Welsh Statutory Instruments
SOCIAL CARE, WALES
CHILDREN AND YOUNG PERSONS, WALES
PUBLIC HEALTH, WALES
Made
17th October 2002
Coming into force
18th October 2002
The National Assembly for Wales, in exercise of the powers conferred upon it by sections 12(2)(a), 16(1)(a), 22(1), (2)(a) and (b), (7)(c) and 118(5) and (6) of the Care Standards Act 2000(1) and sections 79C(2), (3)(b), (f) and (g), 79E (2)(a) and 104(4) of the Children Act 1989(2) being of the opinion that these Regulations do not effect any substantial change in the provision made by other regulations made under section 22 of the 2000 Act(3), hereby makes the following Regulations:
1. These Regulations may be cited as the Children Act 1989 and Care Standards Act 2000 (Miscellaneous Regulations) (Amendment) (Wales) Regulations 2002 and shall come into force on 18th October 2002.
2.—(1) The Care Homes (Wales) Regulations 2002(4) are amended in accordance with the following provisions of this regulation.
(2) In regulation 7 (fitness of registered provider)—
(a)after paragraph (3)(c)(ii) the following paragraph is inserted—
“(iii)and further, where paragraph (4) applies, in a written report of a check on the lists maintained pursuant to section 1 of the Protection of Children Act 1999(5) and regulations made under section 218 of the Education Reform Act 1988(6).”;
(b)for paragraph (4) substitute—
“This paragraph applies where an individual has applied for a certificate referred to in paragraph 2 of Schedule 2 but the certificate has not been issued.”.
(3) In regulation 9 (fitness of registered manager)—
(a)after paragraph (2)(c)(ii) insert a new paragraph (iii) as follows—
“(iii)and further, where paragraph (3) applies, in a written report of a check on the lists maintained pursuant to section 1 of the Protection of Children Act 1999 and regulations made under section 218 of the Education Reform Act 1988.”;
(b) for paragraph (3) substitute—
“ This paragraph applies where an individual has applied for a certificate referred to in paragraph 2 of Schedule 2 but the certificate has not been issued.”.
(4) In regulation 19 (fitness of workers)—
(a)in paragraph (1) at the beginning insert “Subject to paragraphs (5) and (5A),”
(b)for paragraph 3 substitute—
“This paragraph applies where an individual has applied for a certificate referred to in paragraph 2 of Schedule 2 but the certificate has not been issued”.
(c)in sub-paragraph (a) of paragraph (4) for “children’s home” substitute “care home”;
(d)in sub-paragraph (b) of paragraph 4 after “(5)” insert “or (5A)”
(e)in paragraph (5), for “paragraph” where it first appears substitute “paragraphs (1) and”
(f)after paragraph (5) insert a new paragraph (5A) as follows—
“(5A) Alternatively to paragraph (5), where the following conditions apply, the registered person may permit a person to start work at a care home notwithstanding paragraphs (1) and (4)(b)—
(a)paragraph (3) of this regulation applies;
(b)full and satisfactory information in relation to that person has been obtained in respect of the matters set out in paragraphs 1, 4 and 6 of Schedule 2;
(c)the person has provided—
(i)two written references, including a reference from the last employer, if any, and
(ii)a written declaration of the details of any criminal offences of which the person has been convicted, including details of any convictions which are spent within the meaning of section 1 of the Rehabilitation of Offenders Act 1974 and which may be disclosed by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 or in respect of which the person has been cautioned and which, at the time the caution was given, the person admitted;
(d)in the reasonable view of the registered person the interests of the service will not be met unless the person can be appointed; and
(e)pending receipt of and being satisfied with regard to the certificate referred to in paragraph (3), the registered person ensures that the person is appropriately supervised while carrying out his or her duties.”
(5) In Schedule 2 (information and documents to be available in respect of persons carrying on, managing or working at care homes)—
(a)in the concluding words of paragraph 2 for “where applicable” there is substituted “to the extent permitted under the Police Act 1997”;
(b)for paragraph 7 substitute—
“7. A police check being a report produced by or on behalf of a chief officer of police or other member of a police force within the meaning of the Police Act 1996(7) which records, as at the time the report is produced, all criminal offences
(a)for which the person had been convicted including convictions which are spent within the meaning of the Rehabilitation of Offenders Act 1974(8) and which may be disclosed by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975(9); or
(b)in respect of which the person had been cautioned and which, at the time the caution was given, the person admitted.”
3.—(1) The Children’s Homes (Wales) Regulations 2002(10) are amended in accordance with the following provisions of this regulation.
