Legalize / United Kingdom / Wales / Act of Senedd Cymru

Regulation and Inspection of Social Care (Wales) Act 2016

Type Act of Senedd Cymru

Publication 2016-01-18

State In force

Jurisdiction Wales

Department Statute Law Database

Source legislation.gov.uk

Reform history JSON API PDF

PART 1 — REGULATION OF SOCIAL CARE SERVICES

CHAPTER 1 — INTRODUCTION

Overview of Part 1

1

In this Part—

(a) this Chapter defines some key terms including what is meant by a “regulated service” in this Act, and sets out the general objectives of the Welsh Ministers in relation to the regulation of such services;

(b) Chapter 2 sets out the Welsh Ministers' functions in relation to registering persons who provide regulated services, including provision about varying and cancelling registrations and provision about notifications and appeals;

(ba) Chapter 2 also makes provision restricting the entities that may provide‍ children’s home services, secure accommodation services and fostering services;

(c) Chapter 3 sets out the Welsh Ministers' powers to require information and to carry out inspections and investigations;

(d) Chapter 4 confers some general functions on the Welsh Ministers in relation to regulated services;

(e) Chapter 5 makes provision for offences and penalties;

(f) Chapter 6 amends the Social Services and Well-being (Wales) Act 2014 (anaw 4) to make provision in respect of the social services functions of local authorities (on which, see Schedule 2 to the 2014 Act) including, in particular, provision about—

(i) annual reports by local authorities;

(ii) powers for the Welsh Ministers to conduct reviews of the way in which those functions are exercised;

(iii) powers allowing for the inspection of premises used in connection with the exercise of those functions;

(iv) powers for the Welsh Ministers to require information relating to the exercise of those functions;

(v) offences in connection with inspections or requirements to provide information;

(vi) powers for the Welsh Ministers to regulate the exercise of those local authority functions which relate to looked after and accommodated children;

(g) Chapter 7 makes provision for the Welsh Ministers to monitor the financial sustainability of certain service providers and to prepare and publish reports about the stability of the market for social care services in Wales.

Meaning of “regulated service”

2

(1) In this Act, “regulated service” means—

(a) a care home service,

(b) a secure accommodation service,

(d) an adoption service,

(e) a fostering service,

(f) an adult placement service,

(g) an advocacy service,

(h) a domiciliary support service, and

(i) any other service comprising the provision of care and support in Wales as may be prescribed.

(2) Schedule 1 makes further provision about the meaning of terms used in subsection (1).

(3) The Welsh Ministers may by regulations prescribe things which, despite Schedule 1, are not to be treated as regulated services for the purposes of this Act.

(4) Before making regulations under this section the Welsh Ministers must consult such persons as they think appropriate.

Meaning of “restricted children’s service”

2A

(1) For the purposes of this Part, the following regulated services are a “restricted children’s service”—

(a) a care home service‍ in so far as the service is a children’s home service;

(b) a fostering service;

(2) For the purposes of subsection (1), a “children’s home service” is a care home service provided at one or more places at which the service is provided wholly or mainly to children.‍

(3) Schedule 1 makes further provision about the meaning of a restricted children’s service.

Other key terms

3

(1) In this Act—

(a) “care” means care relating to—

(i) the day to day physical tasks and needs of the person cared for (for example, eating and washing), and

(ii) the mental processes related to those tasks and needs (for example, the mental process of remembering to eat and wash);

(b) “regulatory functions” means the Welsh Ministers' functions under—

(i) this Part,

(ii) sections 94A and 149A to 161B of the 2014 Act, and

(iii) section 15 of the Adoption and Children Act 2002 (c.38) (inspection of premises relating to adoption services),

but any function of making, confirming or approving subordinate legislation (as defined by section 158(1) of the Government of Wales Act 2006 (c.32)) is not a regulatory function;

(d) “support” means counselling, advice or other help, provided as part of a plan prepared for the person receiving support by—

(i) a service provider or other person providing care and support to the person, or

(ii) a local authority (even if the authority does not provide care and support to the person).

(2) References in this Act to “care and support” are to be read as references to—

(a) care,

(b) support, or

(3) The Welsh Ministers may by regulations prescribe things which, despite subsection (1)(a) and (d), are not to be treated as care and support for the purposes of this Act.

General objectives

4

The general objectives of the Welsh Ministers in exercising their functions under this Part are—

(a) to protect, promote and maintain the safety and well-being of people who use regulated services, and

(b) to promote and maintain high standards in the provision of regulated services.

