Care Standards (c. 14)

(The document as of February, 2008)

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(2) Where a requirement to make any changes or additions to any services, equipment or premises has been imposed on a registered person under section 79F(3), his registration shall not be cancelled on the ground of any defect or insufficiency in the services, equipment or premises if--

(a) the time set for complying with the requirements has not expired; and

(b) it is shown that the defect or insufficiency is due to the changes or additions not having been made.

(3) Any cancellation under this section must be in writing.

79H Suspension of registration

(1) Regulations may provide for the registration of any person for acting as a child minder or providing day care to be suspended for a prescribed period by the registration authority in prescribed circumstances.

(2) Any regulations made under this section shall include provision conferring on the person concerned a right of appeal to the Tribunal against suspension.

79J Resignation of registration

(1) A person who is registered for acting as a child minder or providing day care may by notice in writing to the registration authority resign his registration.

(2) But a person may not give a notice under subsection (1)--

(a) if the registration authority has sent him a notice under section 79L(1) of its intention to cancel the registration, unless the authority has decided not to take that step; or

(b) if the registration authority has sent him a notice under section 79L(5) 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.

79K Protection of children in an emergency

(1) If, in the case of any person registered for acting as a child minder or providing day care--

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

(i) cancelling the registration;

(ii) varying or removing any condition to which the registration is subject; or

(iii) imposing a new condition; and

(b) it appears to the justice that a child who is being, or may be, looked after by that person, or (as the case may be) in accordance with the provision for day care made by that person, is suffering, or is likely to suffer, significant harm,

the justice may make the order.

(2) The cancellation, variation, removal or imposition shall have effect from the time when the order is made.

(3) An application under subsection (1) may be made without notice.

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

(5) Where an order is made under this section, the registration authority shall serve on the registered person, as soon as is reasonably practicable after the making of the order--

(a) a copy of the order;

(b) a copy of any written statement of the authority's reasons for making the application for the order which supported that application; and

(6) Where an order has been so made, the registration authority shall, as soon as is reasonably practicable after the making of the order, notify the local authority in whose area the person concerned acts or acted as a child minder, or provides or provided day care, of the making of the order.

79L Notice of intention to take steps

(1) Not less than 14 days before--

(a) refusing an application for registration;

(b) cancelling a registration;

(d) refusing to grant an application for the removal or variation of any condition to which a registration is subject,

the registration authority shall send to the applicant, or (as the case may be) registered person, notice in writing of its intention to take the step in question.

(2) Every such notice shall--

(a) give the authority's reasons for proposing to take the step; and

(b) inform the person concerned of his rights under this section.

(3) Where the recipient of such a notice informs the authority in writing of his desire to object to the step being taken, the authority shall afford him an opportunity to do so.

(4) Any objection made under subsection (3) may be made orally or in writing, by the recipient of the notice or a representative.

(5) If the authority, after giving the person concerned an opportunity to object to the step being taken, decides nevertheless to take it, it shall send him written notice of its decision.

(6) A step of a kind mentioned in subsection (1)(b) or (c) shall not take effect until the expiry of the time within which an appeal may be brought under section 79M or, where such an appeal is brought, before its determination.

(7) Subsection (6) does not prevent a step from taking effect before the expiry of the time within which an appeal may be brought under section 79M if the person concerned notifies the registration authority in writing that he does not intend to appeal.

79M Appeals

(1) An appeal against--

(a) the taking of any step mentioned in section 79L(1); or

(b) an order under section 79K,

shall lie to the Tribunal.

(2) On an appeal, the Tribunal may--

(a) confirm the taking of the step or the making of the order or direct that it shall not have, or shall cease to have, effect; and

(b) impose, vary or cancel any condition.

Inspection: England

79N General functions of the Chief Inspector

(1) The Chief Inspector has the general duty of keeping the Secretary of State informed about the quality and standards of child minding and day care provided by registered persons in England.

(2) When asked to do so by the Secretary of State, the Chief Inspector shall give advice or information to the Secretary of State about such matters relating to the provision of child minding or day care by registered persons in England as may be specified in the Secretary of State's request.

(3) The Chief Inspector may at any time give advice to the Secretary of State, either generally or in relation to provision by particular persons or on particular premises, on any matter connected with the provision of child minding or day care by registered persons in England.

