PART 5Agreements: required terms
F1Disclosure of information about NHS earnings: contractors and sub-contractors21A
1
An agreement which is with a person falling within section 93(1)(b) to (e) of the Act must include the term specified in paragraph (2).
2
The term is a term which requires the contractor to comply with the disclosure obligation for each relevant financial year in which—
a
they are a contractor, and
b
their NHS earnings exceed the relevant threshold.
3
For the purposes of this regulation—
a
the disclosure obligation, in relation to a relevant financial year, is the requirement for an individual (“I”) to submit the following information for publication to F13NHS England by the disclosure date—
i
I’s name,
ii
I’s job title,
iii
the details of each organisation from which I has derived NHS earnings in that financial year, and
iv
the amount of I’s NHS earnings for that financial year;
b
F4... “relevant financial year” means a financial year ending—
i
on or after 31st March F72022, but
ii
on or before 31st March 2024;
F5ba
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c
“relevant threshold” means—
F8i
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F2ii
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iii
for the financial year ending on 31st March 2022, £156,000;
iv
for the financial year ending on 31st March 2023, £159,000;
v
for the financial year ending on 31st March 2024, £163,000.
F64
For the purposes of paragraph (3)(a) “the disclosure date”, in relation to a relevant financial year, is 30th April in the financial year which begins immediately after the end of the next financial year.
5
For the purposes of paragraph (4) “the next financial year”, in relation to a financial year (“FY1”), is the financial year which begins immediately after the end of FY1 F3....
6
An agreement must also include a term which prevents the contractor from sub-contracting any of its obligations to provide clinical services under the agreement unless—
a
where the sub-contractor is an individual, the sub-contract entered into by the contractor requires the individual to comply with the disclosure obligation for each relevant financial year in which the individual’s NHS earnings exceed the relevant threshold;
b
where the sub-contractor is a partnership, the sub-contract entered into by the contractor requires each sub-contractor partnership member of that partnership to comply with the disclosure obligation for each relevant financial year in which the sub-contractor partnership member’s NHS earnings exceed the relevant financial threshold;
c
in all cases, the sub-contract prohibits the sub-contractor (“S”) from sub-contracting, where permitted by paragraph 43(4A) of Schedule 2, any of the clinical services S has agreed with the contractor to provide under the sub-contract unless—
i
where the sub-contractor is an individual (“I”), the sub-contract entered into by S requires I to comply with the disclosure obligation in relation to each financial year in which I’s NHS earnings exceed the relevant threshold;
ii
where the sub-contractor is a partnership, the sub-contract entered into by S requires each sub-contractor partnership member in that partnership to comply with the disclosure obligation in relation to each relevant financial year in which the sub-contractor partnership member’s NHS earnings exceed the relevant threshold.
7
An agreement must also include a term requiring the contractor to use reasonable endeavours to ensure that any relevant sub-contract is amended to contain the terms specified in paragraph (9).
8
For the purposes of paragraph (7) “relevant sub-contract” means a sub-contract—
a
for the provision of any of the clinical services which the contractor is required to provide under the agreement by any other person, and
b
which is in force at the time when F9the term in paragraph (7) is incorporated into the contract.
9
The terms are—
a
a term which requires—
i
the subcontractor (“S”), where S is an individual, or
ii
each sub-contractor partnership member, where S is a partnership,
to comply with the disclosure obligation for each relevant financial year in which the individual’s, or as the case may be, sub-contractor partnership member’s NHS earnings exceed the relevant threshold, F10...
b
a term which prevents S from sub-contracting obligations to provide clinical services under the contract, where permitted by paragraph 43(4A) of Schedule 2, unless—
i
where the sub-contractor is an individual (“I”), the sub-contract entered into by S requires I to comply with the disclosure obligation in relation to each financial year in which I’s F12NHS earnings exceed the relevant threshold;
ii
where the sub-contractor is a partnership, the sub-contract entered into by S requires each sub-contractor partnership member to comply with the disclosure obligation in relation to each relevant financial year in which the sub-contractor partnership member’s NHS earnings exceed the relevant threshold F11, and
c
a term which requires S to use reasonable endeavours to ensure that any sub-contract entered into before the term in sub-paragraph (b) was incorporated into that sub-contract is amended to—
i
include the term in paragraph (i) of sub-paragraph (b) in a sub-contract between S and I, and
ii
include the term in paragraph (ii) of sub-paragraph (b) in a sub-contract between S and a partnership.
10
Nothing in paragraph (6), (7) or (9) requires any individual to comply with the disclosure obligation for any relevant financial year which—
a
ends before the individual or partnership (as the case may be) enters into a sub-contract with the contractor or a sub-contractor;
b
begins after the individual’s or, as the case may be, partnership’s sub-contract with the contractor or sub-contractor has terminated.
11
In this regulation—
“locum practitioner” has the meaning given in Schedule 15 to the National Health Service Pension Scheme Regulations 2015;
“NHS earnings” has the meaning given in regulation 27B;
“sub-contractor” means a person to whom any rights or duties under the contract in relation to clinical matters are, or have been, sub-contracted under paragraph 44(1) of Schedule 3, and includes an individual who is a locum practitioner;
“sub-contractor partnership member”, in relation to a sub-contractor who is a partnership, means an individual who is a partner in that partnership.