The Care Standards Act 2000 (Commencement No. 8 (Wales) and Transitional, Savings and Consequential Provisions) Order 2002

Article 2

SCHEDULE 1 TRANSITIONAL PROVISIONS IN RESPECT OF THE COMMENCEMENT OF PART II OF THE 2000 ACT

Interpretation

1.—(1) In this Schedule, unless the contrary intention appears—

“1984 Act home” means a residential care home, nursing home or mental nursing home in respect of which immediately before 1st April 2002 a person was registered under Part I or Part II of the 1984 Act;

“1989 Act home” means a registered children’s home or a voluntary children’s home;

“applicable description” means, in respect of an existing registered home, the category of establishment within which that home falls;

“authority” means—

(a)

in relation to a Part I 1984 Act registered person, or a person who has applied to be registered under that Part of that Act, the local authority which is the registration authority for the purposes of that Part of that Act in relation to that home or (as the case may be) that application;

(b)

in relation to a Part II 1984 Act registered person, or a person who has applied to be registered under that Part of that Act, the National Assembly;

(c)

in relation to a registered children’s home, or a person who has made an application in respect of a home under that Part of that Act, the local authority which is the registration authority for the purposes of that Part of that Act in relation to that home or (as the case may be) that application;

(d)

in relation to a voluntary children’s home, or a person who has made an application in respect of a home under Part VII of that Act, the National Assembly;

“establishment” means a children’s home, care home, independent hospital or independent clinic within the meaning of the 2000 Act;

“existing registered home” means a 1984 Act home or a 1989 Act home;

“existing registered provider” in relation to an existing registered home means—

(a)

in relation to a 1989 Act home, the person carrying on the home immediately before 1st April 2002;

(b)

in relation to 1984 Act home, a Part I or Part II (as the case may be) registered person in respect of the home;

“mental nursing home” has the meaning given to it in section 22 of the 1984 Act;

“nursing home” has the meaning given to it in section 21 of the 1984 Act;

“Part I 1984 Act registered person” means a person who immediately before 1st April 2002 was registered in respect of a residential care home under Part I of the 1984 Act;

“Part II 1984 Act registered person” means a person who immediately before 1st April 2002 was registered in respect of a nursing home or mental nursing home under Part II of the 1984 Act;

“registered children’s home” means a home that immediately before 1st April 2002 was registered under Part VIII of the 1989 Act;

“residential care home” shall be construed in accordance with section 1(1) of the 1984 Act;

“voluntary children’s home” means a home that immediately before 1st April 2002 was registered in a register kept for the purposes of section 60 of the 1989 Act

(2) In this Schedule, unless the contrary intention appears, a reference—

(a) to a numbered paragraph is to the paragraph in this Schedule bearing that number;

(b) in a paragraph to a numbered sub-paragraph is to the sub-paragraph in that paragraph bearing that number.

Transitional savings in respect of the 1984 Act

2.—(1) This sub-paragraph applies in relation to a Part I or Part II 1984 Act registered person when, in accordance with paragraph 6(3), he or she is treated as having applied for and been granted registration under Part II of the 2000 Act in respect of the home that he or she was registered in respect of under the 1984 Act.

(2) The 1984 Act shall continue in force for the purpose of giving effect to the following provisions of this paragraph.

(3) Until such time as sub-paragraph (1) applies in relation to a Part I 1984 Act registered person, and subject to sub-paragraph (5), the provisions of, and under, Part I of the 1984 Act shall continue in force in relation to, and in respect of, the person as if any reference in Part I of the 1984 Act to the registration authority is a reference to the National Assembly.

(4) Sub-paragraph (3) shall, in particular, have effect in relation to a person there referred to so that—

(a) any application made by an authority under section 11 of the 1984 Act shall be treated as made by the Assembly, and any thing done in relation to the authority in response to the application shall be treated as done in relation to the Assembly;

(b) any notice given by an authority of a proposal under section 12(4) of the 1984 Act shall be treated as given by the Assembly in respect of a proposal made by it, and any thing done in relation to the authority in response to the proposal shall be treated as done in relation to the Assembly;

(c) any notice of a decision of an authority to adopt a proposal given under section 14 shall be treated as given by the Assembly in respect of a decision made by it, and any thing done in relation to the authority in response to the notice shall be treated as done in relation to the National Assembly.

