Section 23 National minimum standards

95. Section 23 provides for the appropriate Minister to prepare and publish national minimum standards applicable to establishments and agencies. These will specify the standards applicable to the services and which, as subsection (4) makes clear, must be taken into account by a registration authority when making any decision, or in any proceedings for an offence under regulations under Part II. The standards may include parts of the GSCC codes of conduct and practice for employers of social care staff (see note to section 62).

Offences

96. Sections 24 to 30 set out the offences under this Part of the Act. The registration authority will be the prosecuting authority in respect of these offences, using the powers of entry and inspection under section 31 and section 32 to gather evidence.

97. The registration authority will have two possible routes for enforcement action where a provider is not fulfilling their obligations: they can prosecute, or they can take action that may ultimately lead to cancellation of registration (see sections 14 and 20). It is intended that both courses of action could be pursued at the same time, if necessary. If convicted of an offence under this Part the registered person would be liable to the prescribed fine, as per the standard scale*, or in some cases, imprisonment. Similar provisions for offences, including those with regard to proceedings and offences by bodies corporate, were made under the Registered Homes Act 1984 in Part IV (sections 46 to 53).

* There are five levels to the standard scale for fines as defined in section 75 of the Criminal Justice Act 1982. A court may impose a fine up to the maximum for the prescribed level. Currently the levels are: level 1 = £200; level 2 = £500; level 3 = £1,000; level 4 = £2,500 and level 5 = £5,000.

Section 24 Failure to comply with conditions

98. Where the conditions of registration are not adhered to without reasonable excuse, the registration authority may prosecute.

Section 25 Contravention of regulations

99. Subsection (1) provides that regulations made under this Part may provide that a failure to comply with the regulations will be an offence. It is intended that the regulations will provide that the registration authority may serve a notice in respect of a breach of a regulatory requirement, requiring it to be remedied within a specified period. If at the end of that period the breach has not been remedied, the person shall be guilty of an offence. Subsection (2) provides the fine shall not exceed level 4 on the standard scale.

Section 26 False descriptions of establishments and agencies.

100. Section 26 makes it an offence for a person to describe any premises as a particular kind of establishment or agency when it is not registered as such. This would catch, for example, an unscrupulous hotel proprietor who tried to pretend his hotel was a nursing home. It would also catch registered persons who misrepresent the nature of their establishment, by claiming it is suitable for a particular category of resident when it is not. The penalty on summary conviction is a fine not exceeding level 5 on the standard scale.

Section 27 False statements in applications

101. This section makes it an offence for an applicant knowingly to make a false or misleading statement in applications to the registration authority. The penalty will be a fine of up to level 4 on the standard scale. The application forms will inform people of this offence, which should act as a strong incentive for people to complete their applications accurately.

Section 28 Failure to display certification of registration

102. Section 28 makes it an offence not to display a certificate of registration. The penalty on summary conviction is a fine not exceeding level 2 on the standard scale.

Section 29 Proceedings for offences

103. Section 29 provides that proceedings in respect of offences under Part II may not be taken by any person, without the consent of the Attorney General, other than the Commission or, in the context of his default powers the Secretary of State; or the National Assembly for Wales. Subsection (2) extends the time allowed for proceedings to be brought in respect of offences under this Part. The usual limit for the prosecution of summary offences is six months after the offence is committed. However, in some cases, offences may only come to light after an inspection or whistleblowing. Subsection (2) therefore provides for a six month time limit from when the offence comes to light, with an overall time limit of three years from the commission of the offence.

Section 30 Offences by bodies corporate

104. Subsection (2) provides that if an offence under Part II is proved to have been committed with the consent or connivance of an officer of a body corporate then he as well as the company are guilty of the offence. Individual officers of a body corporate who are complicit in an offence under this Part of the Act, will not be able to escape prosecution simply because the body corporate is liable: both may be liable to prosecution.

Miscellaneous and Supplemental

Section 31 Inspections by persons authorised by the registration authority

105. Subsection (1) provides that the registration authority may require a person who carries on or manages an establishment or agency to provide it with any information to enable the registration authority to discharge its functions. Subsection (2) enables a person authorised by the registration authority to enter and inspect premises at any time if they are used or he believes them to be used as an establishment or for the purposes of an agency. These powers are necessary to ensure compliance with the regulatory framework.

