Regulation and Inspection of Social Care (Wales) Act 2016

PART 1 U.K. REGULATION OF SOCIAL CARE SERVICES

CHAPTER 1 U.K. INTRODUCTION

1 Overview of Part 1 E+W

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;

(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.

Commencement Information

I1 S. 1 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(a)

2 Meaning of “regulated service” E+W

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

(a) a care home service,

(b) a secure accommodation service,

(c) a residential family centre 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.

Commencement Information

I2 S. 2(1)(a)-(c)(h)(i)(3)(4) in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(b)

I3 S. 2(2) in force at 2.4.2018 for specified purposes by S.I. 2017/1326, art. 2(3)(b)

3 Other key terms E+W

(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;

(c) “service provider” means a person registered under section 7 to provide a regulated service;

(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

(c) both care and support.

(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.

Commencement Information

I4 S. 3 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(c)

4 General objectives E+W

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.

Commencement Information

I5 S. 4 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(c)

CHAPTER 2 U.K. REGISTRATION ETC. OF SERVICE PROVIDERS

Requirement to register U.K.

5 Requirement to register E+W

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.

Commencement Information

I6 S. 5 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(c) (with arts. 4, 5, 14)

Application for, variation of and cancellation of registration U.K.

6 Application for registration as a service provider E+W

(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.

(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.

Commencement Information

I7 S. 6 in force at 1.2.2018 for specified purposes by S.I. 2017/1326, art. 2(1)(2) (with arts. 3-15)

7 Grant or refusal of registration as a service provider E+W

(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);

(c) each individual to be designated as a responsible individual—

(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).

Commencement Information

I8 S. 7 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d) (with art. 9)

8 Duration of domiciliary support visits E+W

(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.

Commencement Information

I9 S. 8 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

9 Fit and proper person: relevant considerations E+W

(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,

(c) a responsible individual, or

(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), 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;

(c) any financial gain made by the person;

(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

(c) a requirement imposed by regulations under section 27(1) or 28(1).

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

Commencement Information

I10 S. 9 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

10 Annual return E+W

(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;

(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)).

(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.

(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), or

(c) the first regulations made under subsection (2)(a)(ix),

may not be made unless a draft of the instrument has been laid before and approved by a resolution of the National Assembly for Wales.

Commencement Information

I11 S. 10 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

11 Application for variation of registration as a service provider E+W

(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;

(c) the provider wants to designate a different responsible individual in respect of a place or is required to designate a responsible individual because there is no such individual designated in respect of a place at, from or in relation to which the provider provides a regulated service.

(2) The Welsh Ministers must by regulations prescribe a time limit within which an application for variation of a provider's registration must be made in circumstances where there is no responsible individual designated in respect of a place at, from or in relation to which the provider provides a regulated service.

(3) An application under subsection (1) must—

(a) contain—

(i) details of the variation sought by the provider,

(ii) in the case of an application under subsection (1)(a)(i) to provide a domiciliary support service, the undertaking set out in section 8, and

(iii) such other information as may be prescribed;

(b) be in the prescribed form.

Commencement Information

I12 S. 11 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

12 Grant or refusal of application for variation E+W

(1) The Welsh Ministers may grant or refuse an application under section 11 (but see subsection (2)).

(2) In the case of an application under section 11(1)(b), the Welsh Ministers may (instead of granting or refusing the application)—

(a) vary a condition on different terms to those specified in the application, or

(b) impose another condition on the provider's registration (whether in place of or in addition to the condition which the provider applied to have varied or removed).

(3) But a variation under this section takes effect only if the requirements of sections 18 to 20 are met (so far as applicable).

Commencement Information

I13 S. 12 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

13 Variation without application E+W

(1) The Welsh Ministers may—

(a) vary any condition imposed under section 7(3)(b), 12(2) or paragraph (b) of this subsection, or

(b) impose a further condition on a service provider's registration.

(2) No variation of a provider's registration may be made under subsection (1) unless the requirements of sections 18 and 19 are met (but this does not affect the Welsh Ministers' power to urgently vary a registration under section 25).

(3) If a service provider provides more than one regulated service, the Welsh Ministers may vary the provider's registration by removing a regulated service if satisfied that—

(a) the service provider no longer provides that service, or

(b) the service is not being provided in accordance with the requirements mentioned in section 7(1)(d) so far as applicable to that service.

(4) If a service provider provides a regulated service at, from or in relation to more than one place, the Welsh Ministers may vary the provider's registration by removing a place if satisfied that—

(a) the service provider no longer provides a regulated service at, from or in relation to that place,

(b) the service provided at, from or in relation to that place is not being provided in accordance with the requirements mentioned in section 7(1)(d) so far as applicable to that service, or

(c) there is no responsible individual designated in respect of that place (and the time limit prescribed under section 11(2) has expired).

(5) No variation may be made under subsection (3) or (4) unless the requirements of sections 16 and 17 are met (but this does not affect the Welsh Ministers' power to urgently vary a registration under section 23).

Commencement Information

I14 S. 13 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

14 Application for cancellation of registration as a service provider E+W

(1) If a service provider applies to the Welsh Ministers for cancellation of the provider's registration, the Welsh Ministers must grant the application unless they have taken action with a view to cancelling the registration under section 15 or 23.

(2) The Welsh Ministers must give notice of the granting of an application for cancellation under this section to the service provider.

(3) Cancellation under this section takes effect—

(a) on the day falling 3 months after the day on which the service provider receives the notice, or

(b) such earlier day as the Welsh Ministers may specify in the notice.

Commencement Information

I15 S. 14 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

15 Cancellation without application E+W

(1) The Welsh Ministers may cancel the registration of a service provider on any of the following grounds—

(a) the service provider no longer provides any regulated services;

(b) the Welsh Ministers are no longer satisfied that the service provider is a fit and proper person to be a service provider (see section 9);

(c) there is no responsible individual designated in respect of each place at, from or in relation to which the provider provides a regulated service (and the time limit for applying to vary the registration prescribed in regulations made under section 11(2) has expired);

(d) the service provider or a responsible individual designated in respect of a place at, from or in relation to which the provider provides a regulated service has been convicted of, or has been given a caution in respect of, a relevant offence in connection with a regulated service provided by the service provider;

(e) any other person has been convicted of, or has been given a caution in respect of, a relevant offence in connection with a regulated service provided by the service provider;

(f) a regulated service provided by the service provider is not being provided in accordance with the requirements mentioned in section 7(1)(d) so far as applicable to that service.

(2) For the purposes of subsection (1)(d) and (e), the following are relevant offences—

(a) an offence under this Act or regulations made under it;

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

(c) any offence which, in the opinion of the Welsh Ministers, makes it appropriate for the registration to be cancelled (including an offence committed outside England and Wales which, if committed in England and Wales, would constitute a criminal offence).

(3) No cancellation may be made under this section unless the requirements of sections 16 and 17 are met (but this does not affect the Welsh Ministers' power to urgently cancel a registration under section 23).

Commencement Information

I16 S. 15 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

Notice requirements E+W

16 Improvement notices E+W

(1) This section applies where the Welsh Ministers propose to—

(a) cancel the registration of a service provider under section 15, or

(b) vary a provider's registration under section 13(3) or (4).

(2) Before cancelling or varying the registration the Welsh Ministers must give an improvement notice to the service provider.

(3) An improvement notice given under subsection (2) must specify—

(a) the ground on which the Welsh Ministers propose to cancel or vary the registration and, in the case of a variation, the manner of the variation,

(b) action the Welsh Ministers think the provider must take, or information the provider must provide, in order to satisfy them that cancellation or variation on the basis of that ground is not appropriate, and

(c) a time limit within which—

(i) the action must be taken or the information must be provided, and

(ii) the service provider may make representations.

(4) The service provider may make representations to the Welsh Ministers before the expiry of the time limit specified in the improvement notice and the Welsh Ministers must have regard to those representations when deciding what to do under section 17.

Commencement Information

I17 S. 16 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

17 Notice of decision following improvement notice E+W

(1) If the Welsh Ministers are satisfied that—

(a) action specified in an improvement notice has been taken, or

(b) information so specified has been provided,

within the time limit specified in the notice they must notify the service provider that they have decided not to cancel or vary the provider's registration on the ground specified in the improvement notice.

(2) If the Welsh Ministers are not satisfied that information specified in an improvement notice has been provided within the time limit specified in the notice they must give the service provider a decision notice stating that the provider's registration is to be cancelled or varied on the ground specified in the improvement notice.

