Part I Introductory

Preliminary

1 Children’s homes

(1) Subsections (2) to (6) have effect for the purposes of this Act.

(2) An establishment is a children’s home (subject to the following provisions of this section) if it provides care and accommodation wholly or mainly for children.

(3) An establishment is not a children’s home merely because a child is cared for and accommodated there by a parent or relative of his or by a foster parent.

(4) An establishment is not a children’s home if it is—

(a) a health service hospital;

(b) an independent hospital or an independent clinic; or

(c) a residential family centre,

or if it is of a description excepted by regulations.

(5) Subject to subsection (6), an establishment is not a children’s home if it is a school.

(6) A school is a children’s home at any time if at that time accommodation is provided for children at the school and either—

(a) in each year that fell within the period of two years ending at that time, accommodation was provided for children, either at the school or under arrangements made by the proprietor of the school, for more than 295 days; or

(b) it is intended to provide accommodation for children, either at the school or under arrangements made by the proprietor of the school, for more than 295 days in any year;

and in this subsection “year” means a period of twelve months.

• But accommodation shall not for the purposes of paragraph (a) be regarded as provided to children for a number of days unless there is at least one child to whom it is provided for that number of days; and paragraph (b) shall be construed accordingly.

(7) For the purposes of this section a person is a foster parent in relation to a child if—

(a) he is a local authority foster parent in relation to the child;

(b) he is a foster parent with whom a child has been placed by a voluntary organisation under section 59(1)(a) of the 1989 Act; or

(c) he fosters the child privately.

2 Independent hospitals etc

(1) Subsections (2) to (6) apply for the purposes of this Act.

(2) A hospital which is not a health service hospital is an independent hospital.

(3) “Hospital” (except in the expression health service hospital) means—

(a) an establishment—

(i) the main purpose of which is to provide medical or psychiatric treatment for illness or mental disorder or palliative care; or

(ii) in which (whether or not other services are also provided) any of the listed services are provided;

(b) any other establishment in which treatment or nursing (or both) are provided for persons liable to be detained under the [1983 c. 20.] Mental Health Act 1983.

(4) “Independent clinic” means an establishment of a prescribed kind (not being a hospital) in which services are provided by medical practitioners (whether or not any services are also provided for the purposes of the establishment elsewhere).

• But an establishment in which, or for the purposes of which, services are provided by medical practitioners in pursuance of the [1977 c. 49.] National Health Service Act 1977 is not an independent clinic.

(5) “Independent medical agency” means an undertaking (not being an independent clinic) which consists of or includes the provision of services by medical practitioners.

• But if any of the services are provided for the purposes of an independent clinic, or by medical practitioners in pursuance of the [1977 c. 49.] National Health Service Act 1977, it is not an independent medical agency.

(6) References to a person liable to be detained under the [1983 c. 20.] Mental Health Act 1983 do not include a person absent in pursuance of leave granted under section 17 of that Act.

(7) In this section “listed services” means—

(a) medical treatment under anaesthesia or sedation;

(b) dental treatment under general anaesthesia;

(c) obstetric services and, in connection with childbirth, medical services;

(d) termination of pregnancies;

(e) cosmetic surgery;

(f) treatment using prescribed techniques or prescribed technology.

(8) Regulations may—

(a) except any description of establishment from the definitions in subsections (2) to (4);

(b) except any description of undertaking from the definition in subsection (5);

(c) modify the definition in subsection (7).

3 Care homes

(1) For the purposes of this Act, an establishment is a care home if it provides accommodation, together with nursing or personal care, for any of the following persons.

(2) They are—

(a) persons who are or have been ill;

(b) persons who have or have had a mental disorder;

(c) persons who are disabled or infirm;

(d) persons who are or have been dependent on alcohol or drugs.

(3) But an establishment is not a care home if it is—

(a) a hospital;

(b) an independent clinic; or

(c) a children’s home,

or if it is of a description excepted by regulations.

4 Other basic definitions

(1) This section has effect for the purposes of this Act.

