Part II: Establishments and Agencies |
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.
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).
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.
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.
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.
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
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
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
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.
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
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.
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.
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).
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
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.
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.
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
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.
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.