The Health and Social Care Act 2008 (Commencement No.6, Transitory and Transitional Provisions) Order 2008

EXPLANATORY NOTE

(This note is not part of the Order)

Article 2 of this Order brings into force on 12th January 2009 certain provisions of the Health and Social Care Act 2008 (“the Act”) relating to decisions by the Care Quality Commission as to registration under Part 1 of that Act.

The remainder of the Order makes transitory and transitional provision mainly to deal with applications for registration as a service provider under Chapter 2 of Part 1 of the Act which will start between 1st April 2009 and 31st March 2010. Applications for registration with effect from 1st April 2009 will fall to be dealt with between 12th January and 31st March 2009.

Article 3 provides for applications to be made by those who intend to be carrying on, on or after 1st April 2009, an activity which the person reasonably expects to be prescribed as a regulated activity under section 8 of the Act from 1st April 2009.

Article 4 provides that the first code of practice relating to healthcare associated infections issued under section 21 of the Act shall not come into force until 1st April 2009, even if issued before that date.

Article 5 makes a transitory modification to the meaning of “the Tribunal” in section 32 of the Act, pending the expected removal of the definition in secondary legislation relating to the introduction of the First-tier Tribunal.

Article 6 modifies the test to be applied by the Commission to initial applications for registration in order to allow applications to be granted subject to conditions in cases where the Commission is not satisfied that the registration requirements are being and will continue to be met. Such conditions can relate to the requirements of other enactments which appear to the Commission to be relevant as well as to the registration requirements.

Article 6 further provides that applications made on or before 6th February must be dealt with by 31st March 2009 and that the Commission will have until 30th April 2009 to issue certificates of registration.

Article 7 varies the procedure which applies in cases where the Commission intends to grant registration subject to conditions which have not been agreed with the applicant. It provides that such imposed conditions will take effect from 1st April 2009 (or such later date as specified by the Commission). It further provides that, subsequent to being notified of such imposition, the applicant may make representations to the Commission about the conditions and, if conditions are still imposed, may appeal to the Tribunal under section 32 of the Act. Paragraph (9) requires the Commission, in deciding the date from which conditions will take effect, to have regard to the balance between the desirability of preserving service continuity and the need to safeguard patients against serious risks to their life, health or well-being.

Article 8 deals with cases where the Commission decides to refuse an application. It requires the Commission to serve notice of proposal to refuse on the applicant and provides for the refusal to take effect on 1st April 2009 in the case of a decision made on or before 31st March 2009 or at such later date as the Commission specifies in the notice of refusal. Paragraph (3) requires the Commission, in deciding the date from which the refusal will take effect, to have regard to the balance between the desirability of preserving service continuity and the need to safeguard patients against serious risks to their life, health or well-being.