(2) “Residential family centre” means, subject to subsection (6), any establishment at which—

(a) accommodation is provided for children and their parents;

(b) the parents' capacity to respond to the children’s needs and to safeguard their welfare is monitored or assessed; and

(c) the parents are given such advice, guidance or counselling as is considered necessary.

• In this subsection “parent”, in relation to a child, includes any person who is looking after him.

(3) “Domiciliary care agency” means, subject to subsection (6), an undertaking which consists of or includes arranging the provision of personal care in their own homes for persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance.

(4) “Fostering agency” means, subject to subsection (6)—

(a) an undertaking which consists of or includes discharging functions of local authorities in connection with the placing of children with foster parents; or

(b) a voluntary organisation which places children with foster parents under section 59(1) of the 1989 Act.

(5) “Nurses agency” means, subject to subsection (6), an employment agency or employment business, being (in either case) a business which consists of or includes supplying, or providing services for the purpose of supplying, registered nurses, registered midwives or registered health visitors.

(6) The definitions in subsections (2) to (5) do not include any description of establishment, undertaking or organisation excepted from those definitions by regulations.

(7) “Voluntary adoption agency” means an adoption society within the meaning of the [1976 c. 36.] Adoption Act 1976 which is a voluntary organisation within the meaning of that Act.

(8) Below in this Act—

(a) any reference to a description of establishment is a reference to a children’s home, an independent hospital, an independent hospital in which treatment or nursing (or both) are provided for persons liable to be detained under the [1983 c. 20.] Mental Health Act 1983, an independent clinic, a care home or a residential family centre;

(b) a reference to any establishment is a reference to an establishment of any of those descriptions.

(9) Below in this Act—

(a) any reference to a description of agency is a reference to an independent medical agency, a domiciliary care agency, a nurses agency, a fostering agency or a voluntary adoption agency;

(b) a reference to any agency is a reference to an agency of any of those descriptions.

Registration authorities

5 Registration authorities

For the purposes of this Act—

(a) the registration authority in relation to England is the National Care Standards Commission;

(b) the registration authority in relation to Wales is the National Assembly for Wales (referred to in this Act as “the Assembly”).

6 National Care Standards Commission

(1) There shall be a body corporate, to be known as the National Care Standards Commission (referred to in this Act as “the Commission”), which shall exercise in relation to England the functions conferred on it by or under this Act or any other enactment.

(2) The Commission shall, in the exercise of its functions, act—

(a) in accordance with any directions in writing given to it by the Secretary of State; and

(b) under the general guidance of the Secretary of State.

(3) Schedule 1 shall have effect with respect to the Commission.

(4) The powers of the Secretary of State under this Part to give directions include power to give directions as to matters connected with the structure and organisation of the Commission, for example—

(a) directions about the establishment of offices for specified areas or regions;

(b) directions as to the organisation of staff into divisions.

7 General duties of the Commission

(1) The Commission shall have the general duty of keeping the Secretary of State informed about the provision in England of Part II services and, in particular, about—

(a) the availability of the provision; and

(b) the quality of the services.

(2) The Commission shall have the general duty of encouraging improvement in the quality of Part II services provided in England.

(3) The Commission shall make information about Part II services provided in England available to the public.

(4) When asked to do so by the Secretary of State, the Commission shall give the Secretary of State advice or information on such matters relating to the provision in England of Part II services as may be specified in the Secretary of State’s request.

(5) The Commission may at any time give advice to the Secretary of State on—

(a) any changes which the Commission thinks should be made, for the purpose of securing improvement in the quality of Part II services provided in England, in the standards set out in statements under section 23; and

(b) any other matter connected with the provision in England of Part II services.

(6) The Secretary of State may by regulations confer additional functions on the Commission in relation to Part II services provided in England.

(7) In this section and section 8, “Part II services” means services of the kind provided by persons registered under Part II, other than the provision of—

(a) medical or psychiatric treatment, or

(b) listed services (as defined in section 2).

8 General functions of the Assembly

(1) The Assembly shall have the general duty of encouraging improvement in the quality of Part II services provided in Wales.

