text:
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Audiovisual Media Services Regulations 2009 and come into force on 19th December 2009.
2
In these Regulations “the 2003 Act ” means the Communications Act 2003 .
On-demand programme services
2
In the 2003 Act, after section 368 insert —
PART 4A ON-DEMAND PROGRAMME SERVICES
Preliminary
Meaning of “on-demand programme service”
368A
1
For the purposes of this Act, a service is an “on-demand programme service” if —
a
its principal purpose is the provision of programmes the form and content of which are comparable to the form and content of programmes normally included in television programme services;
b
access to it is on-demand;
c
there is a person who has editorial responsibility for it;
d
it is made available by that person for use by members of the public; and
e
that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.
2
Access to a service is on-demand if —
a
the service enables the user to view, at a time chosen by the user, programmes selected by the user from among the programmes included in the service; and
b
the programmes viewed by the user are received by the user by means of an electronic communications network (whether before or after the user has selected which programmes to view).
3
For the purposes of subsection (2)(a), the fact that a programme may be viewed only within a period specified by the provider of the service does not prevent the time at which it is viewed being one chosen by the user.
4
A person has editorial responsibility for a service if that person has general control —
a
over what programmes are included in the range of programmes offered to users; and
b
over the manner in which the programmes are organised in that range;
and the person need not have control of the content of individual programmes or of the broadcasting or distribution of the service (and see section 368R(6)).
5
If an on-demand programme service (“the main service”) offers users access to a relevant ancillary service, the relevant ancillary service is to be treated for the purposes of this Part as a part of the main service.
6
In subsection (5), “relevant ancillary service” means a service or facility that consists of or gives access to assistance for disabled people in relation to some or all of the programmes included in the main service.
7
In this section “assistance for disabled people” has the same meaning as in Part 3.
The appropriate regulatory authority
368B
1
OFCOM may designate any body corporate to be, to the extent provided by the designation, the appropriate regulatory authority for the purposes of any provision of this Part, subject to subsection (9).
2
To the extent that no body is designated for a purpose, OFCOM is the appropriate regulatory authority for that purpose.
3
Where a body is designated for a purpose, OFCOM may act as the appropriate regulatory authority for that purpose concurrently with or in place of that body.
4
OFCOM may provide a designated body with assistance in connection with any of the functions of the body under this Part.
5
A designation may in particular —
a
provide for a body to be the appropriate regulatory authority in relation to on-demand programme services of a specified description;
b
provide that a function of the appropriate regulatory authority is exercisable by the designated body —
i
to such extent as may be specified;
ii
either generally or in such circumstances as may be specified; and
iii
either unconditionally or subject to such conditions as may be specified.
6
The conditions that may be specified pursuant to subsection (5)(b)(iii) include a condition to the effect that a function may, generally or in specified circumstances, be exercised by the body only with the agreement of OFCOM.
7
A designation has effect for such period as may be specified and may be revoked by OFCOM at any time.
8
OFCOM must publish any designation in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to be affected by it.
9
OFCOM may not designate a body unless, as respects that designation, they are satisfied that the body —
a
is a fit and proper body to be designated;
b
has consented to being designated;
c
has access to financial resources that are adequate to ensure the effective performance of its functions as the appropriate regulatory authority;
d
is sufficiently independent of providers of on-demand programme services; and
e
will, in performing any function to which the designation relates, have regard in all cases —
i
to the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and
ii
to such of the matters mentioned in section 3(4) as appear to the body to be relevant in the circumstances.
10
Subject to any enactment or rule of law restricting the disclosure or use of information by OFCOM or by a designated body —
a
a designated body may supply information to another designated body for use by that other body in connection with any of its functions as the appropriate regulatory authority;
b
a designated body may supply information to OFCOM for use by OFCOM in connection with any of their functions under this Part;
c
OFCOM may supply information to a designated body for use by that body in connection with any of its functions as the appropriate regulatory authority.
11
In carrying out their functions as the appropriate regulatory authority, a designated body may carry out, commission or support (financially or otherwise) research.
12
In this section —
“designation” means a designation under this section and cognate expressions are to be construed accordingly;
“specified” means specified in a designation.
Duties of the appropriate regulatory authority
Duties of the appropriate regulatory authority
368C
1
It is the duty of the appropriate regulatory authority to take such steps as appear to them best calculated to secure that every provider of an on-demand programme service complies with the requirements of section 368D.
2
The appropriate regulatory authority must encourage providers of on-demand programme services to ensure that their services are progressively made more accessible to people with disabilities affecting their sight or hearing or both.
3
The appropriate regulatory authority must ensure that providers of on-demand programme services promote, where practicable and by appropriate means, production of and access to European works (within the meaning given in Article 1(n) of the Audiovisual Media Services Directive).
4
The appropriate regulatory authority must encourage providers of on-demand programme services to develop codes of conduct regarding standards concerning the appropriate promotion of food or beverages by sponsorship of, or in advertising which accompanies or is included in, children’s programmes.
Duties of service providers
Duties of service providers
368D
1
The provider of an on-demand programme service must ensure that the service complies with the requirements of sections 368E to 368H.
2
The provider of an on-demand programme service (“P”) must supply the following information to users of the service —
a
P’s name;
b
P’s address;
c
P’s electronic address;
d
the name, address and electronic address of any body which is the appropriate regulatory authority for any purpose in relation to P or the service that P provides.
3
The provider of an on-demand programme service must —
a
comply with any requirement under section 368O (provision of information);
b
co-operate fully with the appropriate authority for any purpose within section 368O(2) or (3).
4
In this section “electronic address” means an electronic address to which users may send electronic communications, and includes any number or address used for the purposes of receiving such communications.
Harmful material
368E
1
An on-demand programme service must not contain any material likely to incite hatred based on race, sex, religion or nationality.
2
If an on-demand programme service contains material which might seriously impair the physical, mental or moral development of persons under the age of eighteen, the material must be made available in a manner which secures that such persons will not normally see or hear it.
Advertising
368F
1
Advertising of the following products is prohibited in on-demand programme services —
a
cigarettes or other tobacco products;
b
any prescription-only medicine.
2
Advertising of alcoholic drinks is prohibited in on-demand programme services unless —
a
it is not aimed at persons under the age of eighteen, and
b
it does not encourage excessive consumption of such drinks.
3
Advertising included in an on-demand programme service —
a
must be readily recognisable as such, and
b
must not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously.
4
Advertising included in an on-demand programme service must not —
a
prejudice respect for human dignity;
b
include or promote discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
c
encourage behaviour prejudicial to health or safety;
d
encourage behaviour grossly prejudicial to the protection of the environment;
e
cause physical or moral detriment to persons under the age of eighteen;
f
directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;
g
directly encourage such persons to persuade their parents or others to purchase or rent goods or services;
h
exploit the trust of such persons in parents, teachers or others; or
i
unreasonably show such persons in dangerous situations.
Sponsorship
368G
1
An on-demand programme service or a programme included in an on-demand programme service must not be sponsored —
a
for the purpose of promoting cigarettes or other tobacco products, or
b
by an undertaking whose principal activity is the manufacture or sale of cigarettes or other tobacco products.
2
An on-demand programme service or a programme included in an on-demand programme service must not be sponsored for the purpose of promoting a prescription-only medicine.
3
An on-demand programme service may not include a news programme or current affairs programme that is sponsored.
4
Subsections (5) to (11) apply to an on-demand programme service that is sponsored or that includes any programme that is sponsored.
5
The sponsoring of a service or programme must not influence the content of that service or programme in a way that affects the editorial independence of the provider of the service.
6
Where a service or programme is sponsored for the purpose of promoting goods or services, the sponsored service or programme and sponsorship announcements relating to it must not directly encourage the purchase or rental of the goods or services, whether by making promotional reference to them or otherwise.
7
Where a service or programme is sponsored for the purpose of promoting an alcoholic drink, the service or programme and sponsorship announcements relating to it must not —
a
be aimed specifically at persons under the age of eighteen; or
b
encourage the immoderate consumption of such drinks.
8
A sponsored service must clearly inform users of the existence of a sponsorship agreement.
9
The name of the sponsor and the logo or other symbol (if any) of the sponsor must be displayed at the beginning or end of a sponsored programme.
10
Techniques which exploit the possibility of conveying a message subliminally or surreptitiously must not be used in a sponsorship announcement.