(5) Without prejudice to section 63 of the Government of Wales Act 1998(1) (Exercise of functions by Assembly staff), sub-paragraph (3) shall not have effect in relation to section 13(5) of the 1984 Act.

(6) In so far as the preceding sub-paragraphs of this paragraph do not apply, where by virtue of section 16 of the Interpretation Act 1978(2) (General savings), or by virtue of that section as applied by section 23 of that Act (Application to other instruments), any investigation, legal proceeding or remedy may at any time be instituted, continued or enforced by an authority in relation to a Part I 1984 Act registered person as if section 117(2) of the 2000 Act, in so far as it relates to the 1984 Act, had not been passed—

(a) any such investigation, legal proceeding or remedy may be instituted, continued or enforced by the National Assembly as if section 117(2), as just described, had not been passed; and

(b) any function, power or duty that applied to, or was exercisable by, an authority for the purpose of instituting, continuing or enforcing any such investigation, legal proceeding or remedy shall also apply to, and be exercisable by, the National Assembly as if section 117(2) had not, as just described, been passed.

(7) Until such time as sub-paragraph (1) applies in relation to a Part II 1984 Act registered person, the provisions of, and under, Part II of the 1984 Act shall continue in force in relation to, and in respect of, that person as they would have applied if it were not for the provisions of article 3 of this Order.

(8) The provisions of, under, and in connection with, the 1984 Act about the functions, powers and duties of the Registered Homes Tribunal shall continue to apply in relation to a Part I or Part II 1984 Act registered person for the purposes of any application which was commenced before the coming into force of this Order or which is made under this paragraph.

(9) So far as is possible, notwithstanding the application of sub-paragraph (1) to a person, any investigation, legal proceeding or remedy in respect of such a person may be instituted, continued or enforced and any penalty, forfeiture or punishment may be imposed in respect of the person as if sub-paragraph (1) had not applied to the person.

(10) Until such time as sub-paragraph (1) applies in relation to a Part I or Part II 1984 Act registered person, section 11(1), (5) and (6) of the 2000 Act shall not apply to the person in respect of the 1984 Act home that he or she was registered in respect of immediately before 1st April 2002.

(11) The provisions of this paragraph are without prejudice to the operation of sections 16 and 23 of the Interpretation Act 1978.

Transitory provision about room sizes in 1984 Act homes

3.—(1) This paragraph applies where by virtue of paragraph 6(3) an existing registered provider of a 1984 Act home is treated as having been granted registration for the purposes of Part II of the 2000 Act in respect of a care home (in this paragraph referred to as “the registered person”).

(2) Where this paragraph applies, the registration which the registered person is treated as having been granted shall have effect as if, for the period beginning with the date on which the person is treated as having applied for and been granted registration for the purposes of Part II of the 2000 Act in accordance with paragraph (6)(3) and ending on 31st March 2007—

(a) it is conditional on the condition specified in sub-paragraph (3); and

(b) for the purposes of section 19(1) of the 2000 Act the condition had been agreed in writing between the registered person and the National Assembly.

(3) The specified condition is that the registered person shall not make available for use by a service user as a private room any room—

(a) in respect of which the authority in respect of the home notified the registered person that it was of insufficient size to be used as a private room for the accommodation of any resident; or

(b) which was not used as a private room for a period of at least seven days in the twelve months preceding 1st April 2002, unless the authority in respect of the home notified the registered person that the authority approved the use of the room for the accommodation of any resident.

(4) In sub-paragraph (3)—

“service user” means any person in the care home who is in need of nursing or personal care by reason of disability, infirmity, past or present illness, past or present mental disorder or past or present dependence on alcohol or drugs;

“resident” means a person who—

(a)

in the case of a care home in respect of which any person was immediately before 1st April 2002 registered under Part I of the 1984 Act, was for the purposes of the Residential Care Homes Regulations 1984(3) a resident of the home; or

(b)

in the case of a care home in respect of which any person was immediately before 1st April 2002 registered under Part II of the 1984 Act, was for the purposes of the Nursing Homes and Mental Nursing Homes Regulations 1984(4) a patient in the home.

