Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (‘the 2016 Act’) established a new system for regulating social care services in Wales, replacing the system created under the Care Standards Act 2000.
A person who is registered as a provider of regulated services is referred to as a ‘service provider’ and regulations under section 27 and 28 of the 2016 Act impose requirements on service providers in respect of the regulated services they provide.
Regulations made under the Act include:
- Regulated Services (Registration) (Wales) Regulations 2017
- Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017
- Regulated Services (Notifications) (Wales) Regulations 2017
- Regulated Services (Annual Returns) (Wales) Regulations 2017
- Regulated Services (Penalty Notices) (Wales) Regulations 2017
- Regulated Adoption Services (Service Providers and Responsible Individuals)(Wales) Regulations 2019
- Regulated Fostering Services (Service Providers and Responsible Individuals) (Wales) Regulations 2019
- Regulated Advocacy Services (Service Providers and Responsible Individuals) (Wales) Regulations 2019
- Adult Placement Services (Service Providers and Responsible Individuals) (Wales) Regulations 2019
The Welsh Ministers have the function of regulating and inspecting care and support services in Wales. The Welsh Ministers functions are exercised by the Care Inspectorate Wales (CIW).
Types of regulated services
The following care and support services are referred to as "regulated services":
- a care home service
- a secure accommodation service
- a residential family centre service
- an adoption service
- a fostering service
- an adult placement service
- an advocacy service
- a domiciliary support service
- any other care and support service prescribed by the Welsh Ministers in regulations.
Regulated services are defined in Schedule 1 to the 2016 Act.
The 2016 Act and the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017 (as amended) exclude certain things which would otherwise come within the definition of one of the regulated services from being treated as one.
Care home service
A care home service is the provision of accommodation, together with nursing or care at a place in Wales, to persons because of their vulnerability or need.
The following are excluded from being a care home service:
- a hospital;
- a school unless it provides or intends to provide accommodation and care for at least one child for more than 295 days in any 12 month period that falls within the previous 24 months;
- a residential family centre;
- a secure accommodation centre;
- an adult placement centre;
- places where a child is cared for by a parent, relative, or a foster parent;
- places where an adult is cared for:
- in the course of a family or personal relationship, and for no commercial consideration,
- of a period of less than 28 days in any 12 month period or for a number of periods which in total are less than 28 days in any 12 month period;
- places vested in the Welsh Ministers, an NHS trust or a Local Health Board;
- places provided by a further education institution or a university unless the number of persons provided with accommodation is more than one tenth of the number of students to whom it provides both education and accommodation;
- child minding, within the meaning of section 19(2), or day care for children, within the meaning of section 19(3) of the Children and Families (Wales) Measure 2010 unless in any 12 month period there are 28 or more occasions when care is provided to any one child in excess of 15 hours during a 24 hour period, or the accommodation is provided wholly or mainly to disabled children;
- places provided to children aged 16 and over to enable the children to undergo training or an apprenticeship but this exception does not apply if the accommodation is provided wholly or mainly to disabled children;
- places provided to children at an approved bail hostel or approved probation hostel;
- an institution for young offenders provided under or by virtue of section 43(1) of the Prison Act 1952;
- places provided to children because of their vulnerability or need for the purposes of a holiday or a leisure, recreational, sporting, cultural or educational activity. But this exception does not apply if the accommodation is provided:
- to wholly or mainly to disabled children and the service provider has first notified CIW of the arrangement, or
- to any one child for more than 28 days in any 12 month period unless the accommodation is only provided to children over the age of 16.
- places provided to a single child or to a sibling group by a person in that person's own home and where care and accommodation are not provided by that person for a total of more than 28 days in any 12 month period.
Secure accommodation service
A secure accommodation service is the provision of accommodation for the purpose of restricting the liberty of children at residential premises in Wales where care and support is provided to those children.