(3) If the Welsh Ministers are not satisfied that action specified in an improvement notice has been taken within the time limit specified in the notice they must either—

(a) give the service provider a decision notice stating that the provider's registration is to be cancelled or varied on the ground specified in the improvement notice, or

(b) notify the provider—

(i) that the action has not been taken,

(ii) of a new date by which the action must be taken,

(iii) that, following that date, an inspection under section 33 of the regulated service or place to which the improvement notice relates will be carried out, and

(iv) that, following that inspection, if the action has not been taken they will proceed to cancel or vary the provider's registration on the ground specified in the improvement notice.

(4) If, after the inspection, the Welsh Ministers are satisfied that the action specified in the improvement notice has been taken they must notify the service provider that they have decided not to cancel or vary the provider's registration on the ground specified in the improvement notice.

(5) If, after the inspection, the Welsh Ministers are still not satisfied that the action specified in the improvement notice has been taken they must give the service provider a decision notice stating that the provider's registration is to be cancelled or varied on the ground specified in the improvement notice.

(6) A decision notice given under subsection (2), (3)(a) or (5) must—

(a) state the reasons for the decision (including the grounds for cancellation or variation), and

(b) explain the right of appeal conferred by section 26.

(7) A decision stated in a notice given under subsection (2), (3)(a) or (5) takes effect—

(a) if no appeal is made against the decision, on the day after the last day of the 28 day period referred to in section 26(2), or

(b) if an appeal is made, on the day specified by the tribunal in determining the appeal or on the day the appeal is withdrawn.

Commencement Information

I18 S. 17 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

18 Notice of proposal E+W

(1) This section applies where the Welsh Ministers propose to—

(a) grant an application for registration as a service provider subject to a condition that has not been agreed in writing with the applicant,

(b) refuse an application for registration or for variation of registration as a service provider, or

(c) vary the registration of a service provider other than—

(i) in accordance with an application for variation made under section 11, or

(ii) under section 13(3) or (4), 23(1)(b) or 25(2)(a).

(2) The Welsh Ministers must give a notice of the proposal to the service provider—

(a) specifying the action the Welsh Ministers propose to take,

(b) giving reasons for the proposal, and

(c) specifying a time limit of no less than 28 days from the date on which the notice is given within which the service provider may make representations to the Welsh Ministers.

(3) A notice of proposal may specify action which, if taken by a provider within the time limit specified in the notice, would result in the Welsh Ministers not taking the action they propose in the notice.

(4) In the case of a refusal of an application for registration as a service provider references in this section and section 19 to a “service provider” are to be treated as references to the person who applied to be registered as a service provider.

Commencement Information

I19 S. 18 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

19 Notice of decision following notice of proposal E+W

(1) This section applies where the Welsh Ministers have given a notice of proposal.

(2) In making a decision on the proposal, the Welsh Ministers must have regard to any representations made to them (whether made by the service provider or any other person who the Welsh Ministers think has an interest).

(3) If the Welsh Ministers are satisfied that a service provider has taken such action as may be specified under section 18(3) within the time limit specified in the notice of proposal, they must not take the action proposed in the notice.

(4) The Welsh Ministers must give a notice of decision to the service provider no later than 28 days after the expiry of the later of—

(a) the time limit specified under subsection (2)(c) of section 18, or

(b) any time limit as may be specified under subsection (3) of that section.

(5) Despite subsection (4), a notice of decision given after the 28 day period mentioned in that subsection is valid if the notice—

(a) gives reasons for the delay in making the decision, and

(b) is given no later than 56 days after the expiry of the later of the time limits mentioned in paragraphs (a) and (b) of subsection (4).

(6) A notice of decision given under subsection (4) must—

(a) state whether the Welsh Ministers have decided to take the action specified in the notice of proposal,

(b) give reasons for the decision, and

(c) if the Welsh Ministers have decided to take the action specified in the notice of proposal, explain the right of appeal conferred by section 26.

(7) A decision stated in a notice given under subsection (4) to take action specified in a notice of proposal takes effect—

(a) if no appeal is made against the decision, on the day after the last day of the 28 day period referred to in section 26(2), or

(b) if an appeal is made, on the day specified by the tribunal in determining the appeal or on the day the appeal is withdrawn.

(8) The Welsh Ministers may by regulations amend—

(a) the 28 day period mentioned in subsection (4);

(b) the 56 day period mentioned in subsection (5)(b).

Commencement Information

I20 S. 19 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

20 Notice of decision without notice of proposal E+W

(1) This section applies where the Welsh Ministers have decided to—

(a) grant an application for registration as a service provider subject only to conditions that have been agreed in writing with the applicant, or

(b) vary the registration of a service provider in accordance with an application for variation made under section 11.

(2) The Welsh Ministers must give a notice of decision to the service provider.

(3) A decision stated in a notice given under subsection (2) takes effect on the date on which the notice is given.

Commencement Information

I21 S. 20 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

Responsible individuals U.K.

21 Responsible individuals E+W

(1) In this Part, “responsible individual” means an individual—

(a) who is eligible to be a responsible individual under subsection (2),

(b) who the Welsh Ministers are satisfied is a fit and proper person to be a responsible individual (see section 9), and

(c) designated by a service provider in respect of a place at, from or in relation to which the provider provides a regulated service and specified as such in the service provider's registration.

(2) To be eligible to be a responsible individual the individual must—

(a) where the service provider is an individual, be the service provider;

(b) where the service provider is a partnership, be one of the partners;

(c) where the service provider is a body corporate other than a local authority—

(i) be a director or similar officer of the body,

(ii) in the case of a public limited company, be a director or company secretary, or

(iii) in the case of a body corporate whose affairs are managed by its members, be a member of the body;

(d) where the service provider is an unincorporated body, be a member of the body;

(e) where the service provider is a local authority, be an officer of the local authority designated by the authority's director of social services.

(3) For the purposes of subsection (2)(e), a local authority's director of social services may designate an officer only if the director thinks that the officer has the necessary experience and expertise to be a responsible individual.

(4) The same responsible individual may be designated in relation to more than one place at, from or in relation to which a regulated service is provided.

(5) The Welsh Ministers may, by regulations—

(a) specify circumstances in which the Welsh Ministers (instead of a service provider) may designate an individual to be a responsible individual despite the requirements of subsection (2) not being met in respect of the individual, and

(b) make provision for this Part to apply with prescribed modifications to such a responsible individual.

Commencement Information

I22 S. 21 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

22 Cancellation of designation of a responsible individual E+W

(1) The Welsh Ministers may cancel a responsible individual's designation only on one or more of the following grounds—

(a) they have reason to believe the individual no longer satisfies the requirements of section 21(2);

(b) they have reason to believe the individual has been convicted of, or has been given a caution in respect of, a relevant offence in connection with a regulated service provided by the service provider;

(c) they are no longer satisfied that the individual is a fit and proper person to be a responsible individual (see section 9);

(d) they have reason to believe that the individual has not complied with a requirement imposed on the individual by regulations under section 28(1).

(2) In subsection (1)(b), “relevant offence” has the same meaning as in section 15.

(3) If the Welsh Ministers propose to cancel a responsible individual's designation they must give the individual an improvement notice.

(4) An improvement notice given under subsection (3) must specify—

(a) the reason why the Welsh Ministers propose to cancel the responsible individual's designation,

(b) either—

(i) action that they think the individual must take, or

(ii) information they think the individual must provide,

in order to satisfy them that the individual's designation should not be cancelled, and

(c) a time limit within which the action must be taken or the information must be provided.

(5) If the Welsh Ministers are not satisfied that—

(a) action specified in an improvement notice has been taken, or

(b) information so specified has been provided,

within the time limit specified in the notice they may give a notice of cancellation.

(6) The Welsh Ministers may give a notice of cancellation of a responsible individual's designation without taking the steps mentioned in subsections (3) to (5) if they have reasonable cause to believe that unless the designation is cancelled a person will or may be exposed to a risk of harm.

(7) A notice of cancellation must be given to—

(a) the responsible individual, and

(b) the service provider who designated the individual.

(8) An individual ceases to be designated as a responsible individual when the notice of cancellation is given to the service provider.

(9) A notice of cancellation must—

(a) give reasons for the decision,

(b) explain the right of appeal conferred by section 26,

(c) explain the requirement on the service provider to apply for variation of registration (see section 11(1)(c)), and

(d) state the time limit prescribed under section 11(2) (prescribed time limit for applying to designate a new responsible individual).

(10) In subsection (6), “harm” means abuse or impairment of—

(a) physical or mental health, or

(b) physical, intellectual, emotional, social or behavioural development,

and in a case where the harm relates to the impairment of a child's health or development, the child's health or development is to be compared with that which could reasonably be expected of a similar child.

Commencement Information

I23 S. 22 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

Urgent action E+W

23 Urgent cancellation or variation of services or places E+W

(1) The Welsh Ministers may apply to a justice of the peace for an order authorising them—

(a) to cancel the registration of a service provider, or

(b) to vary the registration of a service provider by removing from the registration—

(i) a regulated service, or

(ii) a place at, from or in relation to which the provider is providing a regulated service.

