NHS Acts

Types of trustee + NHS Act 2006 impact:

Trustees’ statutory remit¹:

Types of fund

Restricted / unrestricted²

NHS Act 1946

• Minister (certain endowments)
• Hospital Management Committees
• Boards of Governors (teaching hospitals)

NB.  S7 re-enacted as Section 219-221 National Health Service Act 2006 (updated to take account of subsequent re-organisations)

Transferred pre-1948³ funds:
all endowments of the hospital held immediately before the appointed day shall, by virtue of this Act, vest in (the Board/ Hospital Management Committee) free of any trust existing immediately before the appointed day … and shall be held on trust for such purposes relating to hospital services or to functions of the Board with respect to research (s7)

“New” donations: on trust for such purposes relating to hospital services or to functions of the Board with respect to research (s59)

• S7 funds: stripped of pre-1948 trusts (and therefore restrictions).  All ultimately general purpose as defined in statutory remit but Act requires application to “old” trusts “so far as practicable” (i.e. Act effectively re-applies trusts and sets test for disapplying them).

• New donor restricted donations

• New unrestricted donations

• Restricted but once previous trusts “not practicable” become unrestricted

• Restricted

• Unrestricted: typically designated

NHS Re-organisation Act 1973

NHS Re-organisation Act 1973 continued ….

• Regional Health Authorities
• Area Health Authorities
• Special trustees

The Act itself provided for these bodies, when established to take over from existing trustees
 

NB.  Special trustee provisions re-enacted as Section 212 National Health Service Act 2006

NB.  Private trusts for hospitals provisions (s22) re-enacted as Section 218 National Health Service Act 2006

Transferred S7 funds:  For such purposes relating to hospital services (including research) or to any other part of the health service associated with any hospital, as the person holding the property thinks fit (s27)

“New” donations: Power to accept, hold and administer any property on trust for all or any purposes of the health service( s21)

Funds transferred to or received by Special trustees:  For such purposes relating to hospital services (including research) or to any other part of the health service associated with any hospital, being a trust which is wholly or mainly for hospitals for which Special Trustees are appointed

Funds transferred from private trustees: any sum so paid to the [trustee(s)] shall so far as practicable be applied by them for the purpose specified in the trust instrument

• S7 (now s27) funds:

• 1948-73 restricted funds
• 1973 > restricted funds
• 1948-73 unrestricted
• 1973 > unrestricted

• If special trustees appointed transferred funds limited to hospitals for which they were appointed (but only whilst they hold them – does not apply to successor trustees). 

• New funds received by special trustees limited to hospitals for which they were appointed (this statutory limitation remains if these funds passed to successor trustees).

• Funds transferred from private trustees (s22)

• Restricted (with conditional scope to unrestrict)

• Restricted
• Restricted
• Unrestricted
• Unrestricted

• Transferred (pre 1973⁴) restricted funds
• Transferred (pre-1973) unrestricted funds

• New (post 1973) restricted funds
• New (post 1973)unrestricted funds

• Restricted but once previous trusts “not practicable” become unrestricted

NHS Act 1977

As above:  innovation is s92 allowing Secretary of State to transfer funds between trustees using statutory instruments

NB.  Private trusts for hospitals provisions (s91) re-enacted as Section 218 National Health Service Act 2006

NB.  provisions for transfer between trustees (s92) re-enacted as Section 213 National Health Service Act 2006

NB.  S93 re-enacted as Section 219-221 National Health Service Act 2006 (updated to take account of subsequent re-organisations

As above:  s7/ 27 now “section 93 funds”.   S22 now “section 91”

As above

Health Service Act 1980

No impact on trusteeship

NB.  S96A re-enacted as Section 222 National Health Service Act 2006 (updated to take account of subsequent re-organisations)

Conferred a power to raise appeals by inserting s96A into the NHS Act 1977(s5 of 1980 Act).   Unlike non-NHS Appeals (s14 of Charities Act 1993) s96A provides for both the eventualities of insufficient funds being raised and surplus funds being raised.

As above

Funds raised under s96A powers are restricted at the point of receipt but in theeventualities of insufficient funds being raised or surplus funds being raised the funds held become unrestricted

NHS and Community Care Act 1990

• existing HA trustees remained in place for up to 10 years: AHAs became District HA
• special trustees continue (but no new bodies created after 1990)
• NHS Trusts
• S11 trustees (individual rather than corporate)

Transferred s93 funds:  as before

“New” donations:

• To RHAs, AHAs, and special trustees as above.  
• To NHS Trusts:

“To accept gifts of, including money, land or other property to be held on trust, either for the general or any specific purposes of the NHS trust or for all or any purposes relating to the health service (clause 16, part II, schedule 2)”

This was re-stated in Schedule 4, part 2, para 14(2)(c) of the NHS Act 2006

• S11 trustees:

“To accept hold and administer any property on trust either for the general or any specific purposes of the NHS trust (including the purposes of any specific hospital or other establishment or facility which is owned or managed by the trust) or for all or any purposes relating to the health service. (s11)”

• Funds transferred from private trustees: (s91 funds) – as above

As above:   the statutory remit of RHAs, AHAs, NHS Trusts and S11 sufficiently similar to allow general purpose unrestricted funds received by any of those bodies (i.e. after 1973) to be “blended” into a single general purpose charity for each NHS body for which they act as trustee(s).  

