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National Health Service Act 2006, Chapter 5A is up to date with all changes known to be in force on or before 24 April 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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[F1Chapter 5AE+WTrust special administrators: NHS trusts and NHS foundation trusts

Textual Amendments

F1Pt. 2 Ch. 5A inserted (15.2.2010) by Health Act 2009 (c. 21), ss. 16, 40(1); S.I. 2010/30, art. 3(a)

ApplicationE+W

65AApplicationE+W

(1)This Chapter applies to—

(a)an NHS trust all or most of whose hospitals, establishments and facilities are in England;

[F2(b)any NHS foundation trust.]

F3(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F2S. 65A(1)(b) substituted for s. 65A(1)(b)(c) (1.11.2012) by Health and Social Care Act 2012 (c. 7), ss. 174(1)(a), 306(4); S.I. 2012/2657, art. 2(2)

AppointmentE+W

[F465BNHS trusts: appointment of trust special administratorE+W

(1)NHS England may make an order in accordance with this section authorising the appointment of a trust special administrator to exercise the functions of the chair and directors of an NHS trust to which this Chapter applies.

(2)NHS England—

(a)must make an order under subsection (1) if required to do so by the Care Quality Commission, and

(b)may otherwise make an order under subsection (1) only if—

(i)NHS England considers it appropriate to do so in the interests of the health service, and

(ii)the Secretary of State has approved the making of the order.

(3)The Care Quality Commission may require NHS England to make an order under subsection (1) only if it is satisfied that there is a serious failure by the NHS trust to provide services that are of sufficient quality to be provided under this Act.

(4)Before requiring NHS England to make an order under subsection (1) the Care Quality Commission must—

(a)consult the Secretary of State and NHS England, and

(b)having done that, consult—

(i)the trust,

(ii)any integrated care board in whose area the trust has hospitals, establishments or facilities, and

(iii)any person to which the trust provides goods or services under this Act and which the Commission considers it appropriate to consult.

(5)Before making an order under subsection (1) in a case where it is not required to do so by the Care Quality Commission, NHS England must consult—

(a)the trust,

(b)any integrated care board in whose area the trust has hospitals, establishments or facilities,

(c)any other person to which the trust provides goods or services under this Act and which NHS England considers it appropriate to consult, and

(d)the Care Quality Commission.

(6)An order under subsection (1) must specify the date when the appointment is to take effect, which must be within the period of 5 working days beginning with the day on which the order is made.

(7)NHS England must lay before Parliament (with the statutory instrument containing the order) a report stating the reasons for making the order.

(8)If an order is made under subsection (1), NHS England must—

(a)appoint a person as the trust special administrator with effect from the day specified in the order, and

(b)publish the name of the person appointed.

(9)A person appointed as a trust special administrator holds and vacates office in accordance with the terms of the appointment.

(10)NHS England may pay remuneration and expenses to a trust special administrator appointed under this section.

Textual Amendments

F4 Ss. 65B, 65BA substituted for s. 65B (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 8 para. 2; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

65BACare Quality Commission report on safety and quality of servicesE+W

(1)This section applies where the Care Quality Commission require NHS England to make an order under section 65B(1) in relation to an NHS trust.

(2)The Care Quality Commission must, as soon as reasonably practicable after the making of the order, provide to NHS England and the Secretary of State a report on the safety and quality of the services that the trust provides under this Act.]

Textual Amendments

F4 Ss. 65B, 65BA substituted for s. 65B (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 8 para. 2; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

65CSuspension of directorsE+W

(1)When the appointment of a trust special administrator takes effect, the trust's chairman and executive and non-executive directors are suspended from office.

(2)Subsection (1) does not affect the employment of the executive directors or their membership of any committee or sub-committee of the trust.

F5 ...E+W

Textual Amendments

F5S. 65D cross-heading omitted (1.11.2012) by virtue of Health and Social Care Act 2012 (c. 7), ss. 174(7), 306(4); S.I. 2012/2657, art. 2(2)

65D[F6NHS foundation trusts: appointment of trust special administrator]E+W

[F7(1)This section applies if [F8NHS England] is satisfied that [F9—

(a)]an NHS foundation trust is, or is likely to become, unable to pay its debts] [F10, or

(b)there is a serious failure by an NHS foundation trust to provide services that are of sufficient quality to be provided under this Act and it is appropriate to make an order under subsection (2).]

[F11(1A)This section also applies if the Care Quality Commission—

(a)is satisfied that there is a serious failure by an NHS foundation trust to provide services that are of sufficient quality to be provided under this Act and that it is appropriate to make an order under subsection (2),

(b)informs [F12NHS England] that it is satisfied as mentioned in paragraph (a) and gives [F12NHS England] its reasons for being so satisfied, and

(c)requires [F13NHS England] to make an order under subsection (2).]