(2) The Assembly shall make information about Part II services provided in Wales available to the public.

(3) In relation to Part II services provided in Wales, the Assembly shall have any additional function specified in regulations made by the Assembly; but the regulations may only specify a function corresponding to a function which, by virtue of section 7, is exercisable by the Commission in relation to Part II services provided in England.

(4) The Assembly may charge a reasonable fee determined by it in connection with the exercise of any power conferred on it by or under this Act.

(5) The Assembly may provide training for the purpose of assisting persons to attain standards set out in any statements published by it under section 23.

9 Co-operative working

(1) The Commission for Health Improvement (“CHI”) and the National Care Standards Commission (“NCSC”) may, if authorised to do so by regulations, arrange—

(a) for prescribed functions of the NCSC to be exercised by CHI on behalf of the NCSC;

(b) for prescribed functions of CHI, so far as exercisable in relation to England, to be exercised by the NCSC on behalf of CHI,

and accordingly CHI and the NCSC each have power to exercise functions of the other in accordance with arrangements under this subsection.

(2) The Assembly and CHI may arrange for any functions of the Assembly mentioned in section 10(6) to be exercised by CHI on behalf of the Assembly; and accordingly CHI has power to exercise functions of the Assembly in accordance with arrangements under this subsection.

(3) The Assembly and CHI may, if authorised to do so by regulations, arrange for prescribed functions of CHI, so far as exercisable in relation to Wales, to be exercised by the Assembly on behalf of CHI; and accordingly the Assembly has power to exercise functions of CHI in accordance with arrangements under this subsection.

(4) References in this section to exercising functions include a reference to assisting with their exercise.

(5) Regulations under this section shall be made by the Secretary of State; but the Secretary of State may not make regulations under subsection (3) without the agreement of the Assembly.

10 Inquiries

(1) The Secretary of State may cause an inquiry to be held into any matter connected with the exercise by the Commission of its functions.

(2) The appropriate Minister may cause an inquiry to be held into any matter connected with a service provided in or by an establishment or agency.

(3) Before an inquiry is begun, the person causing the inquiry to be held may direct that it shall be held in private.

(4) Where no direction has been given, the person holding the inquiry may if he thinks fit hold it, or any part of it, in private.

(5) Subsections (2) to (5) of section 250 of the [1972 c. 70.] Local Government Act 1972 (powers in relation to local inquiries) shall apply in relation to an inquiry under this section as they apply in relation to a local inquiry under that section; and references in those provisions as so applied to a Minister shall be taken to include references to the Assembly.

(6) Subsections (3) and (4) apply in relation to an inquiry under section 35 of the [1998 c. 38.] Government of Wales Act 1998 into any matter relevant to the exercise of—

(a) any functions exercisable by the Assembly by virtue of section 5(b) or 8(3); or

(b) any other functions exercisable by the Assembly corresponding to functions exercisable by the Commission in relation to England,

as they apply in relation to an inquiry under this section.

(7) The report of the person who held the inquiry shall, unless the Minister who caused the inquiry to be held considers that there are exceptional circumstances which make it inappropriate to publish it, be published in a manner which that Minister considers appropriate.

Part II Establishments and agencies

Registration

11 Requirement to register

(1) Any person who carries on or manages an establishment or agency of any description without being registered under this Part in respect of it (as an establishment or, as the case may be, agency of that description) shall be guilty of an offence.

(2) Where the activities of an agency are carried on from two or more branches, each of those branches shall be treated as a separate agency for the purposes of this Part.

(3) The reference in subsection (1) to an agency does not include a reference to a voluntary adoption agency.

(4) The Secretary of State may by regulations make provision about the keeping of registers by the Commission for the purposes of this Part.

(5) A person guilty of an offence under this section shall be liable on summary conviction—

(a) if subsection (6) does not apply, to a fine not exceeding level 5 on the standard scale;

(b) if subsection (6) applies, to imprisonment for a term not exceeding six months, or to a fine not exceeding level 5 on the standard scale, or to both.

