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Health and Social Care Act 2012

Status:

This is the original version (as it was originally enacted).

Levy on providers

139Imposition of levy

(1)The power under section 135(2) includes, in particular, power to impose a levy on providers for each financial year.

(2)Before deciding whether to impose a levy under this section for the coming financial year, Monitor must estimate—

(a)the amount that will be required for the purpose of providing financial assistance in accordance with this Chapter,

(b)the amount that will be collected from commissioners by way of charges imposed by virtue of section 138 during that year, and

(c)the amount that will be standing to the credit of the fund at the end of the current financial year.

(3)Before the start of a financial year in which Monitor proposes to impose a levy under this section, it must determine—

(a)the factors by reference to which the rate of the levy is to be assessed,

(b)the time or times by reference to which those factors are to be assessed, and

(c)the time or times during the year when the levy, or an instalment of it, becomes payable.

(4)Where the determinations under subsection (3) reflect changes made to the factors by reference to which the rate of the levy is to be assessed, the notice under section 143(1)(b) must include an explanation of those changes.

(5)A levy under this section may be imposed at different rates for different providers.

140Power of Secretary of State to set limit on levy and charges

(1)Before the beginning of each financial year, the Secretary of State may, with the approval of the Treasury, specify by order—

(a)the maximum amount that Monitor may raise from levies it imposes under section 139 for that year, and

(b)the maximum amount that it may raise from charges it imposes by virtue of section 138 for that year.

(2)Where the Secretary of State makes an order under this section, Monitor must secure that the levies and charges for that year are at a level that Monitor estimates will, in each case, raise an amount not exceeding the amount specified for that case in the order.

141Consultation

(1)This section applies where Monitor is proposing to impose a levy under section 139 for the coming financial year and—

(a)has not imposed a levy under that section for the current financial year or any previous year,

(b)has been imposing the levy for the current financial year but proposes to make relevant changes to it for the coming financial year, or

(c)has been imposing the levy for the current financial year and the financial year preceding it, but has not been required to serve a notice under this section in respect of the levy for either of those years.

(2)A change to a levy is relevant for the purposes of subsection (1)(b) if it is a change to the factors by reference to which the rate of the levy is to be assessed.

(3)Before making the determinations under section 139(3) in respect of the levy, Monitor must send a notice to—

(a)the Secretary of State,

(b)the National Health Service Commissioning Board,

(c)each clinical commissioning group,

(d)each potentially liable provider, and

(e)such other persons as it considers appropriate.

(4)Monitor must publish a notice that it sends under subsection (3).

(5)In a case within subsection (1)(a) or (c), the notice must state—

(a)the factors by reference to which Monitor proposes to assess the rate of the levy,

(b)the time or times by reference to which it proposes to assess those factors, and

(c)the time or times during the coming financial year when it proposes that the levy, or an instalment of it, will become payable.

(6)In a case within subsection (1)(b), the notice must specify the relevant changes Monitor proposes to make.

(7)A notice under this section must specify when the consultation period in relation to the proposals ends; and for that purpose, the consultation period is the period of 28 days beginning with the day on which the notice is published under subsection (4).

(8)In this section and section 142 a “potentially liable provider” means a provider on whom Monitor is proposing to impose the levy for the coming financial year (regardless of the amount (if any) that the provider would be liable to pay as a result of the proposal).

142Responses to consultation

(1)If Monitor receives objections from one or more potentially liable providers to its proposals, it may not give notice under section 143(1)(b) unless—

(a)the conditions in subsection (2) are met, or

(b)where those conditions are not met, Monitor has made a reference to the Competition Commission.

(2)The conditions referred to in subsection (1)(a) are that—

(a)one or more potentially liable providers object to the proposals within the consultation period, and

(b)the objection percentage and the share of supply percentage are each less than the prescribed percentage.