(4) The Chief Inspector may secure the provision of training for persons who provide or assist in providing child minding or day care, or intend to do so.

(5) Regulations may confer further functions on the Chief Inspector relating to child minding and day care provided in England.

(6) The annual reports of the Chief Inspector required by subsection (7)(a) of section 2 of the [1996 c. 57.] School Inspections Act 1996 to be made to the Secretary of State shall include an account of the exercise of the Chief Inspector's functions under this Part, and the power conferred by subsection (7)(b) of that section to make other reports to the Secretary of State includes a power to make reports with respect to matters which fall within the scope of his functions by virtue of this Part.

79P Early years child care inspectorate

(1) The Chief Inspector shall establish and maintain a register of early years child care inspectors for England.

(2) The register may be combined with the register maintained for England under paragraph 8(1) of Schedule 26 to the [1998 c. 31.] School Standards and Framework Act 1998 (register of nursery education inspectors).

(3) Paragraphs 8(2) to (9), 9(1) to (4), 10 and 11 of that Schedule shall apply in relation to the register of early years child care inspectors as they apply in relation to the register maintained for England under paragraph 8(1) of that Schedule, but with the modifications set out in subsection (4).

(4) In the provisions concerned--

(a) references to registered nursery education inspectors shall be read as references to registered early years child care inspectors;

(b) references to inspections under paragraph 6 of that Schedule shall be read as references to inspections under section 79Q (and references to the functions of a registered nursery education inspector under paragraph 6 shall be interpreted accordingly);

(c) references to the registration of a person under paragraph 6 of that Schedule shall be read as references to the registration of a person under subsection (1) (and references to applications made under paragraph 6 shall be interpreted accordingly); and

(d) in paragraph 10(2), for the words from "to a tribunal" to the end there shall be substituted "to the Tribunal established under section 9 of the [1999 c. 14.] Protection of Children Act 1999."

(5) Registered early years child care inspectors are referred to below in this Part as registered inspectors.

79Q Inspection of provision of child minding and day care in England

(1) The Chief Inspector may at any time require any registered person to provide him with any information connected with the person's activities as a child minder, or provision of day care, which the Chief Inspector considers it necessary to have for the purposes of his functions under this Part.

(2) The Chief Inspector shall secure that any child minding provided in England by a registered person is inspected by a registered inspector at prescribed intervals.

(3) The Chief Inspector shall secure that any day care provided by a registered person on any premises in England is inspected by a registered inspector at prescribed intervals.

(4) The Chief Inspector may comply with subsection (2) or (3) either by organising inspections or by making arrangements with others for them to organise inspections.

(5) In prescribing the intervals mentioned in subsection (2) or (3) the Secretary of State may make provision as to the period within which the first inspection of child minding or day care provided by any person or at any premises is to take place.

(6) A person conducting an inspection under this section shall report on the quality and standards of the child minding or day care provided.

(7) The Chief Inspector may arrange for an inspection conducted by a registered inspector under this section to be monitored by another registered inspector.

79R Reports of inspections

(1) A person who has conducted an inspection under section 79Q shall report in writing on the matters inspected to the Chief Inspector within the prescribed period.

(2) The period mentioned in subsection (1) may, if the Chief Inspector considers it necessary, be extended by up to three months.

(3) Once the report of an inspection has been made to the Chief Inspector under subsection (1) he--

(a) may send a copy of it to the Secretary of State, and shall do so without delay if the Secretary of State requests a copy;

(b) shall send a copy of it, or of such parts of it as he considers appropriate, to any prescribed authorities or persons; and

(4) Subsections (2) to (4) of section 42A of the [1996 c. 57.] School Inspections Act 1996 shall apply in relation to the publication of any report under subsection (3) as they apply in relation to the publication of a report under any of the provisions mentioned in subsection (2) of section 42A.

Inspection: Wales

79S General functions of the Assembly

(1) The Assembly may secure the provision of training for persons who provide or assist in providing child minding or day care, or intend to do so.

(2) In relation to child minding and day care 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 79N(5), is exercisable by the Chief Inspector in relation to child minding and day care provided in England.

79T Inspection: Wales

(1) The Assembly may at any time require any registered person to provide it with any information connected with the person's activities as a child minder or provision of day care which the Assembly considers it necessary to have for the purposes of its functions under this Part.