[F7(2)[F14NHS England] may [F15or, where this section applies as a result of subsection (1A), must] make an order authorising the appointment of a trust special administrator to exercise the functions of the governors, chairman and directors of the trust.]

[F16(2A)Where NHS England is not required to make an order under this section as a result of subsection (1A), it may do so only if the Secretary of State has approved the making of the order.]

[F7(3)As soon as reasonably practicable after the making of an order under subsection (2), the Care Quality Commission must provide to [F17NHS England] a report on the safety and quality of the services that the trust provides under this Act.]

[F18(3A)Before imposing a requirement as mentioned in subsection (1A)(c), the Care Quality Commission must—

(a)consult the Secretary of State and [F19NHS England], and

(b)having done that, consult—

(i)the trust,

(ii)F20... and

(iii)any other person to which the trust provides services under this Act and which the Commission considers it appropriate to consult.]

[F21(4)Before making an order under this section in a case where it is not required to do so as a result of subsection (1A), NHS England must consult—

(a)the trust,

(b)any person to which the trust provides services under this Act and which NHS England considers it appropriate to consult, and

(c)the Care Quality Commission.]

[F22(5)An order under subsection (2) must specify the date when the appointment is to take effect, which must be within the period of 5 working days beginning with the day on which the order is made.

(6)[F23NHS England] must lay before Parliament (with the statutory instrument containing the order) a report stating the reasons for making the order.

(7)If [F24NHS England] makes an order under subsection (2), it must—

(a)appoint a person as the trust special administrator with effect from the day specified in the order, and

(b)publish the name of the person appointed.

(8)A person appointed as a trust special administrator under this section holds and vacates office in accordance with the terms of the appointment.

(9)A person appointed as a trust special administrator under this section must manage the trust's affairs, business and property, and exercise the trust special administrator's functions, so as to achieve the objective set out in section 65DA as quickly and as efficiently as is reasonably practicable.

(10)When the appointment of a trust special administrator under this section takes effect, the trust's governors, chairman and executive and non-executive directors are suspended from office; and Chapter 5 of this Part, in its application to the trust, is to be read accordingly.

(11)But subsection (10) does not affect the employment of the executive directors or their membership of any committee or sub-committee of the trust.

[F25(12)NHS England may pay remuneration and expenses to a trust special administrator appointed under this section.]]

Textual Amendments

F6S. 65D heading substituted (1.11.2012) by virtue of Health and Social Care Act 2012 (c. 7), ss. 174(6), 306(4); S.I. 2012/2657, art. 2(2)

F9S. 65D(1)(a): words in s. 65D(1) renumbered as s. 65D(1)(a) (15.7.2014) by Care Act 2014 (c. 23), ss. 84(1)(a), 127(1); S.I. 2014/1714, art. 3(2)(a)

F10S. 65D(1)(b) and preceding word inserted (15.7.2014) by Care Act 2014 (c. 23), ss. 84(1)(b), 127(1); S.I. 2014/1714, art. 3(2)(a)

F15Words in s. 65D(2) inserted (15.7.2014) by Care Act 2014 (c. 23), ss. 84(3), 127(1); S.I. 2014/1714, art. 3(2)(a)

[F2665DAObjective of trust special administrationE+W

(1)The objective of a trust special administration is to secure—

(a)the continued provision of such of the services provided for the purposes of the NHS by the NHS foundation trust that is subject to an order under section 65D(2), at such level, as the commissioners of those services determine, and

[F27(aa)that the services whose continuous provision is secured as mentioned in paragraph (a) are of sufficient safety and quality to be provided under this Act,]

(b)that it becomes unnecessary for the order to remain in force for that purpose.

(2)The commissioners may determine that the objective set out in subsection (1) is to apply to a service only if they are satisfied that the criterion in subsection (3) is met.

(3)The criterion is that ceasing to provide the service under this Act would, in the absence of alternative arrangements for its provision under this Act, be likely to—

(a)have a significant adverse impact on the health of persons in need of the service or significantly increase health inequalities, or

(b)cause a failure to prevent or ameliorate either a significant adverse impact on the health of such persons or a significant increase in health inequalities.

(4)In determining whether that criterion is met, the commissioners must (in so far as they would not otherwise be required to do so) have regard to—

(a)the current and future need for the provision of the service under this Act,

(b)whether ceasing to provide the service under this Act would significantly reduce equality between those for whom the commissioner arranges for the provision of services under this Act with respect to their ability to access services so provided, and

(c)such other matters as may be specified in relation to NHS foundation trusts in guidance published by [F28NHS England].

(5)[F29NHS England] may revise guidance under subsection (4)(c) and, if it does so, must publish the guidance as revised.

[F30(5A)Before publishing guidance under subsection (4)(c), [F31NHS England] must consult the Care Quality Commission.]

