Parts I and II of the Care Standards Act 2000 (CSA 2000) set out the system for regulating social care services, and private and voluntary healthcare services in Wales.
The Welsh Ministers have the function of regulating and inspecting care services in Wales.
The Welsh Ministers functions are exercised by the Care Standards and Social Services Inspectorate Wales (CSSIW) in respect of social care services and Health Inspectorate Wales (HIW) in relation to independent healthcare services.
Types of establishments and agencies regulated
Part I of the Care Standards Act 2000 sets out the care services that are to be regulated by the Welsh Ministers, exercised by CSSIW. These are referred to in the Act as establishments and agencies. The social care services which are regulated under the Act are as follows:
- children’s homes (s.1),
- care homes (s.3)
- residential family centres (s.4(2))
- domiciliary care agencies (s.4(3))
- fostering agencies (s.4(4))
- voluntary adoption agencies (s.4(7))
- adoption support agencies (s.4(7A))
A children’s home is defined as an establishment which provides care and accommodation wholly or mainly for children. Places where a child is cared for by his parents, a relative, a person with parental responsibility for him or a foster parent are excluded as are NHS hospitals, independent hospital and clinics, schools and other institutions.
Care home is defined as any home which provides accommodation together with nursing or personal care for any person who is or has been ill (including mental disorder), is disabled or infirm, or who has a past or present dependence on drugs or alcohol. The definition includes residential care homes and nursing homes.
Residential family centres are defined as centres that undertake monitoring and/or an assessment of parenting capacity on a residential basis where there is a concern that parents may be unable to respond appropriately to the needs of their children.
Domiciliary agencies are agencies that supply staff who provide personal care for people in their own homes. The definition encompasses any agency that arranges the provision of personal care for people who need assistance by reason of illness, infirmity or disability. Individual care workers are not included unless they themselves carry on or manage the agency.
Fostering agencies includes independent agencies which provide a fostering agency service to local authorities, and voluntary organisations who operate in their own right. Both types of fostering agency recruit and train foster parents to place children with them.
Voluntary adoption agencies are defined as an adoption society within the meaning of the Adoption Act 1976, which is a voluntary organisation. An adoption society is defined in that Act as a body of persons whose functions consist of or include making arrangements for adoption.
Adoption support service is a service which provides counselling, advice, assistance information in relation to adoption.
Section 42 provides a power for Welsh Ministers to prescribe persons to whom Part II of the Act may apply (in addition to those establishments and agencies listed in sections 2 – 4), with such modifications as may be specified in those regulations. The only regulations made under this section relevant to social care services in Wales are the Adult Placement Scheme (Wales) Regulations 2004.
Part II of the Act makes provision for registration and the registration procedure. Any person who carries on or manages an establishment or agency of any description must be registered, and it is an offence to care on or manage such an establishment without being registered in respect of it. This applies to all establishments and agencies regulated under CSA 2000 Act save for Voluntary Adoption Agencies which are dealt with separately (see further below).
A person wishing to be registered under Part II must submit an application for registration in accordance with section 12 and regulations made under it: currently the Registration of Social Care and Independent Health Care (Wales) Regulations 2002 (SI 919 (w.107)). Each establishment or agency is required to have a registered owner or proprietor (person who ‘carries’ on the business). The types of people that can apply to be a registered service provider are set out in the setting-specific regulations which apply to the various establishments and agencies. For example regulation 8(2) of the Domiciliary Care Agencies (Wales) Regulations 2004 apply in relation to domiciliary care agencies whist regulation 6(2) of the Children’s Homes (Wales) Regulations 2002 applies to children’s homes.
Section 13 sets out the test for granting or refusing an application made under Part II. If the registration authority, CSSIW, is satisfied that the requirements of regulations made under the 2000 Act and any other relevant enactments are being complied with and will continue to be complied with, it must grant the application, otherwise it must refuse it. In any case where an application for registration is granted, the registration authority must issue a certificate of registration to the applicant. Registration may be granted either unconditionally or subject to such conditions as the registration authority thinks fit.
If the registration authority proposes to refuse the application for registration, it must provide a notice of proposal to refuse the application.
In addition to having powers to refuse or grant applications, the registration authority can vary, remove or impose any condition upon a person’s registration at any time after first registration. Similarly a registered person can take action in respect of their own registration and can apply to vary or remove any conditions in force in respect of their registration, voluntarily cancel their registration or cancel or vary the period of any suspension.
The Welsh Ministers have a range of civil enforcement powers which can be summarised as follows: -
- Refusal of registration – s.13
- Grant of registration subject to conditions not previously agreed – s.13
- Variation, removal or imposition of conditions – s.13(5)
- Cancellation of Registration – s.14
- Suspension of Registration – s.14A
- Urgent Cancellation of Registration – s.20A
- Urgent suspension, variation, removal or imposition of conditions – s.20B
- Restriction of accommodation at children’s homes or residential family centres – s.22B
For all civil enforcement action taken there are statutory procedures which provide an applicant or a registered person with a right to challenge decisions made by the registration authority.