(2) In regulation 6 (fitness of registered provider)—
(a)after paragraph (3)(c)(ii) the following paragraph is inserted—
“(iii)and further, where paragraph (4) applies, in a written report of a check on the lists maintained pursuant to section 1 of the Protection of Children Act 1999 and regulations made under section 218 of the Education Reform Act 1988.”;
(b)for paragraph (4) substitute—
“This paragraph applies where an individual has applied for a certificate referred to in paragraph 2 of Schedule 2 but the certificate has not been issued.”.
(3) In regulation 8 (fitness of manager)—
(a)after paragraph (2)(c)(ii) the following paragraph is inserted—
“(iii)and further, where paragraph (4) applies, in a written report of a check on the lists maintained pursuant to section 1 of the Protection of Children Act 1999 and regulations made under section 218 of the Education Reform Act 1988.”;
(b)for paragraph (3) substitute—
“This paragraph applies where an individual has applied for a certificate referred to in paragraph 2 of Schedule 2 but the certificate has not been issued.”.
(4) In regulation 26 (fitness of workers)—
(a)in paragraph (1), at the beginning insert—
“Subject to paragraphs (5) and (5A)”
(b)for paragraph (3) substitute—
“This paragraph applies where an individual has applied for a certificate referred to in paragraph 2 of Schedule 2 but the certificate has not been issued”;
(c)in paragraph (5) for the word “paragraph” where it appears substitute the words “paragraphs (1) and”;
(d)after paragraph (5) insert a new paragraph (5A) as follows—
“(5A) Alternatively to paragraph (5) where the following conditions apply, the registered person may permit a person to start work at a children’s home notwithstanding paragraphs (1) and (4)(b)—
(a)paragraph (3) of this regulation applies;
(b)full and satisfactory information in relation to that person has been obtained in respect of the matters set out in paragraphs 1, 4 and 6 of Schedule 2;
(c)the person has provided—
(i)two written references, including a reference from the last employer, if any, and
(ii)a written declaration of the details of any criminal offences of which the person has been convicted, including details of any convictions which are spent within the meaning of section 1 of the Rehabilitation of Offenders Act 1974 and which may be disclosed by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 or in respect of which the person has been cautioned and which, at the time the caution was given, the person admitted;
(d)in the reasonable view of the registered person the interests of the service will not be met unless the person can be appointed; and
(e)pending receipt of, and satisfying himself or herself with regard to, the certificate referred to in paragraph (3), the registered person ensures that the person is appropriately supervised while carrying out his or her duties.”.
(5) In Schedule 2 (information required in respect of persons seeking to carry on, manage or work at a children’s home)—
(a)in the concluding words of paragraph 2 for “where applicable” substitute “to the extent permitted under the Police Act 1997”;
(b)for paragraph 7 substitute—
“7. A police check being a report produced by or on behalf of a chief officer of police or other member of a police force within the meaning of the Police Act 1996 which records, as at the time the report is produced, all criminal offences—
(a)for which the person had been convicted including convictions which are spent within the meaning of the Rehabilitation of Offenders Act 1974 and which may be disclosed by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975; or
(b)in respect of which the person had been cautioned and which, at the time the caution was given, the person admitted.”.
4.—(1) The Private and Voluntary Health Care (Wales) Regulations 2002(11) are amended in accordance with the following provisions of this regulation.
(2) In regulation 9 (fitness of registered provider)—
(a)after paragraph (3)(c)(ii) the following paragraph is inserted—
“(iii)and further, where paragraph (4) applies, in a written report of a check on the lists maintained pursuant to section 1 of the Protection of Children Act 1999 and regulations made under section 218 of the Education Reform Act 1988.”;
(b)For paragraph (4) substitute—
“This paragraph applies where an individual has applied for a certificate referred to in paragraph 2 of Schedule 2 but the certificate has not been issued.”.
(3) In regulation 11 (fitness of manager)—
(a)after paragraph (2)(c)(ii) the following paragraph is inserted—
“(iii)and further, where paragraph (4) applies, a written report of a check on the lists maintained pursuant to section 1 of the Protection of Children Act 1999 and regulations made under section 218 of the Education Reform Act 1988.”;
(b)for paragraph (3) substitute—
“This paragraph applies where an individual has applied for a certificate referred to in paragraph 2 of Schedule 2 but the certificate has not been issued.”.
