House of Lords - Explanatory Note
Care Standards Bill [H.L.] - continued          House of Lords

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Miscellaneous and supplemental

Clause 64: Appeals to the Tribunal

151.     This clause gives individuals the right of appeal to an independent Tribunal, defined in clause 96(1) as the Tribunal established under the Protection of Children Act 1999. Individuals will have a right of appeal against decisions by the Council , for example, a decision not to register them or to remove them from the register. Such decisions could affect an individual's ability to secure employment so access to an independent tribunal is essential.

Clause 65: Publication etc of the register

152.     Clause 65 requires the Council to make its register public and allows the Council to be able to make a charge for supplying a copy of the register or an extract from it. It is intended that the Council will make the register available on the Internet and will also publish it in hard copy annually.

Clauses 66 Abolition of CCETSW

153.     Clause 66 abolishes CCETSW in relation to England and Wales. A winding-up scheme will be set out in an Order in Council, which will deal with the arrangements for disposing of the assets and liabilities of CCETSW. Scotland and Northern Ireland will legislate separately to set up new arrangements for dealing with the functions of CCETSW in those countries. The Secretary of State alone can bring into force the provision which repeals the legislation relating to CCETSW, (subsection (4)), and he will only do this when he is satisfied that CCETSW no longer has any functions in any part of the UK.

Clause 67 Rules

154.     This clause refers to the power of the Council to make rules about the issues in Part IV of the Bill, allowing the Council flexibility in how far any particular rule may extend. For example, rules may be made in relation to all cases to which a power to make rules extends, or in relation to cases that are specified in the rules. Subsection (2) provides that all rules made by the Council under this Part are subject to the approval of the appropriate Minister.

PART V - CHILD MINDING AND DAY CARE FOR YOUNG CHILDREN

155.     Part V inserts a new Part (Part XA) into the Children Act 1989 which provides for child minding and day care for young children in England and Wales. Part X of the Children Act continues to apply to Scotland. In England the responsibility for child minding and day care regulation is transferred from local authorities to Her Majesty's Chief Inspector of Schools for England (HMCIS), who will carry out the functions through a new arm of Ofsted. In addition, the new Part XA makes changes to the present system of child minding and day care regulation. For example, it gives the Secretary of State powers to make regulations governing the activities of registered providers (such as in respect of qualifications and training or the safety of premises) and introduces a requirement to publish inspection reports. In Wales the responsibility for child minding and day care regulation will pass to the registration authority established as part of the National Assembly for Wales. Her Majesty's Chief Inspector of Schools in Wales, working through Estyn (the Welsh equivalent of Ofsted), will continue to inspect early years education under existing powers. In addition Part V provides for checks on the suitability of persons working with older children.

Clause 68 Amendment of the Children Act 1989

156.     Clause 68 inserts a new Part XA into the Children Act 1989. It will apply to England and Wales, whilst the existing Part X will continue to apply to Scotland. The notes below refer to the new sections 79A to 79T to be inserted into the Children Act by clause 68. Throughout the notes on this Part, the term 'registration authority' means HMCIS in relation to England, and the National Assembly in relation to Wales.

Introductory

Section 79A Child minders and day care providers

157.     This section defines the child care providers covered by Part XA. A child minder is defined as a person who is paid (by any form of payment, including payment in kind) to look after a child or children under the age of eight on domestic premises. However, nannies who come into the parents' home are excluded from this definition, except where they look after the children of more than two families. Day care is defined as that provided for children aged under eight in places other than domestic premises. For example, care provided in nurseries, creches, playgroups etc. This section also expands on the definition used in Part X of the Children Act to clarify that "day care" covers care provided at any time of the day or night.

158.     In addition, this section applies Part XA only to those providing day care or child minding for more than two hours a day. However, any time after 6 pm spent looking after children is disregarded in determining whether a child minder is required to register under Part XA. This is to prevent certain informal babysitting arrangements from being caught by Part XA.

