10 Register of NHS foundation trusts
(1) The registrar of companies must establish and maintain a register of NHS
(2) The register must contain in relation to each NHS foundation trust—
(a) a copy of the current constitution,
(b) a copy of the current authorisation,
(c) a copy of the latest annual accounts and of any report of the auditor on
(d) a copy of the latest annual report,
(e) a copy of any notice given under section 23 (failing NHS foundation
(3) In relation to any time before an NHS foundation trust is first required to send
an annual report to the regulator, the register must contain a list of the persons
who were first elected or appointed as—
(a) the members of the board of governors,
(b) the directors.
(4) Sections 707A(2) and (3) and 709 of the Companies Act 1985 (c. 6) (records kept
by the registrar of companies) apply to the register as if it were required to be
kept by the registrar of companies under that Act.
(5) The Secretary of State is to pay any expenses incurred by the registrar of
companies by virtue of this section.
11 Power of Secretary of State to give financial assistance
(1) The Secretary of State may give financial assistance to any NHS foundation
(2) The financial assistance may be given by way of loan, public dividend capital,
grant or other payment.
(3) The Secretary of State may guarantee the payment of any amount payable by
an NHS foundation trust under an externally financed development
“Externally financed development agreement” has the same meaning as in
section 1 of the National Health Service (Private Finance) Act 1997 (c. 56),
reading references in subsections (3) and (5) of that section to the trust as
references to the NHS foundation trust.
12 Prudential borrowing code
(1) The regulator must make a code for determining the limit on the total amount
of the borrowing of any NHS foundation trust.
(2) In making the code the regulator is to have regard (among other things) to any
generally accepted principles used by financial institutions to determine the
amounts of loans to non-profit making bodies.
A body is non-profit making if it does not carry on activities for the purpose
of making profits for distribution to its members or others.
(3) Before making the code, the regulator must consult—
(a) the Secretary of State,
(b) every NHS trust intending to make an application to become an NHS
(c) such other persons as the regulator considers appropriate.
(4) The regulator must lay a copy of the code before Parliament.
(5) The regulator may revise the code; and subsections (2) to (4) apply in relation
to revising the code, but the regulator must also consult every NHS foundation
13 Public dividend capital
(1) Where an NHS trust becomes an NHS foundation trust, the amount which was
the public dividend capital of the trust immediately before the giving of the
authorisation continues as public dividend capital of the NHS foundation trust
held on the same conditions (“initial public dividend capital”), but subject to
(2) Any amount issued to an NHS foundation trust as public dividend capital
under section 11 is (like initial public dividend capital) an asset of the
(3) The Secretary of State may, with the consent of the Treasury, decide the terms
on which any public dividend capital of an NHS foundation trust is to be
treated as having been issued.
(4) But the dividend to be paid by the trust is to be the same as that payable by
NHS trusts in England in pursuance of section 9(7) of the 1990 Act (dividend
on public dividend capital).
(5) Before exercising the power in subsection (3), the Secretary of State must
consult the regulator.
(6) Any amount paid to the Secretary of State by an NHS foundation trust by way
of repayment of public dividend capital is to be paid into the Consolidated
14 Authorised services
(1) An authorisation must authorise the NHS foundation trust to provide goods
and services for purposes related to the provision of health care.
(2) But the authorisation must secure that the principal purpose of the trust is the
provision of goods and services for the purposes of the health service in
(3) The trust may also carry on activities other than those mentioned in subsection
(1), subject to any restrictions in the authorisation, for the purpose of making
additional income available in order to carry on its principal purpose better.
(4) The authorisation may require the provision, wholly or partly for the purposes
of the health service in England, of goods and services by the trust.
(5) References in this Part to goods and services include, in particular—
(a) education and training,
(b) accommodation and other facilities.
(6) The authorisation must authorise and may require the trust—
(a) to carry out research in connection with the provision of health care,
(b) to make facilities and staff available for the purposes of education,
training or research carried on by others.
(7) In deciding whether or not to require the trust to provide, wholly or partly for
the purposes of the health service in England, any goods or services the
regulator is to have regard (among other things) to—
(a) the need for the provision of goods or services in the area in question,
(b) any provision of goods or services by other health service bodies in the
area in question,
(c) any other provision by the trust with which the provision of the goods
or services is connected,
(d) any agreement or arrangement to which the body corporate which is
the trust is or was a party.
(8) Such a requirement as is mentioned in subsection (4) may be framed by
reference (among other things) to—
(a) goods or services in general or of a particular description,
(b) goods or services required to meet the needs of health service bodies in
general or those of a particular description,
(c) goods or services required to meet the needs of other persons of a
(d) the volume of goods or services provided,
(e) the place where goods or services are provided,
(f) the period within which goods or services are provided.
15 Private health care
(1) An authorisation may restrict the provision, for purposes other than those of
the health service in England, of goods and services by an NHS foundation
(2) The power is to be exercised, in particular, with a view to securing that the
proportion of the total income of an NHS foundation trust which was an NHS
trust in any financial year derived from private charges is not greater than the
proportion of the total income of the NHS trust derived from such charges in
the base financial year.
(3) The base financial year means the first financial year throughout which the
body corporate was an NHS trust or, if it was an NHS trust throughout the
financial year ending with 31st March 2003, that year.
(4) Private charges means charges imposed in respect of goods and services
provided to patients other than patients being provided with goods and
services for the purposes of the health service.
(5) Section 14(8) applies for the purposes of this section.
16 Protection of property
(1) An NHS foundation trust may not dispose of any protected property without
the approval of the regulator.
Disposing of property includes disposing of part of it or granting an interest
(2) Protected property is property of the trust designated as protected in its
(3) The regulator may designate property as protected if he considers it is needed
for the purposes of any goods or services which the authorisation requires the
trust to provide wholly or partly for the purposes of the health service in
(4) The regulator may give approval under subsection (1) on any terms he
(5) An NHS foundation trust may not create a floating charge on its property.
17 Financial powers
(1) An NHS foundation trust may borrow money for the purposes of or in
connection with its functions.
(2) But the total amount of the trust’s borrowing is subject to the limit imposed by
(3) The limit must be reviewed annually by the regulator.
(4) An NHS foundation trust may invest money (other than money held by it as
trustee) for the purposes of or in connection with its functions.
(5) The investment may include investment by—
(a) forming, or participating in forming, bodies corporate,
(b) otherwise acquiring membership of bodies corporate.
(6) An NHS foundation trust may give financial assistance (whether by way of
loan, guarantee or otherwise) to any person for the purposes of or in
connection with its functions.
18 General powers
(1) An NHS foundation trust may do anything which appears to it to be necessary
or desirable for the purposes of or in connection with its functions.
(2) In particular it may—
(a) acquire and dispose of property,
(b) enter into contracts,
(c) accept gifts of property (including property to be held on trust for the
purposes of the NHS foundation trust or for any purposes relating to
the health service),
(d) employ staff.
(3) Any power of the trust to pay remuneration and allowances to any person
includes power to make arrangements for providing, or securing the provision
of, pensions or gratuities (including those payable by way of compensation for
loss of employment or loss or reduction of pay).