(2) The Welsh Ministers may apply for an order under subsection (1) only on the ground that unless the registration is cancelled or varied there is a serious risk—

(a) to a person's—

(i) life, or

(ii) physical or mental health, or

(b) of a person suffering from abuse or neglect.

(3) As soon as practicable after making an application under subsection (1) the Welsh Ministers must notify—

(a) each local authority and Local Health Board in whose area the service provider provides a regulated service, and

(b) any other person the Welsh Ministers think it appropriate to notify.

(4) The justice of the peace may make the order only if the justice is satisfied as to the ground on which the Welsh Ministers made the application.

(5) An order under this section may be made in the absence of the service provider to whom it relates if the justice of the peace is satisfied that—

(a) the Welsh Ministers have taken all reasonable steps to notify the service provider of their intention to apply for an order under this section, or

(b) it is not appropriate to take any such steps.

(6) An order made under this section has effect—

(a) as soon as it is made, or

(b) at such other time as the justice of the peace thinks appropriate.

(7) In particular, the justice of the peace may specify that the order is not to take effect until such time following the giving of notice under section 24(1) as the justice thinks appropriate.

Commencement Information

I24 S. 23 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

24 Urgent cancellation or variation: notification and appeals E+W

(1) As soon as is practicable after an order is made under section 23 the Welsh Ministers must give a notice to the service provider to whom the order relates explaining—

(a) the terms of the order, and

(b) the right of appeal conferred by subsection (2).

(2) No later than 14 days after the day on which the notice given under subsection (1) is given, the service provider may appeal to the tribunal against the making of the order.

(3) But the tribunal may allow an appeal to be made after the expiry of that 14 day period if it is satisfied that there is a good reason for the failure to appeal before the expiry of that period (and for any delay in applying for permission to appeal out of time).

(4) On an appeal under subsection (2), the tribunal may—

(a) confirm the order;

(b) revoke the order;

(c) make such other order (including an interim order) as the tribunal thinks appropriate.

(5) An interim order of the tribunal may, among other things, suspend the effect of an order made under section 23 for such period as the tribunal may specify.

Commencement Information

I25 S. 24 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

25 Urgent variation of registration: other conditions E+W

(1) This section applies where the Welsh Ministers think that unless they act under this section there is, or may be, a risk—

(a) to a person's—

(i) life, or

(ii) physical or mental health, or

(b) of a person suffering from abuse or neglect.

(2) The Welsh Ministers may give a decision notice to a service provider—

(a) varying a condition imposed under section 7(3)(b), 12(2), 13(1) or previously imposed under this section, or

(b) imposing a condition that could have been imposed under any of those sections.

(3) A decision notice given under subsection (2) takes effect on the day it is given.

(4) A decision notice given under subsection (2) must—

(a) state that it is given under this section,

(b) specify the condition to be varied or imposed,

(c) give reasons for imposing or varying the condition,

(d) explain the right to make representations conferred by subsection (5), and

(e) explain the right of appeal conferred by section 26.

(5) The Welsh Ministers may vary or remove a condition varied or imposed under subsection (2) by giving a further decision notice to the service provider, but before doing so they must have regard to any representations made to them by the service provider about the notice given under subsection (2).

(6) A decision notice given under subsection (5) takes effect on the day it is given.

(7) A decision notice given under subsection (5) must—

(a) state that it is given under this section,

(b) specify the condition to be varied or removed,

(c) give reasons for the decision, and

(d) explain the right of appeal conferred by section 26.

Commencement Information

I26 S. 25 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

Appeals E+W

26 Appeals E+W

(1) An appeal lies to the tribunal against a decision contained in a notice given under section 17(2), (3)(a) or (5), 19(4), 22(5) or (6) or 25(2) or (5).

(2) An appeal under subsection (1) must be made no later than 28 days after the date on which the decision notice is given.

(3) But the tribunal may allow an appeal to be made after the expiry of that 28 day period if it is satisfied that there is a good reason for the failure to appeal before the expiry of that period (and for any delay in applying for permission to appeal out of time).

(4) On an appeal under subsection (1), the tribunal may—

(a) confirm the decision;

(b) direct that the decision is not to take effect (or, if the decision has taken effect, direct that the decision is to cease to have effect);

(c) substitute for the decision appealed against another decision that the Welsh Ministers could have made;

(d) make such other order (including an interim order) as the tribunal thinks appropriate.

(5) An interim order may, among other things, suspend the effect of a decision for such period as the tribunal may specify.

Commencement Information

I27 S. 26 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

Regulations and guidance U.K.

27 Regulations about regulated services E+W

(1) The Welsh Ministers may by regulations impose requirements on a service provider in relation to a regulated service.

(2) Requirements imposed by regulations under subsection (1) must include requirements as to the standard of care and support to be provided by a service provider.

(3) The Welsh Ministers must, when making regulations imposing requirements of the kind mentioned in subsection (2), have regard to—

(a) the importance of the well-being of any individuals to whom care and support will be provided, and

(b) the quality standards included in any code issued under section 9 of the 2014 Act (codes to help achieve outcomes specified in well-being statements).

(4) Before making regulations under this section the Welsh Ministers must—

(a) consult any persons they think appropriate, and

(b) publish a statement about the consultation.

(5) The Welsh Ministers must lay a copy of a statement published under subsection (4)(b) before the National Assembly for Wales.

(6) But the requirement to consult and publish a statement does not apply to regulations which—

(a) amend other regulations made under this section, and

(b) do not, in the opinion of the Welsh Ministers, effect any substantial change in the provision made by the regulations to be amended.

Commencement Information

I28 S. 27 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

28 Regulations about responsible individuals E+W

(1) The Welsh Ministers may by regulations impose requirements on a responsible individual in relation to a place in respect of which the individual is designated.

(2) Regulations under subsection (1) may include provision requiring a responsible individual to appoint an individual of a prescribed description to manage the place in respect of which the responsible individual is designated.

(3) Regulations under subsection (1) may make provision for a function conferred on a responsible individual by the regulations to be delegated to another person only in prescribed circumstances but such provision may not affect the liability or responsibility of the responsible individual for exercising the function.

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

(5) But the requirement to consult does not apply to regulations which—

(a) amend other regulations made under this section, and

(b) do not, in the opinion of the Welsh Ministers, effect any substantial change in the provision made by the regulations to be amended.

Commencement Information

I29 S. 28 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

29 Guidance about regulations under sections 27 and 28 E+W

(1) The Welsh Ministers must publish guidance about how—

(a) service providers may comply with requirements imposed by regulations under section 27(1) (including how providers may meet any standards for the provision of a regulated service specified by such regulations);

(b) responsible individuals may comply with requirements imposed by regulations under section 28(1).

(2) The Welsh Ministers may revise guidance published under subsection (1) and must publish the revised guidance.

(3) Service providers and responsible individuals must have regard to guidance published under this section.

Commencement Information

I30 S. 29 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

30 Regulations about service providers who are liquidated etc. E+W

(1) The Welsh Ministers may by regulations make provision—

(a) requiring an appointed person to notify them of that appointment;

(b) for this Part to apply with prescribed modifications to service providers in relation to whom such a person has been appointed.

(2) In subsection (1) “appointed person” means a person appointed as—

(a) a receiver or administrative receiver of the property of a service provider who is a body corporate or a partnership;

(b) a liquidator, provisional liquidator or administrator of a service provider who is a body corporate or a partnership;

(c) a trustee in bankruptcy of a service provider who is an individual or a partnership.

Commencement Information

I31 S. 30 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

31 Regulations about service providers who have died E+W

(1) The Welsh Ministers may by regulations make provision—

(a) for this Part to apply with prescribed modifications where a service provider who is an individual has died;

(b) requiring the personal representatives of such an individual to notify the Welsh Ministers of the death.

(2) Regulations under subsection (1) may in particular provide for a prescribed person who is not a service provider to act in that capacity for a prescribed period and for that period to be extended in prescribed circumstances.

Commencement Information

I32 S. 31 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(d)

CHAPTER 3 U.K. INFORMATION AND INSPECTIONS

32 Power to require information E+W

(1) The Welsh Ministers may require a relevant person to provide them with any information relating to a regulated service which the Welsh Ministers think necessary or expedient to obtain for the purposes of exercising their functions under Chapter 2 and this Chapter of this Part or under sections 38 to 40.

(2) But the Welsh Ministers may not require a person to provide information if disclosure of that information is prohibited by any enactment or other rule of law.

(3) For the purposes of subsection (1), “relevant person” means—

(a) a service provider,

(b) a responsible individual,

(c) a person employed by or otherwise working for a service provider, and

(d) any person who has held any of those positions.