(5) Sub-paragraphs (2) and (3) shall be without prejudice—

(a) to any other conditions to which the registration of the registered person for the purposes of Part II of the 2000 Act is subject, or which under this Order have effect as if they were such conditions; and

(b) to the powers of the National Assembly to vary, remove or impose any conditions in accordance with Part II of the 2000 Act.

Transitional savings in respect of the 1989 Act

4.—(1) This sub-paragraph applies in relation to a 1989 Act home when, in accordance with paragraph 6(3), the person carrying on the home is treated as having applied for and been granted registration under Part II of the 2000 Act in respect of the home.

(2) The provisions of sections 60 and 63 of, and Schedules 5 and 6 to, the 1989 Act and the definition of “registered children’s home” in section 105 of that Act, that are repealed under section 117(2) of, and Schedule 6 to, the 2000 Act shall continue in force for the purpose of giving effect to the following provisions of this paragraph.

(3) Until such time as sub-paragraph (1) applies in relation to a registered children’s home, and subject to sub-paragraph (5), the provisions of, and under, the 1989 Act referred to in sub-paragraph (2) which are about registered children’s homes shall continue in force in relation to, and in respect of, the home as if any reference in those provisions to the responsible or local authority is a reference to the National Assembly.

(4) Sub-paragraph (3) shall, in particular, have effect in relation to a home referred to in that sub-paragraph so that—

(a) any notice of a proposal given by an authority under paragraph 5(4) of Schedule 6 to the 1989 Act shall be treated as given by the National Assembly in respect of a proposal made by it, and any thing done in relation to the authority in response to the notice shall be treated as done in relation to the National Assembly;

(b) any decision of an authority referred to in paragraph 7(3) of Schedule 6 to the 1989 Act, and any notice given about that decision, shall be treated as made or given by the National Assembly, and anything done in relation to the authority in response to that decision or notice shall be treated as done in relation to the National Assembly.

(5) Sub-paragraph (3) shall not have effect in relation to—

(a) paragraph 3(2) to (5) of Schedule 6 to the 1989 Act; and

(b) without prejudice to section 63 of the Government of Wales Act 1998 (Exercise of functions by Assembly staff), paragraph 6(5) of Schedule 6 to the 1989 Act.

(6) In so far as the preceding sub-paragraphs of this paragraph do not apply, where by virtue of section 16 of the Interpretation Act 1978, or by virtue of that section as applied by section 23 of that Act, any investigation, legal proceeding or remedy may at any time be instituted, continued or enforced by an authority in relation to a registered children’s home as if section 117(2) of the 2000 Act, in so far as it relates to the provisions of the 1989 Act referred to in sub-paragraph (2), had not been passed—

(a) any such investigation, legal proceeding or remedy may be instituted, continued or enforced by the National Assembly as if section 117(2), as just described, had not been passed; and

(b) any function, power or duty that applied to, or was exercisable by, an authority for the purpose of instituting, continuing or enforcing any such investigation, legal proceeding or remedy shall also apply to, and be exercisable by, the National Assembly as if section 117(2) had not, as just described, been passed.

(7) Until such time as sub-paragraph (1) applies in relation to a voluntary children’s home the provisions of, and under, the 1989 Act referred to in sub-paragraph (2) which are about voluntary children’s homes shall continue in force in relation to, and in respect of, the home as they would have applied if section 117(2) of the 2000 Act had not been passed.

(8) The provisions of, under, and in connection with, the 1989 Act about the functions, powers and duties of the Registered Homes Tribunal in respect of a 1989 Act home shall continue to apply for the purposes of any application which was commenced before the coming into force of this Order in relation to a voluntary or registered children’s home or which is made under this paragraph.

(9) So far as is possible, notwithstanding the application of sub-paragraph (1) to a home, any investigation, legal proceeding or remedy in respect of the home may be instituted, continued or enforced and any penalty, forfeiture or punishment may be imposed in respect of the person as if sub-paragraph (1) had not applied to that person.

