Select Committee on Delegated Powers and Deregulation Second Report


Part II: Establishments and Agencies

CLAUSE 9

27.  Clause 9 (4) enables the Secretary of State to make regulations about the keeping of registers under Part II. The registering authority will register in respect of establishments or agencies any person who applies for and satisfies qualifying criteria. (The "registering authority in respect of England is the Commission and in Wales is the Assembly - see clause 5.) It is intended that the regulations made under this power will set out what information should be kept in those registers. There will be separate registers for each service. The registers will provide an up to date record of registered services. Examples of the types of information the register might contain are: the name and address of the establishment or agency; the type of care provided and the age range or type of clients the home may take; or, in the case of private healthcare establishments, the types of service or treatments undertaken. The registers will provide an important source of information for the public (see clause 34). This level of detail is unsuited to primary legislation.

CLAUSE 10

28.  Clause 10 (2)(a) provides that an applicant for registration must give such information as is required in the regulations, clause 14(1) which makes provision for regulations to made specifying the information applications should include (see paragraph 32 to this memo). The application must also be accompanied by a prescribed fee. The 1984 Act makes similar provisions in Sections 5(1) and 23(3)(b).

CLAUSE 12

29.  Clause 12 (1) (d) provides that the registration authority may cancel the registration of a person in respect of an establishment or agency on grounds set out in regulations. The regulations might, for example, make it a ground for cancellation that a person has not paid the annual fee referred to in clause 14(3), or that an inspector has been refused entry to an establishment. Providing for the grounds to be set out in regulations will allow for flexibility to respond to unforeseen circumstances. There are similar powers in Sections 10 and 28 of the 1984 Act.

CLAUSE 13

30.  Clause 13 (3) makes provision for the appropriate Minister to make regulations as to how registered persons should apply for the voluntary cancellation of their registration or for a variation in the conditions of their registration. The regulations will provide for the details that should be included in the application, and might cover, for example, the number of residents and the proposed arrangements for their transfer to alternative accommodation. The level of detail required and the need to keep it under review make this unsuitable for primary legislation.

31.  Any application to vary conditions in clause 13(1)(a) must be accompanied by a prescribed fee. This is a new provision. Under the 1984 Act, it was left to the discretion of the registration body to determine whether a variation in conditions was significant enough to warrant the registered person being required to re-register and if so to pay a new registration fee. The intention is that these new fees will be lower than the initial registration fee. Fee levels will need to be flexible to reflect future increases in the cost of regulatory work; determining them through regulations will ensure that there is this flexibility. It is intended to provide in regulations for two or three levels of fee (see clause 13 (5)). It will be left to the registration authority to decide which fee is appropriate in a particular case depending on the amount of work involved in deciding whether to grant the application.

CLAUSE 14

32.  Clause 14 (1) contains a regulation-making power with respect to registration, including the making of applications and the details to be included on registration certificates. The regulations will specify the information to be included in the application. (Similar provision is made under the 1984 Act and Children Act.) If the application is granted a certificate of registration will be issued. The regulations are to specify what details should appear on the certificate. They are likely to include, for example, the conditions subject to which the application has been granted, such as the age and type of client group. The level of detail required means that it will be more appropriate to set this out in regulations rather than on the face of the Bill.

33.  Clause 14 (2) provides a regulation making power which prevents applications being made in respect of a fostering agency or voluntary adoption agency which is an unincorporated body. Setting this out in regulations will preserve flexibility. There is similar provision in respect of adoption agencies in Section 9(1) of the Adoption Act.

34.  Clause 14 (3) allows regulations to be made determining the annual fee to be paid by registered persons. Fees will need to be updated and will vary according to the type of establishment or agency in respect of which a person is registered. Setting the level in regulations will ensure that there is the flexibility to amend them over time. Similar powers to determine the level of annual fees for registration through regulations are to be found in sections 8 and 27 (e) of the 1984 Act.

