2000 Chapter 14

© Crown Copyright 2000

Explanatory Notes to Acts of the UK Parliament are subject to Crown Copyright protection. They may be reproduced free of charge provided that they are reproduced accurately and that the source and copyright status of the material is made evident to users.

It should be noted that the right to reproduce the text of these Explanatory Notes does not extend to the Queen's Printer imprints which should be removed from any copies of the Explanatory Notes which are issued or made available to the public. This includes reproduction of the Notes on the internet and on intranet sites. The Royal Arms may be reproduced only where they are an integral part of the original document.

The text of this Internet version of the Explanatory Notes which is published by the Queen's Printer of Acts of Parliament has been prepared to reflect the text in printed form and as published by The Stationery Office Limited as the Explanatory Notes to the Care Standards Act 2000, ISBN  0105614009. The print version may be purchased by clicking here. Braille copies of the Explanatory Notes can also be purchased at the same price as the print edition by contacting TSO Customer Services on 0870 600 5522 or e-mail:customer.services@tso.co.uk.

Further information about the publication of legislation on this website can be found by referring to the Frequently Asked Questions.

To ensure fast access over slow connections, large documents have been segmented into "chunks". Where you see a "continue" button at the bottom of the page of text, this indicates that there is another chunk of text available.

These notes refer to the Care Standards Act 2000
which received Royal Assent on 20 July 2000 (c.14)

Care Standards Act 2000

EXPLANATORY NOTES

INTRODUCTION

1. These explanatory notes relate to the Care Standards Act 2000. They have been prepared by the Department of Health, with assistance from the Wales Office and Department for Education and Employment, in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament.

2. The notes need to be read in conjunction with the Act. They are not intended to be a comprehensive description of the Act, so where a section or part of a section does not seem to require any comment, none is given.

SUMMARY

3. In November 1998 and March 1999, the Government published two White Papers on its proposals for social services in England and Wales. Detailed proposals for the regulation of private and voluntary healthcare in England and for the regulation and inspection of social care and healthcare services in Wales were set out in consultation documents issued in 1999. The Government's proposals for the regulation of early years education and day care were set out in a consultation document issued in 1998. The recommendations and proposals for the Children's Commissioner for Wales were set out in Sir Ronald Waterhouse's Report Lost in Care, and in the report of the Health and Social Services Committee of the National Assembly for Wales on a Children's Commissioner. This Act implements the main proposals in these documents that require primary legislation

4. The relevant documents are listed below -

• Modernising Social Services (Cm 4169), published in November 1998

• Building for the Future (Cm 4051), published in March 1999

• Regulating Private and Voluntary Healthcare: A Consultation Document, published in England in June 1999

• Regulation and Inspection of Social and Health Care Services in Wales - A Commission for Care Standards in Wales, published in July 1999

• Regulating Private and Voluntary Healthcare in Wales, published in August 1999

• The Regulation of Early Years Education and Day Care, published in March 1998

• Review of the Regulation of Early Years Education and Day Care in Wales, published in August 1998.

• Lost in care - The Report of the Tribunal of Inquiry into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974, published in February 2000. (HC 201; ISBN 0-10-556660-8)

5. In summary this Act -

• establishes a new, independent regulatory body for social care and private and voluntary healthcare services ("care services") in England to be known as the National Care Standards Commission;

• provides for an arm of the National Assembly for Wales to be the regulatory body for such services in Wales;

• establishes new, independent Councils to register social care workers, set standards in social care work and regulate the education and training of social workers in England and Wales;

• establishes an office of the Children's Commissioner for Wales;

• reforms the regulation of childminders and day care provision for young children;

• provides for the Secretary of State to maintain a list of individuals who are considered unsuitable to work with vulnerable adults.

6. The main purpose of the Act is to reform the regulatory system for care services in England and Wales. Care services range from residential care homes and nursing homes, children's homes, domiciliary care agencies, fostering agencies and voluntary adoption agencies through to private and voluntary healthcare services (including private hospitals and clinics and private primary care premises). For the first time, local authorities will be required to meet the same standards as independent sector providers.

7. In England the Act provides for an independent National Care Standards Commission to undertake this regulatory function. In Wales this function will be carried out by a new arm of the National Assembly for Wales, which will be established as either a department or an agency of the National Assembly for Wales.