(6)Before publishing guidance under subsection (4)(c) or (5), [F32NHS England] must obtain the approval of—

(a)the Secretary of State;

F33(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)[F34NHS England] must make arrangements for facilitating agreement between commissioners in determining the services provided by the trust under this Act to which the objective set out in subsection (1) is to apply.

(8)Where commissioners fail to reach agreement in pursuance of arrangements under subsection (7), [F35NHS England] may make the determination (and the duty imposed by subsection (1)(a), so far as applying to the commissioners concerned, is to be regarded as discharged).

(9)In this section—

  • “commissioners” means the persons to which the trust provides services under this Act, and

  • “health inequalities” means the inequalities between persons with respect to the outcomes achieved for them by the provision of services that are provided as part of the health service.]

Textual Amendments

F3665E NHS foundation trusts: de-authorisation and appointment of trust special administratorE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Consultation and reportE+W

65FDraft reportE+W

[F37(1)A trust special administrator appointed in relation to an NHS trust must, within the period of 65 working days beginning with the day on which the administrator’s appointment takes effect—

(a)provide NHS England and the Secretary of State with a draft report recommending any action that NHS England or the Secretary of State should take in relation to the trust, and

(b)publish a copy of that draft report.

(1A)A trust special administrator appointed in relation to an NHS foundation trust must, within the period of 65 working days beginning with the day on which the administrator’s appointment takes effect—

(a)provide NHS England with a draft report recommending the action that NHS England should take in relation to the trust, and

(b)publish a copy of that draft report,

unless unable to obtain the statements required by subsections (1B) and (1C).

(1B)A trust special administrator may not provide a draft report under subsection (1A)—

(a)without having obtained a statement from each commissioner that the commissioner considers that the recommendation in the draft report—

(i)would achieve the objective set out in section 65DA(1)(a), and

(ii)would do so without harming essential services provided for the purposes of the NHS by any other NHS foundation trust or NHS trust that provides services under this Act to the commissioner, or

(b)where the administrator is unable to obtain a statement to that effect from one or more of the commissioners (other than NHS England), without having obtained a statement to that effect from NHS England.

(1C)A trust special administrator may not provide a draft report under subsection (1A) without having obtained a statement from the Care Quality Commission that it considers that the recommendation in the draft report would achieve that part of the objective set out in section 65DA(1)(aa).

(2)When preparing a draft report under subsection (1) or (1A), the administrator must consult—

(a)any person to which the trust provides goods or services under this Act and which NHS England directs the administrator to consult, and

(b)the Care Quality Commission.

(3)After receiving a draft report under subsection (1) or (1A), NHS England must lay it before Parliament.]

F38(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F39(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F40(5A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F41(6)Where NHS England decides not to provide to the administrator a statement to the effect mentioned in subsection (1B)(b), NHS England must—

(a)give a notice of the reasons for its decision to the administrator,

(b)publish the notice, and

(c)lay a copy of it before Parliament.

(6A)Where the Care Quality Commission decides not to provide to the administrator a statement to the effect mentioned in subsection (1C), the Commission must—

(a)give a notice of the reasons for its decision to the administrator and to NHS England,

(b)publish the notice, and

(c)lay a copy of it before Parliament.]

(7)In subsection (5), “commissioner” means a person to which the trust provides services under this Act.

[F42(8)Where the administrator recommends taking action in relation to another NHS foundation trust or an NHS trust, the references in subsection (5) to a commissioner also include a reference to a person to which the other NHS foundation trust or the NHS trust provides services under this Act that would be affected by the action.

(9)A service provided by an NHS foundation trust or an NHS trust is an essential service for the purposes of subsection (5) if the person making the statement in question is satisfied that the criterion in section 65DA(3) is met.

(10)Section 65DA(4) applies to the person making the statement when that person is determining whether that criterion is met.]

Textual Amendments

F42S. 65F(8)-(10) inserted (15.7.2014) by Care Act 2014 (c. 23), ss. 120(4), 127(1); S.I. 2014/1714, art. 3(2)(c)

65GConsultation planE+W

(1)At the same time as publishing a draft report under section 65F, a trust special administrator must publish a statement setting out the means by which the administrator will seek responses to the draft report.

(2)The statement must specify a period of [F4340 working days] within which the administrator seeks responses (the “consultation period”).

(3)The first day of the consultation period must be within the period of 5 working days beginning with the day on which the draft report is published.

[F44(4)In the case of an NHS foundation trust, the administrator may not make a variation to the draft report following the consultation period—

(a)without having obtained from each commissioner a statement that the commissioner considers that the recommendation in the draft report as so varied [F45—

(i)would achieve the objective set out in section 65DA(1)(a), and

(ii)would do so without harming essential services provided for the purposes of the NHS by any other NHS foundation trust or NHS trust that provides services under this Act to the commissioner,] or

(b)where the administrator does not obtain a statement to that effect from one or more commissioners (other than [F46NHS England]), without having obtained a statement to that effect from [F46NHS England].