CLAUSE 20

35.  Clause 20 provides regulation-making powers to cover the management, staff, premises, and conduct of establishments and agencies. The powers in this clause do not extend to voluntary adoption agencies. They will continue to be regulated under the provisions of the Adoption Act, and appropriate amendments are made to section 9 of the that Act for that purpose (see paragraph 2 (6) of Schedule 3).

36.  The Better Regulation Task Force Review of Long-Term Care stated that: 'The current framework of regulation does not live up to the principle of transparency. It lacks a set of clear objectives relating to the safety and welfare of those receiving care. This lack of clarity as to purpose, combined with the use of complex language, makes the legislation difficult to understand' (page 7). Clause 21 allows for a more practical exposition of the regulations provided for in clause 20. One of the key recommendations of the Better Regulation Task Force's Report on Long-Term Care was that there should be a 'structured set of requirements relating to each form of care'. (In their report they considered the regulation of residential, nursing and domiciliary care.) It is intended that the delegated powers under clause 20 and clause 21 (national minimum standards) will provide such a framework set at national level with regulation the responsibility of a single regulatory body in England and in Wales. It is intended that regulations will be made under these powers relating to different types of service, for instance, the staff requirements for a residential care home will differ from those of a private hospital. Many of the regulation making powers in clause 20 are not new and are already available under the 1984 Act, such as powers to make regulations with regard to the facilities and services to be provided, numbers and qualifications of staff to be employed and on duty at a given time, records and notices to be kept/given (sections 16, 26 and 27 of 1984 Act).

37.  20 (1) (a) provides for regulations to be made to define criteria to be used in determining the fitness or otherwise of the persons who carry on or manage an establishment or agency. Regulations may be made to ensure that such persons are suitably qualified and experienced, and that they have no relevant convictions or cautions. This level of detail is best set out in regulations rather than primary legislation.

38.  20 (1) (b) allows regulations to make provision as to the persons who are fit to work in an establishment or for the purposes of an agency. The regulations may ensure that only suitable persons- those with necessary skills and experience and no relevant convictions or cautions- will be able to work in an establishment or for the purposes of an agency. As subsection (2) makes clear, these regulations could prohibit people being employed in certain positions if they are not on a register kept under clause 52 (1). The level of detail required means that it will be best to specify these criteria in regulations rather than the Bill.

39.  20 (1) (c) allows regulations to make provision as to the fitness of premises to be used as an establishment or for the purposes of an agency. There will obviously need to be differences in the requirements placed on, for example, a care home which might accommodate residents for long periods of time, and a private clinic, where patients might not stay more than a few hours. The regulations might provide for example, that the building should be of sound construction and in a good state of repair, that in a care home there should be sufficient day space for relaxing and dining, that there should be sufficient toilets and bathrooms according to the number of residents and that all bedrooms in newly-built care homes should have en suite facilities. This level of detail is best set out in regulations rather than primary legislation.

40.  20 (1) (d) and (e) provide for regulations to be made to secure the welfare of persons accommodated in children's homes, care homes and residential family centres and for fostering agencies to secure the welfare of the children placed by them with foster parents. (In the case of residential care homes the current regulations make such provision. This level of detail is best set out in regulations rather than primary legislation.)

41.  20 (1) (f) provides for regulations to be made about the management and control of the operations of an establishment or agency. This might cover, for example, certain aspects of how children's homes should be run and would thus enable important safeguards to be made for the protection of children. The regulations might stipulate, for example, that an establishment or agency should have an equal opportunities policy or anti-bullying policy. Other examples might include: that sufficient numbers of suitably qualified staff should be on duty at any one time; that there should be an appropriate balance between temporary and permanent staff in order to ensure continuity of care; and that establishments and agencies should have appropriate arrangements for assuring the quality of services provided. The level of detail required means that it would be best to specify criteria in regulations rather than in the Bill itself.

