|Care Standards Bill [H.L.] - continued||House of Lords|
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Clause 78 Persons referred for inclusion in the other list
201. This clause deals with cross-referrals between this list and the list established under section 2 of PoCA, which lists individuals considered unsuitable to work with children. Where a person is referred under PoCA but it appears from the alleged misconduct that they may be unsuitable to work with vulnerable adults, it provides a mechanism for considering inclusion on the vulnerable adults list. Subsection (3) provides, however, that the Secretary of State can only include a person in the vulnerable adults list on a cross-referral if he is first satisfied that they are unsuitable to work with children.
The List kept under Section 1 of the 1999 Act
202. Clauses 79 and 80 make necessary amendments to PoCA.
Clause 79 Employment agencies and businesses
203. This clause inserts a new section into PoCA to modify the application of that Act to employment businesses.
Clause 80 Inclusion in 1999 Act on reference under this Part
204. This clause inserts a new section 3A into PoCA to take account of cross-referral matters. It mirrors the provision under clause 76, in that the Secretary of State may in some circumstances consider an individual for inclusion in the children's list when they have been referred for inclusion in the adults' list, but only if he is satisfied that the person is unsuitable to work with vulnerable adults.
Clauses 81, 82 and 83 Restrictions on working with children in independent schools
205. Clause 81 amends the Education Act 1996 so as to provide for the disqualification from working in an independent school of persons who are unsuitable to work with children. A right of appeal to an Independent Schools Tribunal is given in subsection (2) against a proposal by the Secretary of State to disqualify a person on those grounds.
206. Clause 82 amends PoCA so as to require child care organisations, when proposing to offer employment in a child care position, to check that the person they are intending to take on is not disqualified from working in independent schools on those grounds. If he is, they are prohibited from taking him on in that position.
207. It is intended that, when Part V of the Police Act 1997, which provides for the Criminal Records Bureau, comes into force, checks against the exclusion list established under PoCA can be made through that mechanism. Clause 83 makes amendments to the Police Act 1997 to enable the checks provided for in the clauses 81 and 82 above, to be made under the provisions of Part V of the Police Act when it comes into force.
PART VII MISCELLANEOUS
208. Part VII imposes a duty on the proprietor of any boarding school or further education colleges with accommodation to safeguard and promote the welfare of any children accommodated there. It empowers the registration authority to inspect the school or college and report on the welfare arrangements for the children there. Section 87 of the Children Act 1989 (which this Part amends), currently makes similar provision in relation to independent boarding schools only. The new requirements will apply to all types of boarding school and further education college, both state and independent sector. Clauses 84 to 89 amend the Children Act 1989. Unless otherwise stated, functions conferred on the Secretary of State are exercised in Wales by the National Assembly for Wales. Part VII also makes new arrangements for the regulation of nurses agencies by removing their exemption from the Employment Agencies Act 1973 and repealing the Nurses Agencies Act 1957.
Boarding Schools and Colleges
Clause 84 Welfare of children in boarding schools and colleges
209. This clause extends section 87 of the Children Act (welfare of children in independent schools), to all schools and further education colleges with boarding provision, and puts the duty to monitor welfare in schools onto the registration authority in place of the local authority. It imposes a duty upon proprietors and governing bodies to ensure that effective arrangements for the welfare of all children accommodated at boarding schools and colleges are in place and properly adhered to.
210. The registration authority is required to determine whether this duty is being adequately discharged and may carry out inspections for that purpose. Where the registration authority determines that a school or college is failing in its duty in respect of the welfare of children it must inform the local education authority, or in England the Secretary of State, as the case may be, for any appropriate enforcement action to be taken in accordance with education legislation. In Wales, the National Assembly will be responsible both for inspection and for any enforcement actions which would, in England, be undertaken by the Secretary of State. By existing section 87(9) of the Children Act, which is not reproduced in the Bill, it is an offence to obstruct a person exercising powers of inspection under this section or regulations made under it.