(2) The Assembly may by regulations make provision--

(a) for the inspection of the quality and standards of child minding provided in Wales by registered persons and of day care provided by registered persons on premises in Wales;

(b) for the publication of reports of the inspections in such manner as the Assembly considers appropriate.

(3) The regulations may provide for the inspections to be organised by--

(a) the Assembly; or

(b) Her Majesty's Chief Inspector of Education and Training in Wales, or any other person, under arrangements made with the Assembly.

(4) The regulations may provide for subsections (2) to (4) of section 42A of the [1996 c. 57.] School Inspections Act 1996 to apply with modifications in relation to the publication of reports under the regulations.

Supplementary

79U Rights of entry etc

(1) An authorised inspector may at any reasonable time enter any premises in England or Wales on which child minding or day care is at any time provided.

(2) Where an authorised inspector has reasonable cause to believe that a child is being looked after on any premises in contravention of this Part, he may enter those premises at any reasonable time.

(3) An inspector entering premises under this section may--

(a) inspect the premises;

(b) inspect, and take copies of--

(i) any records kept by the person providing the child minding or day care; and

(ii) any other documents containing information relating to its provision;

(c) seize and remove any document or other material or thing found there which he has reasonable grounds to believe may be evidence of a failure to comply with any condition or requirement imposed by or under this Part;

(d) require any person to afford him such facilities and assistance with respect to matters within the person's control as are necessary to enable him to exercise his powers under this section;

(e) take measurements and photographs or make recordings;

(f) inspect any children being looked after there, and the arrangements made for their welfare;

(g) interview in private the person providing the child minding or day care; and

(h) interview in private any person looking after children, or living or working, there who consents to be interviewed.

(4) Section 42 of the [1996 c. 57.] School Inspections Act 1996 (inspection of computer records for purposes of Part I of that Act) shall apply for the purposes of subsection (3) as it applies for the purposes of Part I of that Act.

(5) The registration authority may, in any case where it appears to the authority appropriate to do so, authorise a person who is not an authorised inspector to exercise any of the powers conferred by this section.

(6) A person exercising any power conferred by this section shall, if so required, produce some duly authenticated document showing his authority to do so.

(7) It shall be an offence wilfully to obstruct a person exercising any such power.

(8) Any person guilty of an offence under subsection (7) shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(9) In this section--

"authorised inspector" means a registered inspector or a person authorised by the Assembly or by any person with whom the Assembly has made arrangements under section 79T(3);
"documents" and "records" each include information recorded in any form.

79V Function of local authorities

Each local authority shall, in accordance with regulations, secure the provision--

(a) of information and advice about child minding and day care; and

(b) of training for persons who provide or assist in providing child minding or day care.

Checks on suitability of persons working with children over the age of seven

79W Requirement for certificate of suitability

(1) This section applies to any person not required to register under this Part who looks after, or provides care for, children and meets the following conditions.

References in this section to children are to those under the age of 15 or (in the case of disabled children) 17.

(2) The first condition is that the period, or the total of the periods, in any week which he spends looking after children or (as the case may be) during which the children are looked after exceeds five hours.

(3) The second condition is that he would be required to register under this Part (or, as the case may be, this Part if it were subject to prescribed modifications) if the children were under the age of eight.

(4) Regulations may require a person to whom this section applies to hold a certificate issued by the registration authority as to his suitability, and the suitability of each prescribed person, to look after children.

(5) The regulations may make provision about--

(a) applications for certificates;

(b) the matters to be taken into account by the registration authority in determining whether to issue certificates;

(d) the period of their validity.

(6) The regulations may provide that a person to whom this section applies shall be guilty of an offence--

(a) if he does not hold a certificate as required by the regulations; or

(b) if, being a person who holds such a certificate, he fails to produce it when reasonably required to do so by a prescribed person.

(7) The regulations may provide that a person who, for the purpose of obtaining such a certificate, knowingly makes a statement which is false or misleading in a material particular shall be guilty of an offence.

(8) The regulations may provide that a person guilty of an offence under the regulations shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Time limit for proceedings

79X Time limit for proceedings

Proceedings for an offence under this Part or regulations made under it may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge; but no such proceedings shall be brought by virtue of this section more than three years after the commission of the offence. "

(2) Schedule 3 (which inserts a new Schedule 9A in the 1989 Act) shall have effect.