42.  20 (1) (g) and 20 (1) (h) provide for regulations to be made with regard to the numbers and types of people working at an establishment or for the purposes of an agency, and for the management and training of such staff. Regulations might set out, for instance, that a children's ward in an independent hospital would have to be supervised by a person holding a specific qualification in the care of children. To reflect different requirements for different services on the face of the Bill would involve a level of detail better set out in regulations.

43.  20 (1) (i) enables requirements to be imposed as to the financial position of an establishment or agency. The registration authority will need to be satisfied for example, that a care home is financially viable before it is registered. Under the current arrangements for approving adoption societies, the Secretary of State, in deciding whether or not to grant an application, must have regard to the financial resources of the applicant, amongst other things. Regulations made under 20 (1) (i) might require applicants to demonstrate that they have sufficient resources available to fund the provision of services and facilities, and that they have sufficient working capital to service any capital borrowing to acquire or build businesses, and to pay the operational costs of the business. If the applicant indicates that resources will be derived from sources outside the income generated by the business, he might be required to give details as to these external sources of finance. This level of detail is best set out in regulations rather than primary legislation.

44.  20 (1) (j) provides that regulations may be made requiring the person carrying on an establishment or agency to appoint a manager in certain circumstances. These might include, for example, circumstances where the owner is not directly responsible himself for the day-to-day control of the establishment, or where the establishment is one of many that the person carries on. It will be easier to set out the circumstances where this will be necessary in regulations, rather than on the face of the Bill. Regulations will also provide for flexibility of amendment without the need to amend primary legislation.

45.  Clause 20 (2) extends the regulation-making power made under 20 (1) (b) above.

46.  Clause 20 (3) provides for regulations to be made as to the conduct of establishments and agencies. The level of detail required means that it would be best to specify these criteria in regulations rather than on the face of the Bill.

47.  20 (3) (a) makes provision for regulations to be made in respect of the facilities and services to be provided in establishments and agencies. A similar power is to be found in sections 16 (1) (a) and 26 (a) of the Registered Homes Act 1984. The powers may be exercised to ensure that, for example, rooms in care homes are adequately and suitably furnished, residents have sufficient washing facilities etc. and that suitable precautions are taken to avoid accidents. This level of detail is best set out in regulations rather than primary legislation.

48.  20 (3) (b) and 20 (3) (c) provide for regulations to be made with regard to the keeping of accounts and records, which would involve a level of detail unsuitable for setting out in primary legislation. The regulations might provide that residents' finances must be held in separate accounts and separately accounted for, that any donations or money raised through fundraising should also be kept in a separate account, and that the establishment or agency should produce audited accounts annually for the registering authority to inspect. It is intended that records will be required to be kept of, for example, treatments received by patients in private clinics or hospitals, or of the dates of fire safety inspections carried out in a care home. Similar powers were provided for under sections 16(1)(d) and 27 (b) of the 1984 Act. The level of detail required is best set out in regulations rather than primary legislation.

49.  20 (3) (d) provide for regulations as to the notification of events occurring in establishments or agencies. They may require notification of events, such as fires, deaths or accidents. This level of detail is best set out in regulations rather than primary legislation.

50.  20 (3) (e) provides for regulations to be made which require advance notice of a manager's intended absence from an establishment or agency and 20 (3) (f) provides for regulations to be made regarding arrangements for managing the establishment or agency in the registered manager's absence. The registering authority will need to be made aware of who is in control of an establishment or agency at any given time, and will need to ensure that the absence of an establishment or agency's usual manager does not lead to a lapse in the standard of service, which could put service users at risk. The level of detail needed to ensure this is best set out in regulations rather than primary legislation.

51.  20 (3) (g) enables regulations to be made requiring advance notice of an intended change in either the manager or the person carrying it on. 20 (3) (h) enables regulations to be made for the notification of changes to the ownership or officers of a body corporate registered as carrying on an establishment or agency. 20 (3) (i) allows for regulations to be made which would require the payment of a fee in respect of a notification made under 20 (3) (h). This power is necessary as changes in the ownership or personnel of bodies corporate will entail the expense of further fit person checks by the registration authority. These checks are to ensure that unsuitable persons are not involved in the running or carrying on of an establishment or agency.