Clause 85 Suspension of duty under section 87(3) of the 1989 Act
211. This clause amends sections 87A and 87B of the Children Act as inserted under the provisions of the Deregulation and Contracting Out Act 1994. Sections 87A and 87B empower the Secretary of State (or in Wales, the National Assembly) to appoint a body, which already acts as an inspector of independent boarding schools for other purposes, to undertake the welfare inspection functions conferred by section 87, and allow schools to make inspection arrangements with such substitute inspectors.
212. The effect of the amendments is to apply these provisions to all boarding schools and further education colleges. Any school or college may enter into an agreement with such a body to inspect its welfare arrangements. The substitute inspector must notify the registration authority of its appointment. In that case, the authority's duty to ensure the welfare of children accommodated at that school or college is suspended until the appointment is terminated or the agreement comes to an end.
Clause 86 Boarding Schools: national minimum standards
213. This clause inserts a new section 87C making provision for national minimum standards that schools and colleges accommodating children must comply with in relation to the welfare of children. The national minimum standards will be taken into account by the registration authority or any substitute inspector in considering whether there has been a failure to safeguard and promote a child's welfare in any school or college, and in any related proceedings.
Clause 87 Annual Fee for boarding school inspections
214. This clause inserts new section 87 D which provides for regulations to be made regarding annual inspection fees payable to the registration authority. The level of such fees and when they become due will be set out in the regulations. Unpaid fees may be recovered in the magistrates court.
Clause 88 Inspection of schools etc. by persons authorised by Secretary of State
215. The Secretary of State and National Assembly (by virtue of section 80(1) of the Children Act) have wide powers to inspect premises in which children are accommodated, including independent schools. This clause extends powers under section 80 to inspect or to obtain information, to any school or college providing accommodation for any child.
216. It also adds a person carrying on a fostering agency (as defined in clause 4(4)) to those persons whom section 80(5) places under a duty to provide the Secretary of State (or in Wales, the National Assembly) with information or access to records for inspection purposes.
Clause 89 Extension of Part IX to school children during holidays
217. The effect of this clause is to apply existing provision, whereby a child who stays at an independent boarding school for more than two weeks in the school holidays is treated as a privately fostered child, to all schools. The local authority must be notified of the child's presence in the school and has to satisfy itself as to his welfare.
Clause 90: Nurses Agencies
218. This clause repeals the Nurses Agencies Act 1957 and brings nurses agencies under the Employment Agencies Act 1973. Nurses agencies are currently licensed by local authorities under the Nurses Agencies Act 1957, while all other employment agencies and businesses are covered by the Employment Agencies Act 1973. The effect of this clause is to bring nurses agencies into line with employment agencies and businesses which supply other healthcare professionals, such as locum doctors, dentists and professions allied to medicine, who are subject to the Employment Agencies Act 1973.
219. These changes apply to England and Wales. Nurses agencies in Scotland will continue to be licensed under Part III of the Nurses (Scotland) Act 1951.
PART VIII AND SCHEDULES 3, 4 AND 5: GENERAL AND SUPPLEMENTAL
Chapter I: Miscellaneous
Clause 91 Default powers of the appropriate Minister
220. Subsection (1) confers default powers on the Secretary of State in respect of the Commission and the General Social Care Council (GSCC). Subsection (2) makes similar provision for default powers for the National Assembly for Wales in respect of the Care Council for Wales (CCW). If the appropriate Minister is satisfied that the Commission or the Council or the Welsh Council have failed to discharge any of its functions, without good reason, or in discharging its functions has failed to comply with any directions or guidance given to it, this clause confers a two-fold default power.
221. Subsection (3) details the first stage: the appropriate Minister may make an order declaring the Commission or Council to be in default and issues directions requiring them to take specific action within a specific timescale. If the Commission or Council still fail to act, the second stage (subsection (4)) is triggered. This results in the appropriate Minister either carrying out the functions himself or nominating a person or organisation to discharge these functions on his behalf.
