Health and Social Care Act 2012

121Determination on reference under section 120

(1)In carrying out a determination on a reference under section 120, the Competition Commission must have regard, to the same extent as is required of Monitor, to the matters to which Monitor must have regard in carrying out the functions of its to which the determination relates.

(2)In carrying out the determination, the Competition Commission must also have regard to such representations as are made to it by clinical commissioning groups or relevant providers who made objections to Monitor in accordance with paragraph 2 of Schedule 12 about the method proposed under section 118(3)(b).

(3)In carrying out the determination, the Competition Commission—

(a)may also have regard to matters to which Monitor was not able to have regard in the case to which the determination relates, but

(b)must not, in the exercise of the power under paragraph (a), have regard to a matter to which Monitor would not have been entitled to have regard in that case had it had the opportunity to do so.

(4)The Commission may determine that the method proposed under section 118(3)(b) is not appropriate only if it is satisfied that Monitor’s decision to propose the method was wrong on one or more of the following grounds—

(a)that Monitor failed to have regard to the matters referred to in subsection (1),

(b)that the decision was based, wholly or partly, on an error of fact,

(c)that the decision was wrong in law.

(5)Where the Commission determines that the method proposed under section 118(3)(b) is appropriate, Monitor may use that method for the purposes of the national tariff accordingly.

(6)Where the Commission determines that the method proposed under section 118(3)(b) is not appropriate, it must remit the matter to Monitor for reconsideration and decision in accordance with such directions as the Commission may give.

(7)A direction under subsection (6) may, in particular, require Monitor to make such changes to the method in question as are specified in the direction.

(8)A determination on a reference under section 120—

(a)must be contained in an order made by the Commission,

(b)must set out the reasons for the determination, and

(c)takes effect at the time specified in the order or determined in accordance with provision made in the order.

(9)The Commission must give notice of a determination on a reference under section 120 to—

(a)Monitor,

(b)the National Health Service Commissioning Board, and

(c)such clinical commissioning groups or relevant providers as made representations in accordance with paragraph 2 of Schedule 12.

(10)The Commission must also publish the determination; but it must exclude from what it publishes information which it is satisfied is—

(a)commercial information the disclosure of which would, or might, significantly harm the legitimate business interests of an undertaking to which 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.