(6) This subsection applies if—

(a) the person was registered in respect of the establishment or agency at a time before the commission of the offence but the registration was cancelled before the offence was committed; or

(b) the conviction is a second or subsequent conviction of the offence and the earlier conviction, or one of the earlier convictions, was of an offence in relation to an establishment or agency of the same description.

12 Applications for registration

(1) A person seeking to be registered under this Part shall make an application to the registration authority.

(2) The application—

(a) must give the prescribed information about prescribed matters;

(b) must give any other information which the registration authority reasonably requires the applicant to give,

and must be accompanied by a fee of the prescribed amount.

(3) A person who applies for registration as the manager of an establishment or agency must be an individual.

(4) A person who carries on or manages, or wishes to carry on or manage, more than one establishment or agency must make a separate application in respect of each of them.

13 Grant or refusal of registration

(1) Subsections (2) to (4) apply where an application under section 12 has been made with respect to an establishment or agency in accordance with the provisions of this Part.

(2) If the registration authority is satisfied that—

(a) the requirements of regulations under section 22; and

(b) the requirements of any other enactment which appears to the registration authority to be relevant,

are being and will continue to be complied with (so far as applicable) in relation to the establishment or agency, it shall grant the application; otherwise it shall refuse it.

(3) The application may be granted either unconditionally or subject to such conditions as the registration authority thinks fit.

(4) On granting the application, the registration authority shall issue a certificate of registration to the applicant.

(5) The registration authority may at any time—

(a) vary or remove any condition for the time being in force in relation to a person’s registration; or

(b) impose an additional condition.

14 Cancellation of registration

(1) The registration authority may at any time cancel the registration of a person in respect of an establishment or agency—

(a) on the ground that that person has been convicted of a relevant offence;

(b) on the ground that any other person has been convicted of such an offence in relation to the establishment or agency;

(c) on the ground that the establishment or agency is being, or has at any time been, carried on otherwise than in accordance with the relevant requirements;

(d) on any ground specified by regulations.

(2) For the purposes of this section the following are relevant offences—

(a) an offence under this Part or regulations made under it;

(b) an offence under the [1984 c. 23.] Registered Homes Act 1984 or regulations made under it;

(c) an offence under the 1989 Act or regulations made under it;

(d) in relation to a voluntary adoption agency, an offence under regulations under section 9(2) of the [1976 c. 36.] Adoption Act 1976 or section 1(3) of the [1999 c. 18.] Adoption (Intercountry Aspects) Act 1999.

(3) In this section “relevant requirements” means—

(a) any requirements or conditions imposed by or under this Part; and

(b) the requirements of any other enactment which appear to the registration authority to be relevant.

15 Applications by registered persons

(1) A person registered under this Part may apply to the registration authority—

(a) for the variation or removal of any condition for the time being in force in relation to the registration; or

(b) for the cancellation of the registration.

(2) But a person may not make an application under subsection (1)(b)—

(a) if the registration authority has given him notice under section 17(4)(a) of a proposal to cancel the registration, unless the registration authority has decided not to take that step; or

(b) if the registration authority has given him notice under section 19(3) of its decision to cancel the registration and the time within which an appeal may be brought has not expired or, if an appeal has been brought, it has not been determined.

(3) An application under subsection (1) shall be made in such manner and state such particulars as may be prescribed and, if made under paragraph (a) of that subsection, shall be accompanied by a fee of such amount as may be prescribed.

(4) If the registration authority decides to grant an application under subsection (1)(a) it shall serve notice in writing of its decision on the applicant (stating, where applicable, the condition as varied) and issue a new certificate of registration.

(5) If different amounts are prescribed under subsection (3), the regulations may provide for the registration authority to determine which amount is payable in a particular case.

16 Regulations about registration

(1) Regulations may make provision about the registration of persons under this Part in respect of establishments or agencies, and in particular about—

(a) the making of applications for registration;

(b) the contents of certificates of registration.

(2) Regulations may provide that no application for registration under this Part may be made in respect of a fostering agency, or a voluntary adoption agency, which is an unincorporated body.

(3) Regulations may also require persons registered under this Part to pay to the registration authority an annual fee of such amount, and at such a time, as may be prescribed.

