The Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017

Made: 12 December 2017

Coming into force: 2 April 2018

The Welsh Ministers make the following Regulations in exercise of the powers conferred by sections 2(3), 21(5), 27, 28, 30, 31, 45, 46, 186(1) and 187(1) of the Regulation and Inspection of Social Care (Wales) Act 2016 and having consulted such persons as they think appropriate, as required by sections 27(4)(a) and 28(4) of that Act.

A draft of these Regulations was laid before the National Assembly for Wales under section 187(2)(b), (f), (g), (j) and (k) of that Act and has been approved by a resolution of the National Assembly for Wales.

PART 1 — General

Title, commencement, application and interpretation

1

• (1) The title of these Regulations is the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017.

• (2) These Regulations come into force on 2 April 2018 and apply in relation to Wales.

• (3) In these Regulations—

• “the Act” (“y Ddeddf”) means the Regulation and Inspection of Social Care (Wales) Act 2016;

• “the 2014 Act” (“Deddf 2014”) means the Social Services and Well-being (Wales) Act 2014 ;

• “care and support plan” (“cynllun gofal a chymorth”) means a plan under section 54 or section 83 of the 2014 Act;

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “child” (“plentyn”) means a person who is aged under 18;

• “child who is looked after by a local authority” (“plentyn sy'n derbyn gofal gan awdurdod lleol”) has the same meaning as in section 74 of the 2014 Act;

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “general practitioner” (“ymarferydd cyffredinol”) means a registered medical practitioner who—provides primary medical services under Part 4 of the National Health Service (Wales) Act 2006 , orprovides services which correspond to services provided under Part 4 of the National Health Service (Wales) Act 2006, otherwise than in pursuance of that Act;

• “health care professional” (“proffesiynolyn gofal iechyd”) means a person who is registered as a member of any profession to which section 60(2) of the Health Act 1999 applies;

• “nurse” (“nyrs”) means a qualified nurse or qualified midwife registered with the Nursing and Midwifery Council in accordance with article 5 of the Nursing and Midwifery Order 2001;

• “personal outcomes” (“canlyniadau personol”)—in relation to an adult, means the outcomes that the adult wishes to achieve in day to day life;in relation to a child, means—the outcomes that the child wishes to achieve, orthe outcomes that any persons with parental responsibility wish to achieve in relation to the child;

• “personal plan” (“cynllun personol”) means the plan required to be prepared in accordance with regulation 15(1);

• “placing authority” (“awdurdod lleoli”) in relation to a child provided with accommodation as part of a care home service or a secure accommodation service, means—in the case of a child who is looked after by a local authority or local authority in England, that local authority;in the case of a child who is not looked after by a local authority or local authority in England—if the child is being provided with accommodation by a voluntary organisation, that voluntary organisation;if the child is accommodated in a qualifying school under arrangements made by a local authority (whether in the exercise of education functions within the meaning of section 579(1) of the Education Act 1996 or otherwise), that local authority;in any other case, the child's parent;and for the purposes of this definition “qualifying school” (“ysgol gymhwysol”) means a school which is a care home service by virtue of the application of paragraph 1(3) of Schedule 1 to the Act;

• “provider assessment” (“asesiad darparwr”) means the assessment which is required to be carried out by the service provider under regulation 18;

• “reasonable adjustments” (“addasiadau rhesymol”) means such reasonable adjustments as would be required under the Equality Act 2010 ;

• “registered dental practitioner” (“ymarferydd deintyddol cofrestredig”) means a person registered in the dentists register kept under the Dentists Act 1984 who—provides primary dental services under Part 5 of the National Health Service (Wales) Act 2006, orprovides services which correspond to services provided under Part 5 of the National Health Service (Wales) Act 2006, otherwise than in pursuance of that Act;

• “registered professional” (“proffesiynolyn cofrestredig”) has the meaning given in paragraph 1 of Schedule 3 to the Health Professions Order 2001;

• “regulated services” (“gwasanaethau rheoleiddiedig”) means care home services, domiciliary support services, secure accommodation services or residential family centre services;

• “representative” (“cynrychiolydd”) means any person having legal authority, or the consent of the individual to act on the individual's behalf;

• “service commissioner” (“comisiynydd y gwasanaeth”) means the local authority or NHS body which is responsible for making arrangements with the provider for care and support to be provided to an individual;

• “service provider” (“darparwr gwasanaeth”) has the same meaning as in section 3(1)(c) of the Act;

• “staff” (“staff”) includes—persons employed by the service provider to work at the service as an employee or a worker, andpersons engaged by the service provider under a contract for services,but does not include persons who are allowed to work as volunteers.