CHAPTER 2 — REGISTRATION ETC. OF SERVICE PROVIDERS

Requirement to register

5

It is an offence for a person to provide a regulated service without being registered in accordance with this Chapter in respect of that service.

Application for, variation of and cancellation of registration

Application for registration as a service provider

6

(1) A person who wants to provide a regulated service must make an application for registration to the Welsh Ministers—

(a) specifying the regulated service that the person wants to provide,

(b) specifying the places at, from or in relation to which the service is to be provided,

(c) designating an individual as the responsible individual in respect of each place and stating each such individual's name and address (section 21 sets out who may be designated as a responsible individual), and

(d) including such other information as may be prescribed.

(1A) In the case of a person, other than a local authority, who wants to provide a restricted children’s service, the application must also include such information as may be prescribed to satisfy the Welsh Ministers that the person meets the requirement in section 6A(1).

(2) An application must be in the prescribed form.

(3) A person who wants to be registered as a service provider in respect of two or more regulated services may make a single application in respect of them.

Registration in respect of a restricted children’s service

6A

(1) To be registered in respect of a restricted children’s service, a person who is not a local authority must be a not-for-profit entity.

(2) For the purposes of this Part, a “not-for-profit entity” is a person that meets conditions 1 and 2 in subsections (3) and (4).

(3) Condition 1 is that the person’s objects or purposes primarily relate to—

(a) the welfare of children, or

(b) such other public good as the Welsh Ministers may prescribe.

(4) Condition 2 is that the person is one of the following types of undertaking (as defined in section 6B)—

(a) a charitable company limited by guarantee without a share capital,

(b) a charitable incorporated organisation,

(d) a community interest company limited by guarantee without a share capital.

Registration in respect of a restricted children’s service: definitions

6B

(1) The following definitions apply for the purposes of section 6A(4).

(2) A “charitable company limited by guarantee without a share capital” is a company—

(a) that is registered under the Companies Act 2006 (c. 46) in Wales, England, Scotland or Northern Ireland,

(b) whose liability is limited by guarantee and that does not have a share capital, and

(i) the Charities Act 2011 (c. 25);

(ii) the Charities and Trustee Investment (Scotland) Act 2005 (asp 10);

(iii) the Charities Act (Northern Ireland) 2008 (c. 12).

(3) A “charitable incorporated organisation” is an organisation registered under—

(a) section 209, 232 or 238 of the Charities Act 2011 or regulations made under section 234 of that Act,

(b) section 55, 58 or 60 of the Charities and Trustee Investment (Scotland) Act 2005, or

(c) section 111, 114 or 117 of the Charities Act (Northern Ireland) 2008 or regulations made under section 115 of that Act.

(4) A “charitable registered society” is—

(a) a society that is—

(i) a “registered society” within the meaning of section 1(1) of the Co-operative and Community Benefit Societies Act 2014 (c. 14), and

(ii) a charity within the meaning of section 1(1) of the Charities Act 2011,

(b) a society that is—

(i) a “registered society” within the meaning of section 1(1) of the Co-operative and Community Benefit Societies Act 2014, and

(ii) a charity registered under the Charities and Trustee Investment (Scotland) Act 2005, or

(i) a “registered society” within the meaning of section 1A(1) of the Co-operative and Community Benefit Societies Act (Northern Ireland) 1969 (c. 24), and

(ii) a charity registered under the Charities Act (Northern Ireland) 2008.

(5) A “community interest company limited by guarantee without a share capital” is a company—

(a) that is registered under the Companies Act 2006 in Wales, England, Scotland or Northern Ireland,

(b) whose liability is limited by guarantee and that does not have a share capital, and

(c) that is a community interest company under Part 2 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c. 27).

(6) In subsections (2) and (5)—

(a) references to a company’s liability being “limited by guarantee” have the meaning given by section 3(3) of the Companies Act 2006, and

(b) a company does not have a share capital if it does not have power under its constitution to issue shares‍.

Registration in respect of a restricted children’s service: transitional arrangements

6C

Schedule 1A makes provision for transitional arrangements in respect of service providers registered prior to the coming into force of section 6A(1).

