Care Standards (c. 14)

(The document as of February, 2008)

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(2) In subsection (6A) of section 115 of that Act (enhanced criminal record certificates), for the words from "in the list" to the end there shall be substituted " in--

(i) the list kept under section 1 of the [1999 c. 14.] Protection of Children Act 1999;

(ii) the list kept for the purposes of regulations made under section 218(6) of the [1988 c. 40.] Education Reform Act 1988 ("the 1988 Act list"); or

(iii) any list kept by the Secretary of State or the National Assembly for Wales of persons disqualified under section 470 or 471 of the [1996 c. 56.] Education Act 1996 ("the 1996 Act list"); and

(b) if he is included in any of those lists, such details of his inclusion as may be prescribed, including--

(i) in the case of the 1988 Act list, the grounds on which he is so included; or

(ii) in the case of the 1996 Act list, the grounds on which he was disqualified under section 470 or 471. "

General

103 Temporary provision for access to lists

(1) Any person seeking to ascertain whether a relevant individual is included in--

(a) the list kept under section 1 of the 1999 Act;

(b) the list kept for the purposes of regulations made under section 218(6) of the [1988 c. 40.] Education Reform Act 1988; or

(c) any list kept by the Secretary of State or the Assembly of persons disqualified under section 470 or 471 of the [1996 c. 56.] Education Act 1996,

shall be entitled to that information on making, before the relevant commencement, an application for the purpose to the Secretary of State.

(2) In this section "relevant individual" means--

(a) in relation to a person who carries on an employment agency, an individual with whom he proposes to do business or an individual of any other prescribed description;

(b) in relation to any other person, an individual to whom he proposes to offer, or whom he proposes to supply for employment in, a child care position or an individual of any other prescribed description.

(3) The relevant commencement is--

(a) for applications relating to the list mentioned in subsection (1)(a) or (b), the commencement of section 8 of the 1999 Act; and

(b) for applications relating to the list mentioned in subsection (1)(c), the commencement of section 102.

(4) Paragraphs (b) and (c) of subsection (1) are without prejudice to any right conferred otherwise than by virtue of those provisions.

104 Suitability to adopt a child: searches of lists

(1) The [1997 c. 50.] Police Act 1997 shall be amended as follows.

(2) In section 113 (criminal record certificates)--

(a) in subsection (3A), after "(3B)," there shall be inserted "or his suitability to adopt a child,"; and

(b) after subsection (3D) (inserted by section 90) there shall be inserted--

" (3E) The references in subsections (3A) and (3C) to suitability to be employed, supplied to work, found work or given work in a position falling within subsection (3B) or (3D) include references to suitability to be registered--

(a) under Part II of the Care Standards Act 2000 (establishments and agencies);

(b) under Part IV of that Act (social care workers); or

(c) for child minding or providing day care under Part XA of the [1989 c. 41.] Children Act 1989, or under section 71 of that Act or Article 118 of the [S.I. 1995/755 (N.I. 2).] Children (Northern Ireland) Order 1995 (child minding and day care). "

(3) In section 115 (enhanced criminal record certificates)--

(a) in subsection (5)--

(i) after paragraph (e) there shall be inserted--

" (ea) registration under Part II of the Care Standards Act 2000 (establishments and agencies);

(eb) registration under Part IV of that Act (social care workers); " ; and

(ii) after paragraph (g) there shall be inserted--

" (h) a decision made by an adoption agency within the meaning of section 11 of the [1976 c. 36.] Adoption Act 1976 as to a person's suitability to adopt a child. " ; and

(b) in subsection (6A), after "113," there shall be inserted "or his suitability to adopt a child,".

Part VIII Miscellaneous

Boarding schools and colleges

105 Welfare of children in boarding schools and colleges

(1) Section 87 of the 1989 Act (welfare of children accommodated in independent schools) shall be amended in accordance with subsections (2) to (4).

(2) For subsections (1) to (5) there shall be substituted--

" (1) Where a school or college provides accommodation for any child, it shall be the duty of the relevant person to safeguard and promote the child's welfare.

(2) Subsection (1) does not apply in relation to a school or college which is a children's home or care home.

(3) Where accommodation is provided for a child by any school or college the appropriate authority shall take such steps as are reasonably practicable to enable them to determine whether the child's welfare is adequately safeguarded and promoted while he is accommodated by the school or college.

