The NHS Act allows a Labour govt to take back all transferred assets. But will it?

I wrote yesterday about the complete lack of protection for NHS workers transferred to private health providers under the Health and Social Care Act 2012. That’s by no means the end of the bad news. Well, it’s incredibly indigestible stuff, but I spent my lunchbreak reading some more of the Act – and uncovered a massive scam – with perhaps just a chink of light at the end of the tunnel. But whether it’s fresh air to be reached, or a train coming in the other direction, will depend on Labour’s courage or otherwise to commit to exploiting it.

The Act is designed to allow the Secretary of State for Health – or even ‘qualifying companies’ appointed by him – to transfer NHS staff and property to privately-owned companies. There are also public entities that staff and assets can also be transferred to, but that provision to transfer to private ownership amounts to a licence to give away the NHS that has been painstakingly built up at taxpayers’ expense over the past 60-odd years. Free of charge.

The Bill is written in the densest, most repetitive language imaginable, with masses of references to the same or similar things, making it very hard to read. So I won’t start inserting a lot of its language into this post. But if you want to read the sections I’m about to refer to for yourself, they’re sections 300-302 and schedules 22 & 23 of the Act, whose full text you can read here.

Those schedules allow the Health Secretary to arrange a transfer scheme to a number of bodies – including a ‘qualifying company’. A qualifying company is a ‘company wholly or partly owned by the Secretary of State’ (hence it would be enough for the Health Secretary to own a single share and have the rest in the private hands of Tory backers). There is no mention in the Act that the receiving entity has to pay a penny for the transferred assets – and as we’ve already seen in last night’s TUPE article, there’s no obligation for them to respect the pay rates, pensions or other conditions of any staff unlucky enough to be transferred.

The Act represents a massive scam that allows a huge national asset to be simply parcelled up and handed over to private interests. But there is that small chink of light:

Section 302.2 of the Act, speaking of assets which have been transferred under the provisions mentioned above, says:

The Secretary of State may make a scheme for the transfer of any such property, rights or liabilities from the Special Health Authority or the qualifying company to any body or other person mentioned in the second column of Schedule 22

Section 22 includes a long list of ‘bodies’, including other mainly-private companies – but also including the serving Health Secretary or ‘Any public authority which provides services as part of the health service in England’.

This means that, if Labour win the next election, Andy Burnham or whoever is Health Secretary, without waiting to debate and pass any new legislation, will have the right to transfer any and all assets transferred into private hands back to State ownership – and without an obligation to pay a single penny.

Shadow Health Secretary Andy Burnham has publicly said that the next Labour government will repeal the Act – but because he has said he doesn’t want to institute another NHS reorganisation, there are concerns that the commitment is too equivocal and may not extend to re-appropriating NHS workers and assets that have passed into private hands under the coalition government.

Well, the good news is that Labour will not need a new Act, or to repeal this one, in order to be able to take back everything that the Tories have culpably given away while the LibDems acquiesced or collaborated. The existing Act says that they can just take it all back by ‘arranging a transfer scheme’ back to the State.

The big question is, will they do so? Let’s all email Andy Burnham (mailto: andy.burnham.mp@parliament.uk and tell him we expect an emphatic ‘YES’ – and for lost salary and pension entitlements of any affected staff to be restored, so that the injustice of this Act is fully undone.


  1. From April 2013 PCTs and SHAs will no longer exist. The Appointments Commission will be abolished in October this year. The Health Protection Agency is also being abolished. In fact, it looks to me like all of the bodies mentioned in the first column of the table in Schedule 22 are being abolished and these are the transition arrangements (and hence the transfers will occur before a specific date).

    The only exception is the last entry: the Secretary of State. The table says that property owned by the secretary of state can be transferfed to “a qualifying company”. So what is this “qualifying company”? 200(8) says that it is “a company which is formed under section 223 of the National Health Service Act 2006 and wholly or partly owned by the Secretary of State or the Board”. is there such a company? Yes, it is called NHS Properties Services Ltd (known as the NHS propco). This is NOT a statutory organisation, it is a limited company that is owned by … the secretary of state.

    So basically the table says that properties of abolished organisations will be transferred to the new NHS organisations, or to the NHS propco.

    The transfer of property is interesting. Recently I attended my local Health and Wellbeing Board to see what they do and one of the agenda items was the PCT explaining why some properties were being transferred to the local hospitals, and why others were going to the propco. If a clinic had patients it was transferred to the hospital trust that delivered community services. If a building was used for admin it was transferred to the propco. They used a strict 50% rule, so if more than 50% of a building was admin it would go to the propco. When you consider that district nurses and other people who work out in the community need a base to work from, ssuch a building used as a base was be regarded as being “admin” and transferred to the propco. The hospital trust was not happy about this (especially since the propco says they will charge market rents) and it is likely that the trust will find other premises (in fact, this will be better for them, because these buildings are not necessarily in the most convenient place for the community staff, but they would be *cheap* if the trust owned them).

    I think that you are misinterpretting 302(2). The “qualifying company” is NHS Property Services Ltd, that is, the NHS propco. All it says is that the secretary of state can transfer properties owned by the company owned by the secretary of state to another public body.

    1. Yes, I understood the principle but didn’t want to make the article too clunky by going into all that detail.

      Protocol is the current example but potentially not the only one – the Health Sec can form any company he wants – and as long as he ‘owns’ just a single share the rest can be private investors.

      It’s a very cunning scam – and one that I was saving for a separate post! 🙂

    1. If you have an email software set up it will open a new email from the link. If not, you need to paste it into a new email on hotmail etc.

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