(4) The power to require information under subsection (1) includes—

(a) power to require copies of any documents or records (including medical and other personal records), and

(b) power to require the provision of information in legible form.

Commencement Information

I33 S. 32 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

33 Inspections and inspectors E+W

(1) In this Part a reference to an “inspection” is a reference to an inspection—

(a) of the standard of any care and support provided by a service provider in the course of providing a regulated service, measured in relation to any requirements imposed by regulations under section 27(1) as to the standard of care and support to be provided;

(b) of the organisation and co-ordination of regulated services provided by a service provider.

(2) Only an individual authorised by the Welsh Ministers (referred to in this Part as an “inspector”) may carry out an inspection.

(3) The Welsh Ministers may by regulations make provision about the qualifications and other conditions to be met by an individual who may be an inspector.

(4) The Welsh Ministers must prepare and publish a code of practice about the manner in which inspections are to be carried out (including the frequency of inspections).

(5) The Welsh Ministers may revise the code and must publish a revised code.

(6) An inspector must have regard to the code when carrying out an inspection.

Commencement Information

I34 S. 33 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

34 Powers of inspector to enter and inspect premises E+W

(1) For the purposes of carrying out an inspection, an inspector may enter and inspect any premises which the inspector has reasonable grounds to believe is (or has been) used—

(a) as a place at or from which a regulated service is (or has been) provided, or

(b) in connection with the provision of a regulated service.

(2) But an inspector may not enter and inspect premises used wholly or mainly as a private dwelling unless the occupier consents.

(3) Where an inspector enters premises for the purposes of carrying out an inspection, the inspector must, if requested to do so by any person at the premises, produce a document showing the inspector's authorisation under section 33.

(4) The inspector may—

(a) examine the state and management of the premises and assess the well-being of any persons accommodated or receiving care and support there;

(b) require—

(i) the manager or any other person who appears to the inspector to be responsible for the day to day management of the service at or from the premises, or

(ii) where the service is no longer being provided, a person who appears to the inspector to have responsibility for the day to day management of the premises,

to produce any documents or records (including medical and other personal records) that the inspector thinks may be relevant to the provision of the regulated service;

(c) inspect and take copies of any documents or records (including medical and other personal records) that the inspector thinks may be relevant to the provision of the regulated service;

(d) seize and remove any document or other thing found at the premises which the inspector has reasonable grounds to believe may be evidence of a failure to comply with any condition or other requirement imposed by virtue of this Part;

(e) require—

(i) the manager or any other person who appears to the inspector to be responsible for the day to day management of the service at or from the premises, or

(ii) where the service is no longer being provided, a person who appears to the inspector to have responsibility for the day to day management of the premises,

to afford the inspector such facilities and assistance as are necessary to enable the inspector to carry out the inspection;

(f) take such measurements and photographs and make such recordings as the inspector thinks necessary for the purpose of carrying out the inspection.

(5) The powers in subsection (4)(b) to (d) include the power to—

(a) gain access to and check the operation of any computer and associated apparatus which the inspector has reasonable grounds to believe is (or has been) used in connection with the documents or records, and

(b) require documents or records to be produced in a form which is legible and portable.

(6) “Premises” includes a vehicle.

Commencement Information

I35 S. 34 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

35 Powers of inspector to interview and examine persons E+W

(1) If an inspector thinks it necessary or expedient for the purposes of carrying out an inspection, the inspector may require any person to be interviewed by the inspector in private.

(2) But an inspector may not interview in private a person falling within subsection (3) without the person's consent.

(3) The following persons fall within this subsection—

(a) a person to whom the service provider provides (or has provided) care and support;

(b) an individual with parental responsibility for the person;

(c) a relative of the person;

(d) the person's carer;

(e) a donee of a lasting power of attorney over the person.

(4) An inspector may examine in private a person to whom the service provider provides (or has provided) care and support if—

(a) the inspector is a registered medical practitioner or registered nurse,

(b) the inspector thinks the examination is necessary or expedient for the purposes of assessing the effect of any such care and support on the well-being of the person, and

(c) the person consents to the examination.

(5) For the purposes of subsections (1) and (4), an interview or examination is to be treated as conducted in private despite the presence of a third party if—

(a) the person being interviewed or examined wants the third party to be present and the inspector does not object, or

(b) the inspector wants the third party to be present and the person being interviewed or examined consents.

(6) Where an inspector conducts an interview or examination under this section, the inspector must, if requested to do so by—

(a) the person being interviewed or examined, or

(b) an individual accompanying that person,

produce a document showing the inspector's authorisation under section 33 and, in the case of an examination, a document showing that the inspector is a registered medical practitioner or registered nurse.

(7) In this section—

• “carer” (“gofalwr”) has the meaning given by section 3 of the 2014 Act;

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

• “donee of a lasting power of attorney” (“rhoddai atwrneiaeth arhosol”) has the same meaning as in Part 1 of the Mental Capacity Act 2005 (c.9);

• “parental responsibility” (“cyfrifoldeb rhiant”) has the meaning given by section 3 of the Children Act 1989 (c.41);

• “relative” (“perthynas”), in relation to a person, means that person's parent, grandparent, child, grandchild, brother, half-brother, sister, half-sister, uncle, aunt, nephew or niece (including any person who is or has been in that relationship by virtue of a marriage or civil partnership or an enduring family relationship).

Commencement Information

I36 S. 35 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

36 Inspection reports E+W

(1) As soon as is reasonably practicable after an inspection has been carried out, the Welsh Ministers must prepare a report of the inspection and send a copy of it to the service provider.

(2) A report must include—

(a) an assessment of the standard of any care and support provided (or which had been provided) by the service provider, measured in relation to any requirements imposed by regulations under section 27(1) as to the standard of care and support to be provided,

(b) an assessment of the effect of any such care and support on the well-being of persons to whom the care and support is (or had been) provided,

(c) an assessment of the organisation and co-ordination of regulated services provided (or which had been provided) by the service provider, and

(d) if regulations are made under section 37, a rating of the service provider.

(3) The Welsh Ministers must—

(a) publish each report prepared under subsection (1);

(b) ensure that copies are made available for inspection at such places and by such means as the Welsh Ministers think appropriate;

(c) send a copy of a report prepared under subsection (1) to any person who requests one.

Commencement Information

I37 S. 36 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

37 Inspection ratings E+W

(1) The Welsh Ministers may by regulations make provision about ratings that may be given in relation to the quality of care and support provided by a service provider who has been inspected.

(2) Regulations under subsection (1)—

(a) may make provision requiring a service provider to display a rating included in a report prepared under section 36(1) in such manner, and at such place, as the regulations may specify,

(b) may specify criteria to be applied when arriving at a rating, and

(c) must include provision for a service provider to appeal against a rating included in a report prepared under section 36(1).

(3) Before making regulations under subsection (1) the Welsh Ministers must consult any persons they think appropriate.

(4) But the requirement to consult does not apply to regulations which—

(a) amend other regulations made under that subsection, and

(b) do not, in the opinion of the Welsh Ministers, effect any substantial change in the provision made by the regulations to be amended.

Commencement Information

I38 S. 37 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

CHAPTER 4 E+W GENERAL FUNCTIONS

38 Register of service providers E+W

(1) The Welsh Ministers must maintain a register of service providers.

(2) An entry in the register in respect of a service provider must show the following information—

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

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

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

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

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

(f) a summary of any inspection report relating to the service provider which has been published under section 36(3)(a);

(g) such other information as may be prescribed.

(3) The Welsh Ministers must publish the register and make it available for public inspection free of charge, in such manner, and at such times, as they think appropriate (but see subsection (5)(a)).

(4) The Welsh Ministers must comply with any reasonable request made by a person for a copy of, or an extract from, the register (but see subsection (5)(b)).

(5) The Welsh Ministers may—

(a) omit prescribed information from the published register in prescribed circumstances;

(b) refuse to comply with a request made under subsection (4) in prescribed circumstances.

Commencement Information

I39 S. 38 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

39 Notifying local authorities of certain action taken under this Part E+W

(1) The Welsh Ministers must notify each local authority of—

(a) the cancellation of the registration of a service provider;

(b) the variation of the registration of a service provider by removing from the registration—

(i) a regulated service, or

(ii) a place at, from or in relation to which the provider is providing a regulated service;

(c) the making of an order by a justice of the peace under section 23 (urgent cancellation or variation by removing a service or place);

(d) the cancellation of a designation of a responsible individual under section 22;

(e) proceedings brought against a person in respect of an offence under this Part or under regulations made under it;

(f) a penalty notice given under section 52;

(g) any other thing that may occur by virtue of this Part or regulations made under it as may be prescribed.