(4) Where the Commission are of the opinion that there has been a failure to comply with subsection (1) in relation to a child provided with accommodation by a school or college, they shall--

(a) in the case of a school other than an independent school or a special school, notify the local education authority for the area in which the school is situated;

(b) in the case of a special school which is maintained by a local education authority, notify that authority;

(4A) Where the National Assembly for Wales are of the opinion that there has been a failure to comply with subsection (1) in relation to a child provided with accommodation by a school or college, they shall--

(a) in the case of a school other than an independent school or a special school, notify the local education authority for the area in which the school is situated;

(b) in the case of a special school which is maintained by a local education authority, notify that authority.

(5) Where accommodation is, or is to be, provided for a child by any school or college, a person authorised by the appropriate authority may, for the purpose of enabling that authority to discharge its duty under this section, enter at any time premises which are, or are to be, premises of the school or college. "

(3) In subsection (6), for "entering an independent school in exercise of" there shall be substituted "exercising".

(4) For subsection (10) there shall be substituted--

" (10) In this section and sections 87A to 87D--

"the 1992 Act" means the [1992 c. 13.] Further and Higher Education Act 1992;
"appropriate authority" means--
(a)
in relation to England, the National Care Standards Commission;
(b)
in relation to Wales, the National Assembly for Wales;
"college" means an institution within the further education sector as defined in section 91 of the 1992 Act;
"the Commission" means the National Care Standards Commission;
"further education corporation" has the same meaning as in the 1992 Act;
"local education authority" and "proprietor" have the same meanings as in the [1996 c. 56.] Education Act 1996 " .

" (11) In this section and sections 87A and 87D "relevant person" means--

(a) in relation to an independent school, the proprietor of the school;

(b) in relation to any other school, or an institution designated under section 28 of the 1992 Act, the governing body of the school or institution;

(12) Where a person other than the proprietor of an independent school is responsible for conducting the school, references in this section to the relevant person include references to the person so responsible. "

(5) In section 62 of the 1989 Act (duties of local authorities in relation to children provided with accommodation by voluntary organisations), at the end there shall be inserted--

" (10) This section does not apply in relation to any voluntary organisation which is an institution within the further education sector, as defined in section 91 of the [1992 c. 13.] Further and Higher Education Act 1992, or a school. "

106 Suspension of duty under section 87(3) of the 1989 Act

(1) For section 87A of the 1989 Act (suspension of duty under section 87(3)) there shall be substituted--

" 87A Suspension of duty under section 87(3)

(1) The Secretary of State may appoint a person to be an inspector for the purposes of this section if--

(a) that person already acts as an inspector for other purposes in relation to schools or colleges to which section 87(1) applies, and

(b) the Secretary of State is satisfied that the person is an appropriate person to determine whether the welfare of children provided with accommodation by such schools or colleges is adequately safeguarded and promoted while they are accommodated by them.

(2) Where--

(a) the relevant person enters into an agreement in writing with a person appointed under subsection (1),

(b) the agreement provides for the person so appointed to have in relation to the school or college the function of determining whether section 87(1) is being complied with, and

(c) the appropriate authority receive from the person mentioned in paragraph (b) ("the inspector") notice in writing that the agreement has come into effect,

the appropriate authority's duty under section 87(3) in relation to the school or college shall be suspended.

(3) Where the appropriate authority's duty under section 87(3) in relation to any school or college is suspended under this section, it shall cease to be so suspended if the appropriate authority receive--

(a) a notice under subsection (4) relating to the inspector, or

(b) a notice under subsection (5) relating to the relevant agreement.

(4) The Secretary of State shall terminate a person's appointment under subsection (1) if--

(a) that person so requests, or

(b) the Secretary of State ceases, in relation to that person, to be satisfied that he is such a person as is mentioned in paragraph (b) of that subsection,

and shall give notice of the termination of that person's appointment to the appropriate authority.

(5) Where--

(a) the appropriate authority's duty under section 87(3) in relation to any school or college is suspended under this section, and

(b) the relevant agreement ceases to have effect,

the inspector shall give to the appropriate authority notice in writing of the fact that it has ceased to have effect.

(6) In this section references to the relevant agreement, in relation to the suspension of the appropriate authority's duty under section 87(3) as regards any school or college, are to the agreement by virtue of which the appropriate authority's duty under that provision as regards that school or college is suspended. "

(2) In section 87B of that Act (duties of inspectors under section 87A)--

(a) in subsections (2) and (3), after "school", in each place where it occurs, there shall be inserted "or college";

(b) in subsection (2), for "to the Secretary of State" there shall be substituted--

" (a) in the case of a school other than an independent school or a special school, to the local education authority for the area in which the school is situated;

(b) in the case of a special school which is maintained by a local education authority, to that authority;

" (4) In this section "substitution agreement" means an agreement by virtue of which the duty of the appropriate authority under section 87(3) in relation to a school or college is suspended. "

107 Boarding schools: national minimum standards

After section 87B of the 1989 Act there shall be inserted--

" 87C Boarding schools: national minimum standards

(1) The Secretary of State may prepare and publish statements of national minimum standards for safeguarding and promoting the welfare of children for whom accommodation is provided in a school or college.