52.  20 (3) (j) enables regulations to be made requiring the person registered in respect of an establishment or agency to have in place complaints procedures for service users and to publicise these arrangements. The regulations might specify, for example, how complaints should be dealt with and recorded. This level of detail is best set out in regulations rather than primary legislation.

53.  20 (3)(k) enables the appropriate minister through regulations to require persons who carry on or manage independent hospitals and clinics to put in place policies and procedures to secure the quality and standards of healthcare delivered. The regulations might specify what policies and procedures are required and, where necessary, how they should be managed and recorded. The regulations might say, for example, how a critical incident should be dealt with, what must be recorded and what needs to be reported and to whom. By setting these requirements out in secondary legislation, policies and procedures can be modified to respond to changes in safety procedures and other aspects of healthcare delivery, without having to amend primary legislation.

54.  20 (4) enables regulations to be made about specific aspects of the conduct of children's homes. These are powers currently contained in the 1989 Act. The level of detail required means that it will be best to specify these matters in regulations rather than in the Bill. There are similar powers in the Children Act.

55.  20 (4) (a) makes provision for regulations with respect to the control and discipline of children in children's homes. The current provisions are in regulation 8 of the Children's Homes Regulations 1991 (SI 1991 No 1506 as amended). The regulation making power would be used to make regulations along similar lines. Examples of the types of things to be covered are: the sanctions a home provider was permitted to use against a child; a list of sanctions that were not permitted; particulars of the uses made of any disciplinary measures together with dates, reasons and persons involved. The need for flexibility and the technical nature of the subject matter makes this provision unsuitable for primary legislation.

56.  20 (4) (b) makes provision for regulations requiring the approval of the appropriate Minister for the provision and use of accommodation for the purpose of restricting liberty of children. The current provisions are in The Children (Secure Accommodation) Regulations 1991 (SI 1991 No 1505 as amended). The regulation making powers would be used to make regulations along similar lines.

57.  20 (4) (c) makes provision for regulations in respect of the facilities which are to be provided for giving religious instruction to children in children's homes. The Children's Homes Regulations 1991 regulation 11 makes similar provisions in relation to religious observance. It is intended that regulations would be made ensuring that home providers allow children of whatever faith to observe their religion.

CLAUSE 21

58.  Clause 21 (1) gives the appropriate Minister the power to publish statements of national minimum standards applicable to establishments and agencies with which establishments and agencies will be expected to comply. The standards will be service specific and the registration authority will have to take into account these standards in making any decision or taking any proceedings for an offence under regulations made under Part II. For example, a regulation made under clause 20 might state that suitable and nutritious food should be provided to all residents in a home, while the national minimum standards would set out what is meant by "suitable and nutritious", e.g. three meals a day, one of them to be hot, choice of dish offered, vegetarian option, five portions of fruit and vegetables to be on offer each day and so on. National minimum standards made under this power would also apply to local authorities in the exercise of their relevant functions (see clause 45). Different services may have different sets of national minimum standards, which the registration authority must take into account when deciding if a service satisfies regulatory requirements. The amount of detail to be included in the standards would be wholly inappropriate in either primary legislation or regulations. The Commission (under clause 7) will be able to recommend changes in these standards to the Secretary of State where it thinks this would achieve a better standard of service.

CLAUSE 23

59.  Clause 23(1) allows regulations to be made which would create an offence where there was contravention of, or non-compliance with, a regulation under this Part of the Bill. A person guilty of an offence will be liable to a fine of up to level four on the standard scale. A similar power is provided for under sections 16 (2) and 26 (e) of the 1984 Act, and section 9(4) of the Adoption Act and the Children Act Schedule 5, paragraphs 7 (3) and (4), and Schedule 6, paragraphs 10 (3) and (4). The level of detail required means it would be more appropriate to create the offences in regulations rather than in the Bill.