Grant or refusal of registration as a service provider

7

(1) The Welsh Ministers must grant an application under section 6 if satisfied that—

(a) the application—

(i) contains everything required by or under subsection (1) of that section,

(ii) in the case of an application relating to a domiciliary support service, contains the undertaking mentioned in section 8, and

(iii) meets the requirements prescribed under section 6(2);

(aa) in the case of an application in respect of a restricted children’s service, the applicant meets the requirement in section 6A(1);

(b) the applicant is a fit and proper person to be a service provider (see section 9);

(i) is eligible to be a responsible individual in accordance with section 21(2),

(ii) is a fit and proper person to be a responsible individual (see section 9), and

(iii) will comply with any requirements of regulations under section 28 (so far as applicable);

(d) the requirements of—

(i) any regulations under section 27 (including any requirements as to the standard of care and support that must be provided), and

(ii) any other enactment which appears to the Welsh Ministers to be relevant,

will be complied with (so far as applicable) in relation to the provision of the regulated service.

(2) In any other case the Welsh Ministers must refuse an application.

(3) The grant of an application—

(a) must be subject to a condition specifying—

(i) the places at, from or in relation to which the service provider is to provide a regulated service, and

(ii) the individual designated as the responsible individual for each place, ...

(aa) must, in the case of an application in respect of a restricted children’s service, be subject to a condition that the service provider notify the Welsh Ministers of any circumstances under which the provider no longer meets the requirement in section 6A(1), and

(b) may be subject to such further conditions as the Welsh Ministers think appropriate.

(4) Where a person has made a single application in respect of two or more regulated services the Welsh Ministers may separately grant or refuse the application in respect of each service.

(5) But the grant of an application takes effect only if the requirements of sections 18 to 20 are met (so far as applicable).

Duration of domiciliary support visits

8

(1) The undertaking mentioned in section 7(1)(a)(ii) and 11(3)(a)(ii) is that a domiciliary support service will not be provided by way of a visit which is shorter than 30 minutes unless either condition A, B or C is met.

(2) Condition A applies where—

(a) a local authority is required—

(i) by virtue of section 35 or 37 of the 2014 Act, to meet the needs of the person being visited, or

(ii) by virtue of section 40 or 42 of that Act, to meet the needs of that person's carer, and

(b) the authority meets those needs by providing or arranging the provision of a domiciliary support service to the person being visited.

(3) Condition A is that—

(a) the individual carrying out the visit has previously carried out a visit during the period for which the local authority maintains—

(i) a care and support plan under section 54(1) of the 2014 Act in respect of the person being visited, or

(ii) a support plan under that section in respect of the person's carer, and

(b) either—

(i) the visit is conducted for the sole purpose of checking whether the person is safe and well, or

(ii) the tasks to be performed during the visit can reasonably be, and are, completed to a standard which satisfies any requirements specified in regulations made under section 27 that are relevant to the visit.

(4) Condition B applies where a domiciliary support service is provided in circumstances where Condition A does not apply.

(5) Condition B is that—

(a) a visit of less than 30 minutes is consistent with the terms of any arrangement to provide the service made between the service provider and the person being visited (or another person acting on behalf of the person being visited),

(b) the visit is conducted for the sole purpose of checking whether the person is safe and well, or

(c) the tasks to be performed during the visit can reasonably be, and are, completed to a standard which satisfies any requirements specified in regulations made under section 27 that are relevant to the visit.

(6) Condition C applies in any case where a domiciliary support service is provided by way of a visit to a person.

(7) Condition C is that the visit is curtailed at the request of the person being visited.

Fit and proper person: relevant considerations

9

(1) This section applies to any decision of the Welsh Ministers as to whether—

(a) a service provider,

(b) a person applying to be a service provider,

(d) a person to be designated as a responsible individual,

is a fit and proper person to be a service provider or, as the case may be, a responsible individual.

(2) In making such a decision the Welsh Ministers must have regard to all matters they think appropriate.

(3) In particular, the Welsh Ministers must have regard to any evidence falling within subsections (4) to (8).

(4) Evidence falls within this subsection if it shows that the person has—

(a) committed—

(i) any offence involving fraud or other dishonesty, violence, firearms or drugs or any offence listed in Schedule 3 to the Sexual Offences Act 2003 (c.42) (offences attracting notification requirements),

(ii) an offence under this Act or regulations made under it,

(iii) an offence under Part 2 of the Care Standards Act 2000 (c.14) or regulations made under it, or

(iv) any other offence which the Welsh Ministers think is relevant, or

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