Clause 92 and Schedule 3 Minor and consequential amendments
222. Clause 92 makes provision for Schedule 3, which makes minor and consequential amendments other legislation. The following amendments are of particular note:
223. Paragraph 2 amends the Adoption Act 1976 to provide for the regulation of voluntary adoption agencies under this Bill.
224. Paragraph 6 makes amendments to the Children Act 1989, in particular to the definition of "registered children's home", which becomes a "private children's home" in order to avoid confusion. An "appropriate children's home" is any type of children's home (that is, private, voluntary or community home), in respect of which a person is registered under the Care Standards Bill.
225. Paragraph 14 amends section 9(2) of the Protection of Children Act 1999 in order that the Tribunal established under that Act should also determine appeals against decisions made under this Bill.
Clause 93 and Schedules 4 and 5: Transitional provisions, savings and repeals
226. Clause 93 makes provision for Schedule 4, which details transitional provisions and savings, and Schedule 5 which details repeals.
227. Paragraph 1 concerns fostering agencies. These are not currently regulated so this paragraph provides for a smooth transition to the registration scheme. This will be achieved by allowing agencies who have submitted an application in accordance with the provisions of clause 10, and who meet any conditions that may be set down in regulations, to be regarded as being registered for a given period. This mechanism will allow fostering agencies to continue to operate lawfully for that period once the new system has come into force, whether or not they have completed the full registration process. The registration authority will then be able to carry out full registration checks on each agency.
228. Paragraph 2 makes transitional provisions for voluntary adoption agencies. These are approved by the Secretary of State under the Adoption Act at present. The transitional arrangement will be that any agency with a current approval under the Adoption Act when clause 11 of this Bill comes into force, and which meets any requirements that may be set down in regulations will be treated as being registered under this Bill, whether unconditionally or subject to conditions. Pending applications for approval will be treated as applications for registration under the Care Standards Bill.
Schedule 5 Repeals
229. Schedule 5 details repeals.
Chapter II: Supplemental
Clause 94 Orders and regulations
230. Clause 94 provides that all orders and regulations made under the Bill will be made by statutory instrument, and, apart from commencement orders, in England these will be subject to Parliamentary scrutiny under negative procedures. The Government of Wales Act 1998 places duties on the National Assembly for Wales in respect of making regulations. These are set out in full in Standing Order 22 of the Assembly.
231. Subsection (4) gives the appropriate Minister power to use any regulation making power flexibly to make similar or different provision for various cases. For example, in clause 20 a power is given to set out in regulations what constitutes 'fit premises'. Different requirements will need to be set depending on whether the premises are to be used as a home, an agency, or another type of registerable establishment.
Clause 95 Supplementary and consequential provision etc.
232. Clause 95 gives the appropriate Minister power enabling him to make such additional provision as he considers necessary in order to give full effect to the provisions of the Bill.
Clause 96 General Interpretation etc.
233. Clause 96 is a general interpretation provision.
Clause 97 Commencement and Clause 98 Short title and extent
234. Clause 97 makes standard provision for commencement. Clause 98 provides that this Bill extends only to England and Wales, except clause 66, which concerns the abolition of CCETSW, and which extends also to Scotland and Northern Ireland.
FINANCIAL EFFECTS OF THE BILL
National Care Standards Commission
235. The National Care Standards Commission will be set up to regulate providers of social care and private and voluntary healthcare services. The cost of setting up the Commission will be met by the Department of Health. In Wales, these functions will be carried out by the National Assembly for Wales, which will meet the equivalent set-up costs.
236. Once the Commission and the National Assembly for Wales's functions have been established, the aim will be for them to recover their running costs from fees paid by the service providers who are regulated or inspected by them.
General Social Care Council and Care Council for Wales
237. The General Social Care Council (GSCC) in England and the Care Council for Wales (CCW) will be established to promote high standards of conduct and practice among social care workers and high standards of training in social care.