(2) The Secretary of State shall keep the standards set out in the statements under review and may publish amended statements whenever he considers it appropriate to do so.

(3) Before issuing a statement, or an amended statement which in the opinion of the Secretary of State effects a substantial change in the standards, the Secretary of State shall consult any persons he considers appropriate.

(4) The standards shall be taken into account--

(a) in the making by the appropriate authority of any determination under section 87(4) or (4A);

(b) in the making by a person appointed under section 87A(1) of any determination under section 87B(2); and

(c) in any proceedings under any other enactment in which it is alleged that the person has failed to comply with section 87(1). "

108 Annual fee for boarding school inspections

After section 87C of the 1989 Act (inserted by section 107) there shall be inserted--

" 87D Annual fee for boarding school inspections

(1) Regulations under subsection (2) may be made in relation to any school or college in respect of which the appropriate authority is required to take steps under section 87(3).

(2) The Secretary of State may by regulations require the relevant person to pay the appropriate authority an annual fee of such amount, and within such time, as the regulations may specify.

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

109 Inspection of schools etc. by persons authorised by Secretary of State

(1) Section 80 of the 1989 Act (inspection of children's homes etc. by persons authorised by Secretary of State) shall be amended as follows.

(2) In subsection (1), in paragraph (l), for "independent school" there shall be substituted "school or college".

(3) In subsection (5)--

(a) in paragraph (d), at the end there shall be inserted "or governing body of any other school";

(b) after that paragraph there shall be inserted--

" (da) governing body of an institution designated under section 28 of the [1992 c. 13.] Further and Higher Education Act 1992;

(db) further education corporation; " and

" (j) person carrying on a fostering agency. "

(4) After subsection (12) there shall be inserted--

" (13) In this section--

"college" means an institution within the further education sector as defined in section 91 of the [1992 c. 13.] Further and Higher Education Act 1992;
"fostering agency" has the same meaning as in the Care Standards Act 2000;
"further education corporation" has the same meaning as in the [1992 c. 13.] Further and Higher Education Act 1992. "

Fostering

110 Extension of Part IX to school children during holidays

In paragraph 9(1) of Schedule 8 to the 1989 Act (extension of Part IX to certain school children during holidays), "which is not maintained by a local education authority" shall be omitted.

Employment agencies

111 Nurses Agencies

(1) The [1957 c. 16.] Nurses Agencies Act 1957 shall cease to have effect.

(2) In section 13 of the [1973 c. 35.] Employment Agencies Act 1973 (interpretation), for subsection (8) there shall be substituted--

" (8) This Act, in its application to Scotland, does not apply to--

(a) any agency for the supply of nurses as defined in section 32 of the [1951 c. 55.] Nurses (Scotland) Act 1951 (but excluding any other business carried on in conjunction with such an agency);

(b) the business carried on by any county or district nursing association or other similar organisation, being an association or organisation within paragraph (a) or (b) of that definition. " ,

and paragraphs (b) and (c) of, and the proviso to, subsection (7) shall be omitted.

Charges for local authority welfare services

112 Charges for local authority welfare services

In Schedule 1 to the [1970 c. 42.] Local Authority Social Services Act 1970 (enactments conferring functions assigned to social services committee), there shall be inserted at the appropriate place--

" Health and Social Services and Social Security Adjudications Act 1983 (c. 41)

Section 17, so far as relating to services provided under the enactments mentioned in subsection (2)(a) to (c)

Charges for local authority welfare services " .

Part IX General and supplemental

Chapter I General

113 Default powers of appropriate Minister

(1) The powers conferred by this section are exercisable by the Secretary of State if he is satisfied that the Commission or the English Council--

(a) has without reasonable excuse failed to discharge any of its functions; or

(b) in discharging any of its functions, has without reasonable excuse failed to comply with any directions or guidance given by him under section 6(2) or 54(4) in relation to those functions.

(2) The powers conferred by this section are exercisable by the Assembly if it is satisfied that the Welsh Council--

(a) has without reasonable excuse failed to discharge any of its functions; or

(b) in discharging any of its functions, has without reasonable excuse failed to comply with any directions or guidance given by the Assembly under section 54(4) in relation to those functions.

(3) The appropriate Minister may--

(a) make an order declaring the authority in question to be in default; and

(b) direct the authority to discharge such of its functions, and in such manner and within such period or periods, as may be specified in the direction.

