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Regulation and Inspection of Social Care (Wales) Act 2016

Part 9 – Co-Operation and Joint Working by the Regulatory Bodies Etc.

214.Sections 176 to 182 apply to the Welsh Ministers in the exercise of their functions as services regulator under the Act, and to SCW. These sections also apply to the Welsh Ministers in the exercise of their functions under section 15 of the Adoption and Children Act 2002 in connection with the inspection of premises relating to adoption services, and to certain of their functions under the Social Services and Well-being (Wales) Act 2014. Section 178 also applies to the relevant authorities listed in section 177. The aim of this set of provisions is to provide legal certainty to the services regulator (CSSIW as a department of the Welsh Government acting for the Welsh Ministers), the workforce regulator (Social Care Wales) and the relevant authorities in relation to the extent of their duties to co-operate and work with each other in exercising their respective functions.

215.These provisions make it clear that the relevant public authorities are legally entitled to work together with other public authorities and indeed that they must do so where that is consistent with their respective functions.

216.The Welsh Ministers and SCW must always co-operate with each other when exercising the functions mentioned above if they think that doing so will bring the benefits mentioned in section 178. Section 177 contains a list of relevant authorities who are required to co-operate with the regulators under section 178, but only when requested to do. Such a request may only be made if the regulator in question thinks that the co-operation will have a positive effect on the manner in which their functions are exercised or will assist them in achieving their general objectives as set out in sections 4 and 68 of the Act. Those functions and objectives apply only in relation to Wales. Such a duty will apply unless the circumstances set out in section 178(3) apply (see below). Section 178(4) is a reciprocal duty on the regulators to cooperate with the relevant authorities when requested to do so.

217.Section 178 does not explicitly limit what is meant by co-operation. It is designed to capture any kind of assistance that one organisation can give to another. Examples of the kind of co-operation that the section could entitle a regulatory body to request or give, include-

  • co-ordination of enforcement activity where regulatory jurisdictions overlap;

  • liaison on how media interest is to be handled in relation to matters of mutual concern;

  • input on standards, rules, educational requirements etc.

  • lending of expertise for staff training events;

  • sharing of analyses and assessments in relation to mutually relevant patterns or trends.

218.A regulatory body will be entitled to request the co-operation of an authority listed in section 177 so long as the regulatory body decides that co-operation will either have a positive effect on the way it exercises its existing functions or that the co-operation will help the regulator achieve the general objectives it has under section 4 or 68.

219.Once one of the regulatory bodies requests co-operation from an authority the authority has to comply with the request unless one of three exceptions apply (see section 178(3)(a), (b) and (c)). The exceptions are—

  • The law prevents the authority from co-operating in the way that has been requested (this could be law in another piece of statute or even a common law rule);

  • The authority reasonably thinks that to co-operate as requested would not be compatible with the authority’s own functions; or

  • The authority thinks that the co-operation would have an adverse effect on their functions (for example, even in a case where the law allowed the authority to co-operate and the authority thought it would complement its own functions it might still refuse to co-operate because of the cost of doing so. That is to say, the authority reasonably considers the costs of co-operating would lead to an adverse effect on its own functions.)

220.An illustration of the importance of the two regulators (i.e. the Welsh Ministers and SCW) working together in the exercise of their respective functions is the approach taken in the Act in relation to managers. The system under the 2000 Act required managers of establishments and agencies registered under Part 2 of the 2000 Act to register with both the service regulator and the workforce regulator. A consequence of the system of regulation under the Act is that managers are no longer required to register with the service regulator. Regulations made under sections 27 and 28 will require managers to register with the workforce regulator only and regulations could be made under section 79(1)(b) to require SCW to keep a register in respect of managers of regulated services.

221.Regulations under section 28 could require the responsible individual in relation to a place at, from or in relation to which a service is provided to be responsible for employing a fit manager and for the supervision of the management. In those circumstances, the service regulator will be required to take action against the responsible individual (and not the manager) where there are failings in the management. Given that it is the service regulator that is likely to have the most contact with managers and will be more aware of when a manager is under-performing, the workforce regulator would be reliant on the service regulator to share information about managers and, where necessary, to support the workforce regulator in bringing fitness to practise proceedings against managers of services.

222.Section 179 permits both regulators to jointly exercise functions that each has, i.e. the Welsh Ministers have function A, SCW has function B, and when the Welsh Ministers and SCW arrange to exercise functions A and B jointly under this section, both bodies will be legally accountable for the exercise of function A and B. This means that both bodies will be respondents to any judicial review challenge to the exercise of each other’s function. This power could be used for example, to allow the bodies to establish a joint committee to exercise the Welsh Ministers function of reviewing studies and research into local authority social services functions and to review those functions (see sections 149A and 149Bof the 2014 Act as inserted by section 56) alongside SCW’s function of undertaking comparative or other studies under section 70.

223.Section 180 permits the regulators to delegate any of their functions to the other. This could be used, for example, to allow the Welsh Ministers as service regulator to delegate their function of authorising persons to carry out inspections under section 33 (2) to SCW who have functions relating to the appointment of persons to conduct fitness to practise investigations (see section 125).

224.Sections 181 and 182 are information sharing provisions that aim to provide certainty to the regulators about the extent to which they have the power to share information in the course of exercising their functions.

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