PART 3

Regulation of health and adult social care services
CHAPTER 2

Competition

Requirements under section 75: investigations, declarations and directions
76
1
Regulations under section 75 may confer on Monitor—
a
a power to investigate a complaint that the National Health Service Commissioning Board or a clinical commissioning group has failed to comply with a requirement imposed by the regulations;
b
a power to investigate on its own initiative whether the Board or a clinical commissioning group has failed to comply with a requirement imposed by virtue of section 75(1)(c);
c
a power to require the Board or a clinical commissioning group to provide it with such information as Monitor may specify for the purposes of an investigation it carries out by virtue of paragraph (a) or (b);
d
a power to require the Board or a clinical commissioning group to provide an explanation of such information as it provides by virtue of paragraph (c).
2
A power conferred by virtue of subsection (1)(a) is exercisable only where Monitor considers that the person making the complaint has sufficient interest in the arrangement to which the complaint relates.
3
Regulations under section 75 may confer on Monitor a power to declare that an arrangement for the provision of health care services for the purposes of the NHS is ineffective.
4
A power conferred by virtue of subsection (3) is exercisable only in prescribed circumstances and subject to prescribed restrictions and only where Monitor is satisfied that—
a
the National Health Service Commissioning Board or a clinical commissioning group has failed to comply with a requirement of regulations under section 75, and
b
the failure is sufficiently serious.
5
On a declaration being made by virtue of subsection (3), the arrangement is void; but that does not affect—
a
the validity of anything done pursuant to the arrangement,
b
any right acquired or liability incurred under the arrangement, or
c
any proceedings or remedy in respect of such a right or liability.
6
Regulations under section 75 may confer on Monitor a power to direct the National Health Service Commissioning Board or a clinical commissioning group—
a
to put in place measures for the purpose of preventing failures to comply with requirements imposed by the regulations or mitigating the effect of such failures;
b
to remedy a failure to comply with such a requirement;
c
not to exercise in a prescribed manner prescribed functions in relation to arrangements for the provision of health care services;
d
to vary or withdraw an invitation to tender for the provision of health care services;
e
to vary an arrangement for the provision of health care services made in consequence of putting the provision of the services out to tender.
7
A failure to comply with a requirement imposed by regulations under section 75 which causes loss or damage is actionable, except in so far as the regulations restrict the right to bring such an action.
8
Regulations under section 75 may—
a
provide for a specified defence to such an action;
b
prevent a person who has brought such an action under the Public Contracts Regulations 2006 (S.I. 2006/5) from bringing such an action under the regulations under section 75 in respect of the whole or part of the same loss or damage.