(4) If the authority fails to comply with the appropriate Minister's direction under subsection (3), the appropriate Minister may--

(a) discharge the functions to which the direction relates himself; or

(b) make arrangements for any other person to discharge those functions on his behalf.

114 Schemes for the transfer of staff

(1) This section and the next apply to a scheme made under section 38, 70 or 79(3) for transferring eligible employees.

(2) Subject to those provisions, such a scheme may apply to all, or any description of, employees or to any individual employee.

(3) Such a scheme may be made by the appropriate Minister, and a recommendation may be made to Her Majesty in Council to make an Order containing such a scheme, only if any prescribed requirements about consultation have been complied with in relation to each of the employees to be transferred under the scheme.

115 Effect of schemes

(1) The contract of employment of an employee transferred under the scheme--

(a) is not terminated by the transfer; and

(b) has effect from the date of transfer as if originally made between the employee and the transferee.

(2) Where an employee is transferred under the scheme--

(a) all the rights, powers, duties and liabilities of the old employer under or in connection with the contract of employment are by virtue of this subsection transferred to the transferee on the date of transfer; and

(b) anything done before that date by or in relation to the old employer in respect of that contract or the employee is to be treated from that date as having been done by or in relation to the transferee.

This subsection does not prejudice the generality of subsection (1).

(3) Subsections (1) and (2) do not transfer an employee's contract of employment, or the rights, powers, duties and liabilities under or in connection with it, if he informs the old employer or the transferee that he objects to the transfer.

(4) Where an employee objects as mentioned in subsection (3), his contract of employment with the old employer is terminated immediately before the date of transfer; but he is not to be treated, for any purpose, as having been dismissed by that employer.

(5) This section does not prejudice any right of an employee to terminate his contract of employment if a substantial change is made to his detriment in his working conditions.

But no such right arises by reason only that, by virtue of this section, the identity of his employer changes unless the employee shows that, in all the circumstances, the change is a significant change and is to his detriment.

(6) In this section--

"date of transfer" means the date of transfer determined under the scheme in relation to the employee;
"transferee" means the new employer to whom the employee is or would be transferred under the scheme;

and expressions used in this section and in the provision under which the scheme is made have the same meaning as in that provision.

116 Minor and consequential amendments

Schedule 4 (which makes minor amendments and amendments consequential on the provisions of this Act) shall have effect.

117 Transitional provisions, savings and repeals

(1) Schedule 5 (which makes transitional and saving provision) shall have effect; but nothing in that Schedule shall be taken to prejudice the operation of sections 16 and 17 of the [1978 c. 30.] Interpretation Act 1978 (which relate to the effect of repeals).

(2) The enactments mentioned in Schedule 6 to this Act are repealed to the extent specified in that Schedule.

Chapter II Supplemental

118 Orders and regulations

(1) Any power conferred on the Secretary of State, the Assembly or the appropriate Minister to make regulations or an order under this Act except an order under section 38 or 79(3) shall be exercised by statutory instrument.

(2) An order making any provision by virtue of section 119(2) which adds to, replaces or omits any part of the text of an Act shall not be made by the Secretary of State unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.

(3) Subject to subsection (2), an instrument containing regulations or an order made by the Secretary of State, except an instrument containing an order under section 122, shall be subject to annulment in pursuance of a resolution of either House of Parliament.

In subsection (2) and this subsection, references to the Secretary of State include the Secretary of State and the Assembly acting jointly.

(4) Subsections (5) to (7) apply to any power of the Secretary of State, the Assembly or the appropriate Minister to make regulations or an order under this Act; and subsections (5) and (6) apply to any power of Her Majesty to make an Order in Council under section 70.

(5) The power may be exercised either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of case.

(6) The power may be exercised so as to make, as respects the cases in relation to which it is exercised--

(a) the same provision for all cases in relation to which the power is exercised, or different provision for different cases or different classes of case, or different provision as respects the same case or class of case for different purposes;

(b) any such provision either unconditionally or subject to any specified condition.

(7) The power may be exercised so as to make--

(a) any supplementary, incidental or consequential provision,

(b) any transitory, transitional or saving provision,

which the person exercising the power considers necessary or expedient.

(8) The provision which, by virtue of subsection (7), may be made by regulations under the Part of this Act which relates to the Children's Commissioner for Wales includes provision amending or repealing any enactment or instrument.

119 Supplementary and consequential provision etc

(1) The appropriate Minister may by order make--

(a) any supplementary, incidental or consequential provision,

(b) any transitory, transitional or saving provision,

which he considers necessary or expedient for the purposes of, in consequence of or for giving full effect to any provision of this Act.

