Part 1: Health Service in England: Integration, Collaboration and Other Changes NHS Trusts and NHS Foundation Trusts: transfer schemes Schedule 8: Trust special administrators: NHS trusts and NHS foundation trusts
This Schedule outlines the changes to the process and authorisation for the appointment of trust special administrators, including the reporting mechanisms, amending sections of Part 2, Chapter 5A (Trust Special Administrators: NHS Trusts and NHS foundation trusts) of the NHS Act 2006 as follows.
	Paragraph 2 of the Schedule substitutes a new section 65B to reflect the formal merger under this Act of the TDA and Monitor into NHS England.
	Subsection 65B(1) transfers the responsibility for appointing a trust special administrator to an NHS trust from the Secretary of State to NHS England. Subsection 65B(2)(a) introduces a requirement for NHS England to appoint a trust special administrator if required to do so by the Care Quality Commission (CQC), as is already required for NHS foundation trusts. Otherwise, under section 65B(2)(b), NHS England can only make the order to appoint if it considers it to be in the interest of the health service and the Secretary of State has approved the making of the order.
	Subsection 65B(3) enables the CQC to require NHS England to make an order under section 65B(1) if it is satisfied that there is a serious failure by the NHS trust to provide services that are of sufficient quality to be provided under the NHS Act 2006. Subsection 65B(4) adds any integrated care board in whose area the trust has hospitals, establishments or facilities to the list of bodies that the CQC must consult.
	Similarly, in a case where NHS England is not required by the CQC to make an order to appoint a trust special administrator and it is considering making an order under paragraph 65B(2)(b), section 65B(5) adds any integrated care board in whose area the trust has hospitals, establishments or facilities to the list of bodies that NHS England must consult before making the order.
	Subsection (6) and (7) of the new section 65B state that, in making an order to appoint a trust special administrator, NHS England must specify the date which the appointment is to take effect (which must be within 5 working days of the order being made) and must lay before Parliament a report stating the reasons for making an order.
	Subsections (8), (9) and (10) of new section 65B outline the terms in which a trust special administrator appointment is made, and the conditions placed on the trust special administrator.
	Section 65BA places a duty on the CQC to provide to NHS England and the Secretary of State a report on the safety and quality of the services provided by the NHS trust which is to be subject to the trust special administrator order that NHS England has been required by the CQC to make, as is currently required in relation to NHS foundation trusts.
	Paragraphs 3 and 4 replace the name of the regulator, formerly Monitor, with NHS England. NHS England is now responsible for appointing a trust special administrator for foundation trusts, The requirement to indemnify a trust special administrator has been removed from section 65D(12) and replaced with a provision allowing NHS England to pay remuneration and expenses, which replicates the provision in relation to NHS trusts.
	Paragraph 5 of the schedule amends section 65F, replacing the requirement for the trust special administrator to provide a draft report to the Secretary of State with one to provide a draft report to both the Secretary of State and NHS England if the report is in relation to an NHS trust. In the case of a foundation trust, the draft report is now to be provided to NHS England, having previously been provided to Monitor. The draft report is to contain recommended action which, in the case of an NHS trust, is to be taken by NHS England or the Secretary of State and, in the case of a foundation trust, is to be taken by NHS England and the draft is to be published (sections 65F(1) and 65F(1A)).
	Section 65F(1B) sets out the circumstances in which a trust special administrator may not provide a draft report under subsection (1A).
	When the trust special administrator is preparing the draft report it must consult those to whom the trust provides goods or services under the NHS Act 2006 and which NHS England directs the administrator should consult, and the CQC (section 65F(2)).
	After NHS England has received the draft report in respect of an NHS trust or a foundation trust, it must lay the draft report before Parliament (section 65F(3)). It was previously for the Secretary of State to lay the draft before Parliament in respect of NHS trusts and for Monitor as the regulator to lay the draft report before Parliament in relation to foundation trusts.
	If NHS England decides not to provide the administrator with the statement under section 65F(1B)(b), it is required to give a notice of the reasons for its decision to the administrator, publish the notice and lay a copy of it before Parliament (section 65F(6)). Where the CQC decides not to provide the administrator with a statement to the effect mentioned in section 65F(1C), it must give a notice of the reasons for its decisions to the administrator and NHS England, publish the notice and lay a copy of it before Parliament (section 65F(6A)).
	Paragraph 6 of this schedule makes amendments to Section 65G, replacing the references to the regulator to NHS England and including amended or new provisions for NHS England and CQC.
	Section 65G(5) is replaced by the insertion of a new subsection which replaces the name of "The Board" with "NHS England" with the substance of that provision remaining unchanged.
	A new subsection (5A) is inserted which amends the requirements placed on the CQC where it decides not to provide a statement to the effect mentioned in subsection (4A); the CQC is required to give notice of its reasons for that decision not only to the administrator, but now also to NHS England. That notice continues to be published and laid before Parliament.
