Registration authorities

Sections 5 and 6 and Schedule 1 Registration authorities

42. These sections establish the National Care Standards Commission as the registration authority in England, and the registration authority in Wales, which is to be established as either a department or an executive agency of the National Assembly for Wales.

Section 6 National Care Standards Commission

43. Section 6 establishes the National Care Standards Commission. It is a statutory body corporate, which will exercise in England the functions conferred upon it by or under this Act or other legislation. The constitutional arrangements and general provisions for the Commission are set out in Schedule 1, which makes provision for the Commission, the General Social Care Council and the Care Council for Wales (see notes on section 54 below).

44. Subsection (2) provides that the Commission must, in the exercise of its functions, act in accordance with directions given to it by, and under the general guidance of, the Secretary of State. Subsection (4) provides that the power for the Secretary of State to issue directions, includes directions in connection with organisational and structural matters, such as, for instance, the establishment of regional offices, or a separate division for private and voluntary healthcare.

45. The Commission will be responsible for the regulation of the whole range of care services from care homes for the elderly, children's homes, domiciliary care, fostering and adoption agencies through to independent hospitals, clinics, medical agencies and nurses agencies. It will also inspect boarding schools, further education colleges which provide accommodation and local authority fostering and adoption services. It will take on the regulation and inspection functions that are currently split between local authorities, Health Authorities and the Department of Health centrally. Some services will be regulated for the first time - these include local authorities' own care homes and children's homes and domiciliary care agencies.

46. Under the provisions of Schedule 1 the Commission (subject to directions) may take any necessary or expedient action to fulfil its statutory duties (paragraph 3). The Secretary of State has powers to make regulations governing the procedures of the Commission, and the appointment of members (paragraph 6) and for the appointment of a chief officer (paragraph 8). The first chief officer will be appointed by the Secretary of State. The Commission will appoint subsequent chief officers itself, subject to the approval of Secretary of State. The following paragraphs are worthy of additional comment:

47. Paragraph 9: The Secretary of State will be able to direct the Commission to appoint regional directors. In line with the White Paper, Modernising Social Services, it is intended that these regions will be based upon the regions of the NHS Executive.

48. Paragraph 10 provides that the Commission must appoint a member of staff as a children's rights director, whose role will be prescribed in regulations. The intention is that he should ensure that the work of the Commission in regulating children's services takes full account of children's rights and welfare. Paragraph 11 provides that the Commission must appoint a director of private and voluntary healthcare, who will be a member of staff with functions to be prescribed in regulations. The intention is that s/he will preside over a separate healthcare division within the Commission, and will oversee the Commission's interests in, and responsibilities for, the regulation of independent healthcare.

49. Paragraph 12 makes provision for an authority to appoint staff and provides that an authority may pay or make provision for the payment of pensions, allowances, gratuities or compensation, subject to directions from the Secretary of State.

50. Paragraph 13 provides that the Commission may arrange for any of its functions to be carried out by a committee or member of staff of the Commission, or by another person. Paragraph 14 makes provision to enable staff from other bodies, such as Health Authorities and the Commission for Health Improvement, to be placed at the disposal of the Commission and vice versa.

51. Paragraph 15 provides that the Commission may run conferences, seminars and other training events. Paragraph 17 allows the Commission to charge a reasonable fee for non-regulatory activities. Although registration and annual fees will cover the costs of regulation, there are some activities which the Commission will carry out which it would not be fair to expect all registered services to pay for. The Commission might, for example, wish to charge a fee to those who attend its training events, in order to recover its outlay.

Section 7 General duties of the Commission

52. Section 7 sets out the general duties of the Commission, and therefore applies only to England. The duties in subsections (1) to (7) relate to services that are subject to regulation under Part II, with the exception of private and voluntary healthcare. These services are collectively known as "Part II services". The duties include monitoring the availability and quality of such services, supporting consumers through the provision of information and encouraging the development of better services.