[F47(4A)Nor may the administrator make a variation to the draft report following the consultation period without having obtained from the Care Quality Commission a statement that it considers that the recommendation in the draft report as so varied would achieve that part of the objective set out in section 65DA(1)(aa).]

[F48(5)Where NHS England decides not to provide to the administrator a statement to the effect mentioned in subsection (4)(b), NHS England must—

(a)give a notice of the reasons for its decision to the administrator,

(b)publish the notice, and

(c)lay a copy of it before Parliament.

(5A)Where the Care Quality Commission decides not to provide to the administrator a statement to the effect mentioned in subsection (4A), the Commission must—

(a)give a notice of the reasons for its decision to the administrator and to NHS England,

(b)publish the notice, and

(c)lay a copy of it before Parliament.]

(6)In subsection (4), “commissioner” means a person to which the trust provides services under this Act.]

[F49(7)Where the administrator recommends taking action in relation to another NHS foundation trust or an NHS trust, the references in subsection (4) to a commissioner also include a reference to a person to which the other NHS foundation trust or the NHS trust provides services under this Act that would be affected by the action.”

(8)A service provided by an NHS foundation trust or an NHS trust is an essential service for the purposes of subsection (4) if the person making the statement in question is satisfied that the criterion in section 65DA(3) is met.

(9)Section 65DA(4) applies to the person making the statement when that person is determining whether that criterion is met.]

Textual Amendments

F43Words in s. 65G(2) substituted (15.7.2014) by Care Act 2014 (c. 23), ss. 120(5), 127(1); S.I. 2014/1714, art. 3(2)(c)

F44S. 65G(4)-(6) inserted (27.3.2012 for specified purposes, 1.11.2012 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 176(3), 306(1)(d)(4); S.I. 2012/2657, art. 2(2)

F45Words in s. 65G(4)(a) substituted (15.7.2014) by Care Act 2014 (c. 23), ss. 120(6), 127(1); S.I. 2014/1714, art. 3(2)(c)

F49S. 65G(7)-(9) inserted (15.7.2014) by Care Act 2014 (c. 23), ss. 120(7), 127(1); S.I. 2014/1714, art. 3(2)(c)

65HConsultation requirementsE+W

(1)The following duties apply during the consultation period.

(2)The trust special administrator must publish a notice stating that the administrator is seeking responses to the draft report and describing how people can give their responses.

(3)A notice under subsection (2) must include details of how responses can be given in writing.

(4)The trust special administrator must [F50—

(a)]hold at least one meeting to seek responses from staff of the trust and from such persons as the trust special administrator may recognise as representing staff of the trust [F51, and

(b)in the case of each affected trust, hold at least one meeting to seek responses from staff of the trust and from such persons as the trust special administrator may recognise as representing staff of the trust.]

(5)The trust special administrator must hold at least one other meeting to seek responses from any person who wishes to attend, after publishing notice of the date, time and place of the meeting.

(6)Notices under subsections (2) and (5) must be published at least once in the first 5 working days of the consultation period.

(7)The trust special administrator must request a written response from—

F52(za). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F53(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)any F54... person to which the trust provides goods or services under this Act F55...;

[F56(bza)any affected trust;

(bzb)any person to which an affected trust provides goods or services under this Act that would be affected by the action recommended in the draft report;

(bzc)any local authority in whose area the trust provides goods or services under this Act;

(bzd)any local authority in whose area an affected trust provides goods or services under this Act;

(bze)any Local Healthwatch organisation for the area of a local authority mentioned in paragraph (bzc) or (bzd);]

[F57(ba)the Care Quality Commission;]

[F58(c)the member of Parliament for any constituency, if required by directions given by NHS England;

(d)any other person specified in a direction given by NHS England.]

F59(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)The trust special administrator must [F60—

(a)]hold at least one meeting to seek responses from representatives of F61... each of the persons from whom the administrator must request a written response under subsection [F62(7)(b), [F63(bzb),] [F64(ba),] (c) or (d)],

[F65(b)hold at least one meeting to seek responses from representatives of each of the trusts from which the administrator must request a written response under subsection (7)(bza), and

(c)hold at least one meeting to seek responses from representatives of each of the local authorities and Local Healthwatch organisations from which the administrator must request a written response under subsection (7)(bzc), (bzd) and (bze).]

[F66(9A)NHS England may direct the administrator to hold a meeting to seek a response from any person.]

[F67(10)The Secretary of State may direct NHS England as to the persons from whom it should direct the administrator to—

(a)request a written response (for NHS England’s powers of direction, see subsection (7)(c) and (d));

(b)seek a response by holding a meeting (for NHS England’s power of direction, see subsection (9A)).]

(11)In subsection (4) “staff of the trust” means persons employed by the trust or otherwise working for the trust (whether as or on behalf of a contractor, as a volunteer or otherwise).