(10) Until such time as sub-paragraph (1) applies in relation to a person carrying on a 1989 Act home, section 11(1), (5) and (6) of the 2000 Act shall not apply to the person in respect of the home.

(11) The provisions of this paragraph are without prejudice to the operation of sections 16 and 23 of the Interpretation Act 1978.

Providers and managers not eligible for registration before commencement of the 2000 Act

5.—(1) This sub-paragraph applies to any person who—

(a) carries on an establishment other than—

(i) a residential care home, nursing home or mental nursing home in respect of which a person was required to be registered under Part I or Part II of the 1984 Act;

(ii) a children’s home that was required to be registered in a register kept for the purposes of section 60 of the 1989 Act or under Part VIII of that Act; and

(b) duly makes an application for registration before 1st July 2002 under Part II of the 2000 Act as a person who carries on the establishment.

(2) This sub-paragraph applies to any person who—

(a) manages an establishment other than a residential care home in respect of which a person is required to be registered under section 3 of the 1984 Act; and

(b) duly makes an application for registration before 1st July 2002 under Part II of the 2000 Act as a person who manages the establishment.

(3) The following sub-paragraphs shall apply in relation to a person (“the unregistered provider”) to whom sub-paragraphs (1) or (2) apply.

(4) Section 11(1), (5) and (6) of the 2000 Act shall not apply to an unregistered provider in respect of the establishment—

(a) until such time as the application is granted, either unconditionally or subject only to conditions which have been agreed in writing between him or her and the National Assembly; or

(b) if the application is granted subject to conditions which have not been so agreed, or refused—

(i) if no appeal is brought, until the expiration of the period of 28 days after service on him or her of the National Assembly’s decision; or

(ii) if an appeal is brought, until it is determined or abandoned.

(5) This sub-paragraph applies where—

(a) the National Assembly applies to a justice of the peace for an order that section 11(1), (5) and (6) of the 2000 Act should apply to an unregistered provider and that sub-paragraph (4) of this paragraph should cease to apply to him; and

(b) it appears to the justice that, unless the order is made, there will be a serious risk to a person’s life, health or well-being.

(6) Where sub-paragraph (5) applies—

(a) the justice may make the order referred to in that sub-paragraph;

(b) section 11 of the 2000 Act shall apply to the unregistered provider, and sub-paragraph (4) of this paragraph shall cease to apply to him, from the time when the order is made.

(7) Section 20(2), (4) and (5) of the 2000 Act shall apply to any application made to a justice under sub-paragraph (5), and to any order made under sub-paragraph (6), as if the application or order (as the case may be) were made under section 20(1) of the 2000 Act and applied to the unregistered provider.

Transition from registration under the 1984 and 1989 Acts to registration under the 2000 Act

6.—(1) The National Assembly, having regard to any representations made by the existing registered provider (referred to as “the provider” in the following provisions of this paragraph) under sub-paragraph (10), shall determine, at such time as it thinks fit, the matters described in sub-paragraph (2) in relation to an existing registered home, and serve notice of its determination upon the provider.

(2) The matters are—

(a) the applicable description (if any) that applies to the existing registered home;

(b) the conditions (if any) to which—

(i) in the case of a 1984 Act home, the registration of the provider under that Act was subject;

(ii) in the case of a 1989 Act home, the registration of the home under that Act was subject;

(c) in a case where the provider was registered under Part I of the 1984 Act in respect of a residential care home, whether for the purposes of section 3 of that Act he or she was a manager of the home but not in control of it (whether as owner or otherwise);

(d) any other matter in so far as the determination of that matter is necessary to enable the provider, in accordance with sub-paragraph (3), to be treated for the purposes of Part II of the 2000 Act as having applied for and been granted registration in respect of the establishment;

and any determination of the National Assembly under this sub-paragraph shall for the purposes of section 21 of the 2000 Act (appeals to the Tribunal) be treated as if it were a decision of the National Assembly under Part II of that Act.

