Health and Social Care Act 2012

Section 120

SCHEDULE 12 E+W Procedure on references under section 120

Modifications etc. (not altering text)

C1 Sch. 12 modified (temp.) (1.7.2022) by The Health and Care Act 2022 (Commencement No. 2 and Transitional and Saving Provision) Regulations 2022 (S.I. 2022/734), reg. 19(3)(4) (with regs. 13, 29, 30)

Contents etc. of reference E+W

1 (1) A reference under section 120 must specify— E+W

(a) Monitor's reasons for proposing the method to which the reference relates, and

(b) its representations as to why the grounds referred to in section 121(4) do not apply.

(2) Monitor must give notice of the reference to—

(a) [F1 NHS England], and

(b) each objector.

(3) The notice must be accompanied by a copy of the reference.

(4) In this Schedule, “objector” means—

(a) in relation to a reference made where the condition in section 120(2)(a) is not met, each clinical commissioning group who objected to the proposed method to which the reference relates, and

(b) in relation to a reference made where the condition in section 120(2)(b) or (c) is not met, each relevant provider who objected to that proposed method.

Textual Amendments

F1 Words in Sch. 12 substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 1 para. 1(1)(2); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

Commencement Information

I1 Sch. 12 para. 1 in force at 1.9.2013 for specified purposes by S.I. 2013/671, art. 2(5)

I2 Sch. 12 para. 1 in force at 1.4.2014 in so far as not already in force by S.I. 2014/39, art. 2(3)

Representations by objectors E+W

2 (1) If an objector wishes to make representations to the [F2 CMA] on the matters specified in the reference for the purposes of paragraph 1(1), the objector must do so before the end of the period of 10 working days beginning with the day on which the objector receives the notice under paragraph 1(2). E+W

(2) The objector must give Monitor a copy of the representations.

(3) If Monitor wishes to reply to representations under sub-paragraph (1), it must do so before the end of the period of 10 working days beginning with the day on which it receives the copy under sub-paragraph (2).

(4) Monitor must send a copy of its reply to the objector who made the representations.

(5) In this Schedule, “working day” means any day other than—

(a) a Saturday or a Sunday,

(b) Christmas Day or Good Friday, or

(c) a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971.

Textual Amendments

F2 Word in Sch. 12 para. 2(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(2); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I3 Sch. 12 para. 2 in force at 1.9.2013 for specified purposes by S.I. 2013/671, art. 2(5)

I4 Sch. 12 para. 2 in force at 1.4.2014 in so far as not already in force by S.I. 2014/39, art. 2(3)

Functions of [F3 CMA] in relation to reference E+W

Textual Amendments

F3 Word in Sch. 12 para. 3 cross-heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(3); S.I. 2014/416, art. 2(1)(d) (with Sch.)

3 F4 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W

(2) A group [F5 constituted by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 for the purpose of carrying out functions of the CMA with respect to a reference under section 120] must consist of three members of the [F6 CMA panel].

F7 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F7 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F7 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F7 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) A decision of [F8 the group] is effective only if—

(a) all the members of the group are present when it is made, and

(b) at least two members of the group are in favour of it.

Textual Amendments

F4 Sch. 12 para. 3(1) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(4)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F5 Words in Sch. 12 para. 3(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(4)(b)(i); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F6 Words in Sch. 12 para. 3(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(4)(b)(ii); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F7 Sch. 12 para. 3(3)-(6) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(4)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F8 Words in Sch. 12 para. 3(7) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(4)(d); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I5 Sch. 12 para. 3 in force at 1.9.2013 for specified purposes by S.I. 2013/671, art. 2(5)

I6 Sch. 12 para. 3 in force at 1.4.2014 in so far as not already in force by S.I. 2014/39, art. 2(3)

Timetable for determination on reference E+W

4 (1) [F9 The CMA must make its determination on a reference] before the end of the period of 30 working days following the last day for the making by Monitor of a reply in accordance with paragraph 2. E+W

(2) If [F10 the CMA] is satisfied that there are good reasons for departing from the normal requirements, it may (on one occasion only) extend that period by not more than 20 working days.

(3) The [F11 CMA] must ensure that an extension under sub-paragraph (2) is notified to—

(a) Monitor,

(b) [F1 NHS England], and

(c) every objector who made representations in accordance with paragraph 2.

Textual Amendments

F1 Words in Sch. 12 substituted (1.7.2022) by Health and Care Act 2022 (c. 31), s. 186(6), Sch. 1 para. 1(1)(2); S.I. 2022/734, reg. 2(a), Sch. (with regs. 13, 29, 30)

F9 Words in Sch. 12 para. 4(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(5)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F10 Word in Sch. 12 para. 4(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(5)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F11 Word in Sch. 12 para. 4(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(5)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I7 Sch. 12 para. 4 in force at 1.9.2013 for specified purposes by S.I. 2013/671, art. 2(5)

I8 Sch. 12 para. 4 in force at 1.4.2014 in so far as not already in force by S.I. 2014/39, art. 2(3)

Matters to be considered on determination E+W

5 (1) If the [F12 CMA] considers it necessary to disregard the matters referred to in sub-paragraph (2) in order to secure the making of the determination [F13 on a reference] within the period allowed by paragraph 4, it may do so. E+W

(2) The matters mentioned in sub-paragraph (1) are—

(a) all matters raised by an objector in representations under paragraph 2 that the objector did not raise at the time of the consultation under section 118, and

(b) all matters raised by Monitor in replies under paragraph 2 that it did not include in the reference.