[F68(11A)In this section, “affected trust” means—

(a)where the trust in question is an NHS trust, another NHS trust, or an NHS foundation trust, which provides goods or services under this Act that would be affected by the action recommended in the draft report;

(b)where the trust in question is an NHS foundation trust, another NHS foundation trust, or an NHS trust, which provides services under this Act that would be affected by the action recommended in the draft report.

(11B)In this section, a reference to a local authority includes a reference to the council of a district only where the district is comprised in an area for which there is no county council.]

[F69(12)For the purposes of this section in its application to the case of an NHS foundation trust—

(a)in subsection (7)(b) [F70, (bzb), (bzc) and (bzd)], the words “goods or” are to be ignored, F71...

F71(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F72(13). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F50S. 65H(4)(a): words in s. 65(4) renumbered as s. 65(4)(a) (15.7.2014) by Care Act 2014 (c. 23), ss. 120(8)(a), 127(1); S.I. 2014/1714, art. 3(2)(c)

F51S. 65H(4)(b) and preceding word inserted (15.7.2014) by Care Act 2014 (c. 23), ss. 120(8)(b), 127(1); S.I. 2014/1714, art. 3(2)(c)

F52S. 65H(7)(za) omitted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), s. 186(6), Sch. 8 para. 7(2)(a); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F53S. 65H(7)(a) omitted (27.3.2012 for specified purposes, 1.11.2012 in so far as not already in force) by virtue of Health and Social Care Act 2012 (c. 7), ss. 176(4)(b), 306(1)(d)(4); S.I. 2012/2657, art. 2(2)

F54Word in s. 65H(7)(b) omitted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), s. 186(6), Sch. 8 para. 7(2)(b); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F55Words in s. 65H(7)(b) omitted (27.3.2012 for specified purposes, 1.11.2012 in so far as not already in force) by virtue of Health and Social Care Act 2012 (c. 7), ss. 176(4)(c), 306(1)(d)(4); S.I. 2012/2657, art. 2(2)

F56Ss. 65H(7)(bza)-(bze) inserted (15.7.2014) by Care Act 2014 (c. 23), ss. 120(9), 127(1); S.I. 2014/1714, art. 3(2)(c)

F57S. 65H(7)(ba) inserted (15.7.2014) by Care Act 2014 (c. 23), ss. 85(10)(a), 127(1); S.I. 2014/1714, art. 3(2)(b)

F58S. 65H(7)(c)(d) substituted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), s. 186(6), Sch. 8 para. 7(2)(c); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F60S. 65H(9)(a): words in s. 65H(9) renumbered as s. 65H(9)(a) (15.7.2014) by Care Act 2014 (c. 23), ss. 120(11)(a), 127(1); S.I. 2014/1714, art. 3(2)(c)

F61Words in s. 65H(9)(a) omitted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), s. 186(6), Sch. 8 para. 7(4); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F62Words in s. 65H(9) substituted (27.3.2012 for specified purposes, 1.11.2012 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 176(6)(b), 306(1)(d)(4); S.I. 2012/2657, art. 2(2)

F63Word in s. 65H(9) inserted (15.7.2014) by Care Act 2014 (c. 23), ss. 120(11)(b), 127(1); S.I. 2014/1714, art. 3(2)(c)

F64Word in s. 65H(9) inserted (15.7.2014) by Care Act 2014 (c. 23), ss. 85(10)(b), 127(1); S.I. 2014/1714, art. 3(2)(b)

F65S. 65H(9)(b)(c) inserted (15.7.2014) by Care Act 2014 (c. 23), ss. 120(11)(c), 127(1); S.I. 2014/1714, art. 3(2)(c)

F66S. 65H(9A) inserted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), s. 186(6), Sch. 8 para. 7(5); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F67S. 65H(10) substituted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), s. 186(6), Sch. 8 para. 7(6); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F68S. 65H(11A)(11B) inserted (15.7.2014) by Care Act 2014 (c. 23), ss. 120(12), 127(1); S.I. 2014/1714, art. 3(2)(c)

F69S. 65H(12)(13) inserted (27.3.2012 for specified purposes, 1.11.2012 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 176(7), 306(1)(d)(4); S.I. 2012/2657, art. 2(2)

F70Words in s. 65H(12)(a) inserted (15.7.2014) by Care Act 2014 (c. 23), ss. 120(13), 127(1); S.I. 2014/1714, art. 3(2)(c)

F71S. 65H(12)(b) and word omitted (1.7.2022) by virtue of Health and Care Act 2022 (c. 31), s. 186(6), Sch. 8 para. 7(8); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

65IFinal reportE+W

[F73(1)A trust special administrator appointed in relation to an NHS trust must, within the period of 15 working days beginning with the end of the consultation period, provide NHS England and the Secretary of State with a final report stating any action that the administrator recommends that NHS England or Secretary of State should take in relation to the trust.