8. These new arrangements will replace those set out in the Registered Homes Act 1984 (which will be repealed in its entirety) and those provisions in the Children Act 1989 which deal with the regulation of voluntary children's homes and registered children's homes. Community homes will now be regulated. The regulation of voluntary adoption societies will come under the umbrella of the new arrangements. Local authority fostering and adoption services will be subject to inspection, as will the welfare arrangements in all boarding schools and further education colleges which accommodate children.

9. The Act provides for the regulation of the social care workforce, by establishing a General Social Care Council (GSCC) for England, and a Care Council for Wales (CCW), to be known in Welsh as Cyngor Gofal Cymru. These Councils will regulate the training of social workers and raise standards in social care through codes of conduct and practice and through other means. For the first time a register of social care staff will be set up and maintained by each of the Councils. The Act makes provision for the abolition of the Central Council for Education and Training in Social Work (CCETSW), which currently regulates training in social work throughout the UK.

10. The Act establishes an office of the Children's Commissioner for Wales and sets out its functions and powers, which will extend to all the services for children regulated in Wales under the Act: children's homes, residential family centres, local authority fostering and adoption services, fostering agencies, voluntary adoption agencies, domiciliary care, the welfare aspects of daycare and childminding services for all children under the age of eight; and the welfare of children living away from home in boarding schools. The Commissioner's powers and functions include the review and monitoring of arrangements for dealing with complaints, 'whistleblowing' and advocacy; the examination of particular cases; and providing assistance, including financial, to a child in making a complaint or in other proceedings. These powers will also extend to children receiving services in other settings regulated under this Act, such as private hospitals.

11. Arrangements for the regulation of child minding and day care provision for young children will also be reformed. Responsibility for the regulatory function in England will transfer from local authorities to Her Majesty's Chief Inspector of Schools for England (HMCIS) under a new arm of Ofsted. This new arm will bring together the regulation of childcare and early years education. In Wales, these functions will transfer to the new regulatory body for care services to be established as part of the National Assembly for Wales. Early years education in Wales will continue to be inspected by Her Majesty's Chief Inspector of Education and Training in Wales, through Estyn (the Welsh equivalent of Ofsted). Under the revised arrangements in both England and Wales, regulation will be carried out to new national standards. In addition, those working with or coming into contact with older children will be required to demonstrate that they are suitable to do so.

12. The Act imposes a duty on the Secretary of State to maintain a list of individuals who are considered unsuitable to work with vulnerable adults. A single list will be established for both England and Wales. It will operate in a similar way to the list established under the Protection of Children Act 1999. Specified care providers (care homes and domiciliary care agencies which must register with either the National Care Standards Commission or the National Assembly for Wales, and prescribed services within the NHS and independent health sector), and employment agencies and businesses which provide or supply individuals to work in care positions, will be under a duty to refer people to the list in certain circumstances. Care providers will also have to carry out checks of the list before offering employment to potential recruits in a care position working with vulnerable adults, and to refuse employment in such a position to any person included in the list. Provision is also made for registration authorities to make referrals to the list, and for referrals to be made as a result of certain inquiries.

13. The Act provides for a right of appeal against the decisions of the new regulatory authorities and Councils established under the Act, decisions of HMCIS in England in connection with the regulation of child minding and day care and decisions of the Secretary of State regarding the vulnerable adults protection list. Appeals will lie to the Tribunal established under the Protection of Children Act 1999 (which will cover both England and Wales).

14. Other provisions in the Act include -

• changes to the regulation of nurses agencies in England and Wales, removing the nurses agencies' exemption from the Employment Agencies Act 1973, and repealing the Nurses Agencies Act 1957. Nurses agencies will also be required to register with the National Care Standards Commission or the National Assembly for Wales;

• Before Part II of the Act comes fully into force, the Children Act 1989 will be amended to remove the exemption on the requirement to register in the case of small private children's homes (which provide care and accommodation for fewer than 4 children). Such homes will be registered by local authorities until responsibility passes to the National Care Standards Commission and National Assembly for Wales;

• the Registered Homes Act 1984 is to be amended to require the registration under Part II of that Act of all dentists' premises where wholly private dental treatment of patients under general anaesthesia is carried out. This will take effect for the period that the Registered Homes Act remains in operation, until it is replaced by the commencement of the relevant provisions of this Act. Responsibility for the registration of such premises will then pass from the Health Authority to the National Care Standards Commission and the National Assembly for Wales;

• amendments are made to the Protection of Children Act 1999 to modify its application to employment businesses and to extend the scope of the Act to cover persons disqualified from working in independent schools on the grounds of their unsuitability to work with children. Further provision is made for persons to be referred to the list kept under that Act by the National Care Standards Commission or the National Assembly for Wales, or following the result of an inquiry.