11
A sponsorship announcement must not —
a
prejudice respect for human dignity;
b
include or promote discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
c
encourage behaviour prejudicial to health or safety;
d
encourage behaviour grossly prejudicial to the protection of the environment;
e
cause physical or moral detriment to persons under the age of eighteen;
f
directly encourage such persons to persuade their parents or others to purchase or rent goods or services;
g
exploit the trust of such persons in parents, teachers or others; or
h
unreasonably show such persons in dangerous situations.
12
For the purposes of this Part a programme included in an on-demand programme service is “sponsored” if a person (“the sponsor”) other than —
a
the provider of that service, or
b
the producer of that programme,
has met some or all of the costs of the programme for the purpose of promoting the name, trademark, image, activities, services or products of the sponsor or of another person.
13
But a programme is not sponsored if it falls within this section only by virtue of the inclusion of product placement (see section 368H(1)) or prop placement (see section 368H(2)).
14
For the purposes of subsection (12) a person meets some or all of the costs of a programme included in a service only if that person makes a payment or provides other resources for the purpose of meeting or saving some or all of the costs of —
a
producing that programme;
b
transmitting that programme; or
c
making that programme available as part of the service.
15
For the purposes of this Part an on-demand programme service is “sponsored” if a person (“the sponsor”) other than the provider of the service has met some or all of the costs of providing the service for the purpose of promoting the name, trademark, image, activities, services or products of the sponsor or another person.
16
For the purposes of subsection (15) a person is not to be taken to have met some or all of the costs of providing a service only because a programme included in the service is sponsored by that person.
17
In this section a “sponsorship announcement” means —
a
anything included for the purpose of complying with subsection (8) or (9), and
b
anything included at the same time as or otherwise in conjunction with anything within paragraph (a).
Prohibition of product placement and exceptions
368H
1
“Product placement”, in relation to a programme included in an on-demand programme service, means the inclusion in the programme of, or of a reference to, a product, service or trade mark, where the inclusion —
a
is for a commercial purpose,
b
is in return for the making of any payment, or the giving of other valuable consideration, to any relevant provider or any connected person, and
c
is not prop placement.
2
“Prop placement”, in relation to a programme included in an on-demand programme service, means the inclusion in the programme of, or of a reference to, a product, service or trade mark where —
a
the provision of the product, service or trade mark has no significant value; and
b
no relevant provider, or person connected with a relevant provider, has received any payment or other valuable consideration in relation to its inclusion in, or the reference to it in, the programme, disregarding the costs saved by including the product, service or trademark, or a reference to it, in the programme.
3
Product placement is prohibited in children’s programmes included in on-demand programme services.
4
Product placement is prohibited in on-demand programme services if —
a
it is of cigarettes or other tobacco products,
b
it is by or on behalf of an undertaking whose principal activity is the manufacture or sale of cigarettes or other tobacco products, or
c
it is of prescription-only medicines.
5
Product placement of alcoholic drinks must not —
a
be aimed specifically at persons under the age of eighteen;
b
encourage immoderate consumption of such drinks.
6
Product placement is otherwise permitted in programmes included in on-demand programme services provided that —
a
conditions A to F are met, and
b
if subsection (14) applies, condition G is also met.
7
Condition A is that the programme in which the product, service or trademark, or the reference to it, is included is —
a
a film made for cinema;
b
a film or series made for a television programme service or for an on-demand programme service;
c
a sports programme; or
d
a light entertainment programme.
8
Condition B is that the product placement has not influenced the content of the programme in a way that affects the editorial independence of the provider of the service.
9
Condition C is that the product placement does not directly encourage the purchase or rental of goods or services, whether by making promotional reference to those goods or services or otherwise.
10
Condition D is that the programme does not give undue prominence to the products, services or trade marks concerned.
11
Condition E is that the product placement does not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously.
12
Condition F is that the way in which the product, service or trade mark, or the reference to it, is included in the programme by way of product placement does not —
a
prejudice respect for human dignity;
b
promote discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
c
encourage behaviour prejudicial to health or safety;
d
encourage behaviour grossly prejudicial to the protection of the environment;
e
cause physical or moral detriment to persons under the age of eighteen;
f
directly encourage such persons to persuade their parents or others to purchase or rent goods or services;
g
exploit the trust of such persons in parents, teachers or others; or
h
unreasonably show such persons in dangerous situations.
13
Condition G is that the on-demand programme service in question signals appropriately the fact that product placement is contained in a programme, no less frequently than —
a
at the start and end of such a programme, and
b
in the case of an on-demand programme service which includes advertising breaks within it, at the recommencement of the programme after each such advertising break.
14
This subsection applies where the programme featuring the product placement has been produced or commissioned by the provider of the service or any connected person.
15
This section applies only in relation to programmes the production of which begins after 19th December 2009.
16
In this section —
“connected” has the same meaning as it has in the Broadcasting Act 1990 by virtue of section 202 of that Act;
“film made for cinema” means a film made with a view to its being shown to the general public first in a cinema;
“producer”, in relation to a programme, means the person by whom the arrangements necessary for the making of the programme are undertaken;
“relevant provider”, in relation to a programme, means —
the provider of the on-demand programme service in which the programme is included; and
the producer of the programme;
“residual value” means any monetary or other economic value in the hands of the relevant provider other than the cost saving of including the product, service or trademark, or a reference to it, in a programme;
“significant value” means a residual value that is more than trivial; and
“trade mark”, in relation to a business, includes any image (such as a logo) or sound commonly associated with that business or its products or services.
Enforcement of section 368D
368I
1
Where the appropriate regulatory authority determine that a provider of an on-demand programme service is contravening or has contravened section 368D they may do one or both of the following —
a
give the provider an enforcement notification under this section;
b
impose a financial penalty on the provider in accordance with section 368J.
2
The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless there are reasonable grounds for believing that a contravention of section 368D is occurring or has occurred and they have allowed the provider an opportunity to make representations about that apparent contravention.
3
An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes requirements on the provider to take such steps for complying with section 368D and for remedying the consequences of the contravention of that section as may be specified in the notification.
4
The requirements specified in an enforcement notification may in particular include requirements to do one or more of the following —
a
cease providing or restrict access to–
i
a specified programme, or
ii
programmes of a specified description;
b
cease showing or restrict access to–
i
a specified advertisement, or
ii
advertisements of a specified description;
c
provide additional information to users of the service prior to the selection of a specified programme by the user for viewing;
d
show an advertisement only with specified modifications;
e
publish a correction in the form and place and at the time specified; or
f
publish a statement of the findings of the appropriate regulatory authority in the form and place and at the time specified.
5
An enforcement notification must —
a
include reasons for the appropriate regulatory authority’s decision to give the enforcement notification, and
b
fix a reasonable period for the taking of the steps required by the notification.
6
Where a provider is required by an enforcement notification to publish a correction or a statement of findings, the provider may publish with the correction or statement of findings a statement that it is published in pursuance of the enforcement notification.
7
It is the duty of a provider to whom an enforcement notification has been given to comply with it.
8
That duty is enforceable in civil proceedings by the appropriate regulatory authority —
a
for an injunction;
b
for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 ; or
c
for any other appropriate remedy or relief.
9
If a provider to whom an enforcement notification has been given does not comply with it within the period fixed by the appropriate regulatory authority in that enforcement notification the appropriate regulatory authority may impose a financial penalty on that provider in accordance with section 368J.
Financial penalties
Financial penalties
368J
1
The amount of a penalty imposed on a provider under section 368I is to be such amount not exceeding 5 per cent. of the provider’s applicable qualifying revenue or £250,000 whichever is the greater amount, as the appropriate regulatory authority determine to be —
a
appropriate; and
b
proportionate to the contravention in respect of which it is imposed.
2
In determining the amount of a penalty under subsection (1) the appropriate regulatory authority must have regard to any statement published by OFCOM under section 392 (guidelines to be followed in determining amount of penalties).
3
The “applicable qualifying revenue”, in relation to a provider, means —
a
the qualifying revenue for the provider’s last complete accounting period falling within the period during which the provider has been providing the service to which the contravention relates; or
b
in relation to a person whose first complete accounting period falling within that period has not ended when the penalty is imposed, the amount that the appropriate regulatory authority estimate to be the qualifying revenue for that period.
4
For the purposes of subsection (3) the “qualifying revenue” for an accounting period consists of the aggregate of all the amounts received or to be received by the provider of the service to which the contravention relates or by any connected person in the accounting period —
a
for the inclusion in that service of advertisements, product placement and sponsorship; and
b
in respect of charges made in that period for the provision of programmes included in that service.