(4) A fee payable by virtue of this section may, without prejudice to any other method of recovery, be recovered summarily as a civil debt.

Registration procedure

17 Notice of proposals

(1) Subsections (2) and (3) apply where a person applies for registration in respect of an establishment or agency.

(2) If the registration authority proposes to grant the application subject to any conditions which have not been agreed in writing between it and the applicant, it shall give the applicant written notice of its proposal and of the conditions subject to which it proposes to grant his application.

(3) The registration authority shall give the applicant notice of a proposal to refuse the application.

(4) Except where it makes an application under section 20, the registration authority shall give any person registered in respect of an establishment or agency notice of a proposal—

(a) to cancel the registration (otherwise than in accordance with an application under section 15(1)(b));

(b) to vary or remove (otherwise than in accordance with an application under section 15(1)(a)) any condition for the time being in force in relation to the registration; or

(c) to impose any additional condition in relation to the registration.

(5) The registration authority shall give the applicant notice of a proposal to refuse an application under section 15(1)(a).

(6) A notice under this section shall give the registration authority’s reasons for its proposal.

18 Right to make representations

(1) A notice under section 17 shall state that within 28 days of service of the notice any person on whom it is served may make written representations to the registration authority concerning any matter which that person wishes to dispute.

(2) Where a notice has been served under section 17, the registration authority shall not determine any matter to which the notice relates until either—

(a) any person on whom the notice was served has made written representations to it concerning the matter;

(b) any such person has notified the registration authority in writing that he does not intend to make representations; or

(c) the period during which any such person could have made representations has elapsed.

19 Notice of decisions

(1) If the registration authority decides to grant an application for registration in respect of an establishment or agency unconditionally, or subject only to conditions which have been agreed in writing between it and the applicant, it shall give the applicant written notice of its decision.

(2) A notice under subsection (1) shall state the agreed conditions.

(3) If the registration authority decides to adopt a proposal under section 17, it shall serve notice in writing of its decision on any person on whom it was required to serve notice of the proposal.

(4) A notice under subsection (3) shall—

(a) explain the right of appeal conferred by section 21;

(b) in the case of a decision to adopt a proposal under section 17(2), state the conditions subject to which the application is granted; and

(c) in the case of a decision to adopt a proposal under section 17(4)(b) or (c), state the condition as varied, the condition which is removed or (as the case may be) the additional condition imposed.

(5) Subject to subsection (6), a decision of the registration authority to adopt a proposal under section 17(2) or (4) shall not take effect—

(a) if no appeal is brought, until the expiration of the period of 28 days referred to in section 21(2); and

(b) if an appeal is brought, until it is determined or abandoned.

(6) Where, in the case of a decision to adopt a proposal under section 17(2), the applicant notifies the registration authority in writing before the expiration of the period mentioned in subsection (5)(a) that he does not intend to appeal, the decision shall take effect when the notice is served.

20 Urgent procedure for cancellation etc

(1) If—

(a) the registration authority applies to a justice of the peace for an order—

(i) cancelling the registration of a person in respect of an establishment or agency;

(ii) varying or removing any condition for the time being in force by virtue of this Part; or

(iii) imposing an additional condition; and

(b) it appears to the justice that, unless the order is made, there will be a serious risk to a person’s life, health or well-being,

the justice may make the order, and the cancellation, variation, removal or imposition shall have effect from the time when the order is made.

(2) An application under subsection (1) may, if the justice thinks fit, be made without notice.

(3) As soon as practicable after the making of an application under this section, the registration authority shall notify the appropriate authorities of the making of the application.

(4) An order under subsection (1) shall be in writing.

(5) Where such an order is made, the registration authority shall, as soon as practicable after the making of the order, serve on the person registered in respect of the establishment or agency—

(a) a copy of the order; and

(b) notice of the right of appeal conferred by section 21.

(6) For the purposes of this section the appropriate authorities are—

(a) the local authority in whose area the establishment or agency is situated;

(b) the Health Authority in whose area the establishment or agency is situated; and

(c) any statutory authority not falling within paragraph (a) or (b) whom the registration authority thinks it appropriate to notify.