(3) When the National Assembly has, for the purposes of sub-paragraph (2)(a) made a determination of the applicable description that applies to an existing registered home, then with effect from a date specified by the National Assembly (“the effective date”) (which may be specified by reference to the determination of an application under paragraph 5 in respect of the existing registered home, or to some other event)—

(a) the provider shall, for the purposes of Part II of the 2000 Act, be treated as having applied for and been granted registration in respect of the existing registered home as an establishment of the applicable description determined in accordance with sub-paragraph 2(a);

(b) the conditions (if any) determined in accordance with sub-paragraph (2)(b) shall, in so far as they are capable of being conditions to which the registration for the purposes of Part II of the 2000 Act is subject, have effect—

(i) as if they were conditions to which the registration for those purposes is subject; and

(ii) as if, for the purposes of section 19(1) of the 2000 Act, they had been agreed in writing between the provider and the National Assembly.

(4) On, or before, the effective date in respect of a determination under this paragraph the National Assembly shall issue a certificate to the provider—

(a) whose contents shall be in accordance with any regulations made under section 16(1)(b) of the 2000 Act about the contents of certificates issued under Part II of that Act(5); and

(b) which shall be treated as if it were a certificate in respect of the existing registered home issued by the National Assembly under Part II of the 2000 Act.

(5) Where, in accordance with this paragraph, a provider who is not registered under Part II of the 1984 Act in respect of a nursing home or mental nursing home is to be treated, for the purposes of Part II of the 2000 Act, as having applied for and been granted registration in respect of an existing registered home as a care home—

(a) the registration shall be treated as being subject to the condition that the care home shall not provide nursing to any person;

(b) the condition mentioned in paragraph (a) above shall be treated, for the purposes of Part II of the 2000 Act, as if it had been agreed in writing between the existing provider and the National Assembly.

(6) The provisions of sub-paragraphs (2), (3) and (5) shall be without prejudice to the powers of the National Assembly to vary, remove or impose any condition in accordance with Part II of the 2000 Act.

(7) In this paragraph, references to a provider being treated as having applied for and been granted registration in respect of an existing registered home shall be taken to refer—

(a) in a case where—

(i) the provider is treated as having applied for and been granted registration in respect of a care home; and

(ii) the National Assembly has determined in accordance with sub-paragraph (2)(c) that—

(aa) the provider is registered under Part I of the 1984 Act in respect of a residential care home; and

(bb) for the purposes of section 3 of that Act he is a manager of the home but is not in control of it (whether as owner or otherwise)

to registration as a manager in respect of the care home; and

(b) in any other case, to registration as a person who carries on the establishment in question.

(8) This sub-paragraph applies where—

(a) the provider is to be treated, in accordance with sub-paragraph (3), as having applied for and been granted registration in respect of the existing registered home as an establishment of an applicable description; and

(b) not more than twelve months after the date upon which such treatment became effective, the National Assembly is satisfied that, in relation to the existing registered home, the applicable description is incorrect and was incorrect at the date just mentioned.

(9) Where sub-paragraph (8) applies—

(a) the National Assembly shall, having regard to any representations made under sub-paragraph (10), determine, with effect from the date specified in the determination, the applicable description that is to instead apply in the case of the provider, and serve notice of its determination upon the provider;

(b) the provider shall be treated, with effect from the date on which the determination takes effect, as having applied for and been granted registration in respect of the existing registered home as an establishment of the applicable description determined under paragraph (a) above;

(c) the National Assembly shall—

(i) ensure that, in relation to the registration of the provider for the purposes of Part II of the 2000 Act, any particulars required to be kept by the National Assembly are recorded or varied consistently with that determination; and

(ii) issue an amended certificate of registration to the provider;

and any determination of the National Assembly under this sub-paragraph shall for the purposes of section 21 of the 2000 Act (appeals to the Tribunal) be treated as if it were a decision of the National Assembly under Part II of that Act.

(10) Before making a determination as to the matters described in sub-paragraph (2) or (as the case may be) a determination under sub-paragraph (9)(a) in relation to an existing registered home the National Assembly shall give notice in writing to the provider informing the provider that he or she may, within twenty eight days of the receipt of that notice, make written representations about the determination, and that no determination will be made before the expiry of those twenty eight days.