Residential family centre service
A residential family centre service is the provision of accommodation for children and their parents at a place in Wales where the parents' capacity to respond to the children's needs and to safeguard their well-being is monitored or assessed and the parents are given care and support.
The following are excluded from being a residential family centre service:
- a hospital;
- a hostel or a domestic violence refuge;
- places where the main purpose of the accommodation and care is to adult individuals who maybe accompanied by their children.
An adoption service is a service provided in Wales by an adoption society within the meaning of the Adoption and Children Act 2002 which is a voluntary organisation within the meaning of that Act or an adoption support agency within the meaning given by section 8 of that Act.
A fostering service means any service provided in Wales by a person other than a local authority which consists of or includes the placement of children with local authority foster parents, or exercising functions in connection with such placement.
Adult placement service
An adult placement service means a service carried on (whether or not for profit) by a local authority or other person for the purposes of placing adults with an individual in Wales under a carer agreement (and includes any arrangements for the recruitment, training and supervision of such individuals). A ‘carer agreement’ means an agreement for the provision by an individual of accommodation at the individual's home together with care and support for up to three adults.
An advocacy service
For the purposes of paragraph 7(1) of Schedule 1 to the 2016 Act, an advocacy service is a service specified in regulations ( ) as a service carried on to provide advocacy for:
- children who make or intend to make representations (including complaints) to a local authority about its social services functions, or
- persons who make or intend to make representations (including complaints) to a local authority about the discharge of its functions under Parts 3 to 7 of the Social Services and Well-being (Wales) Act 2014,
where the purpose of the advocacy is to represent the views of the children or persons or to assist them to represent their views in relation to their needs for care and support.
A service is excluded from being an advocacy service if it is provided by:
- a person in the course of a legal activity within the meaning of the Legal Services Act 2007 by a person who is an authorised person for the purposes of that Act, or a European lawyer;
- a Welsh family proceedings officer in the course of discharging functions in relation to family proceedings;
- the Children’s Commissioner for Wales or by a member of staff of the Children’s Commissioner for Wales;
- a person who has not provided and does not intend to provide advocacy to more than 4 persons within any 12 month period;
- a relative or friend of the person on whose behalf representations are made or are intended to be made.
A domiciliary support service
A domiciliary support service is the provision of care and support to a person who by reason of vulnerability or need (other than vulnerability or need arising only because the person is of a young age) is unable to provide it for him or herself and is provided at the place in Wales where the person lives (including making arrangements for or providing services in connection with such provision).
The following are excluded from being a domiciliary support service:
- personal assistants who provide care and support without the involvement of an employment agency or employment business, and who work wholly under the direction and control of the person receiving the care and support;
- care and support provided at:
- a place where a care home service, secure accommodation service, residential family centre service or accommodation arranged as part of an adult placement service is provided, or
- a hospital;
- personal assistant agencies who introduce individuals who provide a domiciliary support service to individuals who may wish to receive it but has no ongoing role in the direction or control of the care and support provided;
- the provision of support only;
- the provision of care and support to four or fewer individuals at any one time;
- care and support for an adult in the course of a family or personal relationship, and for no commercial consideration;
- care and support for a child by a parent, relative or foster parent;
- arrangements for the supply of carers to a service provider by an undertaking acting as an employment agency or employment business;
- where care and support is provided by a person managing a prison or other similar custodial establishment.
The 2016 Act makes provision for registration and the registration procedure. Any person who provides a regulated service must be registered. It is an offence to provide a regulated service without being registered in respect of it (section 5 of the 2016 Act).
A person wishing to be registered under Part 1 of the 2016 Act must submit an application for registration in accordance with section 6 of the 2016 Act and regulations made under it. A regulated service is required to have a registered owner or proprietor. The types of people that can apply to provide a regulated service are set out in section 9 of the 2016 Act.
As part of the application, the applicant must designate a person as the ‘responsible individual’ in respect of each place at, from, or in relation to which a regulated service is to be provided. Regulations under section 28 of the 2016 Act impose requirements on the responsible individual in relation to the regulated services for which they are responsible.