53. Subsection (1) provides that the Commission must keep the Secretary of State informed as to the provision, availability and quality of Part II services. This will include reporting on trends in the provision of long term care. Subsection (2) provides that the Commission will have the general duty of encouraging improvements in the quality of Part II services. It will do this by, for example, disseminating examples of good practice and giving advice to providers on how to meet the national minimum standards (see section 23). Under subsection (3) the Commission is required to provide information about Part II services to the public. This might include information about the location and types of services available, as well as the results of its inspections of individual providers. Subsection (4) provides that the Secretary of State may require advice or information from the Commission about any aspect of the provision of Part II services. Subsection (5) enables the Commission to advise the Secretary of State about changes to the national minimum standards with a view to seeking improvement in the quality of services. Subsection (6) provides for the Secretary of State to make regulations conferring additional functions on the Commission.

Section 8 General functions of the Assembly

54. This section makes similar provision for the Assembly, as section 7 makes for the Commission. Subsection (1) sets out the general duties of the Assembly in relation to Part II services to encourage improvement in quality of services. Subsection (2) provides that the Assembly shall make information available to the public about Part II services. Subsection (3) provides a parallel power to that in section 7(6) so that the Assembly may, by regulations, confer additional functions on itself, but only where that function has already been conferred on the Commission by the Secretary of State. Subsection (4) provides for the Assembly to have powers to charge for fees in connection with its regulatory duties. Subsection (5) provides for the Assembly to provide training in relation to the attainment of national standards. Equivalent powers for the Commission are in Schedule 1, which does not apply to the Assembly.

Section 9 Co-operative working

55. This section gives the Secretary of State a power to introduce regulations enabling the Commission (or the Assembly) and the Commission for Health Improvement (CHI) to delegate functions to one another. It recognises that, although their roles are distinct (CHI is a key part of the arrangements for modernising the NHS and will review the arrangements that NHS organisations have in place to update and improve the services they deliver; in contrast, the Commission will seek to ensure the individual independent healthcare providers have safeguards and quality assurance systems in place by regulating them against set national minimum standards), they also have common interests. For instance, CHI's review of NHS Trusts will include those that have contracts with independent healthcare providers that the Commission will regulate. The two bodies will, therefore, need to liaise and work together effectively. The intention of this provision is to help enable them to do so. All regulations made under this section must be made by the Secretary of State, but he may not make regulations enabling CHI's functions to be exercised by the Assembly without the agreement of the Assembly.

Section 10 Inquiries

56. Subsection (1) enables the Secretary of State to act on any concerns over the Commission's exercise of its functions, by setting up an inquiry. Subsection (2) allows the Secretary of State to set up an inquiry into any matter connected with a regulated service. For example, if a consultant surgeon working in a private hospital was found to have unusually high death rates among his patients, the Secretary of State could set up an inquiry to investigate. Subsections (3) and (4) enable an inquiry to be held in private. This might be necessary to protect, for example, a victim of child abuse.

57. Subsection (5) provides for section 250 (2) to (5) of the Local Government Act 1972 to apply in relation to an inquiry. This will enable the person holding the inquiry to issue a summons requiring an individual to give evidence or produce any documents in their custody or under their control at a stated time and place. If that person fails to attend (for reasons other than not having the necessary expenses of their visit paid or tendered), they are liable to a fine or imprisonment.

58. Subsection (6) provides for the Assembly to have similar powers to those referred to in paragraph 56 above.

59. Subsection (7) requires that reports of inquiries set up under the powers in this section should be published unless the appropriate Minister considers that there are exceptional circumstances that make publication inappropriate. Grounds for not publishing may include, for example, publication being prejudicial to ongoing criminal investigations or proceedings.

PART II ESTABLISHMENTS AND AGENCIES

60. Part II makes provision for registration, the registration procedure, regulations and standards, offences and miscellaneous provision. Sections 11 to 20 set out the provision for registration and the regulatory procedures to be followed by the registration authority. Provision for a right of appeal against decisions of the registration authority is made in section 21. Section 22 provides regulation making powers for the appropriate Minister to make provision as respects management and staffing, fitness of premises and the conduct of any services regulated under Part II. Section 22 will not apply to adoption agencies. The regulations governing their procedures will continue to be made under the Adoption Act 1976, as amended by the Act to match the provisions of section 22. Section 23 enables the appropriate Minister to issue national minimum standards for England or Wales applicable to all regulated services. Any breach of these standards will not, of itself, be a breach of regulatory requirements, but the standards shall be taken into account when determining whether a breach of the regulations has occurred. Sections 24 to 30 provide for offences under this Part, and sections 31 to 42 make miscellaneous and supplemental provision.