238. The cost of setting up and running the GSCC will be contained within the Department of Health grant to cover the running costs of the Central Council for Education and Training in Social Work, whose functions in relation to England are being transferred to the GSCC. The National Assembly for Wales will cover the costs of the CCW. It is envisaged that in time registration fees will contribute to the costs of the registration function.
Protection of Vulnerable Adults
239. The Secretary of State will maintain a list of individuals considered unsuitable to work with vulnerable adults. Its purpose is to prevent unsuitable people from working with vulnerable adults in certain specified services. Employers in the specified services will be required to refer the names of staff in certain circumstances to the Secretary of State. These employers will also be required to check the names of potential employees against the list and to refuse employment to anyone included in the list. The costs associated with the register will be met by the Department of Health.
240. The Bill provides for appeals against decisions made by the National Care Standards Commission in England, the equivalent National Assembly for Wales body, the GSCC and CCW, Her Majesty's Chief Inspector of Schools in England regarding childminding and day care and the Secretary of State for Health regarding inclusion on the Protection of Vulnerable Adults List. These Appeals to be made to the Tribunal established under the Protection of Children Act 1999. The Tribunal's costs will be met by the Department of Health and Department for Education and Employment.
Regulation of nurses' agencies
241. Nurses agencies will be subject to the provisions of the Employment Agencies Act which will increase the costs of the Employment Agency Standards Inspectorate which is funded by the Department of Trade and Industry (DTI). These costs will be offset by equivalent savings in the current regulatory system.
Child minding and day care for young children
242. In England the transfer of responsibilities and resources from local authorities to HMCIS is not expected to increase public expenditure. Over time, it is envisaged that streamlining of the current regulatory regimes will lead to a reduction in expenditure. However, it is estimated that HMCIS will require around £7 million over an initial two year period to carry out training and other set-up activities.
243. The costs of transferring responsibility for regulating day care and child minding from local authorities to the National Assembly for Wales will be met from within the overall costs to the National Assembly for Wales of taking on the health and social care regulatory function.
EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER
National Care Standards Commission and National Assembly for Wales
244. The regulatory authorities will be staffed primarily by the inspection staff who operate the current system, and who are based in local authority and Health Authority inspection units throughout England and Wales. These staff will be able to transfer to the Commission or the National Assembly for Wales. As more services will be regulated under the new arrangements, there may be a need to employ additional inspection staff.
General Social Care Council (GSCC) and Care Council for Wales (CCW)
245. There will be no additional staff required for the GSCC or CCW. They will be staffed mainly by the relevant parts of the workforce transferring from the Central Council for Education and Training in Social Work (a UK body), which is to be abolished.
Child minding and day care for young children
246. The number of staff working on early years education and day care regulation (including administrative functions) will be a matter for HMCIS in England, and the National Assembly for Wales. Any such decision is likely to be influenced by factors such as the expanding market for day care and child minding, introduction of national standards for regulation, extension of the "fit person" check for those working with older children and removal of the current exemptions for certain day care providers.
247. Appeals against decisions made under the Act will be heard by the Tribunal established by the Protection of Children Act 1999. In effect that tribunal will replace the existing Registered Homes Tribunal, as well as exercising new jurisidictions under the provisions of the Bill and the Protection of Children Act 1999. The membership of the tribunal and staffing of its secretariat will need to be reviewed before it takes on the full range of functions given to it by the Bill.
248. The constitution of the Tribunal is set out in the Schedule to the Protection of Children Act 1999. Appeals will be heard by a legally-qualified chairmen and two other members who, it is intended, will have relevant social care experience. There will be panels of persons suitable to serve as Tribunal members, and sufficient numbers will need to be recruited to these panels to enable the tribunal to deal reasonably promptly with appeals.
SUMMARY OF THE REGULATORY APPRAISAL
249. A regulatory impact assessment has been drawn up to assess the impact of these measures. The assessment of cost impact is summarised in the paragraphs below.