• The Local Authority Social Services Act 1970 ("LASS Act") is amended, adding to Schedule 1 of that Act a reference to Section 17 of the Health and Social Services and Social Security Adjudications Act 1983 ("HASSASSA Act"). The effect of this is to allow the provisions of the LASS Act (for example powers of statutory guidance and direction under Section 7) to apply to local authorities' functions under Section 17 of the HASSASSA Act. Those functions relate to charges levied by local authorities for non-residential social services.

BACKGROUND

15. This section provides a brief description of the current legislative framework for the regulation, registration and inspection of the care services covered by this Act. The two principal pieces of current legislation concerned with residential care are the Registered Homes Act 1984 and the Children Act 1989. For more detail about the legislation see Annex 1 to these Notes.

The Registered Homes Act 1984

16. The Registered Homes Act 1984 covers independent residential care homes, nursing homes and mental nursing homes and private hospitals. Residential care homes, which provide residential accommodation with both board and personal care (but not nursing or mental nursing care) are registered under Part I. Homes which provide nursing or mental nursing care are registered under Part II. The definition of nursing home in Part II embraces a wide spectrum of provision from traditional nursing homes and mental nursing homes through to clinics, acute hospitals and psychiatric hospitals. There are exemptions from the requirement to register. Exemptions include children's homes as defined in the Children Act 1989, NHS hospitals and residential homes provided by local authorities under Part III of the National Assistance Act 1948. Homes may be dually registered under Parts I and II.

The Children Act 1989

17. The Children Act provides for three types of children's home: community homes (which include controlled and assisted community homes), voluntary homes and registered homes:

• Community homes (Part VI of the Children Act) are provided by, or partly financed by, local authorities. Homes provided and financed by local authorities are known as maintained community homes. Homes provided by a voluntary organisation and partly funded by local authorities are known as controlled or assisted community homes. Community homes are not required to register but are inspected by local authorities.

• Voluntary homes (Part VII of the Children Act) are provided by charities or other not-for-profit organisations (voluntary organisations). They are regulated by the Secretary of State.

• Registered Children's Homes (Part VIII of the Children Act) are provided by private individuals or companies for profit. They are registered by the local authority. Small private children's homes which accommodate fewer than four children, are not required to register at present and are not inspected.

Other Relevant Legislation

18. Other services covered by this Act are provided for either in these Acts or other legislation. Local authorities provide fostering and adoption services under the Children Act 1989 and the Adoption Act 1976 respectively. Nurses agencies are subject to the Nurses Agencies Act 1957. Matters relating to the regulation of training for social workers are dealt with under the HASSASSA Act.

19. Legislation relating to child minding and day care provision in England and Wales is set out in Part X of the Children Act 1989, which places a duty on local authorities to keep a register of childminders and day care providers, and to require providers to meet reasonable standards. The legislation governing nursery education inspections is in the School Standards and Framework Act 1998, and applies to both England and Wales.

20. The Protection of Children Act 1999 provides for the Secretary of State to maintain a list of persons unsuitable to work with children. Childcare organisations are required in certain circumstances to refer individuals for inclusion on the list, and to check whether an individual is included on the list before offering them work in a child care position. They are prohibited from taking the person on if he is listed. An independent tribunal is established by section 9 to hear appeals against inclusion on the list. The Act amends Part V of the Police Act 1997 to allow information about inclusion on the list to be available where appropriate from the Criminal Records Bureau (CRB) as part of a criminal record certificate or an enhanced criminal record certificate. Until such time as the CRB takes on its functions under Part V of the Police Act 1997, those who must make inquiries under the Act about the inclusion or otherwise of an individual in the list will be entitled to the information from the Secretary of State.