CLAUSE 28

60.  Clause 28(6) makes provision for regulations to be made about the minimum frequency of inspections. The regulations may set different intervals between inspections for different types of service. A similar provision is made in section 17 (4) of the 1984 Act, while section 27 (d) of the same Act enables regulations to be made about the inspection of nursing homes. The need for flexibility over frequency of inspection for different services, means that it will be best to have this provided for in regulations rather than on the face of the Bill.

CLAUSE 31

61.  Clause 31 (1) makes provision for regulations to require that a person carrying on an establishment or agency must make an annual return to the registration authority. Clause 31 (2) allows regulations to be made specifying the contents and timing for making the annual return. The information to be supplied might include, for care homes, details of the number of beds occupied and the number and type of staff currently employed. The level of detail required in the annual return means it will be better to set the requirement out in regulations rather than in the Bill. (See also clause 46 relating to local authorities).

CLAUSE 32

62.  Clause 32 (1) (a) contains a power to make regulations requiring any receiver or manager of a company or liquidator of a company, or trustee in bankruptcy of an individual (registered under Part II in respect of an establishment or agency) to notify the registration authority of their appointment. 32 (1) (b) provides for regulations to be made requiring that such a person appoint a person to manage the establishment or agency in question. The registration authority will need to know if another individual has taken over the running of an establishment or agency because of financial difficulty. Regulations will require the appointment of a suitable manager (who will have to be registered) thus ensuring that the establishment or agency complies with all relevant requirements.

CLAUSE 33

63.  Clause 33 (1) enables the appropriate minister to make provision in regulations for what is to happen in a case where only one person is registered in respect of an establishment or agency and that person dies. This would be the case, for example, where the person registered was both carrying on and managing a care home. The personal representatives of the deceased person will be required to notify the registration authority of his death. Under subsection (2) the regulations may specify the period during which the personal representatives will be allowed to carry on the business and for the registration authority to decide whether it is appropriate for them to carry on running the establishment or agency for a further period.

CLAUSE 34

64.  Clause 34 (3) allows regulations to be made limiting the requirement on the registration authority to provide access to their registers in defined circumstances. The purpose of such regulations might be, for example, to prevent unrestricted access to the names and addresses of services, such as children's homes, where there might be a consequent risk to children. The content of the regulations might include a list of those people that were considered to have a legitimate interest in access or they might contain a requirement for someone to show they had a legitimate interest before they could be granted access. The level of detail required and the need for flexibility means that it would be better to set the requirement out in regulations rather than in the Bill.

CLAUSE 36

65.  Clause 36 applies to certain designated staff who, immediately before the commencement of clause 9 (requirement to register) are employed by local authorities or Health Authorities. Clause 36 provides for the transfer of such staff to a registration authority.

66.  Clause 36 (1) (b) enables the appropriate Minister to make an order designating staff for this purpose. This power would need to be exercised in advance of the new registration authorities taking on their responsibilities. As it is a one-off transfer of staff, the timing of which will depend on circumstances, it would not be suitable to set it out in regulations or to specify a date in primary legislation.

CLAUSE 39

67.  Clause 39 (1) provides that the appropriate Minister may extend the provisions of Part II (with any necessary modifications) to other relevant services through regulations. Relevant services are defined as services which are similar to services which may or must be provided by a local authority in exercise of its social services functions. An example of a relevant service to which regulation under this Part might be extended in future is day care for adults. This power would also allow regulation by the Commission or the Assembly to be extended to services that the private and voluntary sectors may in future offer but which are currently the preserve of local authorities. The level of detail that may be required to extend the provisions of Part II, with such modifications as may be needed, and the need to be able to respond flexibly to future circumstances, means that regulations will be more appropriate than primary legislation.


 
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