Joint Committee on Statutory Instruments Sixteenth Report


APPENDIX 6

Memorandum from the Department of Health

CARE HOMES REGULATIONS 2001 (S.I. 2001/3965)

PRIVATE AND VOLUNTARY HEALTH CARE (ENGLAND) REGULATIONS 2001 (S.I. 2001/3968)

NATIONAL CARE STANDARDS COMMISSION (REGISTRATION) REGULATIONS 2001 (S.I. 2001/3969)

1. The Committee has requested a Memorandum on the following point:

"Paragraph (1) of regulation 11 of S.I.2001/3969 makes failure to comply with regulation 10 an offence. Paragraphs (2) and (3) provide that the Commission shall not bring proceedings against a person in respect of such a failure unless:

    (a)  notice has been given to him specifying in what respect he has failed or is failing to comply with the requirements of that regulation, what action he should take so as to comply with that regulation, and the period within which he should take action;

    (b)  the period so specified has expired; and

    (c)  he fails to comply with that regulation.

Given that regulation 10 requires the person to return his certificate of registration no later than a specific day, so that once that day has passed compliance is impossible, explain the purpose and intended effect of paragraphs (2) and (3) and, in particular, explain:

  • the phrase "or is failing to comply" in paragraph (3)(a);

  • the reference in paragraph (3)(b) to action that the person should take so as to comply with regulation 10; and

  • whether the reference in paragraph (2)(c) to failure to comply with regulation 10 is intended to be a reference to failure to take the action specified in the notice.

Similar questions in respect of regulation 43 of S.I.2001/3965 and regulation 51 of S.I.2001/3968, in their application to failure to comply with similar requirements, such as those imposed by regulations 11 and 38 of the former, and regulations 14 and 29 of the latter."

2. The purpose and intended effect of regulation 11(2) and (3) are that where a person fails to comply with the requirements of regulation 10, the Commission should not bring proceedings against him unless he has been given an opportunity to take action so as to comply with the regulation and still fails to comply with it.

3. The phrase "or is failing to comply" in paragraph (3)(a) apply to where the person still fails to comply at the date of the notice. The reference in paragraph (3)(b) to action that the person should take so as to comply with regulation 10 relates to action to be taken as specified in the notice.

4. The reference in paragraph (2)(c) to failure to comply is a reference to the person's continuing failure to comply with the regulation after the notice has expired.

5. The Department accepts that, once the day specified in regulation 10 has passed, it is impossible for the person to comply in full with regulation 10. It is open to the person to comply in part with the regulation, for example, by returning the certificate after the specified day. In that sense he is still "failing to comply" with the requirements of the regulation (paragraph (3)(a)), and could still take the step of returning the certificate so as to comply in part with the regulation (paragraph 3(b)). The Department accepts, however, that the wording of regulation 11 does not address the fact that essentially the person has failed to comply with regulation 10 and that full compliance with regulation 10 would no longer be possible once the specified day is passed, and will consider how regulations 10 and 11 may be amended for the purpose of the Commission bringing proceedings.

6. The Department accepts that similar question arise in respect of the other regulations mentioned by the Committee, and will consider how the regulations may be amended.

21st January 2002


 
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