THE ACT

21. The Act is in nine Parts:

• Part I provides for the establishment of the National Care Standards Commission in England and establishes the National Assembly for Wales as the equivalent registration authority in Wales. Part I also contains definitions for the purposes of the Act;

• Part II makes provision for the regulatory procedures to be followed by the National Care Standards Commission in England and the National Assembly for Wales. The Secretary of State and National Assembly for Wales are given powers to make regulations in relation to the care services regulated under this Part of the Act and to issue national minimum standards applicable to all the services to which the registration authorities and providers must have regard;

• Part III provides for the inspection of local authority fostering and adoption services by the National Care Standards Commission and the National Assembly for Wales;

• Part IV concerns the functions of, and procedures to be followed by the General Social Care Council and the Care Council for Wales;

• Part V provides for the establishment of an independent Children's Commissioner in Wales;

• Part VI provides for the regulation of child minding and day care services for young children and provides for checks on the suitability of persons working with older children;

• Part VII imposes a duty on the Secretary of State to maintain a list of individuals who are considered unsuitable to work with vulnerable adults, and makes amendments to the Protection of Children Act 1999;

• Part VIII makes provision about children in boarding schools and further education colleges and makes new arrangements for the regulation of nurses agencies; and for statutory guidance on local authority charges for home care services; and

• Part IX contains supplementary provisions.

COMMENTARY ON SECTIONS

22. Throughout the Act, sections have been drafted such that they apply to both England and Wales where possible. Unless otherwise stated, in these notes, references to functions or duties of the registration authority should be taken as referring in England to the National Care Standards Commission ("the Commission") and, when applied to Wales, be taken as referring to the equivalent functions or duties of the National Assembly for Wales. "The Council" means in England the General Social Care Council and in Wales the Care Council for Wales. The "appropriate Minister" means the Secretary of State in relation to England and the National Assembly for Wales in relation to Wales.

PART I INTRODUCTORY

23. Part I sets out definitions of establishments etc and other terms for the purposes of the Act. Section 6 establishes the National Care Standards Commission ("the Commission") as the registration authority in England. Section 7 sets out general duties of the Commission, which include monitoring the provision and quality of registered social care services, informing and advising the Secretary of State, supporting consumers through the provision of information, and encouraging the development of better services. Section 5 identifies the National Assembly for Wales as the equivalent registration authority in Wales, and section 8 makes equivalent provision for its general duties in respect of its functions under Part II.

Preliminary

24. Sections 1-4 define the services which are to be regulated by the registration authorities. The services are children's homes, independent hospitals, clinics and medical agencies, care homes, residential family centres, domiciliary care agencies, nurses agencies, fostering agencies and voluntary adoption agencies.

Section 1 Children's homes

25. Subsection (2) defines a children's home as an establishment which provides care and accommodation wholly or mainly for children. This will catch community homes, voluntary homes and registered children's homes (including small private children's homes) as defined in the Children Act 1989, and homes for disabled children. Subsection (3) excludes a place where a child is cared for by his parents, a relative, a person with parental responsibility for him or a foster parent. Subsection (4) excludes NHS hospitals, independent hospitals and clinics, schools and other institutions and gives the appropriate Minister the power to make other exceptions in regulations. It is intended that regulations will be made to except, for example, homes where children take holidays or certain hostels set up by professionals to accommodate apprentices (such as footballers or jockeys). Subsection (6) provides that any school which provides accommodation for more than 295 days a year for any individual child must register also as a children's home. Subsection (7) clarifies the definition of foster parent for the purposes of this section.

26. Small private children's homes, accommodating fewer than four children, are not required to register under the Children Act 1989. However, section 40 amends the Children Act to require the registration of such homes by local authorities in the interim.

Section 2 Independent hospitals etc.

27. Section 2 sets out the range of independent healthcare services which are to be regulated. Subsection (2) excludes NHS hospitals from the definition of independent hospitals and clinics.

28. Subsection (3) defines an independent hospital as any establishment which has as its main purpose the provision of psychiatric or medical treatment for illness or mental disorder (including palliative care) or which provides one or more of the services listed in subsection (7) ("listed services"), and any other establishment which provides treatment for people liable to be detained under the provisions of the Mental Health Act 1983. Subsection (6) provides that the definition of "people liable to be detained" does not include people who are on leave granted under section 17 of that Act. This definition of "independent hospital" will encompass all those hospitals and mental nursing homes registered to take detained patients which are currently regulated under Part II of the Registered Homes Act 1984 and other private or voluntary hospitals which are currently not regulated - for example those run by bodies established by Royal Charter or by special Act of Parliament.

