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The National Health Service Superannuation Scheme (Scotland) Regulations 2011

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Approved Out of Hours providers

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A3.—(1) For the purposes of these Regulations, an “OOH provider” is—

(a)a company limited by guarantee (which is not otherwise an employing authority)—

(i)in which all the members of the company are registered medical practitioners, HBPMS contractors, GMS practices or section 17C agreement providers and the majority of those members are—

(aa)HBPMS contractors, GMS practices or section 17C agreement providers whose HBPMS contracts, GMS contracts or section 17C agreements require them to provide OOH services; or

(bb)registered medical practitioners who are partners or shareholders in a HBPMS contractor, GMS practice or section 17C agreement provider which is a partnership or a company limited by shares and which is required to provide OOH services under its HBPMS contract, GMS contract or section 17C agreement;

(ii)which has a contract with a Health Board, an HBPMS contractor, a GMS practice or a section 17C agreement provider for the provision of OOH services; and

(iii)in respect of which a Health Board appointed by the Scottish Ministers to act on their behalf—

(aa)is satisfied that the provision of OOH services by the company is wholly or mainly a mutual trading activity;

(bb)is satisfied that the company has met all the conditions for being an OOH provider in this regulation; and

(cc)has, pursuant to a written application made by the company to it for that purpose, approved the company as an employing authority; or

(b)some other body corporate (which is not otherwise an employing authority) which—

(i)operates in the interests of those who are the recipients of the primary medical services it provides or of the general public;

(ii)operates on a not for profit basis;

(iii)is not an associated company in relation to another person;

(iv)has a memorandum or articles or rules which—

(aa)prohibit the payment of dividends to its members;

(bb)require its profits (if any) or other income to be applied in promoting its objects; and

(cc)require all assets which would be otherwise available to its members generally to be transferred on its winding up either to another body which operates on a not for profit basis and whose purpose is to provide health or social care for the benefit of the community or to another body the objects of which are the promotion of charity and anything incidental or conducive thereof;

(v)has at least one member who is—

(aa)an HBPMS contractor, GMS practice or a section 17C agreement provider; or

(bb)a partner in a partnership which is an HBPMS contractor, GMS practice or a section 17C agreement provider; or

(cc)a shareholder in a company limited by shares that is a HBPMS contractor, GMS practice or a section 17C agreement provider;

(vi)has a contract with a Health Board, an HBPMS contractor, GMS practice or section 17C agreement provider, for the provisions of OOH services; and

(vii)is approved as an employing authority by a Health Board appointed by the Scottish Ministers to act on their behalf—

(aa)pursuant to a written application made by the body to it for that purpose; and

(bb)that Board being satisfied that the body has met all the conditions for being an OOH provider in this regulation.

(2) For the purposes of paragraph (1)(b)(iii), a body corporate is to be treated as another person’s “associated company” if that person has control of it, except where that person is an employing authority, and for these purposes a person shall be taken to have control of a body corporate if they exercise, or are able to exercise, or are entitled to acquire direct or indirect control over its affairs.

(3) A company limited by guarantee or other body corporate which provides or is to provide OOH services and which wishes to be approved as an employing authority shall make a written application to a Health Board appointed by the Scottish Ministers to act on their behalf (“the appointed Board”).

(4) An application referred to in paragraph (3) may specify a date from which approval by the appointed Board (if given) shall have effect (“the nominated date”).

(5) Where, before 21st February 2006—

(a)a company limited by guarantee or other body corporate made an application which contains a nominated date earlier than the date on which approval is subsequently given (“the approval date”); and

(b)the appointed Board is satisfied that, throughout the period beginning with the nominated date and ending with the approval date, the company or other body corporate has satisfied the conditions for approval,

that approval shall be treated as having been given on the nominated date.

(6) Where before 21st February 2006—

(a)a company limited by guarantee or other body corporate made an application which contains a nominated date later than the approval date; and

(b)the appointed Board is satisfied that the company or other body corporate will satisfy the conditions for approval at that later date,

that approval shall take effect on the nominated date.

(7) Where, on or after 21st February 2006, a company limited by guarantee or other body corporate made an application and—

(a)the appointed Board is satisfied that the company or other body corporate meets the conditions for approval or will do so at any nominated date which is later than the approval date; and

(b)it approves that application,

that approval shall take effect on the later of the nominated date and approval date.

(8) Where—

(a)paragraph (5) or (6) applies, the NHS employment shall be treated as commencing on the nominated date;

(b)paragraph (7) applies, it shall be treated as commencing on the later of the nominated date (if any) and the approval date.

(9) For the purposes of this regulation—

(a)the conditions for approval are those referred to in paragraph (1)(a) or (b) as the case may be; and

(b)the nominated date cannot be earlier than 1st April 2004.

(10) The appointed Board may give an OOH provider a notice in writing terminating its participation in this Section of the scheme where that provider—

(a)does not have in force a guarantee, indemnity or bond as required by the Scottish Ministers in accordance with regulation D2(10); or

(b)has ceased to satisfy the conditions for approval; or

(c)has notified or has an obligation to notify the Board that any one of the following events has occurred in respect of it—

(i)a proposal for a voluntary arrangement has been made or approved under Part 1 of the Insolvency Act 1986(1) (“the 1986 Act”); or

(ii)an administration application has been made, or a notice of intention to appoint an administrator has been filed with the court, or an administrator has been appointed under Schedule B1 to the 1986 Act; or

(iii)a receiver, manager or administrative receiver has been appointed under Part III of the 1986 Act; or

(iv)a winding up petition has been presented, a winding up order has been made or a resolution for voluntary winding up has been passed under Part IV or Part V of the 1986 Act or an instrument of dissolution has been drawn up in accordance with section 58 of the Industrial and Provident Societies Act 1965(2); or

(v)notice has been received by it that it may be struck off the register of companies, or an application to strike it off has been made, under Part 31 of the Companies Act 2006(3).

(11) An OOH provider—

(a)must give the appointed Board notice in writing upon the occurrence of any of the events referred to in paragraph (10)(c) and must give such notice on the same day as that event;

(b)that wishes to cease to participate in this Section of the scheme must give the appointed Board and its employees not less than 3 months notice in writing (to commence with the date of the notice) of that fact.

(12) An OOH provider ceases to participate in this Section of the scheme on—

(a)such date as the appointed Board may specify in notice under paragraph (10); or

(b)the day upon which the period referred to in paragraph (11)(b) expires where a notice under that sub-paragraph (b) has been given.

(2)

1965 c.12. Section 58 was amended by S.I. 2001/2617 and 3649.

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