(3)In subsection (2)

(a)the “objection percentage” is the proportion (expressed as a percentage) of the potentially liable providers who objected to the proposals, and

(b)the “share of supply percentage” is the proportion (expressed as a percentage) of the potentially liable providers who objected to the proposals, weighted according to their share of the supply in England of such services as may be prescribed.

(4)A reference under subsection (1)(b) must be so framed as to require the Competition Commission to investigate and report on the questions—

(a)whether in making the proposals, Monitor failed to give sufficient weight to the matters in section 66,

(b)if so, whether that failure operates, or may be expected to operate, against the public interest, and

(c)if so, whether the effects adverse to the public interest which that failure has or may be expected to have could be remedied or prevented by changes to the proposals.

(5)Schedule 10 (which makes further provision about references to the Competition Commission) has effect in relation to a reference under subsection (1)(b); and for that purpose—

(a)paragraph 1 is to be ignored,

(b)in paragraph 5(2), the reference to six months is to be read as a reference to two months,

(c)in paragraph 5(4), the reference to six months is to be read as a reference to one month,

(d)in paragraph 7, sub-paragraphs (4) to (7) and (9) are to be ignored (and, in consequence of that, in sub-paragraph (8), the words from the beginning to “sub-paragraph (4)(c)” are also to be ignored), and

(e)the references to relevant persons are to be construed in accordance with subsection (6).

(6)The relevant persons referred to in Schedule 10 are—

(a)in paragraphs 3, 5(6) and 6(6)

(i)the National Health Service Commissioning Board, and

(ii)the potentially liable providers who objected to the proposals, and

(b)in paragraph 8(10)

(i)Monitor, and

(ii)the potentially liable providers who objected to the proposals.

(7)In investigating the question under subsection (4)(a), the Competition Commission must have regard to the matters in relation to which Monitor has duties under this Chapter.

(8)Regulations prescribing a percentage for the purposes of subsection (2)(b) may include provision prescribing the method used for determining a provider’s share of the supply in England of the services concerned.

143Amount payable

(1)Monitor must—

(a)calculate the amount which each provider who is to be subject to a levy under section 139 for a financial year is to be liable to pay in respect of that year, and

(b)notify the provider of that amount and the date or dates on which it, or instalments of it, will become payable.

(2)If the provider is to be subject to the levy for only part of the financial year, it is to be liable to pay only the amount which bears to the amount payable for the whole financial year the same proportion as the part of the financial year for which the provider is to be subject to the levy bears to the whole financial year.

(3)The amount which a provider is liable to pay may be zero.

(4)Subsection (5) applies if, during a financial year in which Monitor is imposing a levy under section 139, it becomes satisfied that the risk of a provider who is subject to the levy going into special administration has changed by reference to what it was—

(a)at the start of the year, or

(b)if Monitor has already exercised the power under subsection (5) in relation to the levy in the case of that provider, at the time it did so.

(5)Monitor may notify the provider that Monitor proposes to adjust the amount that the provider is liable to pay so as to reflect the change; and the notice must specify the amount of the proposed adjustment.

(6)Following the expiry of the period of 28 days beginning with the day after that on which Monitor sends the notice, it may make the adjustment.

(7)In a case within subsection (2), subsection (4) has effect as if references to the financial year were references to the part of the financial year for which the provider is to be subject to the levy.

(8)Where a provider who reasonably believes that Monitor has miscalculated the amount notified to the provider under subsection (1) or (5) requests Monitor to recalculate the amount, Monitor must—

(a)comply with the request, and

(b)send the provider written notice of its recalculation.

(9)Subsection (8) does not apply to a request to recalculate an amount in respect of a financial year preceding the one in which the request is made.

(10)If the whole or part of the amount which a person is liable to pay is not paid by the date by which it is required to be paid, the unpaid balance carries interest at the rate for the time being specified in section 17 of the Judgments Act 1838; and the unpaid balance and accrued interest are recoverable summarily as a civil debt (but this does not affect any other method of recovery).

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