(2) A notification under this section must contain such other information as may be prescribed.

(3) In subsection (1) the reference to “local authority” includes a reference to—

(a) a county council in England,

(b) a district council for an area in England for which there is no county council,

(c) a London borough council,

(d) the Common Council of the City of London, and

(e) the Council of the Isles of Scilly.

Commencement Information

I40 S. 39 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

40 Charging fees E+W

(1) The Welsh Ministers may by regulations make provision requiring a fee to be paid by a person—

(a) making an application for registration as a service provider (see section 6);

(b) making an application to vary a registration (see section 11);

(c) to allow the person to continue to be registered as a service provider for such period as may be specified in the regulations;

(d) for a copy of an inspection report (see section 36(3)(c));

(e) for a copy of the register published under section 38(3), or an extract of it.

(2) Regulations under subsection (1) may include provision—

(a) specifying the amount of any fee or permitting the Welsh Ministers to determine the amount of any fee (subject to any limits or other factors as may be specified in the regulations);

(b) specifying circumstances in which a fee, which would otherwise be payable under the regulations, is not payable;

(c) specifying the time by which a fee is to be payable or specifying factors by which that time is to be determined by the Welsh Ministers;

(d) about the consequences of failing to pay a fee (which may include refusal to register, or cancellation of registration).

(3) Before making regulations under subsection (1) the Welsh Ministers must take reasonable steps to consult—

(a) persons who the Welsh Ministers think may be required to pay a fee by virtue of the regulations, and

(b) such other persons as they think appropriate.

(4) A fee payable by virtue of regulations made under subsection (1) may, without prejudice to any other method of recovery, be recovered summarily as a civil debt.

Commencement Information

I41 S. 40 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

41 Engagement with the public E+W

(1) The Welsh Ministers must—

(a) make information about the exercise of their regulatory functions available for the public, and

(b) prepare and publish a statement of their policy with respect to involving the public in the exercise of those functions (whether by consultation or other means).

(2) The Welsh Ministers—

(a) may revise a statement of policy and must publish the revised statement, or

(b) may publish a new statement of policy.

(3) A statement of policy (or revised statement) must, in particular, address—

(a) the involvement of the public in inspections carried out under Chapter 3, and

(b) the involvement of carers (within the meaning of section 3 of the 2014 Act) in the exercise of the Welsh Ministers' regulatory functions.

(4) The Welsh Ministers must lay a copy of a published statement of policy (or revised statement) before the National Assembly for Wales.

(5) The Welsh Ministers must have regard to the most recent policy statement published under this section when exercising their regulatory functions.

Commencement Information

I42 S. 41 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

42 Annual report on regulatory functions E+W

(1) As soon as is reasonably practicable after the end of a financial year, the Welsh Ministers must prepare and publish an annual report about the exercise of their regulatory functions in respect of that financial year.

(2) The annual report must include details of—

(a) how the Welsh Ministers have exercised those functions during the year,

(b) the extent to which they have, in the exercise of those functions—

(i) achieved the objectives referred to in section 4, and

(ii) had regard to the most recent statement of policy published under section 41, and

(c) how the duties mentioned in subsection (4) affected the exercise of those functions during the year.

(3) The annual report may include any other information the Welsh Ministers think appropriate.

(4) The duties referred to in subsection (2)(c) are the Welsh Ministers' duties under—

(a) section 149 of the Equality Act 2010 (c.15) (public sector equality duty),

(b) section 1(1) of the Rights of Children and Young Persons (Wales) Measure 2011 (nawm 2) (duty to have due regard to the United Nations Convention on the Rights of the Child),

(c) section 7(1) of the 2014 Act (duty to have due regard to the United Nations Principles for Older Persons when exercising functions relating to adult social services), and

(d) Part 4 of the Welsh Language (Wales) Measure 2011 (nawm 1) (standards).

(5) The Welsh Ministers must lay a copy of a published annual report before the National Assembly for Wales.

Commencement Information

I43 S. 42 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

CHAPTER 5 U.K. OFFENCES AND PENALTIES

43 Failure to comply with a condition E+W

(1) It is an offence for a service provider to fail to comply with any condition relating to the provider's registration which is for the time being in force by virtue of this Part.

(2) But a service provider does not commit an offence under subsection (1) by failing to have a responsible individual designated in respect of a place at, from or in relation to which the provider provides a regulated service if—

(a) the time limit prescribed under section 11(2) has not expired (prescribed time limit for applying to designate a new responsible individual), or

(b) that time limit has expired but the service provider made the application for variation within the time limit and the Welsh Ministers have not made a decision on it.

Commencement Information

I44 S. 43 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

44 False descriptions E+W

(1) It is an offence for a person to, with intent to deceive another—

(a) pretend to be a service provider,

(b) pretend that a place is one at, from or in relation to which a regulated service is provided, or

(c) pretend to be a responsible individual.

(2) Any of the following may (among other things) be an act constituting an offence under subsection (1)—

(a) applying a name to a service or place to give the impression that it is specified in a service provider's registration when it is not;

(b) describing a service or place in a manner intended to give that impression;

(c) holding a service out to be a regulated service specified in a service provider's registration when it is not;

(d) holding a place out to be a place specified in a service provider's registration when it is not;

(e) acting in a manner that gives the impression of being a responsible individual when not designated as one.

Commencement Information

I45 S. 44 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

45 Failure by service provider to comply with requirements in regulations E+W

The Welsh Ministers may by regulations provide that it is an offence for a service provider to fail to comply with a specified provision of regulations made under section 27 or 37(2)(a).

Commencement Information

I46 S. 45 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

46 Failure by responsible individual to comply with requirements in regulations E+W

The Welsh Ministers may by regulations provide that it is an offence for a responsible individual to fail to comply with a specified provision of regulations made under section 28.

Commencement Information

I47 S. 46 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

47 False statements E+W

It is an offence for a person to make a statement which the person knows is false or materially misleading in—

(a) an application for registration as a service provider,

(b) an application for variation or cancellation of registration,

(c) an annual return submitted under section 10, or

(d) responding to a requirement imposed by the Welsh Ministers under section 32(1) (requirement to provide information).

Commencement Information

I48 S. 47 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

48 Failure to submit annual return E+W

It is an offence for a service provider to fail to submit an annual return to the Welsh Ministers within the time limit prescribed under section 10(4).

Commencement Information

I49 S. 48 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

49 Failure to provide information E+W

(1) It is an offence for a person to fail to comply with a requirement imposed on the person by the Welsh Ministers under section 32(1).

(2) It is a defence for a person charged with an offence under subsection (1) to show that the person had a reasonable excuse for failing to comply with the requirement.

Commencement Information

I50 S. 49 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

50 Offences related to inspections E+W

(1) It is an offence for a person to—

(a) intentionally obstruct an inspector exercising any function conferred on an inspector by Chapter 3, or

(b) fail to comply with any requirement imposed on the person by an inspector exercising such a function.

(2) It is a defence for a person charged with an offence under subsection (1)(b) to show that the person had a reasonable excuse for failing to comply with the requirement.

Commencement Information

I51 S. 50 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

51 Penalties upon conviction E+W

(1) A person guilty of an offence under section 5, 43, 44, 47, 49 or 50 or under regulations made under section 45 or 46 is liable—

(a) on summary conviction, to a fine, or to imprisonment for a term not exceeding 6 months, or to both;

(b) on conviction on indictment, to a fine, or to imprisonment for a term not exceeding 2 years, or to both.

(2) A person guilty of an offence under section 48 is liable on summary conviction to a fine.

Commencement Information

I52 S. 51 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

52 Penalty notices E+W

(1) The Welsh Ministers may give a penalty notice to a person if they are satisfied that the person has committed a prescribed offence.

(2) Only offences under sections 47, 48 or 49 or under regulations made under section 45 or 46 may be so prescribed.

(3) A penalty notice is a notice offering the person the opportunity of discharging any liability to conviction for the offence to which the notice relates by payment to the Welsh Ministers of a sum specified in the notice in accordance with the terms of the notice.

(4) Where a person is given a penalty notice, proceedings for the offence to which the notice relates may not be brought before the end of such period as may be specified in the notice.

(5) If a person who is given a penalty notice pays the sum specified in the notice in accordance with the terms of the notice, the person cannot be convicted of the offence to which the notice relates.

(6) The Welsh Ministers may by regulations make provision—

(a) as to the form and content of penalty notices;

(b) as to the sum payable under a penalty notice and the time within which it is to be paid (including provision permitting a different sum to be payable in relation to different offences and according to the time by which it is paid);

(c) determining the ways in which a sum may be paid;

(d) as to the records to be kept in relation to penalty notices;

(e) about the circumstances in which a penalty notice may be withdrawn, including provision about—

(i) the repayment of any sum paid before a notice is withdrawn, and

(ii) the circumstances in which proceedings for an offence may not be brought despite the withdrawal of a notice.