The s93 funds and other pre-1973 unrestricted funds continue to be held for a narrower statutory remit and should not be blended with other (post 1973) general purpose or unrestricted funds.

Funds held by special trustees are limited to specified hospitals but where s93 funds transfer from special trustees the specified hospitals limitation is lifted.

NB If Special Trustees replaced, the funds they received during their tenure remain limited to specified hospitals – i.e. they become “restricted” in the hands of their successors.

As above

Health Act 1999

PCTs provided for (s2) and given power to hold charitable funds  BUT
Department of Health policy only to permit NHS Trusts to hold general purpose funds if >£500k in total.  Otherwise held by local large NHS Trust/ PCT as appropriate

As above + 

• PCTs: as corporate trustees have same remit as NHS Trusts (see above) – Schedule 5A, part iii, clause 12(1)(c) of the NHS Act 1977 – inserted into that Act by s2(1) of the Health Act 1999
• PCTs:  provision for bodies of individual trustees (equivalent to s11 Trustees) “To accept, hold and administer any property on trust for the general or any specific purposes of the PCT (including the purposes of any specific hospital or other (cont..) establishment or facility which is managed by the trust) or for all or any purposes relating to the health service”

(s7 of Health Act 1999)

• Care Trusts

As above

As above: but DOH policy⁵ means that general funds generated within one NHS body might be held as part of general purpose funds of another NHS body:  trusteeship no longer automatically vested in body that receives the donations.

Health and Social Care Act 2001

Care Trust provisions re-enacted under part 3 of the NHS Act 2006

Care Trusts:  provision under section 45 to “designate” existing NHS bodies as “Care Trusts” (able to deliver services in partnership with local authorities under s31(8) of the Health Act 1999).  No direct impact on trusteeship arrangements i.e. retain statutory remit of the body from which they have been “designated”.

Health and Social Care (Community Health and Standards) Act 2003

As above +

• Provision for Foundation Trust status for existing NHS Trusts

• Provision for bodies of individual trustees (s22) with similar remit to s11 trustees.

As above:   Foundation status not creation of a new body so no formal transfer of trusteeship unless  Foundation Trust (if acting as trustee) applies for creation of body of individual trustees under s22.  Remit of s22 trustees is to “hold property on trust-
 
(a) for the purposes of the NHS foundation trust, or

(b) for any purposes relating to the health service”  (s22)

If previous Trust was a corporate trustee the ongoing power to hold trust funds defined by s18.

If s11 trustees in place when Foundation status conferred they remain in place as s22 trustees. (s22(4))

As above

As above

National Health Service Act 2006

Consolidation Act so far as NHS trust funds are concerned.  No new provisions but reflects the cumulative structure of possible trusteeship ie

Corporate:

• NHS trusts
• PCTs
• Foundation NHS Trusts
• Special health authorities
• Strategic Health Authorities

Individual:

• Special trustees
• “s11” trustees for NHS Trusts
• “s7” trustees for PCTs
• “s51” for Foundation NHS Trusts.

Consolidation Act so far as NHS trust funds are concerned.  No substantive change to statutory remits of different categories of trustee.   Special trustees’ remit restated in s212(5).

The main trust funds provisions of the 2006 Act (and the previous provisions they replace) are:

• S95 of the NHS Act 1977 (see s212)
• S92 1977 (see s213)
• S91 1977 (see s218 – also covers Wales)
• S 6 and 7 of the NHS Act 1946 (see s219 -s221)
• S96A of the NHS Act 1977 (s222).
• S11 of the NHS and Community Care Act (see paragraph 10 of Schedule 4)
• clause 16, part II, schedule 2 of the NHS and Community Care Act 1990 (see paragraph 14(2)(c) and (3) of Schedule 4, part 2
• s18 of the Health and Social Care (Community Health and Standards) Act 2003 (see s47)
• S22 of the Health and Social Care (Community Health and Standards) Act 2003 (see s51)

National Health Service (Wales) Act 2006

Consolidation Act so far as NHS trust funds are concerned.  No new provisions but reflects the cumulative structure of possible trusteeship (same as NHS Act 2006 with addition of Local Health Boards)

Consolidation Act so far as NHS trust funds are concerned.  No substantive change to statutory remits of different categories of trustee.   Special trustees’ remit restated in s160(5).The main trust funds provisions of the 2006 Act (and the previous provisions they replace) are:

• S95 of the NHS Act 1977 (see s160)
• S92 1977 (see s161)
• S 6 and 7 of the NHS Act 1946 (see s166-s168)
• S96A of the NHS Act 1977 (s169).