Section 79B Other definitions, etc.

159.     This section establishes HMCIS (i.e. Ofsted) and the National Assembly as the registration authorities responsible for the regulation of day care and childminding in England and Wales respectively. It sets out the criteria which must be met in order for a person to be qualified to be registered as a child minder or day care provider. The conditions include a requirement for providers and others who may be on the premises (for example, employees or other residents) to be suitable to be with the children. In addition, this section defines "care", "domestic premises" and identifies the "Tribunal" as that established by the Protection of Children Act 1999.

Regulations

Section 79C Regulations etc. governing child minders and day care providers

160.     This section gives the Secretary of State and the National Assembly for Wales powers to make regulations governing registered child minders and day care providers. The Secretary of State has to consult HMCIS and anyone else he considers appropriate before regulations are made. The regulations may cover how providers deliver their services or how HMCIS fulfils his regulatory function. A registered child minder or day care provider may be guilty of an offence if they fail, without reasonable excuse, to comply with any regulation requirements. The offence carries a fine of up to level 5 on the standard scale.

Registration

Section 79D Requirement to register

161.     This section requires child minders and day care providers to register with HMCIS in order to operate in England, or with the National Assembly in order to operate in Wales. It also empowers, but does not require, HMCIS and the National Assembly to serve an enforcement notice on an unregistered childminder. It is offence to act, without reasonable excuse, as an unregistered childminder whilst the notice is in effect. Offences under this section will carry a fine of up to level 5 on the standard scale.

Section 79E Applications for registration

162.     This section provides for the application procedure to be followed by a person wishing to act as a child minder or day care provider. The provision of day care on different premises requires separate applications in respect of each premises.

Section 79F Grant or refusal of registration

163.     This section sets the criteria, including payment of a prescribed fee, to be met in order for the registration authority to register a person as a child minder or day care provider. If a registered child minder or day care provider fails to comply with any of the conditions of registration, they may be liable for a fine of up to level 5 on the standard scale. The authority must also make any register of child minders and day care providers available to the public.

Section 79G Cancellation of registration

164.     This section enables the registration authority to cancel registration if it considers the child minder or day care provider has ceased or will cease to be eligible or if the annual fee has not been paid. Any cancellation must be in writing.

Section 79H Suspension of registration

165.     This section enables regulations to be made which would give the registration authority a power to suspend registration. It is envisaged the power will be exercised when children are considered to be at risk in circumstances which may lead to cancellation of registration. The regulations may allow providers a right of appeal to the Tribunal against suspension.

Section 79J Resignation of registration

166.     This section makes new provision for child minders and day care providers to voluntarily give up their registration. This will be helpful, for example, in ensuring that information for parents seeking child care provision relates only to active providers. However, resignation of registration is not permitted in circumstances where cancellation of registration is a possibility.

Section 79K Protection of children in an emergency

167.     This section provides that the registration authority can apply to the Tribunal for an emergency order in respect of a registered childminder or day care provider where the registration authority believes that a child in their care is suffering, or is likely to suffer, significant harm. The order may cancel the person's registration, vary or remove a condition of registration, or impose a new condition of registration with immediate effect. There is a right of appeal against such emergency orders.

Section 79L Appeals

168.     This section sets out the notification of decisions and appeals procedure. It gives the applicant or registered person a right to make representations about a proposal and a right of appeal to the Tribunal against any subsequent decision. In allowing an appeal against a decision, the Tribunal may impose new conditions or vary existing ones.

Inspection: England

169.     Sections 79M to 79R apply to England only, as they confer powers on HMCIS relating to the entry and inspection of premises where childminding and day care takes place. In Wales, these functions will be undertaken by the National Assembly.

Section 79M General functions of the Chief Inspector

170.     This section imposes duties on HMCIS to provide the Secretary of State with information and advice on registered child minding and day care. He must also report on his Part XA functions in his annual report on the inspection of early education provision.