Textual Amendments

F12 Word in Sch. 12 para. 5(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(6)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F13 Words in Sch. 12 para. 5(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(6)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I9 Sch. 12 para. 5 in force at 1.9.2013 for specified purposes by S.I. 2013/671, art. 2(5)

I10 Sch. 12 para. 5 in force at 1.4.2014 in so far as not already in force by S.I. 2014/39, art. 2(3)

Production of documents E+W

6 (1) The [F14 CMA] may by notice require a person to produce to it the documents specified or otherwise identified in the notice. E+W

(2) The power to require the production of a document is a power to require its production—

(a) at the time and place specified in the notice, and

(b) in a legible form.

(3) The [F15 CMA] may take copies of a document produced to it under this paragraph.

Textual Amendments

F14 Word in Sch. 12 para. 6(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(7); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F15 Word in Sch. 12 para. 6(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(7); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I11 Sch. 12 para. 6 in force at 1.9.2013 for specified purposes by S.I. 2013/671, art. 2(5)

I12 Sch. 12 para. 6 in force at 1.4.2014 in so far as not already in force by S.I. 2014/39, art. 2(3)

Oral hearings E+W

7 (1) For the purposes of this Schedule, an oral hearing may be held, and evidence may be taken on oath by [F16 the CMA]. E+W

(2) [F17 The CMA] may administer oaths for the purposes of this Schedule.

(3) The [F18 CMA] must give notice to each objector who has made representations in accordance with paragraph 2 of the time and place at which an oral hearing is to be held.

(4) The [F19 CMA] may by notice require a person—

(a) to attend at a time and place specified in the notice, and

(b) to give evidence [F20 to it] at that time and placeF21 ....

(5) At an oral hearing, the [F22 CMA] may require a person who comes within sub-paragraph (6), if present at the hearing, to give evidence or to make representations.

(6) A person comes within this sub-paragraph if the person is—

(a) an objector who has made representations in accordance with paragraph 2,

(b) a person attending the hearing as a representative of a person mentioned in paragraph (a), or

(c) a person attending the hearing as a representative of Monitor.

(7) A person who gives oral evidence at the hearing may be cross-examined by or on behalf of any other person who is present at the hearing and comes within sub-paragraph (6).

(8) If a person is not present at a hearing and so cannot be made subject to a requirement under sub-paragraph (5)—

(a) the [F23 CMA] is not obliged to require the person to attend the hearing, and

(b) the [F24 CMA] may make a determination on the reference without hearing that person's evidence or representations.

(9) Where a person is required under this paragraph to attend at a place more than 10 miles from that person's place of residence, the [F25 CMA] must pay the person the necessary expenses of attending.

Textual Amendments

F16 Words in Sch. 12 para. 7(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(8)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F17 Words in Sch. 12 para. 7(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(8)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F18 Word in Sch. 12 para. 7(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(8)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F19 Word in Sch. 12 para. 7(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(8)(d)(i); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F20 Words in Sch. 12 para. 7(4)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(8)(d)(ii); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F21 Words in Sch. 12 para. 7(4)(b) omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(8)(d)(ii); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F22 Word in Sch. 12 para. 7(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(8)(e); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F23 Word in Sch. 12 para. 7(8)(a) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(8)(f)(i); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F24 Word in Sch. 12 para. 7(8)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(8)(f)(ii); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F25 Word in Sch. 12 para. 7(9) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(8)(g); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I13 Sch. 12 para. 7 in force at 1.9.2013 for specified purposes by S.I. 2013/671, art. 2(5)

I14 Sch. 12 para. 7 in force at 1.4.2014 in so far as not already in force by S.I. 2014/39, art. 2(3)

Written statements E+W

8 (1) The [F26 CMA] may by notice require a person to produce a written statement with respect to a matter specified in the notice to [F27 the CMA]. E+W

(2) The power to require the production of a written statement includes power to specify the time and place at which it is to be produced.

(3) The written statement must be verified in accordance with a statement of truth.

(4) In this paragraph and paragraph 9, “statement of truth” means a statement that the person producing the document which includes the statement believes the matters stated as facts in the document to be true.

Textual Amendments

F26 Word in Sch. 12 para. 8(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(9)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F27 Words in Sch. 12 para. 8(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(9)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I15 Sch. 12 para. 8 in force at 1.9.2013 for specified purposes by S.I. 2013/671, art. 2(5)

I16 Sch. 12 para. 8 in force at 1.4.2014 in so far as not already in force by S.I. 2014/39, art. 2(3)

Defaults in relation to evidence E+W

9 (1) This paragraph applies if a person (“the defaulter”)— E+W

(a) fails to comply with a notice or other requirement under paragraph 6, 7 or 8,

(b) in complying with a notice under paragraph 8, makes a statement that is false in a material particular, or

(c) in providing information otherwise verified in accordance with a statement of truth required by rules under paragraph 11, provides information that is false in a material particular.