5
For the purposes of subsection (4), “connected” has the same meaning as it has in the Broadcasting Act 1990 by virtue of section 202 of that Act.
6
A financial penalty imposed under this section —
a
must be paid into the appropriate Consolidated Fund; and
b
if not paid within the period fixed by the appropriate regulatory authority, is to be recoverable by the appropriate regulatory authority as a debt due to them from the person obliged to pay it.
7
For the purposes of subsections (3) and (6) —
a
the amount of a person’s qualifying revenue for an accounting period, or
b
the amount of any payment to be made into the appropriate Consolidated Fund by any person in respect of any such revenue,
is, in the event of a disagreement between the appropriate regulatory authority and that person, the amount determined by the appropriate regulatory authority.
8
The references in this section to the payment of an amount into the appropriate Consolidated Fund —
a
in the case of an amount received in respect of matters appearing to OFCOM to have no connection with Northern Ireland, is a reference to the payment of the amount into the Consolidated Fund of the United Kingdom;
b
in the case of an amount received in respect of matters appearing to OFCOM to have a connection with Northern Ireland but no connection with the rest of the United Kingdom, is a reference to the payment of the amount into the Consolidated Fund of Northern Ireland; and
c
in any other case, is a reference to the payment of the amount, in such proportions as OFCOM consider appropriate, into each of those Funds.
Suspension or restriction of service
Suspension or restriction of service for contraventions
368K
1
The appropriate regulatory authority must serve a notice under subsection (2) on a provider of an on-demand programme service if they are satisfied —
a
that the provider is in contravention of section 368D;
b
that an attempt to secure compliance with section 368D by the imposition of one or more financial penalties or enforcement notifications under section 368I has failed; and
c
that the giving of a direction under this section would be appropriate and proportionate to the seriousness of the contravention.
2
A notice under this subsection must —
a
state that the appropriate regulatory authority are satisfied as mentioned in subsection (1);
b
state the reasons why they are satisfied as mentioned in subsection (1);
c
state that the appropriate regulatory authority will give a direction under this section unless the provider takes, within a period specified in the notice, such steps to remedy the contravention within subsection (1)(a) as are so specified;
d
specify any conditions that the appropriate regulatory authority propose to impose in the direction under section 368M(5)(b); and
e
inform the provider that the provider has the right to make representations to the appropriate regulatory authority about the matters appearing to the authority to provide grounds for giving the proposed direction within the period specified for the purposes of paragraph (c).
3
If, after considering any representations made to them by the provider within that period, the appropriate regulatory authority are satisfied that the provider has failed to take the steps specified in the notice for remedying the contravention and that it is necessary in the public interest to give a direction under this section, the appropriate regulatory authority must give such of the following as appears to them appropriate and proportionate as mentioned in subsection (1)(c) —
a
a direction that the entitlement of the provider to provide an on-demand programme service is suspended (either generally or in relation to a particular service);
b
a direction that that entitlement is restricted in the respects set out in the direction.
Suspension or restriction of service for inciting crime or disorder
368L
1
The appropriate regulatory authority must serve a notice under subsection (2) on a provider of an on-demand programme service if they are satisfied —
a
that the service has failed to comply with any requirement of section 368E to 368H and that accordingly the provider has contravened section 368D(1);
b
that the failure is due to the inclusion in the service of material likely to encourage or to incite the commission of crime, or to lead to disorder; and
c
that the contravention is such as to justify the giving of a direction under this section.
2
A notice under this subsection must —
a
state that the appropriate regulatory authority are satisfied as mentioned in subsection (1);
b
specify the respects in which, in their opinion, the provider has contravened section 368D;
c
specify the effect of the notice in accordance with subsection (3);
d
state that the appropriate regulatory authority may give a direction under this section after the end of the period of twenty-one days beginning with the day on which the notice is served on the provider; and
e
inform the provider of the provider’s right to make representations to the appropriate regulatory authority within that period about the matters appearing to the appropriate regulatory authority to provide grounds for giving a direction under this section.
3
A notice under subsection (2) has the effect specified under subsection (2)(c), which may be either —
a
that the entitlement of the provider to provide an on-demand programme service is suspended (either generally or in relation to a particular service), or
b
that that entitlement is restricted in the respects set out in the notice.
4
The suspension or restriction has effect as from the time when the notice is served on the provider until either —
a
a direction given under this section takes effect; or
b
the appropriate regulatory authority decide not to give such a direction.
5
If, after considering any representations made to them by the provider within the period mentioned in subsection (2)(d), the appropriate regulatory authority are satisfied that it is necessary in the public interest to give a direction under this section, they must give such of the following as appears to them justified as mentioned in subsection (1)(c) —
a
a direction that the entitlement of the provider to provide an on-demand programme service is suspended (either generally or in relation to a particular service);
b
a direction that that entitlement is restricted in the respects set out in the direction.
Supplementary provision about directions
368M
1
This section applies to a direction given to a provider under section 368K or 368L.
2
A direction must specify the service to which it relates or specify that it relates to any on-demand programme service provided or to be provided by the provider.
3
A direction, except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the provider.
4
A direction under section 368L must specify a time for it to take effect, and that time must not fall before the end of twenty-eight days beginning with the day on which the direction is notified to the provider.
5
A direction —
a
may provide for the effect of a suspension or restriction to be postponed by specifying that it takes effect only at a time determined by or in accordance with the terms of the direction; and
b
in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the provider as appear to the appropriate regulatory authority to be appropriate for the purpose of protecting that provider’s customers.
6
If the appropriate regulatory authority consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may revoke a direction or modify its conditions —
a
with effect from such time as they may direct;
b
subject to compliance with such requirements as they may specify; and
c
to such extent and in relation to such services as they may determine.
Enforcement of directions under section 368K or 368L
368N
1
A person (“P”) is guilty of an offence if P provides an on-demand programme service —
a
while P’s entitlement to do so is suspended by a direction under section 368K or 368L, or
b
in contravention of a restriction contained in such a direction.
2
A person guilty of an offence under this section is liable —
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to a fine.
Information
Power to demand information
368O
1
The appropriate regulatory authority may require a person who appears to them to be or to have been a provider of an on-demand programme service and to have information that they require for a purpose within subsection (2) to provide them with all such information as they consider necessary for that purpose.
2
The following are within this subsection —
a
the purposes of an investigation which the appropriate regulatory authority are carrying out in order for it to be determined whether a contravention of section 368D has occurred or is occurring, where —
i
the investigation relates to a matter about which they have received a complaint, or
ii
they otherwise have reason to suspect that there has been a contravention of that section;
b
the purpose of ascertaining or calculating applicable qualifying revenue under section 368J.
3
The appropriate regulatory authority may require a person who appears to them to be or to have been a provider of an on-demand programme service and to have information that they require for the purpose of securing compliance with the obligations of the United Kingdom under the Audiovisual Media Services Directive to provide them with all such information as they consider necessary for that purpose.
4
The appropriate regulatory authority may not require the provision of information under this section unless they have given the person from whom it is required an opportunity of making representations to them about the matters appearing to them to provide grounds for making the request.
5
The appropriate regulatory authority must not require the provision of information under this section except by a demand for the information contained in a notice served on the person from whom the information is required that describes the required information and sets out the appropriate regulatory authority’s reasons for requiring it.
6
A person who is required to provide information under this section must provide it in such manner and within such reasonable period as may be specified by the appropriate regulatory authority in the demand for information.
7
Sections 368I and 368K apply in relation to a failure to comply with a demand for information imposed under this section as if that failure were a contravention of a requirement of section 368D.
8
In this section “information” includes copies of programmes.
Application and interpretation of Part 4A
Application of Part 4A in relation to the BBC
368P
1
Section 368D(3) (duties of providers of on-demand programme services) does not apply to the BBC.
2
In the following provisions references to a provider of an on-demand programme service do not include references to the BBC —
a
section 368C (duties of appropriate regulatory authority);
b
section 368F (advertising);
c
section 368G (sponsorship);
d
section 368I (enforcement by appropriate regulatory authority);
e
section 368K (suspension or restriction of service for contraventions);
f
section 368L (suspension or restriction of service for inciting crime or disorder);
g
section 368O (power to demand information).
3
Paragraph 2(2)(b) of Schedule 12 includes provision imposing obligations on the BBC in relation to on-demand programme services.