Registration

61. Sections 11 to 20 set out the procedures which underpin the registration process, the registration authorities' day-to-day activities of considering applications for registration, conditions of registration, cancellation of registration and procedures for notifying applicants or providers of decisions. Section 21 provides for rights of appeal. The establishments and agencies in respect of which registration is required are those defined in sections 1 to 4.

Section 10 Requirement to register

62. Subsection (1) provides that any person who carries on or manages an establishment or agency of any description must be registered, and it will be an offence to carry on or manage such an establishment without being registered in respect of it. The principle is that each establishment or agency should have a registered owner or proprietor (person who 'carries on' the business). If the person who carries on the business is not in day-to-day control of it, it is intended that the regulations will require the appointment of a manager who must also be registered by the registration authority (see section 22). Subsection (2) provides that an agency operating from several branches must register each branch separately.

63. Subsection (3) - registration is required in respect of voluntary adoption agencies under the provisions of Part II, but the relevant sanctions remain within section 11 of the Adoption Act 1976.

64. Subsection (4) enables the Secretary of State to make provision about registers to be kept by the Commission.

65. Subsections (5) and (6) relate to offences. A person who carries on or manages an establishment or agency without being registered will be guilty of an offence and liable to a fine up to level 5 on the standard scale*. If the person continues to run an unregistered establishment or agency after having been convicted of this offence, or after their registration has been cancelled, then they will be guilty of an offence and liable to six months' imprisonment, or a fine, or both.

* See paragraph 97 of these notes for definition of standard scale.

Section 12 Applications for registration

66. This section sets out the framework for applications for registration, with subsection (1) requiring that the application for registration must be made to the registration authority. Subsection (3) requires that a person applying for registration as a manager of an establishment or agency must be an individual, and not other types of legal 'person', such as a limited company or local authority. (See also the notes to sections 22 and 56, which together provide that a manager may be required to register on an appropriate part of the Council's register of social care workers.)

Section 13 Grant or refusal of registration

67. Registration will only be granted if the registration authority is satisfied that the applicant has demonstrated that they have complied or will comply with all relevant requirements. The burden of proof is with the applicant rather than the registration authority.

68. Subsection (2) provides that if the registration authority is satisfied that the applicant is complying or will comply with any requirements set out in regulations under section 22 and the requirements of any other legislation which appears to the registration authority to be relevant, it must grant the application for registration, otherwise it must refuse it. If it grants the application, it must issue a certificate of registration (subsection (4)).

69. Subsection (3) provides that the registration authority will be able to grant an application either unconditionally or subject to such conditions as it thinks fit. Conditions may be generic or specific. For example, the registration authority will be able to impose conditions on care homes specifying the categories of patients and the number of residents that may be accommodated. In some cases a specific condition may be required to take account of the circumstances in that individual home, centre, agency, private hospital or clinic. For example, there might be a condition that a particular door be kept locked to prevent confused residents from wandering directly on to a busy road.

70. Subsection (5) The registration authority may vary or remove a condition of registration at any time or impose an additional condition.

Section 14 Cancellation of registration

71. This section gives the registration authority the power to cancel the registration of a person in respect of an establishment or agency, where a condition of registration has been breached, where a regulatory requirement has been breached or where a relevant offence has been committed. Further grounds for cancelling registration may be specified in regulations. Registration can be formally cancelled, even if an owner closes the establishment or agency before the cancellation process has been completed. This will ensure that the owner's record accurately reflects the situation, and they will not be able to open a new home elsewhere without the registration authority being aware of the previous history.