• For the purpose of this definition, “employee” (“cyflogai”) and “worker” (“gweithiwr”) have the same meanings as in section 230 of the Employment Rights Act 1996 ;

• “the individual” (“yr unigolyn”) means, unless the context indicates otherwise, the child or adult who is receiving care and support;

• “the responsible individual” (“yr unigolyn cyfrifol”) has the same meaning as in section 21(1) of the Act;

• “the service” (“y gwasanaeth”) means—in relation to a care home service, a secure accommodation service or a residential family centre service, the service which is provided at a specified location;in relation to a domiciliary support service, the service which is provided in relation to a specified area.

• For the purpose of this definition—“specified location” (“lleoliad penodedig”) means a location specified in a condition to the service provider's registration as a place at which the service is to be provided ;“specified area” (“ardal benodedig”) means an area specified in a condition to the service provider's registration as a place in relation to which the service is to be provided.

• But this definition does not apply to references to “the service” (“y gwasanaeth”) in Part 22;

• “the service regulator” (“y rheoleiddiwr gwasanaethau”) means the Welsh Ministers in the exercise of their regulatory functions ;

• “the statement of purpose” (“y datganiad o ddiben”) means the statement of purpose for the place at, from or in relation to which the service is provided ;

• “the workforce regulator” (“rheoleiddiwr y gweithlu”) means Social Care Wales.

PART 2 — Exceptions

Care home services

2

• (1) The following things are not to be treated as a care home service, despite paragraph 1 of Schedule 1 to the Act (regulated services: definitions, care home services)—

• (a) the provision of accommodation, together with nursing or care, to an adult—

• (i) in the course of a family or personal relationship, and

• (ii) for no commercial consideration;

• (b) the provision of accommodation, together with nursing or care, to adults for a period of less than 28 days in any 12 month period or for a number of periods which in total are less than 28 days in any 12 month period;

• (c) the provision of accommodation, together with nursing, where the accommodation is vested—

• (i) in the Welsh Ministers for the purposes of their functions under the National Health Service (Wales) Act 2006;

• (ii) in an NHS trust;

• (iii) in a Local Health Board.

• (d) the provision of accommodation, together with care, where the accommodation is provided—

• (i) by an institution within the further education sector; or

• (ii) by a university.

But this exception does not apply if the number of persons to whom such accommodation is provided is more than one tenth of the number of students to whom it provides both education and accommodation.

For the purposes of this paragraph, “further education sector” (“sector addysg bellach”) has the same meaning as in section 91(3) of the Further and Higher Education Act 1992 ;

• (e) the provision of accommodation, together with care, where the care provided constitutes child minding within the meaning of section 19(2), or day care within the meaning of section 19(3) of the Children and Families (Wales) Measure 2010 but this exception does not apply if—

• (i) in any 12 month period there are 28 or more periods of 24 hours during which more than 15 hours of child minding or day care are provided in relation to any one child; or

• (ii) the care is provided wholly or mainly for disabled children;

• (f) the provision of accommodation, together with care, where the accommodation is provided for children aged 16 and over only for the purposes of enabling the children to undergo training or an apprenticeship.

But this exception does not apply if care is provided wholly or mainly for disabled children;

• (g) the provision of accommodation, together with care, where the accommodation is provided to children at an approved bail hostel or approved probation hostel;

• (h) the provision of accommodation, together with care, where the accommodation is an institution for young offenders provided under or by virtue of section 43(1) of the Prison Act 1952 ;

• (i) the provision of accommodation, together with care, where the accommodation is provided to children ... for the purposes of—

• (i) a holiday;

• (ii) a leisure, recreational, sporting, cultural or educational activity;

But this exception does not apply—

• (i) in any case where care is provided wholly or mainly for disabled children unless the service provider has first notified the Welsh Ministers of the arrangements in writing;

• (ii) if the accommodation is provided to any one child for more than 28 days in any 12 month period, unless the accommodation is only provided to children over the age of 16 ;

• (j) the provision of accommodation, together with care, to a single child or to a sibling group by a person in that person’s own home and where care and accommodation are not provided by that person for a total of more than 28 days in any 12 month period;

• (l) the provision of accommodation, together with nursing or care, to adults in a local authority intermediate care service.

But this exception does not apply unless—

• (i) the local authority is solely responsible for providing the intermediate care, and

• (ii) the intermediate care is provided for no more than sixteen weeks at a time to any one adult.

• (k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) For the purposes of paragraph (1)(e), (f) and (i) of this regulation, a child is “disabled” if the child has a disability for the purposes of the Equality Act 2010.