Application of Part 4A in relation to the Welsh Authority
368Q
1
In section 368C (duties of appropriate regulatory authority) references to a provider of an on-demand programme service do not include references to the Welsh Authority.
2
It is the duty of the appropriate regulatory authority —
a
to take such steps as appear to them best calculated to secure that the requirements of sections 368E and 368F are complied with by the Welsh Authority in relation to advertising, and
b
to encourage the Welsh Authority to develop the codes of conduct referred to in section 368C(4) so far as it relates to advertising.
3
It is the duty of the Welsh Authority in the provision of any on-demand programme service to promote, where practicable and by appropriate means, production of and access to European works (within the meaning given in Article 1(n) of the Audiovisual Media Services Directive).
4
Section 368D(3)(duties of providers of on-demand programme services) does not apply to the Welsh Authority except in relation to advertising or in relation to the inclusion of advertising in on-demand programme services provided by the Welsh Authority.
5
Section 368I (enforcement by appropriate regulatory authority), section 368K (suspension or restriction of service for contraventions) and section 368L (suspension or restriction of service for inciting crime or disorder) do not apply in relation to the contravention of section 368D by the Welsh Authority except in the case of a contravention of section 368E or 368F that relates to advertising.
6
Section 368O does not apply in relation to information held by the Welsh Authority except where that information is required by the appropriate regulatory authority for the purposes of —
a
an investigation which the appropriate regulatory authority are carrying out (whether or not following receipt by them of a complaint) into a matter relating to compliance by the Welsh Authority with section 368E or 368F in relation to advertising; or
b
securing compliance with the international obligations of the United Kingdom under the Audiovisual Media Services Directive in relation to advertising.
7
Part 2 of Schedule 12 includes provision imposing obligations on the Welsh Authority in relation to on-demand programme services.
Interpretation of Part 4A
368R
1
In this Part —
“appropriate regulatory authority” is to be construed in accordance with 368B;
“children’s programme” means a programme which is intended for viewing primarily by persons under the age of sixteen;
“prescription-only medicine” means a medicinal product of a description or falling within a class specified in an order made under section 58 of the Medicines Act 1968 ;
“product placement” has the meaning given by section 368H(1);
“sponsorship” is to be construed in accordance with section 368G;
“tobacco product” has the meaning given in section 1 of the Tobacco Advertising and Promotion Act 2002 .
2
For the purposes of this Part, a programme is included in an on-demand programme service if it is included in the range of programmes the service offers to users.
3
For the purposes of this Part, advertising is included in an on-demand programme service if it can be viewed by a user of the service as a result of the user selecting a programme to view.
4
The services that are to be taken for the purposes of this Part to be available for use by members of the public include any service which —
a
is made available for use only to persons who subscribe to the service (whether for a period or in relation to a particular occasion) or who otherwise request its provision; but
b
is a service the facility of subscribing to which, or of otherwise requesting its provision, is offered or made available to members of the public.
5
The person, and the only person, who is to be treated for the purposes of this Part as providing an on-demand programme service is the person who has editorial responsibility for the service (see section 368A(4)).
6
For the purposes of this Part —
a
the provision of a service by the BBC does not include its provision by a BBC company;
b
the provision of a service by the Welsh Authority does not include its provision by an S4C company;
and, accordingly, control that is or is capable of being exercised by the BBC or the Welsh Authority over decisions by a BBC company or an S4C company about what is to be comprised in a service is to be disregarded for the purposes of determining who has editorial responsibility for the service.
The BBC
3
1
In section 198 of the 2003 Act (functions of OFCOM in relation to the BBC) —
a
in subsection (3), after paragraph (a) (before “or”) insert —
aa
Part 4A,
and
b
in subsection (9), after “245” insert “or by the appropriate regulatory authority by virtue of section 368C”.
2
In paragraph 2(2)(b) of Schedule 12 to the 2003 Act (duty to publicise complaints procedures), after the words “under section 319”, insert —
or about compliance by the BBC with the requirements imposed by section 368D
.
The Welsh Authority
4
1
Part 2 of Schedule 12 to the 2003 Act (corresponding obligations of the Welsh Authority) is amended as follows.
2
In paragraph 15 (directions by OFCOM following breach of duty by Welsh Authority) —
a
in sub-paragraphs (1)(a) and (6), after “14”, insert “or 23A, or under section 368D”;
b
in sub-paragraphs (1)(b), (2) and (5), after “public television services”, insert “or on-demand programme services”.
3
In paragraph 19(2)(b) (duty to publicise complaints procedures), after the words “under section 319”, insert —
or about compliance by the Authority with the requirements imposed by section 368D and section 368Q(3), except the requirement imposed by section 368D(1) so far as it relates to advertising
.
4
After paragraph 23, insert —
On-demand programme services
23A
1
It is the duty of the Welsh Authority to comply with a direction given to them by OFCOM in relation to the establishment of procedures for the handling and resolution of complaints about compliance by the Authority with the requirements imposed by section 368D or section 368Q(3).
2
But OFCOM must not give any such direction in relation to the handling and resolution of complaints about compliance with the requirement imposed by section 368D(1) so far as it relates to advertising.
5
In section 341 of the 2003 Act (imposition of penalties on the Welsh Authority), after subsection (1)(j) insert —
ja
the requirement imposed by paragraph 23A of that Schedule (complaints procedures for on-demand programme services) to comply with a direction under that paragraph;
jb
the requirements imposed by section 368D and section 368Q(3) (on-demand programme services), except the requirement imposed by section 368D(1) so far as it relates to advertising.
Television licensable content services
6
1
In section 232(2)(b) of the 2003 Act (television licensable content services), after “consists of” insert “or has as its principal purpose the provision of”.
2
In section 233 of the 2003 Act (services that are not television licensable content services), omit subsection (3).
Co-operation with other Member States
7
In the 2003 Act, after section 335 insert —
Co-operation with other Member States
Co-operation with other Member States
335A
1
Where OFCOM —
a
receive under Article 3 of the Audiovisual Media Services Directive a request from another member State relating to a relevant broadcaster, and
b
consider that the request is substantiated, they must ask the broadcaster to comply with the rule identified in that request.
2
In this section “relevant broadcaster” means —
a
the BBC;
b
C4C;
c
the Welsh Authority; or
d
the holder of —
i
a Channel 3 licence;
ii
a Channel 5 licence; or
iii
a licence to provide any relevant regulated television service within the meaning of section 13(1) of the Broadcasting Act 1990.
Minor amendments of the 2003 Act
8
In the following provisions of the 2003 Act, for “Television without Frontiers Directive” substitute “Audiovisual Media Services Directive” —
a
section 211(2)(b) and (3)(b) (regulation of independent television services);
b
section 329(7)(b)(i) (proscription orders).
9
In section 361 of the 2003 Act (meaning of “available for reception by members of the public”) —
a
for subsections (2) to (5) substitute —
2
A service is not to be treated as available for reception by members of the public if it is an on-demand programme service.
;
b
omit subsection (9).
10
In section 362(1) of the 2003 Act (expressions used in Part 3 of that Act) omit the definition of “the Television without Frontiers Directive”.
11
In section 405(1) of the 2003 Act (general interpretation) —
a
after the definition of “associated facility”, insert —
“the Audiovisual Media Services Directive” means Directive 89/552/ EEC of the European Parliament and of the Council on the Coordination of certain provisions laid down by law, regulation or administrative action in member States concerning the provision of audiovisual media services, together with the modifications of that Directive by —
Directive 97/36/ EC of the European Parliament and of the Council; and
Directive 2007/65 EC of the European Parliament and of the Council;
;
b
after the definition of “OFCOM” insert —
“on-demand programme service” has the meaning given by section 368A(1);
.
On-demand programme services: consequential amendments of the Copyright, Designs and Patents Act 1988
12
1
The Copyright, Designs and Patents Act 1988 is amended as follows.
2
In section 69 (copyright: recording for purposes of supervision and control of broadcasts and other services) —
a
in subsection (1), after “them” insert “or included in any on-demand programme service provided by them”,
b
in subsection (2)(d), after “334(3)” insert “, 368O(1) or (3)”, and
c
after subsection (4) insert —
5
Copyright is not infringed by the use by an appropriate regulatory authority designated under section 368B of the Communications Act 2003, in connection with the performance of any of their functions under that Act, of any recording, script or transcript which is provided to them under or by virtue of any provision of that Act.