(7) Regulations under subsection (6)(b) may not make provision for a sum to be payable under a penalty notice which exceeds two and a half times level 4 on the standard scale.

Commencement Information

I53 S. 52 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

53 Offences by bodies corporate E+W

(1) This section applies where an offence under this Part or under regulations made under it is committed by a body corporate.

(2) A person mentioned in subsection (3) also commits the offence if the offence is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, that person.

(3) Those persons are—

(a) a director, manager, secretary or other similar officer of the body corporate,

(b) where a body corporate's affairs are managed by its members, a member, or

(c) any person purporting to act in any of those capacities.

(4) Where a body corporate is a local authority, the reference in subsection (3) to a director, manager or secretary of the body is to be read as a reference to an officer or member of the authority.

Modifications etc. (not altering text)

C1 S. 53 applied by 2014 anaw 4, s. 94B(3) (as inserted (2.4.2018) by Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2), ss. 58, 188(1); S.I. 2017/1326, art. 2(3)(f))

Commencement Information

I54 S. 53 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

54 Offences by unincorporated bodies E+W

(1) This section applies to offences under this Part and under regulations made under it.

(2) Proceedings for an offence alleged to have been committed by an unincorporated body may be brought in the name of the body instead of in the name of any of its members and, for the purposes of any such proceedings, any rules of court relating to the service of documents have effect as if that body were a body corporate.

(3) Any fine imposed on an unincorporated body on its conviction of an offence is to be paid out of the funds of that body.

(4) If an unincorporated body is charged with an offence, section 33 of the Criminal Justice Act 1925 (c.86) and Schedule 3 to the Magistrates' Courts Act 1980 (c.43) have effect as if a body corporate had been charged.

Modifications etc. (not altering text)

C2 S. 54 applied by 2014 anaw 4, s. 94B(3) (as inserted (2.4.2018) by Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2), ss. 58, 188(1); S.I. 2017/1326, art. 2(3)(f))

Commencement Information

I55 S. 54 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

55 Proceedings for offences E+W

(1) Proceedings in respect of an offence under this Part or regulations made under it may not, without the written consent of the Counsel General to the Welsh Government, be brought by any person other than the Counsel General or the Welsh Ministers.

(2) Summary proceedings in respect of an offence under this Part or regulations made under it must be brought within the period of 12 months beginning on the date on which sufficient evidence to warrant the proceedings came to the prosecutor's knowledge.

(3) But no such proceedings may be brought more than three years after the offence is committed.

Modifications etc. (not altering text)

C3 S. 55 applied by 2014 anaw 4, s. 94B(3) (as inserted (2.4.2018) by Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2), ss. 58, 188(1); S.I. 2017/1326, art. 2(3)(f))

Commencement Information

I56 S. 55 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(e)

CHAPTER 6 E+W LOCAL AUTHORITY SOCIAL SERVICES

56 Reports by local authorities and general duty of the Welsh Ministers E+W

(1) After section 144 of the 2014 Act (directors of social services) insert—

“144A Annual reports

(1) As soon as is reasonably practicable after the end of a financial year, a local authority must prepare and publish an annual report about the exercise of the social services functions of the authority in respect of that year.

(2) The annual report must include—

(a) details of how the authority has exercised its social services functions during the financial year, including details of the extent to which the authority has—

(i) acted in accordance with requirements imposed on local authorities by a code issued under section 9 (codes to help achieve outcomes in relation to well-being),

(ii) acted in accordance with any relevant requirements contained in a code issued under section 145 (codes about the exercise of social services functions), and

(iii) had regard to any relevant guidelines in a code issued under section 145, and

(b) such other information as may be prescribed by regulations.

(3) The details provided under subsection (2)(a)(ii) must state how the authority has satisfied any requirements contained in a code relating to assessing the needs of an individual in accordance with Part 3 and meeting needs under Part 4.

(4) An annual report must be in such form as may be prescribed by regulations.

(5) A local authority must send a copy of a published annual report to the Welsh Ministers.

(6) In this section, “financial year” means the period of one year beginning on 1 April and ending on 31 March.

144B Local market stability reports

(1) A local authority must prepare and publish a local market stability report at such times as may be prescribed by regulations.

(2) A local market stability report must include—

(a) an assessment of—

(i) the sufficiency of provision of care and support in the local authority area during such period as may be prescribed by regulations;

(ii) the extent to which regulated services were provided in the local authority area during that prescribed period by service providers to whom section 61 of the Regulation and Inspection of Social Care (Wales) Act 2016 (assessment by the Welsh Ministers of financial sustainability of service provider) applies;

(iii) any other matter relating to the provision of regulated services in the local authority area as may be prescribed by regulations;

(iv) the effect on the exercise of the local authority's social services functions of the commissioning by the authority of any services in connection with those functions during such period as may be prescribed by regulations;

(b) a report of any action taken by the local authority during the period prescribed under paragraph (a)(i) in pursuance of its duty under section 189(2) (temporary duty to meet needs in the case of a provider failure).

(3) A local market stability report must be in such form as may be prescribed by regulations.

(4) In preparing a local market stability report, a local authority must—

(a) take account of—

(i) the assessment it has most recently published under section 14 (needs assessments), and

(ii) the plan it has most recently published under section 14A following the assessment, and

(b) consult with each Local Health Board with which it carried out the assessment.

(5) A local authority must send a copy of a published local market stability report to the Welsh Ministers.

(6) Before making regulations under subsection (2)(a)(iii) the Welsh Ministers must consult any persons they think appropriate.

(7) But the requirement to consult does not apply to regulations which—

(a) amend other regulations made under that subsection, and

(b) do not, in the opinion of the Welsh Ministers, effect any substantial change in the provision made by the regulations to be amended.

(8) In this section—

(a) “service provider” has the meaning given by section 3(1)(c) of the Regulation and Inspection of Social Care (Wales) Act 2016;

(b) “regulated service” has the meaning given by section 2(1) of that Act.

General duty of the Welsh Ministers E+W

144C General duty of the Welsh Ministers

In exercising functions under this Part the Welsh Ministers must seek to promote and maintain high standards in the provision of local authority social services functions.”

(2) In section 196(6) of the 2014 Act (regulations made only if draft approved by resolution of the National Assembly for Wales), after paragraph (c) insert—

“(d) the first regulations made under section 144A(2)(b);”.

Commencement Information

I57 S. 56(1) in force at 4.9.2017 for specified purposes by S.I. 2017/846, art. 2(a)

I58 S. 56(2) in force at 4.9.2017 by S.I. 2017/846, art. 2(b)

Yn ddilys o 29/04/2019

57 Reviews, investigations and inspections E+W

(1) After section 149 of the 2014 Act (directions to require compliance with codes of practice) insert—

“Reviews E+W

149A Reviews of studies and research

(1) The Welsh Ministers may review—

(a) studies and research undertaken by others in relation to the exercise of the social services functions of local authorities in Wales,

(b) the methods used in such studies and research, and

(c) the validity of conclusions drawn from such studies and research.

(2) The Welsh Ministers must—

(a) prepare and publish a report of a review conducted under subsection (1), and

(b) lay a copy of the report before the National Assembly for Wales.

149B Reviews of local authority social services functions

(1) The Welsh Ministers may review the way in which the social services functions of local authorities are exercised.

(2) In particular, the Welsh Ministers may—

(a) review the overall exercise of local authority social services functions in Wales;

(b) review the way in which the social services functions of a particular local authority are exercised;

(c) review the exercise of a local authority social services function of a particular description (whether exercised by a single local authority or by two or more authorities working together);

(d) review the exercise of a local authority social services function by a particular person or persons.

(3) A reference in subsection (2) to the exercise by a local authority of local authority social services functions includes a reference to the commissioning of any services in connection with those functions.

(4) The Welsh Ministers must—

(a) prepare and publish a report of a review conducted under subsection (1), and

(b) lay a copy of the report before the National Assembly for Wales.

(5) Regulations may make provision about ratings that may be given in relation to the exercise of a specified local authority social services function.

(6) If regulations are made under subsection (5) in relation to the exercise of a local authority social services function, the Welsh Ministers must⁠—

(a) in conducting a review of the exercise of that function give a rating in accordance with the regulations, and

(b) include the rating in their report of the review.

(7) Before making regulations under subsection (5) the Welsh Ministers must consult any persons they think appropriate.

(8) But the requirement to consult does not apply to regulations which—

(a) amend other regulations made under that subsection, and

(b) do not, in the opinion of the Welsh Ministers, effect any substantial change in the provision made by the regulations to be amended.