(4) In regulation 18 (fitness of workers)—
(a)in paragraph (1), at the beginning insert—
“Subject to paragraphs (5) and (5A)”;
(b)for paragraph (3) substitute—
“This paragraph applies where an individual has applied for a certificate referred to in paragraph 2 of Schedule 2 but the certificate has not been issued”;
(c)in paragraph (5) for “paragraph” where it first appears substitute “paragraphs (1) and”;
(d)after paragraph (5) insert a new paragraph (5A) as follows—
“(5A) Alternatively to paragraph (5) where the following conditions apply, the registered person may permit a person to start work in or for the purposes of the establishment notwithstanding paragraphs (1) and (4)(b)—
(a)paragraph (3) of this regulation applies;
(b)full and satisfactory information in relation to that person has been obtained in respect of the matters set out in paragraphs 1, 4 and 6 of Schedule 2;
(c)the person has provided—
(i)two written references, including a reference from the last employer, if any, and
(ii)a written declaration of the details of any criminal offences of which the person has been convicted, including details of any convictions which are spent within the meaning of section 1 of the Rehabilitation of Offenders Act 1974 and which may be disclosed by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 or in respect of which the person has been cautioned and which, at the time the caution was given, the person admitted;
(d)in the reasonable view of the registered person the interests of the service will not be met unless the person can be appointed; and
(e)pending receipt of, and satisfying himself or herself with regard to, the certificate referred to in paragraph (3), the registered person ensures that the person is appropriately supervised while carrying out his or her duties.”.
(5) In Schedule 2 (information required in respect of persons seeking to carry on, manage or work at an establishment)—
(i)in the concluding words of paragraph 2 for the words “where applicable” there is substituted “to the extent permitted under the Police Act 1997”;
(ii)for paragraph 8 substitute—
“8. A police check being a report produced by or on behalf of a chief officer of police or other member of a police force within the meaning of the Police Act 1996 which records, as at the time the report is produced, all criminal offences—
(a)for which the person had been convicted including convictions which are spent within the meaning of the Rehabilitation of Offenders Act 1974 and which may be disclosed by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975; or
(b)in respect of which the person had been cautioned and which, at the time the caution was given, the person admitted.”.
5.—(1) The Registration of Social Care and Independent Health Care (Wales) Regulations 2002(12) are amended in accordance with the following provisions of this regulation.
(2) In regulation 4 (information and documents to be provided by an applicant)—
(a)in paragraph (2)—
(i)in sub-paragraph (a) insert “and” at the end;
(ii)in sub-paragraph (b) omit “paragraphs 1 to 3 and 5 to 9 of ”;
(iii)omit sub-paragraph (c);
(b)in paragraph (3)—
(i)in sub-paragraph (a) insert “and” at the end;
(ii)in sub-paragraph (b) for “paragraphs 9 to 11” substitute “Part II”;
(iii)omit sub-paragraph (c).
(3) In regulation 8 (information as to staff engaged after application made)—
(a)in sub-paragraph (a) of paragraph (1) omit “except where paragraph (2) applies”;
(b)omit paragraph (2).
(4) In paragraph 1 of Schedule 1 (information to be supplied on an application for registration as a person who carries on an establishment) omit sub-paragraph (f).
(5) In Schedule 2 (documents to be supplied on an application for registration as a person who carries on an establishment)—
(a)in paragraph 4, in both places in which it appears, for “where applicable” substitute “to the extent permitted under the Police Act 1997”;
(b)following paragraph 9 insert
“(9A) Nothwithstanding paragraph 4, where the responsible person has applied for a certificate referred to in paragraph 4, but the certificate has not been issued—
(a)a statement confirming that the documents specified in paragraph 4 have been applied for and that the applicant, or where the applicant is an organisation, the responsible individual, will advise the National Assembly on receipt that they are available for inspection;
(b)a written report of a check on the lists maintained pursuant to section 1 of the Protection of Children Act 1999 and regulations made under section 218 of the Education Reform Act 1988; and
(c)a police check being a report produced by or on behalf of a chief officer of police or other member of a police force within the meaning of the Police Act 1996 which records, as at the time the report is produced, all criminal offences—
(i)for which the person had been convicted including convictions which are spent within the meaning of the Rehabilitation of Offenders Act 1974 and which may be disclosed by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975; or
(ii)in respect of which the person had been cautioned and which, at the time the caution was given, the person admitted.”;
(c)in paragraph 10 in the concluding words of paragraph (b) of sub-paragraph (2) after “including” insert “, to the extent permitted under the Police Act 1997,”.