6
In this section “on-demand programme service” has the same meaning as in the Communications Act 2003 (see section 368A of that Act).
3
In paragraph 17 of Schedule 2 (rights in performances: recordings for purposes of supervision and control of broadcasts and other services) —
a
in sub-paragraph (1), after “them” insert “or included in any on-demand programme service provided by them”,
b
in sub-paragraph (2)(d), after “334(3)” insert “, 368O(1) or (3)”, and
c
after sub-paragraph (4) insert —
5
The rights conferred by this Chapter are not infringed by the use by the appropriate regulatory authority designated under section 368B of the Communications Act 2003, in connection with the performance of any of their functions under that Act, of any recording, script or transcript which is provided to them under or by virtue of any provision of that Act.
6
In this paragraph “on-demand programme service” has the same meaning as in the Communications Act 2003 (see section 368A of that Act).
Amendments of the Wireless Telegraphy Act 2006
13
1
The Wireless Telegraphy Act 2006 is amended as follows.
2
In section 9(4) (terms, provision and limitations in wireless telegraphy licences), after paragraph (c) insert —
d
terms, provisions or limitations requiring a satellite uplinker to suspend or cease uplinking, by means of satellite uplink apparatus, a service named by OFCOM in a notice given to the satellite uplinker under section 9A;
e
terms or provisions requiring a satellite uplinker to provide OFCOM with such information necessary for the purpose of determining whether section 9A applies in relation to a service uplinked by the satellite uplinker or for any purpose connected with the giving of a notice under section 9A as OFCOM may request by a notice in writing.
3
After section 9 insert —
Notice to satellite uplinkers
9A
1
This section applies where a relevant regulated television service or an on-demand programme service is provided by a person who is deemed to be under the jurisdiction of the United Kingdom for the purpose of the Audiovisual Media Services Directive by reason only of the person providing such a service by means of satellite uplink apparatus situated within the United Kingdom.
2
OFCOM may give a notice in writing under this section to a satellite uplinker in relation to a relevant regulated television service if OFCOM are satisfied that the service is provided —
a
in contravention of a licence under Part 1 of the Broadcasting Act 1990 or Part 1 of the Broadcasting Act 1996 ; or
b
otherwise than pursuant to such a licence.
3
OFCOM may give a notice in writing under this section to a satellite uplinker in relation to an on-demand programme service if OFCOM are satisfied that the service is provided in contravention of a requirement of Part 4A of the Communications Act 2003.
4
Where a notice is given to a satellite uplinker under subsection (2)(a) or (3) the notice must —
a
name the service;
b
specify the reasons why OFCOM consider that subsection (2)(a) or (3) is satisfied; and
c
specify —
i
the date by which the satellite uplinker must cease the uplinking of the service; or
ii
a period during which the satellite uplinker must suspend the uplinking of the service.
5
Where a notice is given to a satellite uplinker under subsection (2)(b) the notice must —
a
name the service; and
b
specify —
i
the date by which the satellite uplinker must cease the uplinking of the service; or
ii
a period during which the satellite uplinker must suspend the uplinking of the service.
6
In this section —
“relevant regulated television service” has the same meaning as in section 13 of the Broadcasting Act 1990;
“on-demand programme service” has the same meaning as in the Communications Act 2003 (see section 368A of that Act).
4
In section 39 (contravention of terms, etc ) —
a
in subsection (4) for “(7)” substitute “(8)”, and
b
after subsection (7) insert —
8
The person notified also has a shorter period if —
a
OFCOM have reasonable grounds for believing that that person is contravening, or has contravened, a notice given under section 9A or a term or provision as mentioned in section 9(4)(e);
b
OFCOM have determined, taking into account all relevant circumstances, that a shorter period would be appropriate; and
c
the shorter period has been specified in the notification.
5
Section 115 (general interpretation) is amended as follows.
6
After the definition of “associated facility” insert–
“the Audiovisual Media Services Directive” means Directive 89/552/EEC of the European Parliament and of the Council on the Coordination of certain provisions laid down by law, regulation or administrative action in member States concerning the provision of audiovisual media services, together with the modifications of that Directive by —
a
Directive 97/36/EC of the European Parliament and of the Council; and
b
Directive 2007/65 EC of the European Parliament and of the Council;
.
7
After the definition of “receiving apparatus” insert —
“satellite uplink apparatus” means wireless telegraphy apparatus, the purpose of which is to emit, to one or more satellites, energy to which section 116(2) applies;
“satellite uplinker” means a person who operates satellite uplink apparatus, but where a person is employed or engaged to operate satellite uplink apparatus under the direction or control of another person, references to a satellite uplinker are references only to that other person;
.
Siôn Simon
Parliamentary Under Secretary of State
Department for Culture, Media and Sport
9th November 2009


type: legislation

jurisdiction: UK

text:
Citation and commencement
1
This Order may be cited as the Income-related Benefits (Subsidy to Authorities) (Temporary Accommodation) Amendment Order 2009 and shall come into force on 1st April 2010.
Amendment of the Income-related Benefits (Subsidy to Authorities) Order 1998
2
1
The Income-related Benefits (Subsidy to Authorities) Order 1998 is amended as follows.
2
In article 14(2) (backdated benefit) for “article 17(2)(a)(i) or (b)(i) or (3)(b)(ii)” substitute “article 17(2), 17A(2)”.
3
For article 17 (subsidy in respect of homeless and short lease rebate cases) substitute —
Subsidy in respect of temporary accommodation – non self-contained licensed accommodation and board and lodging accommodation
17
1
This article applies where —
a
a rent rebate is payable by an authority; and
b
a person (“P”) is required to pay the authority under section 69(2)(b) of the Housing Act 1985 , section 206 of the Housing Act 1996 or section 35(2)(b) of the Housing (Scotland) Act 1987 , as the case may be, for —
i
board and lodging accommodation made available to P; or
ii
accommodation which is not self-contained, which the authority holds on a licence agreement with a landlord, and which it makes available to P.
2
Where this article applies the appropriate amount is the lower of —
a
the amount of housing benefit entitlement in a week or part week, as the case may be; or
b
the maximum amount determined in accordance with paragraph (3).
3
The maximum amount referred to in paragraph (2) is the local housing allowance for January preceding the relevant year for the category specified in paragraph 1(1)(b) of Schedule 3B to the Rent Officers Order which is applicable to the broad rental market area in which the accommodation is situated.
4
For the purposes of this article and article 17A, accommodation is self-contained if P’s household is not required to share one or more of the following with another household —
a
a kitchen;
b
a toilet;
c
a bathroom.
5
In this article and article 17A —
“broad rental market area” has the meaning specified in paragraph 4 of Schedule 3B to the Rent Officers Order; and
“local housing allowance” means an allowance determined in accordance with paragraph 2 of Schedule 3B to the Rent Officers Order.
Subsidy in respect of temporary accommodation – self-contained licensed accommodation and short lease accommodation
17A
1
This article applies where —
a
a rent rebate is payable by an authority; and
b
a person (“P”) is required to pay the authority —
i
under section 69(2)(b) of the Housing Act 1985, section 206 of the Housing Act 1996 or section 35(2)(b) of the Housing (Scotland) Act 1987 for self-contained accommodation, which the authority holds on a licence agreement with a landlord, and which it makes available to P;
ii
in England and Scotland, for accommodation outside that authority’s Housing Revenue Account, which the authority holds on a lease granted for a term not exceeding 10 years, and which it makes available to P; or
iii
in Wales, for accommodation which the authority holds on a lease granted for a term not exceeding 10 years, and which it makes available to P.
2
Where this article applies, the appropriate amount is the lower of —
a
the amount of housing benefit entitlement in a week or part week, as the case may be; or
b
the maximum amount determined in accordance with paragraph (3).
3
The maximum amount referred to in paragraph (2) is the aggregate of —
a
90% of the local housing allowance for January preceding the relevant year for the category specified in paragraphs 1(1)(b) to (f) of Schedule 3B to the Rent Officers Order which applies to the accommodation and is applicable to the broad rental market area in which the accommodation is situated; and
b
either —
i
£40 for authorities listed in Schedule 7 (authorities in London); or
ii
£60 for other authorities.
4
For the purposes of determining the applicable local housing allowance in paragraph (3) —
a
where the total number of rooms suitable for living in and bedrooms in the accommodation is between two and five, at least one of those rooms is to be treated as a room suitable for living in; and
b
where the total number of rooms suitable for living in and bedrooms in the accommodation is six or more, at least two of those rooms are to be treated as a room suitable for living in.
