SCHEDULES
SCHEDULE 11Further provision about F1NHS England’s enforcement powers
PART 1Discretionary requirements
Procedure
I11
1
2
A notice of intent must—
a
state that F7NHS England proposes to impose the discretionary requirement and set out its effect,
b
set out the grounds for the proposal to impose the requirement,
c
explain the effect of section 106 (enforcement undertakings),
d
set out the circumstances (if any) in which F8NHS England may not impose the requirement, and
e
specify the period (“the notice period”) within which representations with respect to the proposal may be made to F9NHS England.
3
The notice period must be not less than 28 days beginning with the day after that on which the notice of intent is received.
4
But where F10NHS England—
a
proposes to impose a compliance requirement or restoration requirement, and
b
considers that a shorter notice period is necessary to prevent or minimise further breaches of the kind referred to in section 105(1),
the notice period is to be such shorter period as F10NHS England may determine, but not less than 5 days beginning with the day after that on which the notice of intent is received.
2
I21
After the end of the notice period F2NHS England must decide whether to—
a
impose the discretionary requirement, with or without modifications, or
b
impose any other discretionary requirement.
I22
3
A final notice must—
I2a
state that F4NHS England has decided to impose the discretionary requirement and set out its effect,
I2b
set out the grounds for imposing the requirement,
I9c
in the case of a variable monetary penalty, state—
i
how payment may be made,
ii
the period (“the payment period”) within which payment must be made,
iii
any discount applicable for early payment of the penalty, and
iv
the rate of interest payable for late payment of the penalty,
I2d
set out the consequences of failing to comply with the requirement, and
I2e
explain the right of appeal conferred by paragraph 3.
I94
The payment period must be not less than 28 days beginning with the day after that on which the final notice is received.
I95
F5NHS England must not decide under sub-paragraph (1) to impose a variable monetary penalty unless the notice of intent was given before the end of the period of 5 years beginning with the day (or, in the case of a continuing breach, the last day) on which the breach giving rise to the imposition of the discretionary requirement occurred.
3
I31
A person may appeal to the First-tier Tribunal against a decision of F11NHS England to impose a discretionary requirement.
2
The grounds for an appeal under this paragraph are—
I3a
that the decision was based on an error of fact,
I3b
that the decision was wrong in law,
I10c
in the case of a decision imposing a variable monetary penalty, that the amount of the penalty is unreasonable,
I3d
in the case of a decision to impose a compliance requirement or a restoration requirement, that the nature of the requirement is unreasonable, or
I3e
that the decision was unreasonable for any other reason.
3
The discretionary requirement is suspended pending determination of the appeal.
4
On an appeal under this paragraph, the Tribunal may—
a
confirm, vary or withdraw the discretionary requirement,
b
take such steps as F12NHS England could take in relation to the breach giving rise to the imposition of the requirement, or
c
remit the decision whether to confirm the requirement, or any matter relating to that decision, to F13NHS England.
4
F14NHS England may by notice to a person on whom a discretionary requirement has been imposed—
I8a
withdraw the discretionary requirement,
I11b
in the case of a variable monetary penalty, reduce the amount of the penalty or extend the payment period, or
I8c
in the case of a compliance requirement or a restoration requirement, extend the period specified for taking the steps specified in the requirement.
Non-compliance penalties
I45
1
2
3
A non-compliance notice must—
a
specify the amount of the non-compliance penalty,
b
set out the grounds for imposing the penalty,
c
state how payment of the penalty may be made,
d
state the period (“the payment period”) within which payment must be made,
e
state any discount applicable for early payment of the penalty,
f
set out the consequences of a failure to pay within the payment period (including any increase in the amount payable), and
g
explain the right of appeal conferred by paragraph 6.
4
The payment period must be not less than 28 days beginning with the day after that on which the non-compliance notice is received.
5
If the whole or any part of a non-compliance penalty is not paid by the time it is required to be paid F17NHS England may increase the amount payable by no more than 50% of the amount of the penalty.
6
F18NHS England may by notice to a person on whom a non-compliance penalty has been imposed reduce the amount of the penalty or extend the payment period.
I56
1
A person may appeal to the First-tier Tribunal against a decision of F19NHS England to impose a non-compliance penalty.
2
The grounds for such an appeal are—
a
that the decision was based on an error of fact,
b
that the decision was wrong in law, or
c
that the decision was, or the amount of the penalty is, unfair or unreasonable.
3
The non-compliance penalty is suspended pending determination of the appeal.
4
On an appeal, the Tribunal may—
a
confirm, vary or withdraw the non-compliance penalty, or
b
remit the decision whether to confirm the penalty, or any matter relating to that decision, to F20NHS England.
Recovery of financial penalties
7
I61
Amounts payable to F21NHS England of the kind mentioned in sub-paragraph (2) are recoverable summarily as a civil debt (but this does not affect any other method of recovery).
2
The amounts are—
I12a
a variable monetary penalty and any interest payable on it, or
I6b
a non-compliance penalty.
Payments of penalties etc. into Consolidated Fund
8
F22NHS England must pay any sums it receives in respect of any of the following into the Consolidated Fund—
I13a
a variable monetary penalty and any interest payable on it, or
I7b
a non-compliance penalty.
Words in Sch. 11 heading substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 5 para. 100(2); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)