For any non-urgent enforcement action, the process to be followed is set out in sections 17 – 19 and 21 of CSA 2000. The registration authority must issue to the applicant/registered person a Notice of Proposal which sets out the enforcement action that is being taken. The applicant/registered person then has the right to make written representations within 28 days of service of the notice. Following receipt of written representations, written confirmation from the applicant/registered person that no representations will be made, or a period of 28 days from service of the notice having elapsed, and the registration authority intends to adopt the proposal, it must issue a written notice of decision. Section 21 provides the right for an applicant/registered person to appeal any decisions made under Part II to the First Tier tribunal.
There is provision to enable the registration authority to urgently cancel the registration of a social care service. In such cases a Notice of Proposals does not have to be issued. An application for urgent cancellation must be made to a justice of the peace. If an order is made it takes effect immediately and the service whose registration has been cancelled must cease operating. The right of appeal in section 21 applies to such decisions.
There is also provision which enables the registration authority to urgently suspend registration or urgently vary or remove the imposition of a condition. The process for taking this action is to issue a notice of decision which takes effect immediately. Again the right of appeal in section 21 applies to such decisions.
Section 22B permits the registration authority to serve a notice restricting accommodation of children in children’s homes and residential family centres. The decision takes effect immediately upon service of the notice and section 21 provides the only right of appeal.
Requirements in relation to establishment and agencies
Section 22 of CSA 2000 provides the Welsh Ministers with a power to impose any requirements they think fit in relation to establishments and agencies through regulations. The detail of how regulated social care services should operate is largely set out in these regulations. Separate regulations have been made in relation to each of the types of social care service. Most of the regulations adopt the same kind of formula with a tendency to prescribe criteria for the fitness of registered providers and registered managers. They also require the appointment of a person known as a responsible individual or “RI” in the case of registrations of corporate bodies. RIs are responsible for supervising the management of the establishment or agency. RIs are not registered in their own right but fitness checks of the RI are part of the suitability check of the body corporate on first registration. Regulations also place obligations on registered persons in relation to the suitability of staff, suitability of premises, general health and welfare of service users, keeping of records, financial position, and review of care and notification of events to the registration authority in certain circumstances.
Section 23 provides that the Welsh Ministers may prepare and publish statements of the national minimum standards applicable to establishments or agencies. The standards are to be taken into account by the registration authority in making decisions under Part II of CSA 2000 Act and by the courts and tribunals.
Inspection functions in respect of establishments and agencies
The Welsh Ministers have a range of inspection powers in relation to their function as a registration authority in respect of persons who are registered with them to carry on or manage an establishment or agency. Those powers are in sections 31 and 32 of CSA 2000. They include, for example, the power to require any information from any person who carries on or manages an establishment or agency, which the Welsh Ministers consider is necessary to have for its functions as a registration authority. It also includes the power of entry and inspection of premises of an establishment or agency, and the power to seize and remove documents and material if it may be evidence of failure to comply with conditions or requirements imposed on the service provider.
The Care Standards Act 2000 also provides for a range of criminal offences in connection with carrying on or managing an establishment or agency. They are as follows: -
- Carrying on or managing an agency without being registered to do so – s.11
- Failure to comply with conditions of registration without reasonable excuse – s.24
- Carrying on or managing an establishment or agency whilst registration is suspended – s.24A
- Contravention of regulations made under Part II – s. 25
- Applying a false description to an establishment or agency – s.26
- Making false statements in registration applications – s.27
- Failing to display a certificate of registration – s.28
- Intentionally obstructing the exercise of power under sections 31 and 32 or failing without reasonable excuse to comply with a requirement made under those sections – s.31(9)
All of the offences under CSA 2000 are summary offences only. Generally the penalties are fines not exceeding either level 4 or level 5 on the standard scale. The only offence which can in certain circumstances include imprisonment is the offence of carrying on or managing an agency without being registered to do so.
Local Authority Adoption and Fostering Services
Local authority fostering and adoption services are inspected by the registration authority, CSSIW, but they are not required to be registered as local authorities carry out these functions pursuant to statutory duties under the Children Act 1989 and the Adoption and Children Act 2002.
The National minimum standards which apply to establishments and agencies also apply to local authorities in relation to their relevant adoption and fostering functions. It is with regard to this provision that the Welsh Ministers regulate relevant local authority adoption functions.
Voluntary Adoption Agencies
The position in respect of the registration of voluntary adoption agencies is different to that which applies to all other establishment and agencies. Section 36A of the Care Standards 2000 Act provides that any of the functions of the registration authority under Part II of CSA 2000 are exercisable by Her Majesty's Chief Inspector of Education, Children's Services and Skills (CIECSS) where the principal office of the agency is in England, and by the Welsh Ministers where the principal office is in Wales.
The effect of this provision is that it will not be an offence under section 11 of CSA 2000 to fail to register a branch of a voluntary adoption agency with the registration authority, CSSIW, if the principle office is in England and registered with CIECSS. Section 36A(3) provides that where the relevant registration authority exercises any functions to impose , vary or remove conditions of registration, it must only do so after consultation with the other registration authority. In addition, where such functions are to be exercised by the relevant registration authority in relation to an agency which has a branch in the area of the other registration authority, the agreement of that registration authority must be obtained before the function is exercised.
In relation to any enforcement action to be taken, all the same procedures apply to voluntary adoption agencies as they do to other social care services.