.
4
After Schedule 6 (electronic communications) add —
SCHEDULE 7
Authorities in London
Article 17A
Barking and Dagenham
Barnet
Bexley
Brent
Bromley
Camden
City of London
Croydon
Ealing
Enfield
Greenwich
Hackney
Hammersmith and Fulham
Haringey
Harrow
Havering
Hillingdon
Hounslow
Islington
Kensington and Chelsea
Kingston upon Thames
Lambeth
Lewisham
Merton
Newham
Redbridge
Richmond upon Thames
Southwark
Sutton
Tower Hamlets
Waltham Forest
Wandsworth
Westminster
Signed by authority of the Secretary of State for Work and Pensions
Helen Goodman
Parliamentary Under Secretary of State,
Department for Work and Pensions
16 September 2009
We consent
Bob Blizzard
Steve McCabe
Two of the Lords Commissioners of Her Majesty’s Treasury
23 September 2009


text:
PART 1 GENERAL
Citation and commencement
1
These Regulations may be cited as the Care Quality Commission (Registration) Regulations 2009 and shall come into force on 1st April 2010.
Interpretation
2
In these Regulations —
“the Act” means the Health and Social Care Act 2008;
“health service body” means an English NHS body , NHS Blood and Transplant or the Health Protection Agency ;
“registered manager” means, in respect of a regulated activity, a person registered with the Commission under Chapter 2 of Part 1 of the Act as a manager in respect of that activity;
“registered person” means, in respect of a regulated activity, the person who is the service provider or a registered manager in respect of that activity;
“relevant address” means —
where the service provider is registered to carry on the regulated activity to which the enforcement action relates from one address, that address; or
where the service provider is registered to carry on the regulated activity from more than one address, any of those addresses to which the enforcement action is relevant;
“service provider” means, in respect of a regulated activity, a person registered with the Commission under Chapter 2 of Part 1 of the Act as a service provider in respect of that activity;
“service user” means a person who receives services provided in the carrying on of a regulated activity.
PART 2 REGISTRATION
Register of regulated activities
3
The Commission must establish and maintain a register containing such information as appears to the Commission to be necessary to keep the public informed about the identity of registered persons and their carrying on of regulated activities.
Persons to be regarded as the person carrying on a regulated activity
4
1
For the purposes of Chapter 2 of Part 1 of the Act (registration in respect of the provision of health or social care), the following provisions apply.
2
Where a regulated activity is carried on by a person (A) and one or more other persons who are —
a
individuals; and
b
employees of A for the purpose of carrying on the regulated activity,
A is to be regarded as the person who carries on the regulated activity.
3
For the purposes of paragraph (2), a person is an employee of A where that person —
a
is employed by A under a contract of service, an apprenticeship, a contract for services or otherwise than under a contract (including under a carer agreement); or
b
has been granted practising privileges by A.
4
Where the provision of services under arrangements between a body of trustees established for the purpose of providing services to meet the health or social care needs of a named beneficiary and a provider of such services falls to be regarded as a regulated activity, it is the provider and not the body of trustees which shall be regarded as the person who carries on that regulated activity.
5
In this regulation —
a
“carer agreement” has the same meaning as in the Adult Placement Schemes (England) Regulations 2004 ; and
b
“practising privileges” means the grant, by a person managing a hospital (as defined in section 275 of the National Health Service Act 2006 ), to a registered medical practitioner of permission to practise as a medical practitioner in that hospital.
Registered manager condition
5
1
Subject to paragraph (2), for the purposes of section 13(1) of the Act, the registration of a service provider in respect of a regulated activity must be subject to a registered manager condition where the service provider is —
a
a body of persons corporate or unincorporate; or
b
an individual who —
i
is not a fit person to manage the carrying on of the regulated activity, or
ii
is not, or does not intend to be, in full-time day to day charge of the carrying on of the regulated activity.
2
Paragraph (1)(a) does not apply where the service provider is a health service body.
3
A service provider (P) is not a fit person to manage the carrying on of a regulated activity unless P —
a
is of good character;
b
is physically and mentally fit to manage the carrying on of the regulated activity;
c
has the necessary qualifications, skills and experience to do so; and
d
is able to supply to the Commission, or arrange for the availability of, information relating to themselves specified in Schedule 1.
Cancellation of registration
6
1
The grounds specified for the purposes of section 17(1)(e) of the Act as grounds on which the Commission may cancel the registration of a registered person in respect of a regulated activity are that the registered person —
a
has made a statement which is false or misleading in a material respect, or provided false information, in relation to any application for —
i
registration, or
ii
the variation or removal of a condition in relation to their registration;
b
has failed to pay any fees payable under provision under section 85 of the Act; or
c
if the registered person is a service provider, is not, and has not been for a continuous period of 12 months ending with the date of the decision to cancel registration, carrying on that regulated activity.
PART 3 PUBLICATION OF INFORMATION AND EXPLANATIONS
Publication of information relating to enforcement action
7
1
Except in the circumstances specified in paragraphs 5 to 7 of Part 1 of Schedule 2, the Commission must publish the information prescribed in that Part of that Schedule in the time prescribed in paragraph 8 of that Part.
2
The Commission may publish the information prescribed in Part 2 of Schedule 2 subject, in the case of the information prescribed in paragraph 13, to the conditions specified in sub-paragraph (2) of that paragraph.
Exemptions from the requirement to notify bodies of certain matters
8
Section 39(1) of the Act does not apply to —
a
a notice to a person who applies for registration as a registered person given under —
i
section 26(2) or (3) of the Act (notice of proposals), or
ii
section 28(1) or (3) of the Act (notice of decisions);
b
a notice of proposal given under section 26(4)(c) or (d) of the Act, or a notice of decision given under section 28(3) of the Act, which —
i
relates to the variation or removal of any condition for the time being in force in relation to a registration or the imposition of an additional condition in relation to a registration, and
ii
appears to the Commission not to have a material impact on the regulated activity being carried on;
c
a notice of proposal given under section 26(5) of the Act or a notice of decision given under section 28(3) of the Act to refuse an application by the registered person under section 19(1) of the Act; and
d
a warning notice given under section 29 of the Act which appears to the Commission not to have a material impact on the regulated activity being carried on.
Notification to Primary Care Trust, English local authority and Strategic Health Authority
9
1
The Primary Care Trust or English local authority that is required to be given —
a
notice of an application for an order for cancellation of the registration of a registered person under section 30 of the Act; or
b
a copy of a notice under section 39 of the Act,
is to be determined in accordance with paragraphs (2) to (8).
2
Where the application under section 30 of the Act, or the notice of which a copy is required to be given under section 39 of the Act, is in respect of a regulated activity that involves, or is connected with, the provision of health care, the Commission must give notice or a copy of the notice to the relevant Primary Care Trust.
3
Where the application under section 30 of the Act, or the notice of which a copy is required to be given under section 39 of the Act, is in respect of a regulated activity that involves, or is connected with, the provision of social care, the Commission must give notice or a copy of the notice to the relevant local authority.
4
Subject to paragraph (6), the relevant Primary Care Trust is any Primary Care Trust in whose area the regulated activity is being carried on.
5
Subject to paragraph (6), the relevant local authority is any local authority in whose area the regulated activity is being carried on.
6
Where a registered service provider is carrying on a regulated activity from more than one set of premises, and a notice of which a copy is required to be given under section 39 of the Act is in respect of the carrying on of a regulated activity from particular premises —
a
the relevant Primary Care Trust is any Primary Care Trust in whose area those particular premises are situated; and
b
the relevant local authority is any local authority in whose area those particular premises are situated.
7
Subject to paragraph (8), the Strategic Health Authority that must be given notice under section 30(3)(b) of the Act or a copy of a notice under section 39(1)(b) of the Act is any Strategic Health Authority in whose area the regulated activity to which the application or notice relates is being carried on.
8
Where a registered service provider is carrying on a regulated activity from more than one set of premises and a copy of the notice required to be given to a Strategic Health Authority under section 39(1)(b) is in respect of the carrying on of a regulated activity from particular premises, the Strategic Health Authority that must be given a copy of the notice is any Strategic Health Authority in whose area those particular premises are situated.
Power to require an explanation
10
1
Where the Commission considers an explanation of a relevant matter necessary or expedient for the purposes of any of its regulatory functions, the persons specified in paragraph (3) must, if so requested, provide an explanation of that matter to the Commission or to persons authorised by it.