	Paragraph 7 of this schedule makes amendments to section 65H.
	Sections 65H(7) and (8), which deal with persons from whom the trust special administrator must seek written responses to the draft report, are now amalgamated into section 65H(7) in light of the earlier repeals of certain provisions. In addition, "the Board" is removed as a body from whom a written response should be sought, and NHS England may now direct the administrator to hold a meeting with any person and seek their responses (section 65H(9A)).
	Sections 65H(10) and (10A) have been replaced by a new section 65H(10) so that the Secretary of State may now direct NHS England as to the persons from whom it should direct the administrator to request a written response and seek a response through holding a meeting.
	As NHS England will be responsible for appointing a trust special administrator for both NHS trusts and foundation trusts, section 65H(13) has been repealed as this is dealt with in new section 65H(10).
	Paragraph 8 of this schedule makes amendments to section 65I, to include a requirement for the trust special administrator to report to NHS England as well as the Secretary of State with respect NHS trusts.
	The amendments require the trust special administrator to provide its final report with the recommended actions to NHS England and the Secretary of State in relation to an NHS trust, and to NHS England in the case of a foundation trust. The period for receipt of the report remains unchanged (section 65I(1) and (1A)).
	Subsection (3) is amended to place a duty on NHS England rather than Secretary of State to lay the final report in parliament.
	Paragraph 9 of this schedule makes amendments to section 65J, to reflect the inclusion of new subsection 65I(1A) and the change in approval for an extension to be granted now resting with NHS England, not the Secretary of State (section 65J(2)).
	Section 65J(5) is repealed as NHS England regulates both NHS trusts and foundation trusts.
	Paragraphs 10 and 11 of this schedule substitute a new section 65K. In relation to NHS trusts, both NHS England and the Secretary of State are to receive the administrator’s final report which will state which action, if any, either are to take. The Secretary of State and NHS England are required to consult each other before taking any decision to take action in relation to a trust. After a decision has been taken, the party taking the action must publish a notice of the decision and reason for it and lay a copy of the notice before Parliament as soon as reasonably practicable. This reflects the responsibility that NHS England now has for the appointment of trust special administrators.
	Paragraphs 12 to 14 of this schedule replace references to the "regulator" with "NHS England".
	Paragraph 15 of this schedule amends section 65KD. If the Secretary of State is not satisfied with the final report and publishes a notice to say that an integrated care board has failed to discharge a function, the integrated care board is to be treated as having failed to discharge the function allowing the Secretary of State to exercise NHS England’s power of direction over integrated care boards in section 14Z61 of the NHS Act 2006 while prohibiting NHS England from exercising that power (section 65KD(5)).
	The provisions allowing the Secretary of State to exercise the Board’s functions if the notice stated that it was the Board who had failed to discharge its functions have been repealed as the Secretary of State’s new power of direction over NHS England in section 45 can achieve the same effect.
	The provisions allowing the Secretary of State to exercise functions of Monitor if the notice stated that the trust special administrator or Monitor had failed to discharge their duties have been repealed now that NHS England replaces Monitor as the regulator and the Secretary of State’s new power of direction over NHS England can achieve the same effect.
	Paragraph 16 of this schedule makes amendments to section 65L.
	In relation to NHS trusts, if both the Secretary of State and NHS England decide not to dissolve a trust, NHS England must make an order specifying the date when the appointment of the trust special administrator and the suspension of the chair and directors of the trust comes to an end (section 65L(1) and (2)).
	In relation to a foundation trust, if the Secretary of State decides under section 65KD(9) not to dissolve the trust or decides they are satisfied under section 65KB(1) or 65KD(1) in respect of the matters stated within those provisions, and the action recommended in the final report is not to dissolve the trust, then NHS England must make an order bringing the appointment of the trust special administrator and the suspension of the chair and directors of the trust to an end (section 65L(2A) and (2B).
	Paragraph 17 of this schedule amends section 65LA, replacing in the reference to "the regulator" with "NHS England".
	Paragraph 18 of this schedule amends section 65M, to provide that NHS England, not the Secretary of State, is responsible for appointing a replacement administrator.
	Section 65M(3) is repealed in light of the fact that NHS England is the regulator for both NHS Trusts and foundation trusts.
	Paragraph 19 amends section 65N, by placing the duty on NHS England, instead of the Secretary of State, to publish guidance for trust special administrators. Section 65N(4) is repealed in light of the fact that NHS England is the regulator for both NHS trusts and foundation trusts.
	Paragraph 20 makes consequential amendments to section 65O.
	Paragraph 21 amends section 272 (orders, regulations, rules and directions) so that an order made under section 65L(2B) is not subject to a parliamentary procedure, which aligns with orders made under section 65L(2).