Section 70N Early years child care inspectorate

171.     This section requires HMCIS to set up and maintain a register of early years child care inspectors ("registered inspectors"). The register may be combined with Ofsted's existing register of nursery education inspectors to form a single register of all early years inspectors.

Section 79P Inspection of provision of child minding and day care in England

172.     This section provides that child minding and day care inspections are to be carried out by registered early years child care inspectors. Inspections are to be carried out at intervals set out in regulations. HMCIS may either organise inspections or arrange with others for them to organise inspections (for example, by contracting out the work). The registered inspector is required to report on the inspections carried out under this section.

Section 79Q reports of inspections

173.     This section requires registered inspectors to produce written reports on inspections they carry out for HMCIS within a prescribed time limit. Reports may also be made available to the public. HMCIS has a power to edit reports where appropriate (for example, to preserve confidentiality).

Supplementary

Section 79R Rights of entry etc. in England

174.     This section gives registered inspectors powers of entry to any premises on which child minding or day care is provided. Entry may be gained for general inspection purposes or where an inspector reasonably believes a child may be at risk. It is an offence carrying a fine of up to level 4 on the standard scale to obstruct an inspector exercising his powers under this section.

Section 79S Function of local authorities

175.     This section provides that local authorities will provide information, training and advice on child minding and day care provision.

Checks on suitability of persons working with children over the age of seven

Section 79T Requirement for certificate of suitability

176.     This section places duties, if certain conditions are met, on those who provide care for children aged eight and over and who would otherwise not have to register under Part XA. Providers are required to hold a valid certificate for themselves and others on the premises (for example, employees or other residents) which demonstrates to parents that they are suitable to be with the children. The section enables regulations to create certain offences in connection with the certificate. These will carry a fine of up to level 5 on the standard scale.

Schedule 2 Child Minding and Day Care for Young Children

177.     Clause 68(2) gives effect to Schedule 2, which inserts a new Schedule 9A into the Children Act 1989.

178.     Paragraphs 1, 2 and 3 disapply certain schools or other establishments from Part XA. This means they need not be registered by the registration authority, although regulation making powers may require some schools to register in certain circumstances. Premises which are used for day care for less than six days a year are exempted.

179.     Paragraph 4 provides for regulations to be made as to the circumstances in which a person can be disqualified from registering as a child minder or day care provider or from otherwise being involved in the provision of day care. The precise grounds for disqualification will be set out in regulations. These provisions also apply to members of the household, potential employees and managers of day care businesses.

180.     Paragraph 5 provides that contravention of the provision made by or under paragraph 4 is an offence unless one of the defences set out in subparagraphs (2) or (3) applies. The penalty for this offence is up to 6 months imprisonment, a fine not exceeding level 5 on the standard scale or both.

181.     Paragraph 6 provides for certificates of registration to be issued to successful applicants. Paragraph 7 provides for regulations to be made requiring registered childminders and day care providers to pay an annual fee to the registration authority. Paragraph 8 enables the registration authority to ask for and receive assistance from local authorities in carrying out its child minding and day care regulatory duties.

PART VI: PROTECTION OF CHILDREN AND VULNERABLE ADULTS

Protection of vulnerable adults

182.     Part VI introduces provisions by which the Secretary of State will establish and operate, in relation to both England and Wales, a list of persons who are considered unsuitable to work with vulnerable adults. Providers of care services, including care homes, domiciliary care agencies and prescribed services within both NHS and independent healthcare settings will be required to refer individuals for inclusion in the list (clause 71). Clause 75 places a duty on providers of care services to vulnerable adults to check that prospective employees are not on the list, and to refuse employment in that field to any person included on the list. Individuals will have a right of appeal against a decision to include them on the list, and will be able to apply to have their name removed from the list after ten years (clauses 73 and 74). Provision is also made for cross-referrals between this list and the list of persons considered unsuitable to work with children established under section 2 of the Protection of Children Act 1999 ("PoCA"), and vice versa (clauses 78 and 80). Further amendments are made to PoCA such that inclusion on the PoCA list disqualifies a person from employment in independent schools.