• (3) See regulation 5 for the meaning of family or personal relationship.

• (4) In subparagraph (1)(j) of this regulation, “sibling group” includes both brothers and sisters, and half-brothers and half-sisters.

• (5) For the purposes of paragraph (1)(l) of this regulation—

• “intermediate care” (“gofal canolraddol”) means the provision of accommodation, together with nursing or care, to an adult for a limited period for the purpose of promoting the adult’s ability to live independently in their own home by—avoiding unnecessary admission to hospital,minimising the duration of any admission to hospital by enabling timely discharge,enabling recovery following discharge from hospital, orpreventing or delaying admission to a care home service;

• “local authority intermediate care service” (“gwasanaeth gofal canolraddol awdurdod lleol”) means a service providing intermediate care—which is provided by a local authority to an adult in accordance with its duties in Part 2 or 4 of the 2014 Act,where the accommodation used for the purposes of the intermediate care is vested in the local authority, andwhere any care and support is provided by a domiciliary support service the local authority is registered to provide.

Domiciliary support services

3

• (1) The following things are not to be treated as a domiciliary support service, despite paragraph 8 of Schedule 1 to the Act (regulated services: definitions, domiciliary support services)—

• (a) the provision of support only;

• (b) the provision of care and support to four or fewer individuals at any one time;

• (c) the provision of care and support for an adult—

• (i) in the course of a family or personal relationship, and

• (ii) for no commercial consideration;

• (d) the provision of care and support for a child by a parent, relative or foster parent;

• (e) the provision of care and support by a carer where such care and support is provided without the involvement of an undertaking acting as an employment agency or employment business (within the meaning given to those expressions by section 13 of the Employment Agencies Act 1973 ), and where the carer works wholly under the direction and control of a related third party;

• (f) arrangements for the supply of carers to a service provider by an undertaking acting as an employment agency or employment business for the purpose of the provision of a regulated service by the service provider;

• (g) the provision of care and support where the care and support is provided by a person managing a prison or other similar custodial establishment;

• (h) the provision of nursing care by a registered nurse;

• (i) the provision of care and support by a Local Health Board to meet needs which are related to the needs of individuals for nursing care.

• (j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

...

• (2) In paragraph (1)(e) and (f), “carer” means an individual who provides care to a person referred to in paragraph 8(1) of Schedule 1 to the Act.

• (3) In paragraph (1)(e), “related third party” means—

• (a) an individual with parental responsibility (within the meaning of section 3 of the Children Act 1989 ) for a child to whom care and support is to be provided;

• (b) an individual with power of attorney or other lawful authority to make arrangements on behalf of the individual to whom care and support is to be provided;

• (c) a group of individuals mentioned in either of sub-paragraphs (a) or (b) making arrangements on behalf of no more than four named individuals to whom care and support is to be provided;

• (d) a trust established for the purpose of providing services to meet the care and support needs of a named individual.

• (4) See regulation 5 for the meaning of family or personal relationship.

Residential family centre services

4

The following things are not to be treated as a residential family centre service, despite paragraph 3 of Schedule 1 to the Act (regulated services: definitions, residential family centre services)—

• (a) the provision of accommodation for children and their parents where the accommodation is provided in a hospital ;

• (b) the provision of accommodation for children and their parents where the accommodation is provided in a hostel or a domestic violence refuge;

• (c) in any other case, the provision of accommodation for children and their parents the main purpose of which is the provision of accommodation together with other services and facilities to adult individuals and the fact that those individuals may be parents, or may be accompanied by their children, is incidental to the main purpose of the provision of the accommodation.

Meaning of family or personal relationship

5

For the purposes of this Part—

• (a) a family relationship includes a relationship between two persons who—

• (i) live in the same household, and

• (ii) treat each other as though they were members of the same family;

• (b) a personal relationship is a relationship between or among friends;

• (c) a friend of a person (A) includes a person who is a friend of a member of A's family.

PART 3 — General requirements on service providers

Requirements in relation to the provision of the service

6

The service provider must ensure that the service is provided with sufficient care, competence and skill, having regard to the statement of purpose.

Requirements in relation to the statement of purpose

7

• (1) The service provider must provide the service in accordance with the statement of purpose.

• (2) The service provider must—

• (a) keep the statement of purpose under review, and

• (b) where appropriate, revise the statement of purpose.

• (3) Unless paragraph (4) applies, the service provider must notify the persons listed in paragraph (6) of any revision to be made to the statement of purpose at least 28 days before it is to take effect.