2
Explanations required under paragraph (1) must be provided at such times and such places as may be specified by the Commission.
3
The persons referred to in paragraph (1) are —
a
a person carrying on a regulated activity;
b
a chair, director or employee of a person carrying on a regulated activity;
c
an English NHS body;
d
a member of an English NHS body other than an NHS foundation trust;
e
a member of a committee or sub-committee of an English NHS body other than an NHS foundation trust;
f
a member of a committee or sub-committee of the board of directors of an NHS foundation trust;
g
an employee of an English NHS body other than one falling within sub-paragraph (b);
h
a local authority;
i
a member or officer of a local authority;
j
a member of a committee or sub-committee of a local authority or a member of a joint committee of two or more local authorities;
k
an elected mayor of a local authority within the meaning given in section 39 of the Local Government Act 2000 ;
l
a person (other than a person prescribed in sub-paragraphs (b) to (k)) who is assisting in the carrying on of a regulated activity;
m
a person providing equipment or premises to a registered person;
n
a chair, director or employee of a person providing equipment or premises to a registered person; and
o
a person (other than a person prescribed in sub-paragraph (n)) who is assisting a person providing equipment or premises to a registered person.
PART 4 REGISTRATION REQUIREMENTS
General
11
A registered person must, insofar as they are applicable, comply with the requirements specified in regulations 12 to 20 in relation to any regulated activity in respect of which they are registered.
Statement of purpose
12
1
The registered person must give the Commission a statement of purpose containing the information listed in Schedule 3.
2
The registered person must keep under review and, where appropriate, revise the statement of purpose.
3
The registered person must provide written details of any revision to the statement of purpose to the Commission within 28 days of any such revision.
Financial position
13
1
Subject to paragraph (2), the service provider must take all reasonable steps to carry on the regulated activity in such a manner as to ensure the financial viability of the carrying on of that activity for the purposes of —
a
achieving the aims and objectives set out in the statement of purpose; and
b
meeting the registration requirements prescribed pursuant to section 20 of the Act.
2
This regulation does not apply where the service provider is —
a
an English local authority; or
b
a health service body.
Notice of absence
14
1
Subject to paragraphs (7) and (8), where —
a
the service provider, if the provider is the person in day to day charge of the carrying on of the regulated activity; or
b
the registered manager,
proposes to be absent from carrying on or managing the regulated activity for a continuous period of 28 days or more, the registered person must give notice in writing to the Commission of the proposed absence.
2
Except in the case of an emergency, the notice referred to in paragraph (1) must be given no later than 28 days before the proposed absence commences or within such shorter period as may be agreed with the Commission and must contain the following information in relation to the proposed absence —
a
its length or expected length;
b
the reason for it;
c
the arrangements which have been made for the management of the carrying on of the regulated activity during the period of absence;
d
the name, address and qualifications of the person who will be responsible for the management of the carrying on of the regulated activity during that absence;
e
in the case of the absence of the registered manager, the arrangements that have been, or are proposed to be, made for appointing another person to manage the carrying on of the regulated activity during that absence, including the proposed date by which the appointment is to be made.
3
Where the absence referred to in paragraph (1) arises as the result of an emergency, the registered person must give notice of the absence to the Commission within 5 working days of its occurrence specifying the matters set out in paragraph (2)(a) to (e).
4
Where —
a
the service provider, if the provider is the person in day to day charge of the carrying on of the regulated activity; or
b
the registered manager,
has been absent for a continuous period of 28 days or more, and the Commission has not been given notice of the absence, the registered person shall forthwith give notice in writing to the Commission specifying the matters set out in paragraph (2)(a) to (e).
5
The registered person must notify the Commission of the return to duty of the service provider or (as the case may be) the registered manager not later than 7 working days after the date of that return.
6
In this regulation “working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday in England and Wales within the meaning of the Banking and Financial Dealings Act 1971 .
7
Subject to paragraph (8), this regulation does not apply where the service provider is a health service body.
8
Where the service provider is a health service body and is subject to a registered manager condition pursuant to regulation 5 or section 12(3) or (5) of the Act, this regulation shall have effect in relation any absence, proposed absence or return to duty of that registered manager.
Notice of changes
15
1
Subject to paragraph (2), the registered person must give notice in writing to the Commission, as soon as it is reasonably practicable to do so, if any of the following events takes place or is proposed to take place —
a
a person other than the registered person carries on or manages the regulated activity;
b
a registered person ceases to carry on or manage the regulated activity;
c
the name of a registered person (where that person is an individual) changes;
d
where the service provider is a partnership, any change in the membership of the partnership;
e
where the service provider is a body other than a partnership —
i
a change in the name or address of the body,
ii
a change of director, secretary or other similar officer of the body, or
iii
a change of nominated individual;
f
where the service provider is —
i
an individual, the appointment of a trustee in bankruptcy in relation to that individual, or
ii
a company or partnership, the appointment of a receiver, manager, liquidator or provisional liquidator in relation to that company or partnership.
2
Paragraph (1)(e)(ii) does not apply where the service provider is a health service body.
3
In this regulation, “nominated individual” means the individual who is employed as a director, manager or secretary of the body and whose name has been notified to the Commission as being the person who is responsible for supervising the management of the carrying on of the regulated activity by that body.
Notification of death of service user
16
1
Except where paragraph (2) applies, the registered person must notify the Commission without delay of the death of a service user —
a
whilst services were being provided in the carrying on of a regulated activity; or
b
as a consequence of the carrying on of a regulated activity.
2
Subject to paragraph (4), where the service provider is a health service body, the registered person must notify the Commission of the death of a service user where the death —
a
occurred —
i
whilst services were being provided in the carrying on of a regulated activity, or
ii
as a consequence of the carrying on of a regulated activity; and
b
cannot, in the reasonable opinion of the registered person, be attributed to the course which that service user’s illness or medical condition would naturally have taken if that service user was receiving appropriate care or treatment.
3
Notification of the death of a service user must include a description of the circumstances of the death.
4
Paragraph (2) does not apply if, and to the extent that, the registered person has reported the death to the National Patient Safety Agency .
5
This regulation does not apply where regulation 17 applies.
Notification of death or unauthorised absence of a service user who is detained or liable to be detained under the Mental Health Act 1983
17
1
The registered person must notify the Commission without delay of the death or unauthorised absence of a service user who is liable to be detained by the registered person —
a
under the Mental Health Act 1983 (“the 1983 Act ”); or
b
pursuant to an order or direction made under another enactment (which applies in relation to England), where that detention takes effect as if the order or direction were made pursuant to the provisions of the 1983 Act.
2
Notification of the death of a service user must include a description of the circumstances of the death.
3
In this regulation —
a
references to persons “liable to be detained” include a community patient who has been recalled to hospital in accordance with section 17E of the 1983 Act , but do not include a patient who has been conditionally discharged and not recalled to hospital in accordance with section 42 , 73 or 74 of the 1983 Act;
b
“community patient” has the same meaning as in section 17A of the 1983 Act ;
c
“hospital” means a hospital within the meaning of Part 2 of that Act ; and
d
“unauthorised absence” means an unauthorised absence from a hospital.
Notification of other incidents
18
1
Subject to paragraphs (3) and (4), the registered person must notify the Commission without delay of the incidents specified in paragraph (2) which occur whilst services are being provided in the carrying on of a regulated activity, or as a consequence of the carrying on of a regulated activity.
2
The incidents referred to in paragraph (1) are —
a
any injury to a service user which, in the reasonable opinion of a health care professional, has resulted in —
i
an impairment of the sensory, motor or intellectual functions of the service user which is not likely to be temporary,
ii
changes to the structure of a service user’s body,
iii
the service user experiencing prolonged pain or prolonged psychological harm, or
iv
the shortening of the life expectancy of the service user;
b
any injury to a service user which, in the reasonable opinion of a health care professional, requires treatment by that, or another, health care professional in order to prevent —
i
the death of the service user, or
ii
an injury to the service user which, if left untreated, would lead to one or more of the outcomes mentioned in sub-paragraph (a);
c
any request to a supervisory body made pursuant to Part 4 of Schedule A1 to the 2005 Act by the registered person for a standard authorisation, including the result of such a request;
d
any application made to a court in relation to depriving a service user of their liberty pursuant to section 16(2)(a) of the 2005 Act;
e
any abuse or allegation of abuse in relation to a service user;
f
any incident which is reported to, or investigated by, the police;
g
any event which prevents, or appears to the service provider to be likely to threaten to prevent, the service provider’s ability to continue to carry on the regulated activity safely, or in accordance with the registration requirements, including —
i
an insufficient number of suitably qualified, skilled and experienced persons being employed for the purposes of carrying on the regulated activity,
ii
an interruption in the supply to premises owned or used by the service provider for the purposes of carrying on the regulated activity of electricity, gas, water or sewerage where that interruption has lasted for longer than a continuous period of 24 hours,
iii
physical damage to premises owned or used by the service provider for the purposes of carrying on the regulated activity which has, or is likely to have, a detrimental effect on the treatment or care provided to service users, and
iv
the failure, or malfunctioning, of fire alarms or other safety devices in premises owned or used by the service provider for the purposes of carrying on the regulated activity where that failure or malfunctioning has lasted for longer than a continuous period of 24 hours.
