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

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;

(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.

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.

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);

(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, 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

(b) practised unlawful discrimination or harassment on the grounds of any characteristic which is a protected characteristic under section 4 of the Equality Act 2010 (c.15), or victimised another person contrary to that Act, in or in connection with the carrying on of any business.

(5) Evidence is within this subsection if—

(a) it shows that any other person associated or formerly associated with the person (whether on a personal, work or other basis) has done any of the things set out in subsection (4) or (6), and

(b) it appears to the Welsh Ministers that the evidence is relevant to the question as to whether the person is a fit and proper person to be a service provider or, as the case may be, a responsible individual.

(6) Evidence is within this subsection if it shows that the person has been responsible for, contributed to or facilitated misconduct or mismanagement in the provision—

(a) of a regulated service or a service provided outside Wales which, if provided in Wales, would be a regulated service;

(b) of a service which would have fallen within paragraph (a) had the regulatory system established by this Part been operating at the time the service was being provided.

(7) When having regard to evidence within subsection (6), the Welsh Ministers must, among other things, take account of—

(a) the seriousness and duration of the misconduct or mismanagement;

(b) harm caused to any person, or any evidence of an intent to cause harm;

(d) any action taken by the person to remedy the misconduct or mismanagement.

(8) Evidence is within this subsection if it shows that the person has previously failed to comply with—

(a) an undertaking given under section 7(1)(a)(ii) or 11(3)(a)(ii),

(b) a condition imposed under this Part, or

(9) The Welsh Ministers may by regulations amend this section to vary the evidence to which they must have regard.

Annual return

10

(1) A service provider must submit an annual return to the Welsh Ministers following the end of each financial year during which the provider is registered.

(2) An annual return must contain—

(a) the following information—

(i) the regulated services that the service provider is registered to provide;

(ii) the places at, from or in relation to which the provider is registered to provide those services;

(iii) the name of the responsible individual registered in respect of each such place;

(iv) the date on which the provider's registration took effect in respect of each such regulated service and place;

(v) details of any other conditions imposed on the service provider's registration;

(vi) details of the number of persons to whom the provider provided care and support during the year in the course of providing each such service;

(vii) such information about training offered or undertaken in relation to each such service as may be prescribed;

(viii) such information about workforce planning as may be prescribed;

(viiia) such information about evidence relevant to the fit and proper person test as may be prescribed;

(ix) such other information as may be prescribed, and

(b) a statement setting out how the service provider has complied with any regulations made under section 27(1) specifying the standard of care and support that must be provided by a service provider (see section 27(2)).

(2A) In the case of a service provider, other than a local authority, that provides a restricted children’s service, a return must also contain such information as may be prescribed to satisfy the Welsh Ministers that the provider meets the requirement in section 6A(1).

(2B) But subsection (2A) does not apply in respect of a provider to‍ which section 6A does not apply by virtue of paragraph 2(4) of Schedule 1A.

(3) An annual return must be in the prescribed form.

(4) An annual return must be submitted to the Welsh Ministers within the prescribed time limit.

(4A) An annual return must be published within the prescribed time limit.

(4B) But if disclosure of information contained in the annual return is prohibited by any enactment or other rule of law, that information must be redacted from the annual return before it is published.

(5) The Welsh Ministers must publish each annual return submitted under subsection (1).

(6) Despite section 187(3), a statutory instrument containing—

(a) the first regulations made under subsection (2)(a)(vii),

(b) the first regulations made under subsection (2)(a)(viii), ...

(ba) the first regulations made under subsection (2)(a)(viiia),

(d) the first regulations made under subsection (2A),

may not be made unless a draft of the instrument has been laid before and approved by a resolution of Senedd Cymru.

Application for variation of registration as a service provider

11

(1) A service provider must apply to the Welsh Ministers for a variation of the provider's registration if—

(a) the provider wants to—

(i) provide a regulated service which the provider is not already registered to provide,

(ii) provide a regulated service at, from or in relation to a place which is not already specified in the provider's registration in relation to that service,

(iii) cease to provide a regulated service, or

(iv) cease to provide a regulated service at, from or in relation to a place;

(b) the provider wants a condition imposed under section 7(3)(b), 12(2) or 13(1) to be varied or removed;

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