106. Inspectors may also require relevant records or other documents to be produced for inspection on the premises wherever they may be kept, and where they are stored on computer, that they are produced in a legible, not encrypted, form. Inspectors will also be able to copy or remove relevant records (other than medical records), and will be able to interview, in private, the manager, employees, or any patients or persons accommodated or cared for there who consent to be interviewed (subsections (3) and (4)).

107. Subsections (5) and (6) allow a medical practitioner or registered nurse to examine in private, with their consent, a patient or resident, or their medical records, where they believe that the person may not be receiving proper care. If the person is incapable of giving their consent, a medical practitioner or registered nurse may still examine them and/ or their medical records if they believe they have not been receiving proper care.

108. Subsection (7) provides for a regulation-making power to determine the minimum frequency of inspections of premises by a registration authority, and subsection (8) requires inspectors to produce appropriate documentation showing their right to enter and inspect the premises if required so to do.

109. Subsection (9) makes it an offence for a person to intentionally obstruct the exercise of the powers under this section or section 32. The penalty on summary conviction is a fine not exceeding level 4 on the standard scale.

Section 32 Inspections: supplementary

110. Section 32 allows a person (authorised to enter and inspect premises by virtue of section 31) to remove any material etc. which could be used as evidence of possible non-compliance with requirements. Subsection (2) imposes a requirement to assist the authorised person and permits the authorised person to take such measurements and photographs and make such recordings as he considers necessary to enable him to exercise his powers under this section. Subsection (5) requires the registration authority to prepare a report after carrying out an inspection under section 31 and send a copy of the report to the registered persons. Subsection (6) provides that the registration authority must make the report available to the public. Subsection (8) provides that in England, inspection reports shall be made available in the regional offices of the Commission in the region in which the premises are situated.

Section 33 Annual Returns

111. Section 33 enables the appropriate Minister to make regulations requiring the person carrying on an establishment or agency to provide the registration authority with an annual return to include whatever details and cover whatever period of time is prescribed.

Section 34 Liquidators etc.

112. Section 34 enables the appropriate Minister to make regulations such that if an establishment or agency were to go into receivership or liquidation, the liquidator must inform the registration authority of his appointment. The regulations will require the liquidator to appoint a suitably qualified manager.

Section 35 Death of registered person

113. Subsection (1) enables the appropriate Minister to make provision in regulations for what is to happen in a case where a person who was the only person registered in respect an establishment or agency dies. This might be the case if a person carrying on a care home is also in control of its day to day running. The personal representatives will be required to notify the registration authority. Subsection (2) enables the regulations to specify the period during which the personal representatives will be allowed to carry on the business. The regulations will permit the registration authority to decide whether it is appropriate for a personal representative or relative to carry on running the establishment or agency for a further period.

Section 36 Provision of copies of registers

114. Subsection (1) provides that copies of any register which it has to keep are available for inspection. A person may be provided with a copy or extracts of a register on request (subsection (2)). A charge may be made except where prescribed in regulations or the registration authority decides it should be provided free. However, it would not be acceptable to release some information contained in registers, for example a list of children's homes in a given area. Subsection (3) therefore enables regulations to be made providing that the register may not be inspected, or copies of the register or extracts are not to be made available, in such circumstances as the appropriate Minister may prescribe.

Section 37 Service of documents

115. Section 37 makes provisions about service of documents. They may be delivered personally or sent by registered letter or recorded delivery. Service will be deemed to have taken place on the third day after the day on which the document is sent.

Section 38 Transfers of staff under Part II

116. Section 38 makes provision for the appropriate Minister to transfer eligible staff from Health Authority and local authority inspection units to the registration authority. Their existing contract of employment will have effect as if made between the designated members of staff and the registration authority (see notes to sections 114 and 115).

Section 39 Temporary extension of meaning of "nursing home"

117. Section 39 makes interim provision for the regulation of dental practitioners using premises for the wholly private treatment of patients under general anaesthesia. Responsibility for the registration of such premises will ultimately pass from the Health Authority to the Commission or the Assembly. The section amends the existing exemptions under the Registered Homes Act 1984, which had previously excepted all premises used by dental practitioners for the treatment of their patients, unless the treatment involved the use of class 3B and 4 lasers. This provision will have effect for the period during which the Registered Homes Act remains in force.