Impact of Compliance to Business
250. There are existing regulatory systems in this area, under the Registered Homes Act 1984, the Children Act 1989, the Nurses Agencies Act 1957, the Adoption Act 1976, and the Health and Social Services and Social Security Adjudication Act 1983. Those regulatory systems involve compliance costs for those businesses and other providers who are covered by them. This Bill seeks to reform those regulatory systems, and those reforms will have an impact on compliance costs.
251. For care providers and healthcare services registered by the National Care Standards Commission, this will take two main forms: regulatory fees, and compliance with the requirements of standards set as part of the regulatory system. The great majority of regulated providers will have been subject to these costs under the current regulatory system, although for those regulated for the first time, compliance costs will be new. The levels of regulatory fees will be set centrally by the Government, and before they are set there will be a full consultation which will include a regulatory impact assessment.
252. The establishment of the General Social Care Council, the Protection of Vulnerable Adults List, the changes to nurses agencies' regulation, and the establishment of the new early years arrangements are not expected to have a significant cost impact on businesses. More details of expected compliance costs for all parts of the Bill are set out in the full regulatory impact assessment.
253. A copy of the full regulatory impact assessment can be obtained from:
Social Care Group 2,
Department of Health,
133-155 Waterloo Road,
EUROPEAN CONVENTION ON HUMAN RIGHTS
254. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the Bill with the Convention rights (as defined by section 1 of that Act). On 2nd December 1999 Lord Hunt of Kings Heath, Parliamentary Under-Secretary of State for Health, made the following statement:
In my view the provisions of the Care Standards Bill [H.L.] are compatible with the Convention rights.
255. The provisions of the Bill will come into force on one or more dates. The commencement order power allows for separate commencement dates in England and Wales but the intention is for the provisions to be commenced in England and Wales at the same time to enable a smooth transfer of responsibilities.
256. Clauses relating to interim arrangements for small children's homes (clause 38) and dentists who carry out procedures under general anaesthesia (clause 37) will come into force at the earliest opportunity after Royal Assent. It is envisaged that the provisions relating to the General Social Care Council will be in force in April 2001, with the exception of the register of social care staff. Full details for the register will be developed by the GSCC itself and come into force in April 2002 at the earliest. Provisions for the National Care Standards Commission and functions of Her Majesty's Chief Inspector of Schools will be in force by April 2002.
The Registered Homes Act 1984
257. The arrangements provided for under Part I of the Registered Homes Act 1984 apply to residential care homes, defined in section 1 as homes which provide or intend to provide board and personal care for persons who for various reasons, including age and disability, are in need of it. Several exemptions are identified, including hospitals and nursing homes (both NHS and those registered under Part II of the Act), children's homes (as defined in the Children Act 1989) and schools as well as, in certain limited circumstances, homes accommodating no more than three people. The registering authority for residential care homes is defined in section 20 as the local social services authority for the area in which the home is situated.
258. Sections 4 to 9 set out the requirements and procedures for registration, including payment of a registration fee and an annual fee and the requirement for conditions of registration to be specified on the certificate of registration. Registration is granted unless a ground for refusing registration is made out (section 9). These grounds relate to the fitness of the person, the fitness of the premises and the provision of adequate services. Registration may be cancelled for example, on any grounds which would lead to an application for registration being refused, if an offence against the Act has been committed or if a condition of registration has been breached (section 10). An urgent procedure, requiring application to a magistrate, can be used if there is serious risk to life, health or well-being of the residents in the home (section 11).
259. Section 12 requires the registering authority to serve a notice on the provider where the authority proposes to:
260. In these cases the provider has a right to make representations before the authority finalises its decision (section 13). When the decision is made the provider has a right of appeal if they are not satisfied. Appeals are heard by the Registered Homes Tribunal (Section 15). The decision will not take effect until the representations and appeal process has been completed. However, if the urgent procedure is used, the home closes immediately and any appeal is heard after the home has closed.
261. Section 16 sets out regulation making powers, section 17 details the Secretary of State's powers of inspection (exercised through the registering authority), and section 18 sets out defences that may be used in proceedings brought under the Act.
|© Parliamentary copyright 1999||Prepared: 6 December 1999|