(2) The provision which may be made under subsection (1) includes provision amending or repealing any enactment or instrument.

120 Wales

(1) Section 84(1) of the [1998 c. 38.] Government of Wales Act 1998 (payment of Assembly receipts into the Consolidated Fund) does not apply to any sums received by the Assembly by virtue of any provision of this Act.

(2) The reference to the 1989 Act in Schedule 1 to the [S.I. 1999/672.] National Assembly for Wales (Transfer of Functions) Order 1999 is to be treated as referring to that Act as amended by or under this Act.

(3) Subsection (2) does not affect the power to make further Orders varying or omitting that reference.

121 General interpretation etc

(1) In this Act--

"adult" means a person who is not a child;
"appropriate Minister" means--
(a)
in relation to England, Scotland or Northern Ireland, the Secretary of State;
(b)
in relation to Wales, the Assembly;

and in relation to England and Wales means the Secretary of State and the Assembly acting jointly;
"child" means a person under the age of 18;
"community home" has the same meaning as in the 1989 Act;
"employment agency" and "employment business" have the same meanings as in the [1973 c. 35.] Employment Agencies Act 1973; but no business which is an employment business shall be taken to be an employment agency;
"enactment" includes an enactment comprised in subordinate legislation (within the meaning of the [1978 c. 30.] Interpretation Act 1978);
"to foster a child privately" has the same meaning as in the 1989 Act;
"harm"--
(a)
in relation to an adult who is not mentally impaired, means ill-treatment or the impairment of health;
(b)
in relation to an adult who is mentally impaired, or a child, means ill-treatment or the impairment of health or development;
"health service hospital" has the same meaning as in the [1977 c. 49.] National Health Service Act 1977;
"illness" includes any injury;
"independent school" has the same meaning as in the [1996 c. 56.] Education Act 1996;
"local authority" has the same meaning as in the 1989 Act;
"local authority foster parent" has the same meaning as in the 1989 Act;
"medical" includes surgical;
"mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind;
"National Health Service body" means a National Health Service trust, a Health Authority, a Special Health Authority or a Primary Care Trust;
"parent", in relation to a child, includes any person who is not a parent of his but who has parental responsibility for him;
"parental responsibility" has the same meaning as in the 1989 Act;
"prescribed" means prescribed by regulations;
"proprietor", in relation to a school, has the same meaning as in the Education Act 1996;
"regulations" (except where provision is made for them to be made by the Secretary of State or the Assembly) means regulations made by the appropriate Minister;
"relative" has the same meaning as in the 1989 Act;
"school" has the same meaning as in the [1996 c. 56.] Education Act 1996;
"social services functions" means functions which are social services functions for the purposes of the [1970 c. 42.] Local Authority Social Services Act 1970;
"treatment" includes diagnosis;
"the Tribunal" means the tribunal established by section 9 of the 1999 Act;
"undertaking" includes any business or profession and--
(a)
in relation to a public or local authority, includes the exercise of any functions of that authority; and
(b)
in relation to any other body of persons, whether corporate or unincorporate, includes any of the activities of that body;
"voluntary organisation" has the same meaning as in the Adoption Act 1976.

(2) For the purposes of this Act--

(a) a person is disabled if--

(i) his sight, hearing or speech is substantially impaired;

(ii) he has a mental disorder; or

(iii) he is physically substantially disabled by any illness, any impairment present since birth, or otherwise;

(b) an adult is mentally impaired if he is in a state of arrested or incomplete development of mind (including a significant impairment of intelligence and social functioning).

(3) In this Act, the expression "personal care" does not include any prescribed activity.

(4) For the purposes of this Act, the person who carries on a fostering agency falling within section 4(4)(b), or a voluntary adoption agency, is the voluntary organisation itself.

(5) References in this Act to a person who carries on an establishment or agency include references to a person who carries it on otherwise than for profit.

(6) For the purposes of this Act, a community home which is provided by a voluntary organisation shall be taken to be carried on by--

(a) the person who equips and maintains it; and

(b) if the appropriate Minister determines that the body of managers for the home, or a specified member of that body, is also to be treated as carrying on the home, that body or member.

(7) Where a community home is provided by a voluntary organisation, the appropriate Minister may determine that for the purposes of this Act the home is to be taken to be managed solely by--

(a) any specified member of the body of managers for the home; or

(b) any other specified person on whom functions are conferred under the home's instrument of management.

(8) A determination under subsection (6) or (7) may be made either generally or in relation to a particular home or class of homes.

(9) An establishment is not a care home for the purposes of this Act unless the care which it provides includes assistance with bodily functions where such assistance is required.

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