Section 40 Temporary extension of meaning of "children's home"

118. Section 40 makes interim provision for the regulation of small private children's homes accommodating fewer than four children. This section amends the definition of "children's home" in section 63 of the Children Act 1989 so as to require small children's homes to be registered. This will have the effect of requiring these homes to be registered with local authorities under existing legislation until such time as the registration provisions in Part II are commenced, at which point the responsibility will pass to the Commission or the Assembly.

Section 41 Children's homes temporary provision about cancellation of registration

119. This section makes provision about the cancellation of registration of all children's homes, for to cover the period up to full implementation of Part II of the Act. In particular, it will apply to small homes required to register under the Children Act for the first time by section 40. 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 past history.

Section 42 Power to extend application of Part II

120. This section makes provision, through regulations, for the future registration of other services which are not covered on the face of the Act. The services concerned are those that are, or are similar to services which local authorities provide in the exercise of their social services functions, or similar to those provided by certain NHS bodies. An example of such a local authority service would be day care for adults. NHS-type services to which this provision may apply include, for example, treatment provided in private patients' own homes through future developments in telecare and telemedicine. The extension could also be applied to agencies that supply staff who provide any of these services.

PART III LOCAL AUTHORITY SERVICES

121. Part III concerns local authority fostering and adoption services. The principle behind these provisions is that all such services, whoever provides them, should be required to meet the same standards. The registration authority will inspect these services, using powers in sections 45 and 46, applying equivalent standards as for voluntary adoption agencies and independent fostering agencies registered under Part II. Local authority provision will not be registered, but where an authority is found to be failing in England the National Care Standards Commission must report the authority to the Secretary of State. In Wales, the registration authority will report the matter to the relevant part of the National Assembly for Wales, which will take appropriate action.

Section 43 Introductory

122. This section defines the functions that are subject to inspection by the registration authority. In respect of adoption, the relevant functions are those of making or participating in arrangements for the adoption of children. These are the local authority functions with respect to which regulations may be made by virtue of section 9(3) of the Adoption Act 1976, and which are also carried out by voluntary adoption agencies (which will be regulated under Part II of this Act). The relevant functions cover, in particular, the approval of prospective adopters, the preparation of children for adoption and the making of adoptive placements.

123. In respect of fostering, the relevant functions are those which are capable of being delegated to other bodies by virtue of regulations made under paragraph 12(g) of Schedule 2 to the Children Act 1989. They include the approval of foster parents, the placement of children on behalf of the local authority, and the supervision of the placement. Bodies which act for local authorities under delegated powers are to be regulated as fostering agencies under Part II of this Act. Relevant functions for these purposes do not extend to any of the local authority's discretionary duties in respect of children it is looking after, for example to safeguard and promote welfare, to decide on the type of placement and to review their cases. Such duties may not be delegated.

Section 44 General powers of the Commission

124. Section 44, which provides that the Commission may give advice to the Secretary of State in respect of Part III matters, mirrors the provision in respect of Part II services in section 7(5). The Commission may therefore advise the Secretary of State of any changes that need to be made to secure improvements in the quality of local authority fostering and adoption services, and of any changes that may need to be made to the national minimum standards provided for in section 49.

Sections 45 and 46 Inspection of relevant adoption and fostering services

125. These sections provide for the inspection of relevant adoption and fostering services. To a large extent these provisions mirror those in sections 31 and 32, which provide for similar powers to be exercised in relation to the regulation of independent fostering agencies and voluntary adoption agencies. The powers in these two sections are wide and are exercisable by a person so authorised by the registration authority.

Section 45 Inspection by registration authority of adoption and fostering services

126. Section 45 relates closely to section 31. Subsection (1)(a) obliges an authority to provide whatever information the authorised person requires and subsection (1)(b) provides for the entry and inspection of premises used by the authority in the discharge of relevant adoption and foster care functions. Subsections (2) and (3) make provision about access to documents and records, including computer records, and provides for an authorised person to interview in private any employee of the authority. If records are stored on a computer they must be produced in a legible, not encrypted, form. Subsection (4) provides for a regulation making power to determine the frequency of inspections.

127. Subsection (5) applies section 31(8) and (9), which provide for the proper identification of a person exercising powers of entry and inspection on behalf of the registration authority, and for offences. Obstruction or a failure to comply with inspection requirements without reasonable excuse is a summary offence, punishable by a fine at level 4 on the standard scale.

