under Article 13,

the said Schedule 14 shall apply to the use of that endowment by the [F31HSC trust] or, as the case may be, the trustees for the [F31HSC trust] as it applied to the use thereof by the Health and Social Services Board.

(8) Where—

(a)Article 81 of the principal Order applies to any property held by a Health and Social Services Board; and

(b)that property is transferred—

(i)to an [F31HSC trust] or the trustees for an [F31HSC trust] under Article 13; or

(ii)to the trustees for an [F31HSC trust] under paragraph (3)(a), having previously been transferred to the [F31HSC trust] under Article 13,

the said Article 81 shall apply to the administration of that property by the [F31HSC trust] or, as the case may be, the trustees for the [F31HSC trust] as it applied to the administration thereof by the Health and Social Services Board.

(9) References in this Article—

(a)to property include references to the rights and liabilities arising from property;

(b)to endowments and property held on trust include references to the income and accumulated income thereof.