CIW has published guidance for providers in respect of the registration of services under the Act.
Section 7 of the 2016 Act sets out the test for granting or refusing an application. If CIW is satisfied that the requirements in section 7 are met (which include requirements that the applicant is a fit and proper person, and regulations made under the 2016 Act, and any other relevant enactments, will be complied with), it must grant the application, otherwise it must refuse it. Registration may be granted either unconditionally or subject to such conditions as CIW thinks fit.
If CIW proposes to refuse the application for registration, it must provide a notice of proposal to refuse the application. The applicant has the right to make written representations within 28 days of service of the notice. Following receipt of written confirmation from the registered service provider that no representations will be made, or the elapsing of a period of 28 days from service of the notice, if CIW continues to intend to adopt the proposal, it must issue a written notice of decision. Section 26 of the Act provides the right for an applicant to appeal any CIW decisions.
In addition to having powers to refuse or grant applications, CIW 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, or voluntarily cancel their registration.
Inspection functions in respect of regulated services
CIWs powers in relation to information and inspections are set out in the 2016 Act and include the power to: require a person to provide CIW with information which it consider is necessary in order to exercise its functions; enter and inspect premises; seize and remove documents and material which CIW has reason to believe may be evidence of failure to comply with conditions or requirements imposed on the registered person.
The Welsh Ministers have a range of civil enforcement powers under the 2016 Act:
- Variation, removal or imposition of conditions – section 13
- Cancellation of registration – section 15
- Urgent cancellation of registration or variation of services or places – section 23
- Urgent variation of registration: other conditions – section 25
For all civil enforcement action taken there are statutory procedures which provide a registered service provider with a right to challenge decisions made by CIW.
For any non-urgent enforcement action, the process to be followed is set out in sections 16 to 20 of the 2016 Act. Under the relevant section CIW must issue to the registered provider:
- a Notice of Proposal where it seeks to vary or impose conditions on the provider’s registration (section 18),
- an Improvement notice where it seeks to cancel the registration of the service provider or vary the provider’s registration by removing a regulated service or place at, from or in relation to which the provider is providing a regulated service (section 16).
Where a Notice of proposal has been served, the service provider has the right to make representations within 28 days of service of the notice. Following receipt of written confirmation from the registered provider that no representations will be made, or the elapsing of a period of 28 days from service of the notice if CIW intends to adopt the proposal, it must issue a written notice of decision. Section 26 of the 2016 Act provides the right for a registered provider to appeal any CIW decisions.
Where an Improvement notice has been served, the service provider has the right to make representations before expiry of the time limit specified in the notice. If CIW is not satisfied that:
- the action specified in the improvement notice has been taken within the time limit specified in the notice it may issue a notice of decision that the provider’s registration is to be cancelled or varied on the grounds cited in the improvement notice.
- the information specified in the improvement notice has not been provided within the time limit specified in the notice it must issue a notice of decision that the provider’s registration is to be cancelled or varied on the grounds cited in the improvement notice.
Section 26 of the 2016 Act provides the right for a service provider to appeal any CIW decisions.
For urgent enforcement action the process to be followed is set out in sections 23 to 26 the 2016 Act. Under section 23 of the 2016 Act, an application for urgent cancellation of the providers registration or variation of the provider’s registration by removing a regulated service or place at, from or in relation to which the provider is providing a regulated service, must be made to a justice of the peace. If an order is made it takes effect immediately (unless the order specifies otherwise) and the service whose registration has been cancelled or varied must cease operating. The right of appeal in section 24 of the 2016 Act applies to such decisions.
Section 25 of the 2016 Act enables CIW to urgently vary or impose a condition of registration. The process for taking this action is to issue a notice of decision which takes effect immediately. The right of appeal in section 26 of the 2016 Act applies to such decisions.