Clause 69 Basic definitions

183.     This clause provides the basic definitions relevant to this Part of the Bill. Subsection (2) defines care workers. Broadly, these are individuals employed in care homes, private and voluntary hospitals or clinics, or NHS establishments who have regular contact with vulnerable adults in the course of their normal duties, and individuals who provide personal care to people in their own homes. The approach for healthcare establishments is that these provisions will only apply where individuals are employed in prescribed services. For example, staff on a geriatric ward would be included, but staff on a paediatric ward would not be. Subsection (3) defines "care position".

184.     Subsection (4) provides that for this Part of the Bill, employment is defined as it is in section 12(1) of the PoCA:

"employment"- (a) means any employment, whether paid or unpaid and whether under a contract of service or apprenticeship, under a contract for services, or otherwise than under a contract; and (b) includes an office established by or by virtue of a prescribed enactment, and references to an individual being employed shall be construed accordingly.

185.     Subsection (5) defines supply workers. These include workers who are found care work through employment agencies or businesses, including those supplied by domiciliary care agencies to provide personal care to people in their own homes. The definition also includes temporary staff supplied by employment agencies or businesses to work in care positions as defined in subsection (3).

186.     Subsection (6) defines vulnerable adults. Three groups of adults are identified:

  • those receiving accommodation and nursing or personal care in a care home;

  • those receiving personal care in their own home through a domiciliary care agency; and

  • those receiving certain services in healthcare settings, including private, voluntary and NHS establishments. (The services included will be set out in regulations).

187.     Subsection (7) defines the providers of services to vulnerable adults. These are any person who is registered as carrying on a care home, a domiciliary care agency that is not an employment agency or business (which includes a local authority), or a private or voluntary healthcare establishment or NHS body which provides prescribed services.

Clause 70 Duty of Secretary of State to keep list

188.     Clause 70 places a duty on the Secretary of State to keep a list of individuals who are considered unsuitable to work with vulnerable adults. The list will be kept by the Secretary of State for Health in relation to both England and Wales. A person can only be included on the list if he has been referred to the Secretary of State under clause 71 or 72 of this Bill, or on a cross-referral under section 2 of the PoCA. Subsection (3) enables the Secretary of State to remove a person from the list should he be satisfied that they should not have been included on it in the first instance.

Clause 71 Persons who provide care for vulnerable adults: duty to refer

189.     Clause 71 sets out the duty on providers of care services for vulnerable adults (see paragraph 186) to refer care workers (see paragraph 183) to the Secretary of State for inclusion in the list under certain circumstances. The circumstances, set out in subsection (2), turn on a worker having placed a protected adult at risk of harm, whether or not in the course of his employment. The circumstances include not only that a worker has been dismissed on grounds of misconduct, which harmed or risked harm to a vulnerable adult, but that a worker has resigned or retired before the employer has dismissed him, that they have been transferred to other work or that they have been suspended or provisionally transferred to other duties pending a final decision of the employer.

190.     Subsection (3) further provides that if, after a worker has resigned, retired, been dismissed or been transferred to other duties, relevant information comes to light, the employer is still under a duty to refer the person to the Secretary of State for inclusion on the list.

191.      Subsections (4) to (7) describe the process that the Secretary of State must use to determine whether a referred person should be included on the list. Providing that there is a prima facie case for inclusion on the list, then the person will be provisionally added to the list while the referral is under consideration. The Secretary of State will invite both the person referred and the provider to make any observations on the information submitted, and if he thinks appropriate, will subsequently invite each to comment on the other party's observations. The Secretary of State will come to a decision once all the relevant information has been received, and he has been notified that any pending action against the worker has resulted in dismissal or permanent transfer to other duties. If the Secretary of State forms the opinion that it was reasonable for the provider to consider the care worker guilty of misconduct, and that the person is unsuitable to work with vulnerable adults, then the person's name will be placed on the list.

