Health and Social Care Act 2012

105 Discretionary requirements E+W

(1) [F1 NHS England] may impose one or more discretionary requirements on a person if [F1 NHS England] is satisfied that the person—

(a) has provided, or is providing, a health care service for the purposes of the NHS in breach of the requirement to hold a licence under this Chapter (see section 81),

(b) is a licence holder who has provided, or is providing, a health care service for the purposes of the NHS in breach of a condition of the licence, or

(c) is in breach of a requirement imposed by [F1 NHS England] under section 104.

(2) In this Chapter, “discretionary requirement” means—

(a) a requirement to pay a monetary penalty to [F2 NHS England] of such amount as [F2 NHS England] may determine (referred to in this Chapter as a “variable monetary penalty”),

(b) a requirement to take such steps within such period as [F3 NHS England] may specify, to secure that the breach in question does not continue or recur (referred to in this Chapter as a “compliance requirement”), or

(c) a requirement to take such steps within such period as [F4 NHS England] may specify, to secure that the position is, so far as possible, restored to what it would have been if the breach in question was not occurring or had not occurred (referred to in this Chapter as a “restoration requirement”).

(3) [F5 NHS England] must not impose discretionary requirements on a person on more than one occasion in relation to the same breach.

(4) A variable monetary penalty must not exceed 10% of the turnover in England of the person on whom it is imposed, such amount to be calculated in the prescribed manner.

(5) If the whole or any part of a variable monetary penalty is not paid by the time it is required to be paid, the unpaid balance from time to time carries interest at the rate for the time being specified in section 17 of the Judgments Act 1838; but the total interest must not exceed the amount of the penalty.

Textual Amendments

F1 Words in s. 105(1) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 5 para. 67; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F2 Words in s. 105(2)(a) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 5 para. 67; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F3 Words in s. 105(2)(b) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 5 para. 67; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F4 Words in s. 105(2)(c) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 5 para. 67; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F5 Words in s. 105(3) substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 5 para. 67; S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

Commencement Information

I1 S. 105 partly in force; s. 105 in force for specified purposes at Royal Assent, see s. 306(1)(d)

I2 S. 105(1)(a) in force at 1.4.2014 in so far as not already in force by S.I. 2014/39, art. 2(3)

I3 S. 105(1)(b)(c)(2)(b)(c)(3) in force at 1.4.2013 in so far as not already in force by S.I. 2013/671, art. 2(3)

I4 S. 105(2)(a)(4)(5) in force at 1.7.2013 in so far as not already in force by S.I. 2013/671, art. 2(4)