149C Fees

(1) Regulations may make provision for a local authority to pay a fee in respect of a review under section 149B(1).

(2) Regulations under subsection (1) may include provision—

(a) specifying the amount of any fee or permitting the Welsh Ministers to determine the amount of any fee (subject to any limits or other factors as may be specified in the regulations);

(b) specifying the time by which a fee is to be payable or specifying factors by which that time is to be determined by the Welsh Ministers.

149D General considerations

When conducting a review under section 149A or 149B, the Welsh Ministers must, in relation to the local authority social services functions under review, have regard to—

(a) the availability and accessibility of the services;

(b) the quality and effectiveness of the services;

(c) the management of the services;

(d) the economy and efficiency of their provision and their value for money;

(e) the availability and quality of information provided to people in the local authority area about the services;

(f) the duties imposed on local authorities by sections 5 (duty to promote well-being), 6 (other overarching duties) and 7 (duties relating to UN Principles and Convention) in so far as they are relevant to the services and the effectiveness of measures taken by a local authority to fulfil those duties;

(g) the effectiveness of measures taken by a local authority to achieve the outcomes specified in a statement issued by the Welsh Ministers under section 8 (statement of outcomes relating to well-being) in so far as they are relevant to the services;

(h) any performance measures and performance targets set out in a code issued under section 9 that they think are relevant;

(i) any requirements or guidelines contained in a code issued under section 145 that they think are relevant;

(j) the extent to which a local authority has involved people in the local authority area—

(i) in decisions about the way in which its social services functions are exercised, and

(ii) in reviewing the exercise of those functions.”

(2) For section 161 of the 2014 Act (powers of entry and inspection) substitute—

“Enforcement E+W

161 Powers of entry and inspection

(1) A person falling within subsection (2) may authorise an inspector to enter and inspect premises falling within subsection (3).

(2) The following persons fall within this subsection—

(a) the Welsh Ministers—

(i) where they consider it necessary or expedient for the purposes of a review conducted under section 149B(1), or

(ii) in pursuance of a direction under section 155;

(b) a person specified in a direction under section 153 or, where the direction specifies a class of persons, the person with whom the local authority enters into the contract or other arrangement required by the direction;

(c) a person specified in a direction under section 154;

(d) a person nominated in a direction under section 155.

(3) The following premises fall within this subsection—

(a) premises owned or controlled by a local authority;

(b) premises—

(i) which are used, or proposed to be used, by any person in connection with the exercise of a local authority social services function, or

(ii) which the Welsh Ministers reasonably believe is being used, or may be used, for that purpose,

but premises used wholly or mainly as a private dwelling do not fall within this subsection unless the occupier of the premises consents to the inspector entering and inspecting them.

(4) “Premises” includes a vehicle.

(5) The Welsh Ministers may by regulations make provision about the qualifications and other conditions to be met by an individual who may be an inspector.

(6) When entering premises, an inspector must, if requested to do so by any person at the premises, produce a document showing the inspector's authorisation given under subsection (1).

(7) The inspector may—

(a) examine the state and management of the premises and, if any persons are accommodated or receive care and support at the premises, examine the treatment of those persons;

(b) require the manager of the premises or any other person who appears to the inspector to hold or be accountable for documents or records kept at the premises to produce any documents or records (including medical and other personal records) that the inspector considers may be relevant to the exercise of functions under this Part by the person who authorised the inspector;

(c) inspect and take copies of any documents or records (including medical and other personal records) that the inspector considers may be relevant to the exercise of functions under this Part by the person who authorised the inspector;

(d) require any person to afford the inspector such facilities and assistance with respect to matters within the person's control as are necessary to enable the inspector to carry out the inspection;

(e) take such measurements and photographs and make such recordings as the inspector considers necessary for the purpose of carrying out the inspection;

(f) interview in private—

(i) the manager of the premises or any other person who appears to the inspector to be responsible for the premises;

(ii) any person working there;

(iii) any person accommodated or receiving care and support there who consents to be interviewed.

(8) The powers in subsection (7)(b) to (d) include the power to—

(a) gain access to and check the operation of any computer and associated apparatus which the inspector has reasonable grounds to believe is (or has been) used in connection with the documents or records, and

(b) require documents or records to be produced in a form which is legible and portable.

(9) Subsection (10) applies where—

(a) persons are accommodated or receiving care and support at the inspected premises,

(b) the inspector is a registered medical practitioner or registered nurse, and

(c) the inspector has reasonable grounds to believe that a person accommodated or receiving care and support at the premises is not receiving (or has not received) proper care and support.

(10) Where this subsection applies, the inspector may examine the person in private but only if the person gives consent to the examination.

(11) For the purposes of subsections (7)(f) and (10), an interview or examination is to be treated as conducted in private despite the presence of a third party if—

(a) the person being interviewed or examined wants the third party to be present and the inspector does not object, or

(b) the inspector wants the third party to be present and the person being interviewed or examined consents.

(12) Where an inspector conducts an interview or examination under this section, the inspector must, if requested to do so by—

(a) the person being interviewed or examined, or

(b) an individual accompanying that person,

produce a document showing the inspector's authorisation given under subsection (1) and, in the case of an examination, a document showing that the inspector is a registered medical practitioner or registered nurse.

(13) As soon as is reasonably practicable after an inspector has concluded an inspection under this section, the inspector must send a report of the inspection to the person who gave the authorisation under subsection (1).

(14) That person must send a copy of the inspector's report—

(a) to the local authority being reviewed or subject to the direction, and

(b) if the person is not the Welsh Ministers, to the Welsh Ministers.

(15) In this section and sections 161A, 161B and 161C, “inspector” means an individual authorised under subsection (1).

161A Code of practice about inspections

(1) The Welsh Ministers must prepare and publish a code of practice about the manner in which inspections of premises under section 161 are to be carried out (including about the frequency of such inspections).

(2) The Welsh Ministers may revise the code and must publish a revised code.

(3) An inspector must have regard to the most recently published code when carrying out an inspection under section 161.

161B Power to require information

(1) The Welsh Ministers may require a person falling within subsection (2) to provide them with—

(a) any documents, records (including medical or other personal records) or other information—

(i) which relate to the exercise of a social services function of a local authority, and

(ii) which the Welsh Ministers consider it necessary or expedient to have for the purposes of a review under section 149A or 149B;

(b) an explanation of the content of—

(i) any documents, records or other information provided under paragraph (a), or

(ii) any documents or records provided to an inspector conducting an inspection of premises under section 161 in connection with a review under section 149B.

(2) The following persons fall within this subsection—

(a) a local authority;

(b) a person providing a service in connection with the exercise of a local authority social services function;

(c) a Local Health Board;

(d) an NHS trust,

but a Local Health Board or NHS trust cannot be required to provide an explanation of the content of any documents or records provided to an inspector conducting an inspection of premises under section 161.

(3) A person is not required to provide documents, records or other information under subsection (1) if the person is prohibited from providing them by any enactment or other rule of law.

(4) The power in subsection (1) includes power to require documents or records to be produced in a form which is legible and portable.

161C Offences

(1) It is an offence for a person—

(a) to intentionally obstruct the carrying out of an inspection of premises under section 161 by an inspector, or

(b) to fail to comply with any requirement imposed on the person by an inspector carrying out such an inspection.

(2) It is an offence for a person to fail to comply with a requirement imposed on the person by the Welsh Ministers under section 161B(1).

(3) It is a defence for a person charged with an offence under subsection (1)(b) or (2) to show that the person had a reasonable excuse for not complying with the requirement.

(4) A person guilty of an offence under this section is liable—

(a) on summary conviction, to a fine, or to imprisonment for a term not exceeding 6 months, or to both;

(b) on conviction on indictment, to a fine, or to imprisonment for a term not exceeding 2 years, or to both.

(5) Sections 53 (offences by bodies corporate), 54 (offences by unincorporated bodies) and 55 (proceedings for offences) of the Regulation and Inspection of Social Care (Wales) Act 2016 apply to an offence under this section as they apply to offences under Part 1 of that Act.”

(3) In section 196(6)(a) of the 2014 Act (regulations made only if draft approved by resolution of the National Assembly for Wales), after “135(4),” insert “ 149B(5), 149C(1), ”.

58 Regulation of local authority functions relating to looked after and accommodated children E+W

After section 94 of the 2014 Act (regulations about agency arrangements) insert—

“Regulation of local authority functions relating to looked after and accommodated children E+W

94A Regulation of the exercise of local authority functions relating to looked after and accommodated children

(1) Regulations may make provision about the exercise by local authorities of functions conferred on them by—

(a) section 81 (ways in which looked after children are to be accommodated and maintained), or

(b) regulations made under section 87 (regulations about looked after children) making provision such as is mentioned in section 92(1), 93 or 94.