(1A)A trust special administrator appointed in relation to an NHS foundation trust must, within the period of 15 working days beginning with the end of the consultation period, provide NHS England with a final report stating the action that the administrator recommends that NHS England should take in relation to the trust.]

(2)The administrator must attach to the final report [F74mentioned in subsection (1) or (1A)] a summary of all responses to the draft report which were received by the administrator in the period beginning with the publication of the draft report and ending with the last day of the consultation period.

(3)After receiving the administrator's final report, [F75NHS England] must publish it and lay it before Parliament.

F76(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

65JPower to extend timeE+W

(1)This section applies to—

(a)the duty of a trust special administrator to provide a draft report within the period specified in section 65F(1) [F77or (1A)];

(b)the duty of a trust special administrator to consult in the consultation period specified under section 65G(2);

(c)the duty of a trust special administrator to provide a final report within the period specified in section 65I(1) [F78or (1A)].

(2)If [F79NHS England] thinks it is not reasonable in the circumstances for the administrator to be required to carry out the duty within the specified period, [F79NHS England] may by order extend the period.

(3)If an order is made extending the period mentioned in subsection (1)(a) or (c) the trust special administrator must publish a notice stating the new date on which the period will expire.

(4)If an order is made extending the period mentioned in subsection (1)(b) the trust special administrator must—

(a)publish a notice stating the new date on which the period will expire, and

(b)publish a statement setting out the means by which the administrator will seek responses to the draft report during the extended consultation period.

F80(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F81Action by the Secretary of State and [F82NHS England]]E+W

Textual Amendments

F81S. 65K cross-heading substituted (27.3.2012 for specified purposes, 1.11.2012 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 177(7), 306(1)(d)(4); S.I. 2012/2657, art. 2(2)

[F8365K.Decision of NHS England or Secretary of State in case of NHS trustE+W

(1)Within the period of 20 working days beginning with the day on which NHS England receives a final report under section 65I relating to an NHS trust, NHS England must decide what (if any) action to take in relation to the trust.

(2)Within the period of 20 working days beginning with the day on which the Secretary of State receives a final report under section 65I relating to an NHS trust, the Secretary of State must decide what (if any) action to take in relation to the trust.

(3)NHS England and the Secretary of State must consult one another before taking the decision under subsection (1) or (2).

(4)After taking a decision under subsection (1) or (2) NHS England or the Secretary of State (as the case may be) must, as soon as reasonably practicable—

(a)publish a notice of the decision and of the reasons for it;

(b)lay a copy of the notice before Parliament.]

Textual Amendments

[F8465KA [F85NHS England’s] decision in case of NHS foundation trustE+W

(1)Within the period of 20 working days beginning with the day on which [F86NHS England] receives a final report under section 65I relating to an NHS foundation trust, [F86NHS England] must decide whether it is satisfied—

(a)that the action recommended in the final report would achieve the objective set out in section 65DA, and

(b)that the trust special administrator has carried out the administration duties.

(2)In subsection (1)(b), “administration duties” means the duties imposed on the administrator by—

(a)this Chapter,

(b)a direction under this Chapter, or

(c)the administrator's terms of appointment.

(3)If [F87NHS England] is satisfied as mentioned in subsection (1), it must as soon as reasonably practicable provide to the Secretary of State—

(a)the final report, and

(b)the report provided to [F87NHS England] by the Care Quality Commission under section 65D(3).

(4)If [F87NHS England] is not satisfied as mentioned in subsection (1), it must as soon as reasonably practicable give a notice of that decision to the administrator.

(5)Where [F87NHS England] gives a notice under subsection (4), sections 65F to 65J apply in relation to the trust to such extent, and with such modifications, as [F87NHS England] may specify in the notice.

(6)[F88NHS England] must as soon as reasonably practicable after giving a notice under subsection (4)—

(a)publish the notice;

(b)lay a copy of it before Parliament.

Textual Amendments

F84Ss. 65KA-65KD inserted (27.3.2012 for specified purposes, 1.11.2012 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 177(2), 306(1)(d)(4); S.I. 2012/2657, art. 2(2)

65KBSecretary of State's response to [F89NHS England’s] decisionE+W

(1)Within the period of 30 working days beginning with the day on which the Secretary of State receives the reports referred to in section 65KA(3), the Secretary of State must decide whether the Secretary of State is satisfied—

(a)that the persons to which the NHS foundation trust in question provides services under this Act have discharged their functions for the purposes of this Chapter,

(b)that the trust special administrator has carried out the administration duties (within the meaning of section 65KA(1)(b)),

(c)that [F90NHS England] has discharged its functions for the purposes of this Chapter,

[F91(ca)that the Care Quality Commission has discharged its functions for the purposes of this Chapter,]

(d)that the action recommended in the final report would secure the continued provision of the services provided by the trust to which the objective set out in section 65DA applies,

(e)that the recommended action would secure the provision of services that are of sufficient safety and quality to be provided under this Act, and

(f)that the recommended action would provide good value for money.