72. Relevant offences for the purposes of section 14 are -

• failure to comply with conditions (section 24);

• contravention of regulations (section 25);

• false description of an establishment or agency (section 26);

• false statements in applications (section 27)

• failure to display a certificate of registration (section 28);

• obstructing an inspector (section 31);

• the offence of contravening regulations under section 9(2) of the Adoption Act 1976;

• any offence under the Children Act 1989 or any regulations made under it;

• offences under regulations made under section 1(3) of the Adoption (Intercountry Aspects) Act 1999;

• offences under the Registered Homes Act 1984 or regulations made under it.

73. Cancellation of registration would not normally be the first step in a formal enforcement action. It is more likely to be used where other actions such as prosecution have failed to ensure compliance by the establishment or agency. If a registered person is convicted of a relevant offence, such as breaching a condition of registration (an offence under section 24), and still fails to remedy the breach, the registration authority will be able to consider cancellation of the person's registration.

Section 15 Applications by registered persons

74. Subsection (1) enables the registered person to apply for a change to their conditions of registration (for example to change the number of people accommodated in the home) or to apply voluntarily for the cancellation of registration, for example, if they plan to close or sell the business. Subsection (2) prevents a person voluntarily cancelling his registration if the registration authority have given notice of intention to, or decided to, cancel registration. Subsection (3) enables the appropriate Minister to make regulations specifying the particulars to accompany such an application, including provision for a prescribed fee. Subsection (4) provides that if the registration authority grant the application they must give notice in writing and issue a new certificate of registration.

Section 16 Regulations about registration

75. Section 16 provides for regulation-making powers with respect to registration. Regulations covering applications for registration (subsection (1)(a)) will deal with matters such as the information that should be provided in the application. Regulations made under subsection (1)(b) may require certificates of registration to include, for example, the conditions of registration for that person in respect of that establishment or agency eg the categories of person a care home may accommodate.

76. Subsection (2) concerns fostering and adoption agencies. The appropriate Minister will be able to make regulations to provide that fostering agencies or voluntary adoption agencies which are unincorporated bodies are ineligible to apply to be registered. This provision restates section 9(1) of the Adoption Act in respect of voluntary adoption societies (which is to be repealed) and applies it to fostering agencies.

77. Subsection (3) enables regulations to be made requiring registered persons to pay an annual fee. These may be set at different levels or on a different basis for different types of organisation. Decisions will be made about the level and structuring of fees at a later date. Subsection (4) provides that unpaid fees may be recovered in the Magistrate's court.

Registration procedure

Sections 17 to 19 Notices and right to make representations

78. Section 17 provides for the registration authority to give notice of decisions it intends to take ("notice of proposal") with respect to applications for registration, cancellation of registration or any change to the conditions of registration. Notice must be given to the applicant or registered person and must set out the reasons (subsection (6)). For example, in the case of a person applying for registration for the first time, the notice of proposal will state whether or not the registration authority proposes to register them, and if so, the conditions subject to which they propose to grant the application. Section 17 does not apply where the registration authority decides to grant an application for registration unconditionally, or subject to agreed conditions.

79. Section 18 states that a notice given under section 17 must indicate that the person can, if they so wish, make written representations to the registration authority within a time limit of 28 days (subsection (1)). This stage ensures that the applicant has the opportunity to make their point of view known. Subsection (2) provides that the registration authority may not make a decision until the 28 day period has ended unless they receive representations during the 28 day period or the person notifies the registration authority that he will not be making representations.

80. Once the representations stage has been completed, section 19 requires the registration authority to serve a notice in writing of their decision on the applicant. The notice must explain the right of appeal conferred by section 21 and in the case of a decision to grant an application subject to conditions or to vary conditions, set out those conditions. A decision to cancel registration, to grant an application subject to conditions which are not agreed, or to or change conditions will take effect only after the outcome of any appeal has been determined, or after 28 days if no appeal is brought. In the case of a decision to grant an application subject to conditions which are not agreed, if the applicant decides not to pursue his appeal the decision will take effect immediately.

Section 20 Urgent procedure for cancellation etc.