(2) Regulations under subsection (1) may, for example, include provision⁠—

(a) as to the persons who are fit to work for local authorities in connection with the exercise of those functions,

(b) as to the fitness of premises to be used by local authorities in exercising those functions,

(c) as to the management and control of the exercise of those functions,

(d) as to the number of persons, or persons of a particular type, working for local authorities in connection with the exercise of those functions,

(e) as to the management and training of such persons, and

(f) as to the fees or expenses which may be paid to persons assisting local authorities in making decisions in the exercise of those functions.

(3) Regulations under subsection (2)(a) may, in particular, make provision specifying that a person is not fit to work for a local authority in such position as may be specified if the person is not registered in, or in a particular part of, the register kept under section 80 of the Regulation and Inspection of Social Care (Wales) Act 2016 (registration of social care workers).

94B Offence of contravening regulations under section 94A

(1) Regulations may provide that it is an offence for a person to contravene or fail to comply with a specified provision of regulations made under section 94A.

(2) A person guilty of an offence under regulations made under subsection (1) is liable—

(a) on summary conviction, to a fine, or to imprisonment for a term not exceeding 6 months, or to both;

(b) on conviction on indictment, to a fine, or to imprisonment for a term not exceeding 2 years, or to both.

(3) Sections 53 (offences by bodies corporate), 54 (offences by unincorporated bodies) and 55 (proceedings for offences) of the Regulation and Inspection of Social Care (Wales) Act 2016 apply to an offence under regulations made under subsection (1) as they apply to offences under Part 1 of that Act.”

Commencement Information

I59 S. 58 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(f)

Prospective

CHAPTER 7 U.K. MARKET OVERSIGHT

59 Specifying criteria for application of market oversight regime E+W

(1) The Welsh Ministers must by regulations specify criteria for determining whether (subject to regulations under subsection (4)) section 61 applies to a service provider in respect of regulated services.

(2) In specifying the criteria, the Welsh Ministers must have regard to the following in particular—

(a) the amount of care and support provided by a service provider,

(b) the geographical concentration of a service provider's business, and

(c) the extent to which a service provider specialises in the provision of particular types of regulated service.

(3) The Welsh Ministers must—

(a) at such times as they think appropriate, review the criteria for the time being specified in the regulations, and

(b) publish information about how the matters mentioned in subsection (2), and any other matters to which they have regard in specifying the criteria, are to be measured.

(4) The Welsh Ministers may by regulations provide that section 61 does not apply, or applies only to the extent specified, to a specified service provider or to a service provider of a specified description, regardless of whether that service provider or a service provider of that description would satisfy the criteria.

(5) The circumstances in which regulations may be made under subsection (4) include those in which the Welsh Ministers are satisfied that certain service providers are already subject to a regulatory regime comparable to that provided for by sections 61 and 62; and regulations made in such circumstances may, for example, make provision requiring specified persons to co-operate or to share information of a specified description.

(6) Before making regulations under this section the Welsh Ministers must consult any persons they think appropriate.

(7) But the requirement to consult does not apply to regulations which—

(a) amend other regulations made under this section, and

(b) do not, in the opinion of the Welsh Ministers, effect any substantial change in the provision made by the regulations to be amended.

60 Determining whether criteria apply to service provider E+W

(1) The Welsh Ministers must determine, in the case of each service provider, whether the service provider satisfies one or more of the criteria specified in regulations under section 59.

(2) If the Welsh Ministers determine that the service provider satisfies one or more of the criteria, section 61 applies to that service provider unless, or except in so far as, regulations under section 59(4) provide that it does not apply.

(3) Where section 61 applies to a service provider, the Welsh Ministers must inform the provider accordingly.

61 Assessment of financial sustainability of service provider E+W

(1) Where this section applies to a service provider, the Welsh Ministers must assess the financial sustainability of the service provider's business of carrying on regulated services.

(2) An assessment of the financial sustainability of the service provider's business under subsection (1) must include consideration of its corporate governance.

(3) Where the Welsh Ministers, in light of an assessment under subsection (1), think that there is a significant risk to the financial sustainability of the service provider's business, the Welsh Ministers may—

(a) require the service provider to develop a plan for how to mitigate or eliminate the risk, and

(b) arrange for, or require the service provider to arrange for, a person with appropriate professional expertise to carry out an independent review of the business.

(4) Where the Welsh Ministers impose a requirement on a service provider under subsection (3)(a), they may also require the service provider—

(a) to co-operate with them in developing the plan, and

(b) to obtain their approval of the finalised plan.

(5) Where the Welsh Ministers arrange for a review under subsection (3)(b), they may recover from the service provider such costs as they incur in connection with the arrangements (including such of their administrative costs in making the arrangements as they think it appropriate to recover).

(6) The Welsh Ministers may by regulations make provision for enabling them to obtain from such persons as they think appropriate information which they believe will assist them to assess the financial sustainability of a service provider to which this section applies.

(7) Before making regulations under subsection (6) the Welsh Ministers must consult any persons they think appropriate.

(8) But the requirement to consult does not apply to regulations which—

(a) amend other regulations made under that subsection, and

(b) do not, in the opinion of the Welsh Ministers, effect any substantial change in the provision made by the regulations to be amended.

(9) The Welsh Ministers may by regulations make provision about the making of the assessments required by subsection (1).

62 Informing local authorities where failure of service provider likely E+W

(1) This section applies where the Welsh Ministers are satisfied that a service provider to which section 61 applies is likely to become unable to provide a regulated service in respect of which it is registered because of business failure as mentioned in section 189 of the 2014 Act (provider failure: temporary duty on local authority).

(2) The Welsh Ministers must inform the local authorities which they think will be required to carry out the duty under section 189(2) of the 2014 Act if the service provider becomes unable to provide the regulated service in question.

(3) The Welsh Ministers may require the service provider, or such other person involved in the service provider's business as they think appropriate, to provide them with any information they think necessary or expedient to obtain for the purpose of assisting a local authority to carry out the duty under section 189(2) of the 2014 Act.

(4) But the Welsh Ministers may not require a person to provide information if disclosure of that information is prohibited by any enactment or other rule of law.

(5) The power to require information under subsection (3) includes—

(a) power to require copies of any documents or records (including medical and other personal records), and

(b) power to require the provision of information in legible form.

63 National market stability report E+W

(1) The Welsh Ministers must prepare and publish a national market stability report at such times as may be prescribed.

(2) The Welsh Ministers must consult SCW when preparing a national market stability report and may direct SCW to jointly prepare any part of the report with them as the Welsh Ministers think appropriate.

(3) A national market stability report must include—

(a) an assessment of—

(i) the sufficiency of care and support (within the meaning of the 2014 Act) provided in Wales during such period as may be prescribed,

(ii) the extent to which regulated services were provided in Wales during that prescribed period by service providers to whom section 61 applies,

(iii) the effect on the exercise of local authority social services functions (within the meaning of the 2014 Act) of the commissioning by local authorities of services in connection with those functions during such period as may be prescribed, and

(iv) any other matter relating to the provision of care and support in Wales as may be prescribed, and

(b) a report of any action taken by the Welsh Ministers under sections 59 to 62 during the period prescribed under paragraph (a)(i).

(4) In preparing a market stability report the Welsh Ministers must have regard to the most recent local market stability report published by each local authority under section 144B of the 2014 Act (local market stability reports).

(5) Before making regulations under subsection (3)(a)(iv) the Welsh Ministers must consult any persons they think appropriate.

(6) But the requirement to consult does not apply to regulations which—

(a) amend other regulations made under that subsection, and

(b) do not, in the opinion of the Welsh Ministers, effect any substantial change in the provision made by the regulations to be amended.

CHAPTER 8 E+W INTERPRETATION

64 Interpretation of this Part E+W

(1) In this Part—

• “care” (“gofal”) has the meaning given by section 3(1)(a);

• “care and support” (“gofal a chymorth”) is to be interpreted (other than in section 63(3)(a)(i)) in accordance with section 3(2);

• “regulated service” (“gwasanaeth rheoleiddiedig”) has the meaning given by section 2(1);

• “regulatory functions” (“swyddogaethau rheoleiddiol”), in relation to the Welsh Ministers, has the meaning given by section 3(1)(b);

• “responsible individual” (“unigolyn cyfrifol”) has the meaning given by section 21(1);

• “service provider” (“darparwr gwasanaeth”) has the meaning given by section 3(1)⁠(c);

• “support” (“cymorth”) has the meaning given by section 3(1)(d).

(2) See section 189 which makes provision for the interpretation of words and phrases applying to the whole Act.

Commencement Information

I60 S. 64 in force at 2.4.2018 by S.I. 2017/1326, art. 2(3)(g)