3
Paragraph (2)(f) does not apply where the service provider is an English NHS body.
4
Where the service provider is a health service body, paragraph (1) does not apply if, and to the extent that, the registered person has reported the incident to the National Patient Safety Agency.
5
In this regulation —
a
“the 2005 Act” means the Mental Capacity Act 2005 ;
b
“abuse”, in relation to a service user, means —
i
sexual abuse,
ii
physical or psychological ill-treatment,
iii
theft, misuse or misappropriation of money or property, or
iv
neglect and acts of omission which cause harm or place at risk of harm;
c
“health care professional” means a person who is registered as a member of any profession to which section 60(2) of the Health Act 1999 applies;
d
“registration requirements” means any requirements or conditions imposed on the registered person by or under Chapter 2 of Part 1 of the Act;
e
“standard authorisation” has the meaning given under Part 4 of Schedule A1 to the 2005 Act;
f
“supervisory body” has the meaning given in paragraph 180 (in relation to a hospital in England) or paragraph 182 (in relation to a care home) of Schedule A1 to the 2005 Act;
g
for the purposes of paragraph (2)(a) —
i
“prolonged pain” and “prolonged psychological harm” means pain or harm which a service user has experienced, or is likely to experience, for a continuous period of at least 28 days, and
ii
a sensory, motor or intellectual impairment is not temporary if such an impairment has lasted, or is likely to last, for a continuous period of at least 28 days.
Fees etc.
19
1
Where a service user will be responsible for paying the costs of their care or treatment (either in full or partially), the registered person must provide a statement to the service user, or to a person acting on the service user’s behalf —
a
specifying the terms and conditions in respect of the services to be provided to the service user, including as to the amount and method of payment of fees; and
b
including, where applicable, the form of contract for the provision of services by the service provider.
2
The statement referred to in paragraph (1) must be —
a
in writing; and
b
as far as reasonably practicable, provided prior to the commencement of the services to which the statement relates.
Requirements relating to termination of pregnancies
20
1
This regulation applies to a registered person who —
a
carries on or manages the regulated activity consisting of the termination of pregnancies; and
b
is not an English NHS body.
2
The registered person must ensure that, unless two certificates of opinion have been received in respect of the service user —
a
no termination of pregnancy is carried out; and
b
no fee is demanded or accepted from a service user.
3
The registered person must ensure that a certificate of opinion in respect of a service user undergoing termination of a pregnancy is completed and included with the service user’s medical record.
4
The registered person must ensure that no termination of pregnancy is undertaken after the 20th week of gestation, unless —
a
the service user is treated by persons who are suitably qualified, skilled and experienced in the late termination of pregnancy; and
b
appropriate procedures are in place to deal with any medical emergency which occurs during or as a result of the termination.
5
The registered person must ensure that no termination of a pregnancy is undertaken after the 24th week of gestation.
6
The registered person must ensure that a register of service users undergoing a termination of pregnancy is maintained, which is —
a
completed in respect of each service user at the time the termination is undertaken; and
b
retained for a period of not less than 3 years beginning on the date of the last entry.
7
The registered person must ensure that a record is maintained of the total numbers of terminations of pregnancies undertaken.
8
The registered person must ensure that the record referred to in paragraph (7) (which may be in paper or electronic form) is —
a
accurate;
b
kept securely and can be located promptly when required;
c
retained for an appropriate period of time; and
d
securely destroyed when it is appropriate to do so.
9
The registered person must ensure that notice in writing is sent to the Chief Medical Officer of the Department of Health of each termination of pregnancy .
10
If the registered person —
a
receives information concerning the death of a service user who has undergone termination of a pregnancy during the period of 12 months ending on the date on which the information is received; and
b
has reason to believe that the service user’s death may be associated with the termination,
the registered person must give notice in writing to the Commission of that information, within the period of 14 days beginning on the day on which the information is received.
11
The registered person must prepare and implement appropriate procedures to ensure that foetal tissue is treated with respect.
12
In this regulation, “certificate of opinion” means a certificate required by regulations made under section 2(1) of the Abortion Act 1967 .
PART 5 OTHER MISCELLANEOUS REQUIREMENTS
Death of service provider
21
1
Where the service provider is a partnership and a partner dies, the surviving partner shall without delay notify the Commission of the death in writing.
2
Where the service provider is an individual and that individual dies, that individual’s personal representative must notify the Commission in writing —
a
without delay of the death; and
b
within 28 days of the date of death of their intentions regarding the future carrying on of the regulated activity.
3
The personal representative of the deceased service provider may carry on the regulated activity without being registered in respect of it —
a
for a period not exceeding 28 days; and
b
for any future period as may be determined in accordance with paragraph (4).
4
The Commission may extend the period specified in paragraph (3)(a) by such further period, not exceeding one year, as the Commission shall determine, and shall notify any such determination to the personal representative in writing.
5
The personal representative of the deceased service provider shall appoint a person to take full-time day to day charge of the carrying on of the regulated activity during any period in which, in accordance with paragraph (3), they carry on the regulated activity without being registered in respect of it.
Appointment of liquidators
22
1
Any person to whom paragraph (2) applies must —
a
notify the Commission of their appointment and the reasons for their appointment;
b
appoint a manager to manage the regulated activity in any cases where there is not a registered manager; and
c
before the end of the period of 28 days beginning with the date of their appointment, notify the Commission of their intentions regarding the future carrying on of the regulated activity.
2
This paragraph applies to any person appointed as —
a
a receiver or manager of the property of the relevant company ;
b
the liquidator or provisional liquidator of a relevant company; or
c
the trustee in bankruptcy of a relevant individual .
PART 6 COMPLIANCE, GUIDANCE AND OFFENCES
Compliance with regulations
23
Where there is more than one registered person in respect of a regulated activity, or in respect of that activity as carried on at or from particular premises, anything which is required under these Regulations to be done by the registered person shall, if done by one of the registered persons, not be required to be done by any of the other registered persons.
Guidance
24
1
For the purposes of compliance with the requirements set out in these Regulations, the registered person must have regard to guidance issued by the Commission in relation to the requirements set out in Part 4 of these Regulations.
2
For the purposes of paragraph (1), “guidance” means the guidance referred to in section 23 of the Act.
Offences
25
1
A contravention of, or failure to comply with, any of the provisions of regulations 12 and 14 to 20 shall be an offence.
2
A person guilty of an offence under paragraph (1) is liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.
Signed by authority of the Secretary of State for Health
Mike O’Brien
Minister of State,
Department of Health
26th November 2009


text:
Citation, commencement and effect
1
1
These Regulations may be cited as the Child Trust Funds (Amendment No. 2) Regulations 2009 and shall come into force on 6th April 2009.
2
These Regulations have effect in relation to —
a
applications to open an account made before 6th April 2009 where the account has not been opened before that date, and
b
applications to open an account made on or after 6th April 2009.
Amendment to the Child Trust Funds Regulations 2004
2
The Child Trust Funds Regulations 2004 are amended as follows.
3
In regulation 5(1), in Condition 1, at the end add —
or, where the account provider has chosen to open accounts without sight of the relevant voucher, the applicant gives the following information to the account provider:
a
the expiry date of the voucher,
b
the amount of the initial contribution as specified on the voucher, and
c
where the date of birth shown on the voucher differs from the actual date of birth of the child (see regulation 13(5)(c)), the date of birth shown on the voucher
.
Dave Watts
Tony Cunningham
Two of the Lords Commissioners of Her Majesty’s Treasury
16th March 2009