Section 46 Inspections: supplementary

128. Section 46 relates closely to section 32. Subsection (1) permits an authorised person to remove any document or other material on the premises as evidence of possible non-compliance with the regulatory requirements (as defined by subsection (7)). Subsection (2) imposes a requirement to assist the authorised person, and permits the authorised person to take measurements and photographs and make recordings, for example, a tape or video recording, in the exercise of his inspection powers. Subsection (3) provides the authorised person with a right of access to computers.

129. Subsection (4) requires the registration authority to prepare a report after carrying out an inspection under this Part, and to send a copy of this report to the local authority as soon as possible. Subsections (5) and (6) provide that the registration authority must make the report available to the public.

130. Subsection (7) identifies the regulatory requirements that apply to this section and section 45. These are:

• requirements set out in regulations made under section 48;

• regulations made under section 23(2)(a) of the Children Act 1989 (at present, the Foster Placement (Children) Regulations 1991 (SI 1991 No 910) (as amended) and Arrangements for Placement of Children (General) Regulations 1991 (SI 1991 No 890) (as amended);

• regulations made under section 9(3) of the Adoption Act (at present, the Adoption Agencies Regulations 1983 (SI 1983 No 1964) (as amended);

• regulations made under the Adoption (Intercountry Aspects) Act 1999 (none yet in force).

131. Subsection (8) provides that, in England, inspection reports shall be made available in the regional offices of the Commission in the region in which the relevant local authority is situated.

Section 47 Action following inspection

132. This section deals with the action to be taken by the Commission following inspection of a local authority in England. By subsection (1) the Commission must notify the Secretary of State at any time if it considers that a local authority does not satisfy the regulatory requirements, where the failure is substantial.

133. The Commission must also report to the Secretary of State following the exercise of its powers of inspection, and at the expiry of any time limit for improvement specified in a notice given to the local authority under subsection (5) (see below). At such times, the Secretary of State must be notified whether a local authority satisfies the regulatory requirements, or fails to do so. Alternatively, the Commission may, if it considers appropriate, give the local authority a notice under subsection (5) and inform the Secretary of State that it has done so. A notice under subsection (5) specifies those areas or issues in which the authority fails to satisfy the regulatory requirements and what action it should take to remedy the failure. The notice also imposes time constraints within which a failure should be remedied. At the end of the period specified in any notice, the Commission must notify the Secretary of State whether or not the local authority now satisfies the regulatory requirements.

134. Where the Commission has made a report to the Secretary of State to the effect that a local authority is not meeting regulatory requirements, subsection (6) applies so that the Commission is relieved of its duty of inspection until the Secretary of State notifies the Commission that subsection (6) ceases to apply. The purpose of this provision is to avoid duplication of powers and duties in the event that the Secretary of State decides to take enforcement action in respect of the local authority.

135. These powers do not apply in Wales since the National Assembly for Wales will both undertake regulatory responsibility and have enforcement powers in respect of the local authority.

Section 48 Regulation of the exercise of relevant fostering functions

136. This section provides for regulations imposing requirements concerning the exercise of a local authority's relevant fostering functions as defined by section 43(3)(b). Parallel provision is made in respect of "relevant adoption functions" by amendment to section 9(3) of the Adoption Act 1976. The powers mirror, with necessary adjustments, those in section 22 with the intention that similar standards should apply to both local authority and independent sector services. Regulations may provide for the fitness of workers, the suitability of premises; management and control of operations; numbers and types of workers and their management and training. By section 52 the regulations may provide that breach of a specified provision is a summary offence, punishable by a fine not exceeding level 4*. The equivalent power in the Adoption Act 1976 is in section 9(4), as amended by this Act.

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

Section 49 National minimum standards

137. This section empowers the appropriate Minister to prepare and publish national minimum standards applicable to relevant local authority adoption and fostering functions, mirroring the provision in Part II for voluntary adoption agencies and fostering agencies. As provided for in Part II, any new standards or significant changes must be subject to consultation before being issued, and a failure to comply with the national minimum standards will be taken into account by the registration authority in deciding whether a local authority has met the regulatory requirements.

Section 50 Annual Returns

138. This section, which mirrors section 33, makes provision about annual returns of information to be made by the local authority in respect of its relevant adoption and fostering functions.

Section 51 Annual fee

139. Regulations may be made requiring an annual fee of a prescribed amount to be payable to the registration authority by the local authority. Unpaid fees may be recovered in the Magistrate's court.