CIW have the power to prosecute a person who commits an offence under the 2016 Act and/or regulations made under that Act, including:-
- Providing a regulated service without being registered to do so (section 5)
- Failure to comply with conditions of registration which is for the time being in force (section 43)
- Intent to deceive another by pretending to be a service provider, pretending that a place is one at, from or in relation to which a regulated service is provided, or pretending to be a responsible individual (section 44)
- Making a statement which the person knows is false or materially misleading in an application for registration, an application to vary or cancel registration, an annual return, or in responding to a requirement for information imposed by CIW under section 32(1) (section 47)
- Failure to submit an annual return to CIW within 56 days of the end of the financial year to which it relates (section 48)
- Failure to comply with a requirement to provide information to CIW under section 32(1) (section 49)
- Intentionally obstructing an inspector exercising any functions under Chapter 3, or fail without reasonable excuse to comply with a requirement imposed by an inspector exercising such a functions (section 50).
Offences under the 2016 Act are either way offences unless specified otherwise. A person guilty of an offence on summary conviction is liable to a fine, or to imprisonment for a term not exceeding 6 months, or to both; on conviction on indictment is liable to to a fine, or to imprisonment for a term not exceeding 2 years, or to both.
Regulations made under the 2016 Act also provide for a range of criminal offences.
The Welsh Ministers have the power to issue a penalty notice to a person instead of issuing proceedings if the offence is committed under sections 47, 48 or 49 of the 2016 Act or is prescribed in regulations made under the 2016 Act.
Local authority adoption and fostering services
Local authority fostering and adoption services are inspected by the registration authority, CIW, but they are not required to be registered as local authorities carry out these functions pursuant to statutory duties under the Adoption and Children Act 2002 and the Social Services and Well-being (Wales) Act 2014.
Local authorities, when exercising their social services functions in respect of adoption services, must act in accordance with the requirements within the Local Authority Adoption Services (Wales) Regulations 2019 and have regard to guidance set out in the Code of Practice for Local Authority Adoption Services.
When exercising their social services functions in respect of fostering services, local authority must act in accordance with the requirements in the Local Authority Fostering Services (Wales) Regulations 2018 and have regard to guidance set out in the Code of Practice for Local Authority Fostering Services.
The Regulated Adoption Services (Service Providers and Responsible Individuals) (Wales) Regulations 2019 are made under the 2016 Act and set out the regulatory requirements and related provisions for providers of regulated adoption services and for those persons designated as the responsible individual for such services.
These Regulations apply to both voluntary agencies and adoption support services.
Where an adoption service is provided in Wales, the provider of the service will be required to register with CIW. The new service regulation model in Wales means that if a Voluntary Adoption Agency (VAA) or an Adoption Support Agency (ASA) provides an adoption service in Wales, regardless of where any of its branches are or where the head office is (whether in England or Wales), it must register with the Welsh Ministers (CIW) and is subject to that regime in respect of the service provided in Wales. Not only will VAAs/ASAs who have a principal office in England with branches in Wales have to register separately for Wales but also VAAs/ASAs whose offices and branches are wholly within England but who carry out activity in Wales will have to register for Wales as they are providing a regulated service “in relation to” a place which is in Wales.
The Adoption Agencies (Wales) Regulations 2005 make provision relating to the exercise by adoption agencies (local authorities and regulated adoption services) of their functions in relation to adoption under the 2002 Act. Where those functions consist of the provision of support, for instance counselling, provision of information and preparation for adoption to prospective adopters, those aspects of the service will be regulated in accordance with the Regulated Adoption Services Regulations.
Where an adoption service provides adoption support services, the provider of the adoption service will be required to register with CIW unless an exception within the Regulated Adoption Services Regulations applies. Section 2(6) of the Adoption and Children Act 2002 provides that counselling, advice and information, and any other services prescribed by regulations, in relation to adoption, are adoption support services. The Adoption Support Services (Wales) Regulations 2019 set out those other services which are adoption support services.
These Regulations are accompanied by statutory guidance.