192.     Subsection (9) makes it clear that referrals are not required unless the dismissal, resignation etc. occurred after the commencement of this section. This is a similar approach to that adopted under the PoCA, section 2(10).

Clause 72 Employment agencies and businesses: duty to refer

193.     Employment agencies and businesses are similarly required to refer supply workers (see paragraph 185) to the list under appropriate circumstances. Under subsection (2), an employment agency must make a referral where it has decided not to do any further business with the worker on the grounds of misconduct which harmed a vulnerable adult or placed him or her at risk of harm; or where on those grounds has decided not to find them any further employment as a supply worker. An employment business must refer (subsection (3)) where it has dismissed a supply worker on the grounds of misconduct which harmed, etc, a vulnerable adult; where the supply worker has retired or resigned but otherwise the employment business would have dismissed or considered dismissing him on those grounds; or where on those grounds it has decided not to supply him for further work in a care position. The procedure the Secretary of State must follow after a referral is similar to that set out in clause 71. Again, there is no requirement to refer in cases where the dismissal, resignation etc., or decision no longer to provide or supply the worker to fill a care position occurs before the commencement of this section.

Clause 73 Appeals against inclusion in the list

194.     Individuals will have a right to appeal against a decision by Secretary of State to include them on the list, but (subject to subsection (2)) not against a provisional inclusion while the referral is being investigated. Appeals will be heard by the Tribunal established under the PoCA. Individuals will also be able to apply to the Tribunal to appeal against a decision of the Secretary of State not to remove their name from the list on the grounds that their inclusion was erroneous.

195.     If the Tribunal is not satisfied, either that the individual was guilty of misconduct, or that they are unsuitable to work with vulnerable adults, it will allow the appeal and direct that the individual's name should be removed from the list. In considering an appeal where an individual has been convicted of an offence, the Tribunal cannot challenge any fact on which the conviction was based.

196.     Subsection (2) provides that if an individual's name has provisionally been on the list for more than nine months without a decision being made, he can ask the Tribunal to determine his case instead of the Secretary of State. This will not apply where a criminal or civil case is pending, in which case the individual cannot ask the Tribunal to determine his case until 6 months after the final outcome (or "final determination") of the court case. "Final determination" is defined in subsection (6).

Clause 74 Applications for removal from the list

197.     Under this clause, individuals are given a right to apply to have their name removed from the list once a period of ten years has elapsed. Applications will be made to the Tribunal, as before, and it will be for the Tribunal to determine whether the individual is still unsuitable to work with vulnerable adults.

Clause 75 Effect of inclusion in list

198.     This clause places a duty on providers of care services to vulnerable adults, including domiciliary care agencies, to check that prospective employees are not on the list before offering them employment in a care position. If they do find the person is on the list, they must not employ them in a care position. Where workers are being supplied by an employment agency or business, the provider must obtain written confirmation from the agency or business to the effect that they have checked that the individual is not on the list within the last twelve months.

Clause 76 Searches of list under Part V of Police Act 1997

199.     Clause 76 amends section 113 and 115 of the Police Act 1997. These amendments will, when commenced, enable the Criminal Records Bureau to supply an individual with a criminal record certificate or enhanced criminal record certificate which states whether they are included on the list, and gives any details of the inclusion as may be required in regulations.

Clause 77 Access to list before commencement of section 76

200.     This clause provides that pending such time as the Criminal Records Bureau takes on the function of issuing criminal record certificates, any person who wishes to offer an individual employment in a care position, or an employment agency or domiciliary care agency who wishes to take on an individual, or others as may be defined in regulations, is entitled on application to the Secretary of State to the information as to whether the individual is on the list. An application can still be made if the individual is already employed by the person. This means, for example, that an employer can carry out a check in order for a person to change their duties and work in a care position when they had not done so before.

 
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Prepared: 6 December 1999