Section 52 Contravention of regulations

140. In parallel with Part II, regulations made under this Part may create offences.

Section 53 Offences: general provisions

141. This section applies sections 29 (proceedings for offences) and 30 (offences by bodies corporate) to this Part.

PART IV: SOCIAL CARE WORKERS

142. Part IV concerns the functions and procedures of the General Social Care Council (GSCC) and Care Council for Wales (CCW) (Cyngor Gofal Cymru), referred to collectively as "the Councils". Sections 54 and 55 set out the definitions relevant to this Part of the Act. The Councils will maintain registers of social care workers, and the procedures for this are set out in sections 56 to 60. Section 61 enables the title of "social worker" to be protected, by making it an offence to describe oneself as a social worker with intent to deceive, if not registered as a social worker with one of the Councils. Section 62 concerns the Councils' responsibilities to develop and promulgate codes of practice for social care work. Sections 63 to 66 set out the Councils' functions with regard to regulating the education and training of social workers, including requirements in respect of applicants with qualifications gained outside England and Wales.

143. The Councils will both be established as non-departmental public bodies, with the GSCC being sponsored by the Department of Health, and the CCW being sponsored by the National Assembly for Wales. The Councils will operate according to rules, which they will draw up and which will need the approval of the Secretary of State for the GSCC in England, and the National Assembly for Wales for the CCW in Wales. Individuals will have a right of appeal to an independent Tribunal against the Councils' decisions not to register them or to remove them from the register.

144. In the remainder of these notes, a reference to "the Council" means, in relation to England, the GSCC, and in relation to Wales, the CCW.

Preliminary

Section 54 and Schedule 1: Care Councils

145. Section 54 establishes the GSCC for England and the CCW for Wales. The constitution of the Councils is set out in Schedule 1, which as indicated in paragraph 43 of these notes is a combined schedule setting out the arrangements for the National Care Standards Commission in England in addition to both of the Councils. The following points in Schedule 1 are of particular note with respect to the Councils:

146. Paragraph 3: General powers. This paragraph gives the Councils general powers, which may be subject to direction by the appropriate Minister. These include an express power for the Councils to co-operate with other public authorities in the United Kingdom. If the Councils are to undertake their functions properly and protect the public the English and Welsh Councils must be able to co-operate with each other, and also with equivalent bodies that might be established in Scotland and Northern Ireland. The sort of area in which the Councils would be expected to co-operate would be in exchanging information about people who had been refused registration, removed from a register or allowed qualified registration. Co-operation will be especially important where a person dealt with by one Council moves to another part of the UK. The power to co-operate with other public authorities will also give the Councils scope to co-operate with public regulatory bodies on other fields, such as the United Kingdom Central Council for Nursing, Midwifery and Health Visiting (the UKCC), where this can further the performance of their functions.

147. Paragraph 5: Membership The appropriate Minister will appoint the Chairman and members of each Council. In England, for example, it is intended that the GSCC will be only as big as is needed to secure the cost-effective discharge of its business, and is unlikely to exceed 25 people. The intention is that the Council will be composed of people representing all the key interests. Members will be appointed so that service users and lay members will be the majority of the Council. Appointments will be made after consultation with service user interests and by inviting applications from members of the public.

148. Paragraph 7: Remuneration and allowances. Remuneration and allowances for each Council will be matters for the appropriate Minister. For the GSCC, for example, it is intended to remunerate the chairman only. All members will be entitled to travel expenses and other costs associated with membership of the Council. It is not intended to make provision for pensions for the chairman or members of the Council.

149. Paragraph 8: Chief officer. The appropriate Minister will appoint the first chief officer of each of the Councils as this post will be filled ahead of the organisations being fully established to allow the first chief officers to assist their Chairmen with preparatory work including appointments of key staff. The Councils will appoint future chief officers themselves.

150. Paragraph 13: Delegation of functions. This gives the Council flexibility to discharge its business in the most efficient way, through the Council itself, its staff or others brought in for the purpose. Examples of outside assistance the Council might use are contracting with suitable outside bodies, using consultants or temporary staff on fixed term contracts depending on the work to be done. Paragraph 14 (Arrangements for the use of staff), enables the Council to make arrangements with other bodies for use of their staff and vice versa.

151. Paragraph 16: Payments to authorities. The appropriate Minister can fund each Council from public money. Both Councils will be funded wholly through this route initially, although in time it is intended that once the registers of social care staff are established fees from registration will contribute to the cost of the registration function, taking into account a suitable registration fee to charge a generally low paid workforce.