The NHS Commissioning Board Authority (Abolition and Transfer of Staff, Property and Liabilities) and the Health and Social Care Act 2012 (Consequential Amendments) Order 2012

EXPLANATORY NOTE

(This note is not part of the Order)

This Order abolishes the NHS Commissioning Board Authority (“the Authority”) and makes associated provision for the transfer of staff, property, rights and liabilities from the Authority to the NHS Commissioning Board (“the Board”). The Authority is a Special Health Authority established under section 28 of the 2006 Act to take preparatory steps towards the establishment and operation of the Board. The Board is established under section 1H of the 2006 Act as inserted by section 9(1) of the 2012 Act. This Order also makes amendments consequential on the establishment of the Board and clinical commissioning groups (“CCGs”) and the continuation of Monitor by provision in the National Health Service Act 2006 (c. 41) (“the 2006 Act”), as amended by the Health and Social Care Act 2012 (c. 7) (“the 2012 Act”).

Part 2 of this Order abolishes the Authority (article 3). It also makes provision (article 4) for the contracts of employment of any person employed by the Authority immediately before the transfer date to transfer to the Board on the transfer date (which is the date on which the Order comes into force by virtue of article 1(2)) and for the transfer of all related liabilities. Provision is also made for specific property, rights and liabilities to transfer to the Board on the transfer date (article 5 and Schedule 1) and for the property listed in Schedule 1 to transfer from the Authority to the Board on that date including any rights and liabilities in respect of contracts and agreements entered into by the Authority. Further provision is made in respect of the transfer of liabilities from the Authority to the Board including provision for the Board to prepare final accounts and an annual report in respect of the Authority for the period beginning on 1st April 2012 and ending on the transfer date (article 6). Article 7 makes provision for continuity and for the transfer of property and liabilities which could not be transferred otherwise than by the Order. The Order also makes consequential amendments to and revocations of secondary legislation which are necessary as a result of the abolition of the Authority under article 3 (article 8 and Schedule 2).

Part 3 (article 9) of and Schedule 3 to the Order make consequential amendments to secondary legislation which are necessary as a result of the establishment of the Board and CCGs. The majority of the instruments amended by provision in Schedule 3 establish bodies with a role in the health service. Certain people are disqualified from appointment as chair or non-executive member of such bodies, including for example people who have been dismissed from employment with a “health service body”, and people who are currently, or who were removed from office as, the chair, member or director of a “health service body”. The amendments add the Board and CCGs to the definition of “health service body”. For CCGs, the relevant offices which give rise to disqualification are the chair or member of a governing body of the CCG. The amendments made at paragraphs 4 to 7 of Schedule 3 add the Board and CCGs to some or all of the regulations governing schemes for meeting losses and liabilities established by the Secretary of State under section 71 of the 2006 Act. They also add NHS Property Services Limited (a company formed under section 223 of the 2006 Act, which will own and manage property formerly owned by Strategic Health Authorities and Primary Care Trusts), to certain of those schemes. Paragraph 11 of Schedule 3 substitutes references to the Authority with references to the Board in regulations 16 and 18 of the Care Quality Commission (Registration) Regulations 2009, meaning that service providers do not have to notify the Care Quality Commission of the death of a service user or serious incident if the event has already been reported to the Board.

Part 3 (article 10) of and Schedule 4 to the Order make consequential amendments to secondary legislation that are necessary as a result of section 61(1) of the 2012 Act which provides for the body corporate known as the Independent Regulator of NHS Foundation Trusts to continue in existence and to be known as Monitor. The amendments mainly substitute references to the Independent Regulator of NHS Foundation Trusts with references to Monitor.

This Order comes into force in accordance with article 1(2). For the purposes of article 10 and Schedule 4, this is 1st October 2012. For the purposes of the rest of the Order, it comes into force immediately after the coming into force of section 1H(1) of the 2006 Act, as inserted by section 9 of the 2012 Act. Section 1H(1) establishes the Board, and it is expected to be in force from 1st October 2012.

A full impact assessment has not been produced for this Order as the instrument itself has no impact on the private sector or civil society organisations. A full impact assessment has been produced in relation to the provisions of the 2012 Act and a copy is available at http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsLegislation/DH_123583.