(2)If the Secretary of State is not satisfied as mentioned in subsection (1), the Secretary of State must as soon as reasonably practicable—

(a)give the trust special administrator a notice of the decision and of the reasons for it;

(b)give a copy of the notice to [F92NHS England] [F93and the Care Quality Commission];

(c)publish the notice;

(d)lay a copy of it before Parliament.

Textual Amendments

F84Ss. 65KA-65KD inserted (27.3.2012 for specified purposes, 1.11.2012 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 177(2), 306(1)(d)(4); S.I. 2012/2657, art. 2(2)

65KCAction following Secretary of State's rejection of final reportE+W

(1)Within the period of 20 working days beginning with the day on which the trust special administrator receives a notice under section 65KB(2), the administrator must provide to [F94NHS England] the final report varied so far as the administrator considers necessary to secure that the Secretary of State is satisfied as mentioned in section 65KB(1).

(2)Where the administrator provides to [F95NHS England] a final report under subsection (1), section 65KA applies in relation to the report as it applies in relation to a final report under section 65I; and for that purpose, that section has effect as if—

(a)in subsection (1), for “20 working days” there were substituted “10 working days”, and

(b)subsection (3)(b) were omitted.

(3)If the Secretary of State thinks that, in the circumstances, it is not reasonable for the administrator to be required to carry out the duty under subsection (1) within the period mentioned in that subsection, the Secretary of State may by order extend the period.

(4)If an order is made under subsection (3), the administrator must—

(a)publish a notice stating the date on which the period will expire, and

(b)where the administrator is proposing to carry out consultation in response to the notice under section 65KB(2), publish a statement setting out the means by which the administrator will consult during the extended period.

Textual Amendments

F84Ss. 65KA-65KD inserted (27.3.2012 for specified purposes, 1.11.2012 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 177(2), 306(1)(d)(4); S.I. 2012/2657, art. 2(2)

65KDSecretary of State's response to re-submitted final reportE+W

(1)Within the period of 30 working days beginning with the day on which the Secretary of State receives a final report under section 65KA(3) as applied by section 65KC(2), the Secretary of State must decide whether the Secretary of State is, in relation to the report, satisfied as to the matters in section 65KB(1)(a) to (f).

(2)If the Secretary of State is not satisfied as mentioned in subsection (1), the Secretary of State must as soon as reasonably practicable—

(a)publish a notice of the decision and the reasons for it;

(b)lay a copy of the notice before Parliament.

(3)Where the Secretary of State publishes a notice under subsection (2)(a), subsections [F96(5), (6) and] [F97(8A)] apply.

F98(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F99(5)If the notice states that an integrated care board has failed to discharge a function—

(a)the board is to be treated for the purposes of this Act as having failed to discharge the function,

(b)the Secretary of State may exercise the functions of NHS England under section 14Z61(2), (3)(a) and (5)(a), and

(c)NHS England may not exercise any of its functions under section 14Z61.

(6)Where, by virtue of subsection (5)(b), the Secretary of State exercises the function of NHS England under section 14Z61(3)(a), the integrated care board to which the direction is given must cooperate with the Secretary of State.]

F100(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F101(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F102(8A)If the notice states that the Care Quality Commission has failed to discharge a function—

(a)the Care Quality Commission is to be treated for the purposes of this Act as having failed to discharge the function, and

(b)the failure is to be treated for those purposes as significant (and section 82 of the Health and Social Care Act 2008 applies accordingly).]

(9)Within the period of 60 working days beginning with the day on which the Secretary of State publishes a notice under subsection (2)(a), the Secretary of State must decide what action to take in relation to the trust.

(10)The Secretary of State must as soon as reasonably practicable—

(a)publish a notice of the decision and the reasons for it;

(b)lay a copy of the notice before Parliament.]

Textual Amendments

F84Ss. 65KA-65KD inserted (27.3.2012 for specified purposes, 1.11.2012 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 177(2), 306(1)(d)(4); S.I. 2012/2657, art. 2(2)

65LTrusts coming out of administrationE+W

[F103(1)Subsection (2) applies, in relation to an NHS trust, if NHS England and the Secretary of State both decide under section 65K not to dissolve the trust.

(2)NHS England must make an order specifying a date when the following come to an end—

(a)the appointment of the trust special administrator, and

(b)the suspension of the chair and directors of the trust.

(2A)Subsection (2B) applies, in relation to an NHS foundation trust, if—

(a)the Secretary of State decides under section 65KD(9) not to dissolve the trust, or

(b)the Secretary of State decides under section 65KB(1) or 65KD(1) that the Secretary of State is satisfied of the matters mentioned there, and the action recommended in the final report is to do something other than dissolve the trust.

(2B)NHS England must make an order specifying a date when the following come to an end—

(a)the appointment of the trust special administrator, and

(b)the suspension of the governors, chair and directors of the trust.]