29. Subsection (4) defines an independent clinic as a prescribed type of establishment (other than a hospital) where medical practitioners provide services (including services which are provided for the purpose of an independent clinic otherwise than on the clinic's premises, for example in a patient's home). The definition excludes an establishment in which medical practitioners provide NHS services. This will bring private primary care premises, where prescribed, within the regulatory framework for the first time.

30. Subsection (5) defines an independent medical agency as an undertaking (which is not an independent clinic) which consists of or includes the provision of services for private patients by medical practitioners. It excludes any agency that provides NHS services. This will bring wholly private GP call-out services within the regulatory framework.

31. Premises in which "listed services" are provided come within the definition of a hospital. Subsection (7) defines the listed services as medical treatment under anaesthesia or sedation, dental treatment under general anaesthesia, obstetric services and medical services in connection with childbirth, termination of pregnancies or cosmetic surgery. The category of dental treatment under anaesthesia will, by means of regulations, apply to wholly private dentistry only, and NHS arrangements will be changed so that comparable requirements apply to both public and private sector dentistry. It also provides for the appropriate Minister to specify other treatments involving the use of prescribed techniques or technologies. These would be treatments which pose a particular risk to patients. For example, at present regulations made under the Registered Homes Act 1984 prescribe treatment with Class 3B and Class 4 lasers as such treatment.

32. Subsection (8) gives the appropriate Minister power to make regulations excepting establishments from the requirement to be regulated and to amend the list of "listed services" by adding or removing services.

Section 3 Care homes

33. Section 3 defines a care home as any home which provides accommodation together with nursing or personal care for any person who is or has been ill (including mental disorder), is disabled or infirm, or who has a past or present dependence on drugs or alcohol. The definition is intended to include residential care homes and nursing homes, as defined in the 1984 Act. The Commission will be able to impose conditions on care homes as to the categories of person they can accommodate. Residential care homes run by NHS bodies will be required to be registered under this definition of care homes as the provision of residential (as against nursing) homes is not a core NHS function as such. Local authority provision under Part III of the National Assistance Act 1948 will be required to be registered.

34. "Personal care" in the context of care homes includes assistance with bodily functions where such assistance is required. This may include, for instance, assistance with bathing, dressing and eating for people who are unable to do these things without help - see section 121(9). This means that an establishment is not defined as a care home unless that type of assistance is provided where required.

35. Subsection (3) excludes NHS hospitals and private hospitals and clinics, including establishments which receive patients liable to be detained under the Mental Health Act 1983 (see paragraph 28 above), and gives the appropriate Minister power to make other exceptions in regulations. (Homes which take patients on section 17 leave under the 1983 Act but do not take detained patients will need to be registered as a care home not as a hospital).

36. Homes which provide personal care and accommodation for disabled children are to be treated as children's homes and not care homes.

Section 4 Other basic definitions

37. Subsection (2) defines residential family centres. Such centres undertake monitoring and/or an assessment of parenting capacity on a residential basis where there is concern that parents may be unable to respond appropriately to the needs of their children. This could include specific accommodation for teenage mothers and their babies. They may be operated by local authorities, voluntary organisations or private agencies. At present they are not regulated, but in future all residential family centres will be required to register with the registration authority.

38. Subsection (3) defines domiciliary care agencies. These agencies supply staff who provide personal care for people in their own homes. The definition encompasses any agency that arranges the provision of personal care for people who need assistance by reason of illness, infirmity or disability. Individual care workers are not included unless they themselves carry on or manage the agency.

39. Subsection (4) defines fostering agencies. The definition is intended to include both independent agencies which provide a fostering agency service to local authorities, and voluntary organisations (such as Barnardos) who operate in their own right. Both types of fostering agency recruit and train foster parents and place children with them. Agencies defined by subsection (4)(a) make placements under powers delegated to them by local authorities, and they may or may not be voluntary organisations. Agencies defined by subsection (4)(b) are voluntary organisations which place children with foster parents in their own right.

40. Subsection (5) defines nurses agencies. These will now be subject to registration by the Commission. In addition, the Nurses Agencies Act 1957 will be repealed, and nurses agencies will also be subject to the provisions of the Employment Agencies Act 1973 (see notes to section 111).

41. Subsection (7) defines a voluntary adoption agency as an adoption society within the meaning of the Adoption Act 1976, which is a voluntary organisation. An "adoption society" is defined in that Act as a body of persons whose functions consist of or include making arrangements for adoption.