(11) Sections 31 and 32 of the 2000 Act shall have effect for the purposes of this paragraph as if the words “, or for the purposes of the functions of the National Assembly under paragraph 6 of Schedule 1 to the Care Standards Act 2000 (Commencement No. 8 (Wales) and Transitional and Savings Provisions) Order 2002.” were inserted at the end of section 31(1).

Transfer of outstanding applications for registration under the 1984 or 1989 Acts: applications in respect of which the authority has not made a proposal to grant or refuse the application

7.—(1) Sub-paragraph (3) applies to an application—

(a) which has been made to an authority before 1st April 2002 and which has not been granted at that date—

(i) for a person to be registered under Part I of the 1984 Act in respect of a residential care home;

(ii) for a person to be registered under Part II of the 1984 Act in respect of a nursing home or mental nursing home;

(iii) to register a home under section 60 of the 1989 Act;

(iv) to register a home under Part VIII of the 1989 Act; and

(b) to which sub-paragraph (2) does not apply.

(2) This sub-paragraph applies to an application in respect of which the authority has given to the person who made the application—

(a) notice of a proposal under (as the case may be) section 12(1) or 31(1) of the 1984 Act or paragraph 2(1) of Schedule 5 or paragraph 5(1) of Schedule 6 of the 1989 Act, to grant the application; or

(b) notice of a proposal under (as the case may be) section 12(3) or 31(2) of the 1984 Act or paragraph 2(3) of Schedule 5 or paragraph 5(3) of Schedule 6 to the 1989 Act, to refuse the application

(3) Where this sub-paragraph applies in relation to an application—

(a) it has effect in relation to an application of a type described in sub-paragraph (1)(a)(i) or (ii) so that the application shall be treated as an application for registration under Part II of the 2000 Act in respect of a care home;

(b) it has effect in relation to an application of a type described in sub-paragraph 1(a)(iii) or (iv) so that the application shall be treated as an application for registration under Part II of the 2000 Act in respect of a children’s home.

(4) Where sub-paragraph (3) applies to an application to register a home under Part VIII of the 1989 Act which was duly made in accordance with article 3(1) of the No. 2 Commencement Order section 11(1), (5) and (6) of the 2000 Act shall not apply to the person carrying on the home—

(a) until such time as the application is granted, either unconditionally or subject only to conditions which have been agreed in writing between him or her and the National Assembly; or

(b) if the application is granted subject to conditions which have not been so agreed, or refused—

(i) if no appeal is brought, until the expiration of the period of 28 days after service on him or her of the National Assembly’s decision; or

(ii) if an appeal is brought, until it is determined or abandoned.

Transfer of outstanding applications for registration under the 1984 or 1989 Acts: applications in respect of which the authority has made a proposal to grant or refuse the application

8.—(1) This sub-paragraph applies where—

(a) an application was made before 1st April 2002—

(i) for a person to be registered under Part I of the 1984 Act in respect of a residential care home;

(ii) for a person to be registered under Part II of the 1984 Act in respect of a nursing home or mental nursing home;

(b) the authority has before 1st April 2002 given to the person who made the application—

(i) notice of a proposal under (as the case may be) section 12(1) or 31(1) of the 1984 Act, to grant the application; or

(ii) notice of a proposal under (as the case may be) section 12(3) or 31(2) of the 1984 Act to refuse the application; and

(c) as at 1st April 2002, the authority has not given the person who made the application notice under (as the case may be) section 14 or 33 of the 1984 Act of their decision to adopt a proposal to grant or refuse the application.

(2) This sub-paragraph applies where—

(a) an application is made before 1st April 2002—

(i) to register a home under section 60 of the 1989 Act;

(ii) to register a home under Part VIII of the 1989 Act;

(b) the authority has before 1st April 2002 given to the person who made the application—

(i) notice of a proposal under (as the case may be) paragraph 2(1) of Schedule 5 or paragraph 5(1) of Schedule 6 to the 1989 Act, to grant the application; or

(ii) notice of a proposal under (as the case may be) paragraph 2(3) of Schedule 5 or paragraph 5(3) of Schedule 6 to the 1989 Act, to refuse the application; and

(c) as at 1st April 2002 the authority has not given the person who made the application notice under (as the case may be) paragraph 4 of Schedule 5 or paragraph 7 of Schedule 6 to the 1989 Act, of their decision to adopt a proposal.