F104(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F104(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F104(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F105(6)Subsection (7) applies in the case of an NHS foundation trust.

(7)If it appears to [F106NHS England] to be necessary in order to comply with Schedule 7, [F106NHS England] may by order—

(a)terminate the office of any governor or of any executive or non-executive director of the trust;

(b)appoint a person to be a governor or an executive or non-executive director of the trust.]

Textual Amendments

F104S. 65L(3)-(5) omitted (27.3.2012 for specified purposes, 1.11.2012 in so far as not already in force) by virtue of Health and Social Care Act 2012 (c. 7), ss. 177(4), 306(1)(d)(4); S.I. 2012/2657, art. 2(2)

F105S. 65L(6)(7) inserted (27.3.2012 for specified purposes, 1.11.2012 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 177(5), 306(1)(d)(4); S.I. 2012/2657, art. 2(2)

[F10765LATrusts to be dissolvedE+W

(1)This section applies if—

(a)the Secretary of State is satisfied as mentioned in section 65KB(1) or 65KD(1), and

(b)the action recommended in the final report is to dissolve the NHS foundation trust in question.

(2)This section also applies if the Secretary of State decides under section 65KD(9) to dissolve the NHS foundation trust in question.

(3)[F108NHS England] may make an order—

(a)dissolving the trust, and

(b)transferring, or providing for the transfer of, the property and liabilities of the trust [F109—

(i)to an NHS body;

(ii)to the Secretary of State;

(iii)between more than one NHS body or between one or more NHS bodies and the Secretary of State.]

(4)An order under subsection (3) may include provision for the transfer of employees of the trust.

(5)The liabilities that may be transferred [F110to an NHS body] by virtue of subsection (3)(b) include criminal liabilities.]

Textual Amendments

F107S. 65LA inserted (27.3.2012 for specified purposes, 1.11.2012 in so far as not already in force) by Health and Social Care Act 2012 (c. 7), ss. 177(6), 306(1)(d)(4); S.I. 2012/2657, art. 2(2)

F109Words in s. 65LA(3)(b) substituted (26.5.2015) by Deregulation Act 2015 (c. 20), ss. 96(6), 115(7); S.I. 2015/994, art. 6(r)

F110Words in s. 65LA(5) substituted (26.5.2015) by Deregulation Act 2015 (c. 20), ss. 96(7), 115(7); S.I. 2015/994, art. 6(r)

SupplementaryE+W

65MReplacement of trust special administratorE+W

[F111(1)If a trust special administrator ceases to hold office for any reason before an order is made under section 65L(2) or (2B) or the trust is dissolved, NHS England must—

(a)appoint another person as the trust special administrator, and

(b)publish the name of the person appointed.]

(2)Where a person is appointed under subsection (1) in relation to a trust, anything done by or in relation to a previous trust special administrator has effect as if done by or in relation to that person, unless [F112NHS England] directs otherwise.

F113(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

65NGuidanceE+W

(1)[F114NHS England] must publish guidance for trust special administrators.

[F115(1A)It must, in so far as it applies to NHS trusts, include guidance about—

(a)seeking the support of commissioners for an administrator's recommendation;

F116(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(2)It must include guidance about the publication of notices under sections 65H and 65J.

[F117(2A)It must include guidance about the publication of—

(a)notices under section 65KC(4)(a);

(b)statements under section 65KC(4)(b).]

(3)It must include guidance about the preparation of draft reports, as to—

(a)persons to be consulted;

(b)factors to be taken into account;

(c)relevant publications.

[F118(3A)Before publishing guidance under this section, [F119NHS England] must consult the Care Quality Commission.]

F120(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

65OInterpretation of this ChapterE+W

[F121(1)] In this Chapter—

  • “trust special administrator” means a person appointed under section [F12265B(8)(a)] [F123, section 65D(2)] or section 65M(1)(a);

  • “working day” means any day which is not Saturday, Sunday, Christmas Day, Good Friday or a day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971.]

[F124(2)The references in this Chapter to taking action in relation to an NHS trust include a reference to taking action, including in relation to another NHS trust or an NHS foundation trust, which is necessary for and consequential on action taken in relation to that NHS trust.

(3)The references in this Chapter to taking action in relation to an NHS foundation trust include a reference to taking action, including in relation to another NHS foundation trust or an NHS trust, which is necessary for and consequential on action taken in relation to that NHS foundation trust.]

Textual Amendments

F121S. 65O(1): s. 65O renumbered as s. 65O(1) (15.7.2014) by Care Act 2014 (c. 23), ss. 120(1), 127(1); S.I. 2014/1714, art. 3(2)(c)

F124S. 65O(2)(3) inserted (15.7.2014) by Care Act 2014 (c. 23), ss. 120(1), 127(1); S.I. 2014/1714, art. 3(2)(c)

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