81. This section provides that the registration authority may apply to a justice of the peace for the immediate cancellation of registration or change in the conditions of registration of an establishment or agency. The justice may only make the order where it appears to him that unless the order is made there is a serious risk to a person's life, health or well-being. An order made under this section has immediate effect. It is intended to provide for a fast track procedure for appeals to the Tribunal against orders made under this section (see section 21).

82. Subsection (3) requires the registration authority to notify the local authority and Health Authority as well as any other statutory authority it considers appropriate, of the making of an urgent application. This is necessary so that the local authority can comply with their statutory duties as required, for example to provide or arrange alternative care for the service users in accordance with their duties under section 47(1) of the National Health Service and Community Care Act 1990, and that the Health Authority may consider whether to make provision for NHS services. It will be important that all statutory bodies that may be affected by the cancellation of a provider's registration have as much notice as possible to make any necessary arrangements. Subsection (7) defines a statutory authority for this purpose.

Section 21 Appeals to the Tribunal

83. Section 21 provides for an appeal against a decision of the registration authority under Part II. The appeal is to the Tribunal established under section 9 of the Protection of Children Act 1999. Subsections (3) to (5) provide for the Tribunal's powers on considering an appeal.

Regulations and standards

84. Section 22 provides regulation-making powers which will cover the management, staff, premises and conduct of establishments and agencies (other than voluntary adoption agencies). It also provides for regulations to be made regarding the welfare of service users. Section 23 gives the appropriate Minister the power to publish statements of national minimum standards with which establishments and agencies are expected to comply. They are to be taken into account as stated in subsection (4). For example, a regulation made under section 22 might state that suitable and nutritious food should be provided to all residents in a home. The national minimum standards would set out what registered providers are expected to provide in terms of the number of meals per day and their nutritional content.

85. Different services will have different sets of regulations and standards which will be appropriate to the type of service.

Section 22 Regulation of establishments or agencies

86. Subsection (1) provides a general power to make regulations imposing any requirements as the appropriate Minister thinks fit. Subsection (2) amplifies this, providing for regulations to be made that will be key to the registration of establishments and agencies. It will be essential that the registration authority can ensure establishments and agencies are carried on or managed by persons who are fit to do so. This subsection allows regulations to be made to ensure that establishments and agencies are suitably managed, staffed and equipped and that premises are fit for their purpose.

87. Subsection (2) (d) provides powers to make regulations regarding the welfare of persons accommodated in establishments or provided with services by them, or who use the services of an independent medical agency or domiciliary care agency. Subsection (2) (e) provides similar powers to make regulations to secure the welfare of children placed by independent fostering agencies.

88. Subsections (3) and (4) provide that regulations may be made prohibiting a person's appointment as manager of, or employment in, an establishment or agency unless they are on a register of social care workers, maintained under section 56.

89. Subsections (5) and (6) provide that the welfare regulation making powers in 22 (2) (d) and (e) may cover the protection and promotion of health, the control and restraint of adults, and the control and restraint and discipline of children. This will enable regulations to set out what is acceptable behaviour management for adults and children.

90. Subsection (7) gives the appropriate Minister power to make provision as to the conduct of an establishment or agency, including the provision of facilities and services, record keeping, notification of events, arrangements for dealing with complaints and in relation to independent hospitals and clinics, the arrangements to be made to secure that any medical or psychiatric treatment or listed services meet appropriate standards.

91. Subsections (7)(h) and (i). Just as it will be important for the registration authority to be made aware of a change in the person managing a home or branch of an agency, so will it be important to have notice of changes in the ownership or the officers of a company which was registered in respect of a service. Fit person checks of company officers have a cost, and so in order to satisfy itself that the officers of the company taking over are fit persons, the registration authority would need to carry out these checks and be able to charge for this.

92. Subsection (8) concerns regulations made in respect of secure accommodation for children, which may cover both its provision and its use, and facilities for religious instruction in children's homes.

93. Subsection (9) requires the appropriate Minister to consult such persons as he considers appropriate before making or significantly amending regulations under the powers in this section.

94. Subsection (10) Voluntary adoption agencies are excepted from the regulation-making powers set out in this section as equivalent provision is being made for them through amendments to the Adoption Act 1976 (see Schedule 4, paragraph 5(6)(b)).