(3) The appropriate Minister may by order make a scheme for the transfer to the new employer of any eligible employee.

(4) In subsection (3)--

"eligible employee" means a person who is employed under a contract of employment with an old employer on work which would have continued but for the provisions of this section;
"new employer" means the registration authority (within the meaning of Part XA of the 1989 Act) and, in relation to Wales, includes Her Majesty's Chief Inspector of Education and Training in Wales;
"old employer" means a local authority.

(5) Part X of, and Schedule 9 to, the 1989 Act shall cease to extend to England and Wales.

Part VII Protection of children and vulnerable adults

Protection of vulnerable adults

80 Basic definitions

(1) Subsections (2) to (7) apply for the purposes of this Part.

(2) "Care worker" means--

(a) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom accommodation is provided at a care home;

(b) an individual who is or has been employed in a position which is such as to enable him to have regular contact in the course of his duties with adults to whom prescribed services are provided by an independent hospital, an independent clinic, an independent medical agency or a National Health Service body;

(c) an individual who is or has been employed in a position which is concerned with 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.

(3) "Care position", in relation to an individual, means a position such as is mentioned in subsection (2)(a), (b) or (c).

(4) "Employment" has the same meaning as in the [1999 c. 14.] Protection of Children Act 1999 (referred to in this Act as "the 1999 Act"); and references to an individual being employed shall be construed accordingly.

(5) "Supply worker"--

(a) in relation to an employment agency, means an individual supplied by the agency for employment in a care position or for whom the agency has found employment in a care position;

(b) in relation to an employment business, means an individual supplied by the business for employment in a care position.

(6) "Vulnerable adult" means--

(a) an adult to whom accommodation and nursing or personal care are provided in a care home;

(b) an adult to whom personal care is provided in their own home under arrangements made by a domiciliary care agency; or

(c) an adult to whom prescribed services are provided by an independent hospital, independent clinic, independent medical agency or National Health Service body.

(7) The persons who provide care for vulnerable adults are--

(a) any person who carries on a care home;

(b) any person who carries on a domiciliary care agency;

(c) any person who carries on an independent hospital, an independent clinic or an independent medical agency, which provides prescribed services; and

(d) a National Health Service body which provides prescribed services.

(8) Regulations for the purposes of this section or section 91, 93 or 103 may only be made by the Secretary of State; and before making any regulations for the purposes of this section or section 93 or 103 the Secretary of State shall consult the Assembly.

81 Duty of Secretary of State to keep list

(1) The Secretary of State shall keep a list of individuals who are considered unsuitable to work with vulnerable adults.

(2) An individual shall not be included in the list except in accordance with this Part.

(3) The Secretary of State may at any time remove an individual from the list if he is satisfied that the individual should not have been included in it.

82 Persons who provide care for vulnerable adults: duty to refer

(1) A person who provides care for vulnerable adults ("the provider") shall refer a care worker to the Secretary of State if there is fulfilled--

(a) any of the conditions mentioned in subsection (2); or

(b) the condition mentioned in subsection (3).

(2) The conditions referred to in subsection (1)(a) are--

(a) that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult;

(b) that the worker has resigned, retired or been made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant;

(d) that the provider has, on such grounds, suspended the worker or provisionally transferred him to a position which is not a care position but has not yet decided whether to dismiss him or to confirm the transfer.

(3) The condition referred to in subsection (1)(b) is that--

(a) in circumstances not falling within subsection (2), the provider has dismissed the worker, he has resigned or retired or the provider has transferred him to a position which is not a care position;

(b) information not available to the provider at the time of the dismissal, resignation, retirement or transfer has since become available; and

(c) the provider has formed the opinion that, if that information had been available at that time and if (where applicable) the worker had not resigned or retired, the provider would have dismissed him, or would have considered dismissing him, on such grounds as are mentioned in subsection (2)(a).

(4) If it appears from the information submitted with a reference under subsection (1) that it may be appropriate for the worker to be included in the list kept under section 81, the Secretary of State shall--

(a) determine the reference in accordance with subsections (5) to (7); and

(b) pending that determination, provisionally include the worker in the list.