(3) Where sub-paragraphs (1) or (2) apply—

(a) subject to paragraph (b) of this sub-paragraph, the notice referred to in sub-paragraph (1)(b) or (2)(b) shall, for the purposes of Part II of the 2000 Act, and notwithstanding that it does not comply with the requirements for such a notice under that Act, be treated with effect from 1st April 2002—

(i) in the case of a notice referred to in sub-paragraph (1)(b)(i) or (2)(b)(i), as if it were a notice of a proposal given under section 17(2) of the 2000 Act to grant the application in respect of the establishment to which the application relates;

(ii) in the case of a notice referred to in sub-paragraph (1)(b)(ii) or (2)(b)(ii), as if it were a notice of a proposal given under section 17(3) of the 2000 Act to refuse the application in respect of the establishment to which the application relates;

(b) section 18(2) of the 2000 Act shall have effect as if for paragraph (c) the following paragraphs were substituted—

(i) in paragraph (a) the word “written” were omitted;

(ii) for paragraph (c) the following paragraphs were substituted—

“(c) the person who made the application has not, within fourteen days after notice of proposal to grant or refuse his application was given to him or her, required the Assembly to give him or her an opportunity to make oral or written representations to it concerning the matter; or

(d) the following conditions are satisfied—

(i) the person who made the application in respect of the establishment has required the Assembly to give him or her an opportunity to make oral or written representations to it concerning the matter;

(ii) the Assembly has allowed him or her a reasonable period to make the representations; and

(iii) he or she has failed to make them within that period.”.

(4) Where sub-paragraph (2) applies to an application to register a home under Part VIII of the 1989 Act which was duly made in accordance with article 3(1) of the No. 2 Commencement Order section 11(1), (5) and (6) of the 2000 Act shall not apply to the person carrying on the home—

(a) until such time as the application is granted, either unconditionally or subject only to conditions which have been agreed in writing between him or her and the National Assembly; or

(b) if the application is granted subject to conditions which have not been so agreed, or refused—

(i) if no appeal is brought, until the expiration of the period of 28 days after service on him or her of the National Assembly’s decision; or

(ii) if an appeal is brought, until it is determined or abandoned.

Transfer of outstanding applications for registration under the 1984 or 1989 Acts: applications in respect of which the authority has made a decision to adopt a proposal to grant or refuse the application

9.—(1) This sub-paragraph applies where—

(a) an application is made before 1st April 2002—

(i) for a person to be registered under Part I of the 1984 Act in respect of a residential care home;

(ii) for a person to be registered under Part II of the 1984 Act in respect of a nursing home or a mental nursing home;

(b) paragraph 8(1)(b) applies to the application; and

(c) as at 1st April 2002—

(i) the authority has given the person who made the application notice under (as the case may be) section 14 or 33 of the 1984 Act of its decision to adopt a proposal to grant or refuse the application; and

(ii) either—

(aa) the period for bringing an appeal against the decision has not expired; or

(bb) an appeal has been brought but has not been determined or abandoned.

(2) Where sub-paragraph (1) applies—

(a) the 1984 Act shall, subject to paragraph (b) below, continue in force in relation to the following matters—

(i) a decision referred to in sub-paragraph (1);

(ii) an appeal against such a decision;

(b) the functions, powers and duties that immediately before 1st April 2002 the authority had under the 1984 Act in relation to the matters mentioned in (a) above shall (as the case may be) apply to, or continue to apply to, and be exercisable by, the National Assembly;

(c) the decision to adopt a proposal to grant an application, whether unconditionally or subject to any conditions, shall with effect from the date on which it takes effect, be treated for the purposes of Part II of the 2000 Act—

(i) as if it were a decision to adopt a proposal to grant, subject to any such conditions, an application for registration in respect of a care home;

(ii) as if it had taken effect in accordance with section 19(5) of the 2000 Act.