(2) A member of the [F28 group constituted for the purpose of carrying out functions of the CMA with respect to the reference to which the notice or requirement relates] may certify the failure, or the fact that a false statement has been made, to the High Court.

(3) The High Court may inquire into a matter so certified.

(4) If the High Court, having heard any witness on behalf of or against the defaulter and any statement in the defaulter's defence, is satisfied that the defaulter did, without reasonable excuse, the act referred to in sub-paragraph (1), it may punish the defaulter as if the defaulter had been guilty of contempt of court.

Textual Amendments

F28 Words in Sch. 12 para. 9(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(10); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I17 Sch. 12 para. 9 in force at 1.9.2013 for specified purposes by S.I. 2013/671, art. 2(5)

I18 Sch. 12 para. 9 in force at 1.4.2014 in so far as not already in force by S.I. 2014/39, art. 2(3)

General provisions relating to evidence E+W

10 (1) No person may be compelled to give evidence under paragraph 6, 7 or 8 which the person could not be compelled to give in civil proceedings in the High Court. E+W

(2) A notice under paragraph 6, 7 or 8 may be given on the [F29 CMA's behalf by a member of the group constituted for the purpose of carrying out functions of the CMA with respect to the reference to which the notice relates].

Textual Amendments

F29 Words in Sch. 12 para. 10(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(11); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I19 Sch. 12 para. 10 in force at 1.9.2013 for specified purposes by S.I. 2013/671, art. 2(5)

I20 Sch. 12 para. 10 in force at 1.4.2014 in so far as not already in force by S.I. 2014/39, art. 2(3)

Procedural rules E+W

11 (1) The [F30 CMA Board] may make rules of procedure for determinations on references under section 120. E+W

(2) Those rules may include provision supplementing the provisions of this Schedule in relation to any notice, hearing or requirement for which this Schedule provides; and that provision may, in particular, impose time limits or other restrictions on—

(a) the taking of evidence at an oral hearing, or

(b) the making of representations at an oral hearing.

(3) The rules may apply, with or without modification, provision included in appeal rules under Schedule 22 to the Energy Act 2004.

(4) The [F31 CMA Board] must publish rules made under this paragraph.

(5) Before making rules under this paragraph, the [F31 CMA Board] must consult such persons as it considers appropriate.

(6) Rules under this paragraph may make different provision for different cases.

Textual Amendments

F30 Words in Sch. 12 para. 11(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(12)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F31 Words in Sch. 12 para. 11(4)(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(12)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I21 Sch. 12 para. 11 in force at 1.9.2013 for specified purposes by S.I. 2013/671, art. 2(5)

I22 Sch. 12 para. 11 in force at 1.4.2014 in so far as not already in force by S.I. 2014/39, art. 2(3)

Costs E+W

12 [F32 (1) Where the CMA makes a determination on a reference under section 120 it must make an order requiring the payment to it of the costs it incurred in connection with the reference.] E+W

(2) Where it is determined that the method to which the reference relates is not appropriate, the order must require those costs to be paid by Monitor.

(3) Where it is determined that the method to which the reference relates is appropriate, the order must require those costs to be paid by such objectors as are specified in the order.

(4) Where the order specifies more than one objector, it may specify the proportions in which the objectors are to be liable for the costs.

(5) [F33 The CMA] may also make an order requiring Monitor or an objector who made representations in accordance with paragraph 2 to make payments to the other in respect of costs incurred by the other in connection with [F34 a determination on a reference under section 120].

(6) A person required by an order under this paragraph to pay a sum to another person must comply with the order before the end of the period of 28 days beginning with the day after the making of the order.

(7) Sums required to be paid by an order under this paragraph but not paid within that period are to carry interest at such rate as may be determined in accordance with provision in the order.

Textual Amendments

F32 Sch. 12 para. 12(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(13)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F33 Words in Sch. 12 para. 12(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(13)(b)(i); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F34 Words in Sch. 12 para. 12(5) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 6 para. 139(13)(b)(ii); S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information

I23 Sch. 12 para. 12 in force at 1.9.2013 for specified purposes by S.I. 2013/671, art. 2(5)

I24 Sch. 12 para. 12 in force at 1.4.2014 in so far as not already in force by S.I. 2014/39, art. 2(3)

Power to modify time limits E+W

13 E+W The Secretary of State may by order vary any period specified in this Schedule as the period within which something must be done.

Commencement Information

I25 Sch. 12 para. 13 partly in force; Sch. 12 para. 13 in force for specified purposes at Royal Assent, see s. 306(1)(d)

I26 Sch. 12 para. 13 in force at 1.9.2013 for specified purposes by S.I. 2013/671, art. 2(5)

I27 Sch. 12 para. 13 in force at 1.4.2014 in so far as not already in force by S.I. 2014/39, art. 2(3)