(6) In Schedule 3 (information and documents to be supplied on an application for registration as the manager of an establishment)—
(a)paragraph 8 is omitted;
(b)in the concluding words of both paragraph 12 and paragraph 13 for “where applicable” substitute “to the extent permitted under the Police Act 1997”;
(c)following paragraph 13 insert—
“13A. Nothwithstanding paragraphs 12 and 13, where the responsible person has applied for a certificate referred to in paragraphs 12 and 13, but the certificate has not been issued—
(a)a statement confirming that the documents specified in paragraphs 12 and 13 have been applied for and the applicant will advise the National Assembly on receipt that they are available for inspection;
(b)a written report of a check on the lists maintained pursuant to section 1 of the Protection of Children Act 1999 and Regulations made under section 218 of the Education Reform Act 1988; and
(c)a police check being a report produced by or on behalf of a chief officer of police or other member of a police force within the meaning of the Police Act 1996 which records, as at the time the report is produced, all criminal offences—
(i)for which the person had been convicted including convictions which are spent within the meaning of the Rehabilitation of Offenders Act 1974 and which may be disclosed by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975; or
(ii)in respect of which the person had been cautioned and which, at the time the caution was given, the person admitted.”.
(7) In Schedule 7 (information to be supplied on an application for registration as a child minder or as a provider of day care) omit sub-paragraph (f) of paragraph 1.
(8) In Schedule 8 (documents to be supplied on an application for registration as a child minder or as a provider of day care)—
(a)in paragraph 4, in both places in which it appears, for “where applicable” substitute “to the extent permitted under the Police Act 1997”;
(b)for paragraph 9A substitute—
“9A. Nothwithstanding paragraph 4, where the responsible person has applied for a certificate referred to in paragraph 4, but the certificate has not been issued—
(a)a statement confirming that the documents specified in paragraph 4 have been applied for and that the applicant will advise the National Assembly on receipt that they are available for inspection;
(b)a written report of a check on the lists maintained pursuant to section 1 of the Protection of Children Act 1999 and regulations made under section 218 of the Education Reform Act 1988; and
(c)A police check being a report produced by or on behalf of a chief officer of police or other member of a police force within the meaning of the Police Act 1996 which records, as at the time the report is produced, all criminal offences—
(i)for which the person had been convicted including convictions which are spent within the meaning of the Rehabilitation of Offenders Act 1974 and which may be disclosed by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975; or
(ii)in respect of which the person had been cautioned and which, at the time the caution was given, the person admitted.”.
(c)In paragraph 10 omit sub-paragraph (3).
6.—(1) The Child Minding and Day Care (Wales) Regulations 2002(13) are amended in accordance with the following provisions of this regulation.
(2) In regulation 4 (registered person — suitability)—
(a)in paragraph (3)(c)(i) omit “or (4A)”
(b)for paragraph (3)(c)(iii) substitute
“(iii)and further, where paragraph (4) applies, a written report of a check on the lists maintained pursuant to section 1 of the Protection of Children Act 1999 and regulations made under section 218 of the Education Reform Act 1988”;
(c)for paragraph (4) substitute—
“This paragraph applies where an individual has applied for a certificate referred to in paragraph 2 of Schedule 2 but the certificate has not been issued.”; and
(d)omit paragraph (4A).
(3) In regulation 16 (suitability of workers)—
(a)in paragraph (1) before the words “The registered person shall not” insert the words “Subject to paragraphs (5) and (5A)”;
(b)for paragraph (3) substitute—
“This paragraph applies where an individual has applied for a certificate referred to in paragraph 2 of Schedule 2 but the certificate has not been issued”;
(c)in paragraph (5) omit “Subject to paragraph (7)” and for “paragraph” where it next appears substitute “paragraphs (1) and”;
(d)after paragraph (5) insert a new paragraph (5A) as follows—
“(5A) Where the following conditions apply, the registered person may permit a person to start work in or for the purposes of the establishment notwithstanding paragraphs (1) and (4)(b)—
(a)paragraph (3) of this regulation applies;
(b)full and satisfactory information in relation to that person has been obtained in respect of the matters set out in paragraphs 1, 4 and 6 of Schedule 2;
(c)person has provided—
(i)two written references, including a reference from the last employer, if any, and
(ii)a written declaration of the details of any criminal offences of which the person has been convicted, including details of any convictions which are spent within the meaning of section 1 of the Rehabilitation of Offenders Act 1974 and which may be disclosed by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 or in respect of which the person has been cautioned and which, at the time the caution was given, the person admitted;
(d)in the reasonable view of the registered person the interests of the service will not be met unless the person can be appointed; and
(e)pending receipt of, and satisfying himself or herself with regard to, the certificate referred to in paragraph (3), the registered person ensures that the person is appropriately supervised while carrying out his or her duties.”; and
(e)omit paragraph (7).
