Health and Social Care Act 2012

Section 107

SCHEDULE 11E+WFurther provision about [F1NHS England’s] enforcement powers

PART 1E+WDiscretionary requirements

ProcedureE+W

1(1)Where [F2NHS England] proposes to impose a discretionary requirement on a person, [F2NHS England] must give notice to that person (a “notice of intent”).E+W

(2)A notice of intent must—

(a)state that [F3NHS England] proposes to impose the discretionary requirement and set out its effect,

(b)set out the grounds for the proposal to impose the requirement,

(c)explain the effect of section 106 (enforcement undertakings),

(d)set out the circumstances (if any) in which [F4NHS England] may not impose the requirement, and

(e)specify the period (“the notice period”) within which representations with respect to the proposal may be made to [F5NHS England].

(3)The notice period must be not less than 28 days beginning with the day after that on which the notice of intent is received.

(4)But where [F6NHS England]—

(a)proposes to impose a compliance requirement or restoration requirement, and

(b)considers that a shorter notice period is necessary to prevent or minimise further breaches of the kind referred to in section 105(1),

the notice period is to be such shorter period as [F6NHS England] may determine, but not less than 5 days beginning with the day after that on which the notice of intent is received.

2(1)After the end of the notice period [F7NHS England] must decide whether to—E+W

(a)impose the discretionary requirement, with or without modifications, or

(b)impose any other discretionary requirement.

(2)Where [F8NHS England] decides under sub-paragraph (1) to impose a discretionary requirement on a person [F8NHS England] must give notice to that person (a “final notice”).

(3)A final notice must—

(a)state that [F9NHS England] has decided to impose the discretionary requirement and set out its effect,

(b)set out the grounds for imposing the requirement,

(c)in the case of a variable monetary penalty, state—

(i)how payment may be made,

(ii)the period (“the payment period”) within which payment must be made,

(iii)any discount applicable for early payment of the penalty, and

(iv)the rate of interest payable for late payment of the penalty,

(d)set out the consequences of failing to comply with the requirement, and

(e)explain the right of appeal conferred by paragraph 3.

(4)The payment period must be not less than 28 days beginning with the day after that on which the final notice is received.

(5)[F10NHS England] must not decide under sub-paragraph (1) to impose a variable monetary penalty unless the notice of intent was given before the end of the period of 5 years beginning with the day (or, in the case of a continuing breach, the last day) on which the breach giving rise to the imposition of the discretionary requirement occurred.

3(1)A person may appeal to the First-tier Tribunal against a decision of [F11NHS England] to impose a discretionary requirement.E+W

(2)The grounds for an appeal under this paragraph are—

(a)that the decision was based on an error of fact,

(b)that the decision was wrong in law,

(c)in the case of a decision imposing a variable monetary penalty, that the amount of the penalty is unreasonable,

(d)in the case of a decision to impose a compliance requirement or a restoration requirement, that the nature of the requirement is unreasonable, or

(e)that the decision was unreasonable for any other reason.

(3)The discretionary requirement is suspended pending determination of the appeal.

(4)On an appeal under this paragraph, the Tribunal may—

(a)confirm, vary or withdraw the discretionary requirement,

(b)take such steps as [F12NHS England] could take in relation to the breach giving rise to the imposition of the requirement, or

(c)remit the decision whether to confirm the requirement, or any matter relating to that decision, to [F13NHS England].

4E+W[F14NHS England] may by notice to a person on whom a discretionary requirement has been imposed—

(a)withdraw the discretionary requirement,

(b)in the case of a variable monetary penalty, reduce the amount of the penalty or extend the payment period, or

(c)in the case of a compliance requirement or a restoration requirement, extend the period specified for taking the steps specified in the requirement.

Non-compliance penaltiesE+W

5(1)If a person fails to comply with a compliance requirement or a restoration requirement [F15NHS England] may impose a monetary penalty on that person of such amount as [F15NHS England] may determine (a “non-compliance penalty”).E+W

(2)Where [F16NHS England] proposes to impose a non-compliance penalty on a person [F16NHS England] must give notice to that person (a “non-compliance notice”).