(3) This sub-paragraph applies where—

(a) an application is made before 1st April 2002—

(i) to register a home under section 60 of the 1989 Act;

(ii) to register a home under Part VIII of that Act;

(b) paragraph 8(2)(b) applies to the application; and

(c) as at 1st April 2002—

(i) the authority has given the person who made the application notice under (as the case may be) paragraph 4 of Schedule 5 or paragraph 7 of Schedule 6 to the 1989 Act, of their decision to adopt a proposal to grant or refuse the application; and

(ii) either—

(aa) the period for bringing an appeal against the decision has not expired; or

(bb) an appeal has been brought but has not been determined or abandoned.

(4) Where paragraph (3) applies—

(a) the provisions of sections 60 and 63 of, and Schedules 5 and 6 to, the 1989 Act, and the definition of “registered children’s home” in section 105 of that Act, that are repealed under section 117(2) of, and Schedule 6 to, the Act shall, subject to paragraph (b) below, continue in force in relation to the following matters—

(i) a decision referred to in sub-paragraph (3);

(ii) an appeal against such a decision;

(b) the functions, powers and duties that immediately before 1st April 2002 the authority had under Parts VII and VIII of, and Schedules 5 and 6 to, the 1989 Act in relation to the matters mentioned (a) above shall (as the case may be) apply to, or continue to apply to, and be exercisable by, the National Assembly;

(c) the decision to adopt a proposal to grant an application, whether unconditionally or subject to any conditions shall, with effect from the date on which it takes effect, be treated for the purposes of Part II of the 2000 Act—

(i) as if it were a decision to adopt a proposal to grant, subject to any such conditions, an application in respect of a children’s home;

(ii) as if it had taken effect in accordance with section 19(5) of the 2000 Act.

(5) Where the Registered Homes Tribunal determines an appeal against a decision referred to in sub-paragraph (1)(c)(i) or (3)(c)(i), the determination shall be treated for the purposes of Part II of the 2000 Act—

(a) in the case of an application to which sub-paragraph (1) applies, as if it were a decision of the Tribunal in respect of an application for registration in respect of a care home;

(b) in the case of an application to which sub-paragraph (3) applies, as if it were a decision of the Tribunal in respect of an application for registration in respect of a children’s home.

(6) Where sub-paragraph (3) applies to an application to register a home under Part VIII of the 1989 Act which was duly made in accordance with article 3(1) of the No. 2 Commencement Order section 11(1), (5) and (6) of the 2000 Act shall not apply to the person carrying on the home—

(a) if no appeal is brought by virtue of sub-paragraph (4), until the expiration of the period of 28 days after service on him or her of the authority’s decision; or

(b) if an appeal is brought by virtue of sub-paragraph (4), until it is determined or abandoned.

Transfer of information and documents

10.—(1) An authority referred to in sub-paragraph (2) shall pass to the National Assembly—

(a) forthwith at the coming into force of this Order, all information or documents which are in their possession relating to the registration of, or an application for registration in respect of—

(i) any person under Part I or Part II of the 1984 Act which is in force at the coming into force of this Order;

(ii) any registered children’s home;

(b) as soon as practicable, all such information or documents which come into their possession after the coming into force of this Order.

(2) The authorities are—

(a) in relation to a Part I 1984 Act registered person, or an application under that Part, the local authority which immediately before the coming into force of this Order is exercising the functions of the registration authority under Part I of the 1984 Act in relation to the person or the application;

(b) in relation to a Part II 1984 Act registered person, or an application under that Part, the health authority which immediately before the coming into force of this Order is exercising, on its behalf, the functions of the National Assembly under Part II of the 1984 Act in relation to the person or the application;

(c) in relation to a registered children’s home, or an application for registration as such, the local authority which immediately before the coming into force of this Order is exercising functions under Schedule 6 of the 1989 Act in relation to the home or the application.

(1)

1998 c. 38.

(2)

1978 c. 30.

(3)

S.I. 1984/1345

(4)

S.I. 1984/1578

(5)

Regulation 9 of the Registration of Social Care and Independent Health Care (Wales) Regulations 2002 (S.I. 2002/919) makes provision under section 16(1)(b) of the 2000 Act about the contents of certificates of registration issued under Part II of the 2000 Act.