(4) In Schedule 2 (information required in respect of persons seeking to act as or work for child minders or providers of day care)—
(a)in paragraph 2 for “where applicable” substitute “to the extent permitted under the Police Act 1997”;
(b)for paragraph 7 substitute—
“7. A police check being a report produced by or on behalf of a chief officer of police or other member of a police force within the meaning of the Police Act 1996 which records, at the time the report is produced, all criminal offences—
(a)for which the person had been convicted including convictions which are spent within the meaning of the Rehabilitation of Offenders Act 1974 and which may be disclosed by virtue of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975; or
(b)in respect of which the person had been cautioned and which, at the time the caution was given, the person admitted.”.
7.—(1) The Child Minding and Day Care (Wales)(Amendment) Regulations 2002(14) are hereby revoked.
Signed on behalf of the National Assembly for Wales under section 66(1) of the Government of Wales Act 1998(15)
John Marek
Deputy Presiding Officer of the National Assembly
17th October 2002
(This note is not part of the Regulations)
These Regulations amend regulations made under the Care Standards Act 2000 (the Care Homes (Wales) Regulations 2002; the Children’s Homes (Wales) Regulations 2002 and the Private and Voluntary Health Care (Wales) Regulations 2002) (“the 2000 Act regulations”) and under the Children Act 1989 (the Child Minding and Day Care (Wales) Regulations 2002) (“the 1989 Act regulations”); and regulations made under both Acts (the Registration of Social Care and Independent Health Care (Wales) Regulations 2002) (“the registration regulations”).
The 2000 Act regulations require certain individuals involved in the operation of settings to which they apply to be 'fit' (the individuals are the registered provider, the registered manager and certain staff). One requirement of 'fitness' is that certain information and documentation is to be available in relation to these individuals. Amongst the documentation that is to be available are criminal record certificates issued under section 113 of the Police Act 1997 or (as the case may be) enhanced criminal record certificates issued under section 115 of that Act. This requirement does not apply in relation to an individual where any information that would otherwise be included in a certificate issued in respect of him or her is not available because any provision of the Police Act 1997 is not in force. In such circumstances the results of a police check of criminal conviction information are instead required to be available in respect of the individual. The provisions of the Police Act 1997 that provide for the inclusion of information within certificates as to whether a person is included on the list of persons considered unsuitable to work with vulnerable adults (kept under s.81 of the Care Standards Act 2002) are not yet in force.
The amendments to the 2000 Act regulations (i) omit the requirement for a police check to be available in respect of the individuals just described in the circumstances just described; and (ii) instead require that a criminal record certificate or (as the case may be) an enhanced criminal record certificate is to be available in respect of such individuals.
For a similar purpose similar amendments are made to the 1989 Act regulations.
To correspond to the amended 2000 Act and 1989 Act regulations, the registration regulations are amended to require criminal record certificates or (as the case may be) enhanced criminal record certificates to be produced in respect of certain individuals as part of the application process in respect of persons required to be registered under Part II of the Care Standards Act 2000 or (as the case may be) Part XA of the Children Act 1989. In addition where enhanced criminal record certificates have been applied for but have not been issued, then provided all other specified information is available, individuals may be adjudged to be “fit” notwithstanding the absence of the enhanced criminal record checks.
A typographical error is rectified in regulation 2(4)(c).
2000 c. 14. The powers are exercisable by the appropriate Minister. The “appropriate Minister” is defined in s.121(1) as the Assembly in relation to Wales. The “Assembly” is defined in s.5(b) as the National Assembly for Wales. See s.121(1) of the 2000 Act for the definitions of “prescribed” and “regulations”.
1989 c. 41. The powers under s.79C are exercisable by the Assembly. The “Assembly” is defined in s.79B(2) as the National Assembly for Wales. See s.105(1) of the 1989 Act for the definition of “prescribed” and s.79B(7) for the definition of “regulations”.
Under section 22(9) of the 2000 Act the appropriate Minister shall consult any person he considers appropriate before making any regulations under section 22, unless the regulations amend other regulations made under that section and in his opinion the regulations do not effect any substantial change in the provision made by those regulations. These Regulations amend other regulations made under section 22.
S.I. 1975/1023. At the coming into force of these regulations the following instruments have made relevant amendments to the Order: S.I. 1986/1249; 1986/2286 and S.I. 2001/1192.
S.I. 2002 No. 812 (W.192), as amended by S.I. 2002 No. 2171 (W.218).