(5) The Secretary of State shall--

(a) invite observations from the worker on the information submitted with the reference and, if he thinks fit, on any observations submitted under paragraph (b); and

(b) invite observations from the provider on any observations on the information submitted with the reference and, if he thinks fit, on any other observations under paragraph (a).

(6) Where--

(a) the Secretary of State has considered the information submitted with the reference, any observations submitted to him and any other information which he considers relevant; and

(b) in the case of a reference under subsection (2)(d), the provider has dismissed the worker or, as the case may be, has confirmed his transfer on such grounds as are there mentioned,

the Secretary of State shall confirm the worker's inclusion in the list if subsection (7) applies; otherwise he shall remove him from the list.

(7) This subsection applies if the Secretary of State is of the opinion--

(a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and

(b) that the worker is unsuitable to work with vulnerable adults.

(8) The reference in subsection (6)(b) to the provider dismissing the worker on such grounds as are mentioned in subsection (2)(d) includes--

(a) a reference to his resigning, retiring or being made redundant in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned, retired or been made redundant; and

(b) a reference to the provider transferring him, on such grounds, to a position which is not a care position.

(9) This section does not apply where--

(a) the provider carries on a domiciliary care agency, or an independent medical agency, which is or includes an employment agency or an employment business; and

(b) the worker in question is a supply worker in relation to him.

(10) Nothing in this section shall require a person who provides care for vulnerable adults to refer a worker to the Secretary of State in any case where the dismissal, resignation, retirement, transfer or suspension took place or, as the case may be, the opinion was formed before the commencement of this section.

83 Employment agencies and businesses: duty to refer

(1) A person who carries on an employment agency or an employment business ("the provider") shall refer a supply worker to the Secretary of State if there is fulfilled--

(a) in the case of an employment agency, any of the conditions mentioned in subsection (2); or

(b) in the case of an employment business, any of the conditions mentioned in subsection (3).

(2) The conditions referred to in subsection (1)(a) are--

(a) that the provider has decided not to do any further business with the worker on grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult;

(b) that the provider has decided on such grounds not to find the worker further employment, or supply him for further employment, in a care position.

(3) The conditions mentioned in subsection (1)(b) are--

(a) that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult;

(b) that the worker has resigned or retired in circumstances such that the provider would have dismissed him, or would have considered dismissing him, on such grounds if he had not resigned or retired;

(a) determine the reference in accordance with subsections (5) to (7); and

(b) pending that determination, provisionally include the worker in the list.

(5) The Secretary of State shall--

(a) invite observations from the worker on the information submitted with the reference and, if he thinks fit, on any observations submitted under paragraph (b); and

(b) invite observations from the provider on any observations on the information submitted with the reference and, if he thinks fit, on any other observations under paragraph (a).

(6) Where the Secretary of State has considered the information submitted with the reference, any observations submitted to him and any other information which he considers relevant, the Secretary of State shall confirm the worker's inclusion in the list if subsection (7) applies; otherwise he shall remove him from the list.

(7) This subsection applies if the Secretary of State is of the opinion--

(a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and

(b) that the worker is unsuitable to work with vulnerable adults.

(8) Nothing in this section shall require a person who provides care for vulnerable adults to refer a worker to the Secretary of State in any case where the dismissal, resignation or retirement took place or, as the case may be, the decision was made before the commencement of this section.

84 Power of registration authority to refer

(1) The registration authority may refer a care worker to the Secretary of State if--

(a) on the basis of evidence obtained by it in the exercise of its functions under Part II of this Act, the authority considers that the worker has been guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and

(b) the worker has not been referred to the Secretary of State under section 82 or 83 in respect of the misconduct.

(2) Section 82(4) to (7) shall apply in relation to a reference made by the registration authority under subsection (1) as it applies in relation to a reference made by a person under section 82(1).

(3) The reference in subsection (1) to misconduct is to misconduct which occurred after the commencement of this section.

85 Individuals named in the findings of certain inquiries

(1) Subsection (2) applies where--

(a) a relevant inquiry has been held;

(b) the report of the person who held the inquiry names an individual who is or has been employed in a care position; and

(i) that the person who held the inquiry found that the individual was guilty of relevant misconduct; and

(ii) that the individual is unsuitable to work with vulnerable adults.

(2) The Secretary of State--

(a) may provisionally include the individual in the list kept under section 81; and

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