(3)A non-compliance notice must—

(a)specify the amount of the non-compliance penalty,

(b)set out the grounds for imposing the penalty,

(c)state how payment of the penalty may be made,

(d)state the period (“the payment period”) within which payment must be made,

(e)state any discount applicable for early payment of the penalty,

(f)set out the consequences of a failure to pay within the payment period (including any increase in the amount payable), and

(g)explain the right of appeal conferred by paragraph 6.

(4)The payment period must be not less than 28 days beginning with the day after that on which the non-compliance notice is received.

(5)If the whole or any part of a non-compliance penalty is not paid by the time it is required to be paid [F17NHS England] may increase the amount payable by no more than 50% of the amount of the penalty.

(6)[F18NHS England] may by notice to a person on whom a non-compliance penalty has been imposed reduce the amount of the penalty or extend the payment period.

6(1)A person may appeal to the First-tier Tribunal against a decision of [F19NHS England] to impose a non-compliance penalty.E+W

(2)The grounds for such an appeal are—

(a)that the decision was based on an error of fact,

(b)that the decision was wrong in law, or

(c)that the decision was, or the amount of the penalty is, unfair or unreasonable.

(3)The non-compliance penalty is suspended pending determination of the appeal.

(4)On an appeal, the Tribunal may—

(a)confirm, vary or withdraw the non-compliance penalty, or

(b)remit the decision whether to confirm the penalty, or any matter relating to that decision, to [F20NHS England].

Recovery of financial penaltiesE+W

7(1)Amounts payable to [F21NHS England] of the kind mentioned in sub-paragraph (2) are recoverable summarily as a civil debt (but this does not affect any other method of recovery).E+W

(2)The amounts are—

(a)a variable monetary penalty and any interest payable on it, or

(b)a non-compliance penalty.

Payments of penalties etc. into Consolidated FundE+W

8E+W[F22NHS England] must pay any sums it receives in respect of any of the following into the Consolidated Fund—

(a)a variable monetary penalty and any interest payable on it, or

(b)a non-compliance penalty.

PART 2E+WEnforcement undertakings

ProcedureE+W

9(1)[F23NHS England] must publish a procedure for entering into enforcement undertakings.E+W

(2)[F24NHS England] may revise the procedure and if it does so, [F24NHS England] must publish the procedure as revised.

(3)[F25NHS England] must consult such persons as it considers appropriate before publishing or revising the procedure.

10(1)Where [F26NHS England] accepts an enforcement undertaking, [F26NHS England] must publish the undertaking.E+W

(2)But [F27NHS England] must not under sub-paragraph (1) publish any part of an enforcement undertaking which contains information which it is satisfied is—

(a)commercial information the disclosure of which would, or might, significantly harm the legitimate business interests of the person to whom it relates;

(b)information relating to the private affairs of an individual the disclosure of which would, or might, significantly harm that person's interests.

Variation of termsE+W

11E+WThe terms of an enforcement undertaking (including, in particular, the action specified under it and the period so specified within which the action must be taken) may be varied if both the person giving the undertaking and [F28NHS England] agree.

Compliance certificatesE+W

12(1)Where [F29NHS England] is satisfied that an enforcement undertaking has been complied with, [F29NHS England] must issue a certificate to that effect (referred to in this Schedule as a “compliance certificate”).E+W

(2)A person who has given an enforcement undertaking may at any time make an application to [F30NHS England] for a compliance certificate.

(3)The application must be made in such form, and accompanied by such information, as [F31NHS England] requires.

(4)[F32NHS England] must decide whether or not to issue a compliance certificate, and give notice to the applicant of its decision, before the end of the period of 14 days beginning with the day after that on which the application is received.

13(1)An appeal lies to the First-tier Tribunal against a decision of [F33NHS England] to refuse an application for a certificate of compliance.E+W

(2)The grounds for an appeal under this paragraph are that the decision was—

(a)based on an error of fact,

(b)wrong in law, or

(c)unfair or unreasonable.

(3)On an appeal under this paragraph, the Tribunal may confirm [F34NHS England’s] decision or direct that it is not to have effect.

Inaccurate, incomplete or misleading informationE+W

14E+WWhere [F35NHS England] is satisfied that a person who has given an enforcement undertaking has supplied [F35NHS England] with inaccurate, misleading or incomplete information in relation to the undertaking—

(a)[F35NHS England] may treat the person as having failed to comply with the undertaking, and

(b)if [F35NHS England] decides so to treat the person, [F35NHS England] must by notice revoke any compliance certificate given to that person.