(7) In this section “statutory authority” means a body established by or under an Act of Parliament.

21 Appeals to the Tribunal

(1) An appeal against—

(a) a decision of the registration authority under this Part; or

(b) an order made by a justice of the peace under section 20,

shall lie to the Tribunal.

(2) No appeal against a decision or order may be brought by a person more than 28 days after service on him of notice of the decision or order.

(3) On an appeal against a decision of the registration authority the Tribunal may confirm the decision or direct that it shall not have effect.

(4) On an appeal against an order made by a justice of the peace the Tribunal may confirm the order or direct that it shall cease to have effect.

(5) The Tribunal shall also have power on an appeal against a decision or order—

(a) to vary any condition for the time being in force in respect of the establishment or agency to which the appeal relates;

(b) to direct that any such condition shall cease to have effect; or

(c) to direct that any such condition as it thinks fit shall have effect in respect of the establishment or agency.

Regulations and standards

22 Regulation of establishments and agencies

(1) Regulations may impose in relation to establishments and agencies any requirements which the appropriate Minister thinks fit for the purposes of this Part and may in particular make any provision such as is mentioned in subsection (2), (7) or (8).

(2) Regulations may—

(a) make provision as to the persons who are fit to carry on or manage an establishment or agency;

(b) make provision as to the persons who are fit to work at an establishment or for the purposes of an agency;

(c) make provision as to the fitness of premises to be used as an establishment or for the purposes of an agency;

(d) make provision for securing the welfare of persons accommodated in an establishment or provided with services by an establishment, an independent medical agency or a domiciliary care agency;

(e) make provision for securing the welfare of children placed, under section 23(2)(a) of the 1989 Act, by a fostering agency;

(f) make provision as to the management and control of the operations of an establishment or agency;

(g) make provision as to the numbers of persons, or persons of any particular type, working at an establishment or for the purposes of an agency;

(h) make provision as to the management and training of such persons;

(i) impose requirements as to the financial position of an establishment or agency;

(j) make provision requiring the person carrying on an establishment or agency to appoint a manager in prescribed circumstances.

(3) Regulations under subsection (2)(a) may, in particular, make provision for prohibiting persons from managing an establishment or agency unless they are registered in, or in a particular part of, one of the registers maintained under section 56(1).

(4) Regulations under subsection (2)(b) may, in particular, make provision for prohibiting persons from working in such positions as may be prescribed at an establishment, or for the purposes of an agency, unless they are registered in, or in a particular part of, one of the registers maintained under section 56(1).

(5) Regulations under paragraph (d) of subsection (2) may, in particular, make provision—

(a) as to the promotion and protection of the health of persons such as are mentioned in that paragraph;

(b) as to the control and restraint of adults accommodated in, or provided with services by, an establishment;

(c) as to the control, restraint and discipline of children accommodated in, or provided with services by, an establishment.

(6) Regulations under paragraph (e) of subsection (2) may, in particular, make provision—

(a) as to the promotion and protection of the health of children such as are mentioned in that paragraph;

(b) as to the control, restraint and discipline of such children.

(7) Regulations may make provision as to the conduct of establishments and agencies, and such regulations may in particular—

(a) make provision as to the facilities and services to be provided in establishments and by agencies;

(b) make provision as to the keeping of accounts;

(c) make provision as to the keeping of documents and records;

(d) make provision as to the notification of events occurring in establishments or in premises used for the purposes of agencies;

(e) make provision as to the giving of notice by the person carrying on an establishment or agency of periods during which he or (if he does not manage it himself) the manager proposes to be absent from the establishment or agency, and specify the information to be supplied in such a notice;

(f) provide for the making of adequate arrangements for the running of an establishment or agency during a period when the manager is absent from it;

(g) make provision as to the giving of notice by a person registered in respect of an establishment or agency of any intended change in the identity of the manager or the person carrying it on;

(h) make provision as to the giving of notice by a person registered in respect of an establishment o