Regulation and Inspection of Social Care (Wales) Act 2016

Preliminary consideration of allegations etc.

118 Referral of allegations etc. of impaired fitness to practise

(1) This section applies where—

(a) an allegation is made to SCW that a registered person’s fitness to practise is impaired, or

(b) SCW otherwise has reason to believe that a registered person’s fitness to practise may be impaired.

(2) SCW—

(a) must refer for preliminary consideration the matter which is the subject of the allegation or its reason to believe that the registered person’s fitness to practise may be impaired, and

(b) may refer the matter to an interim orders panel (see Chapter 4).

119 Preliminary consideration

(1) The person giving preliminary consideration to a matter referred by SCW must refer that matter for investigation under section 125 unless—

(a) the person determines that the matter is not eligible for onward referral under section 120, or

(b) the person is required by section 121 to refer the matter directly to a fitness to practise panel.

(2) The person giving preliminary consideration to a matter may, at any stage, refer the matter to an interim orders panel (in addition to making a referral or determination under subsection (1)).

(3) SCW must by rules make provision about the procedure for preliminary consideration which may, in particular, provide for preliminary consideration to be carried out by—

(a) one or more persons appointed for that purpose, on such terms and conditions (including remuneration) as SCW may determine;

(b) one or more members of SCW’s staff.

(4) But rules made under subsection (3) may not provide for preliminary consideration to be carried out by—

(a) a person who is a member of—

(i) SCW,

(ii) the Health and Care Professions Council,

(iii) the Scottish Social Services Council, or

(iv) the Northern Ireland Social Care Council;

(b) a person who is a member of a fitness to practise panel;

(c) a person who is a member of an interim orders panel;

(d) a prescribed person.

(5) SCW must make such arrangements as it thinks appropriate to facilitate co-operation between—

(a) a person who has made an allegation that a registered person’s fitness to practise is impaired, and

(b) the person giving preliminary consideration to the allegation.

120 Eligibility for onward referral

(1) A matter is eligible for onward referral unless—

(a) the matter relates to conduct or an incident which occurred 5 years or more before the relevant date and none of the exceptions in subsection (4) apply,

(b) the person appointed to give the matter preliminary consideration thinks the allegation is vexatious, or

(c) where an allegation has been made anonymously, or by a person who fails to co-operate with the preliminary consideration procedure, the person appointed to give the matter preliminary consideration is unable to verify it.

(2) In subsection (1) the reference to onward referral is a reference to—

(a) referral to a fitness to practise panel under section 121, or

(b) referral for investigation under section 125.

(3) In subsection (1)(a) “relevant date” means—

(a) the date of the allegation under section 118(1)(a), or

(b) where an allegation has not been made under that section, the date on which SCW first became aware of the matter.

(4) For the purposes of subsection (1)(a) the exceptions are—

(a) the matter relates to a registered person’s conviction for a relevant criminal offence;

(b) the matter relates to the inclusion of the registered person in a barred list (as defined in section 117);

(c) the matter relates to a determination by a relevant body (as defined by section 117) to the effect that a registered person’s fitness to practise is impaired;

(d) the person giving the matter preliminary consideration thinks that it is in the public interest for the matter to be referred for investigation.

(5) For the purposes of subsection (4)(a) and section 121, a relevant criminal offence is—

(a) in the case of a conviction by a court in the United Kingdom, an offence in respect of which a custodial sentence was, or could have been, imposed, or

(b) in the case of a conviction by a court elsewhere, an offence in respect of which, had the offence been committed in England and Wales a custodial sentence could have been imposed.

(6) In subsection (5) “custodial sentence” has the meaning given by section 76 of the Powers of Criminal Courts (Sentencing) Act 2000 (c.6).

121 Direct referral to a fitness to practise panel

A person giving preliminary consideration to a matter must refer it directly to a fitness to practise panel—

(a) if the matter relates to the conviction of a registered person for a relevant criminal offence (see section 120(5)), and

(b) in such other circumstances as may be specified by SCW in rules.

122 Notice: ineligibility for onward referral

(1) This section applies where a person giving preliminary consideration to a matter determines that the matter is not eligible for onward referral under section 120(1).

(2) SCW must give notice of the determination to the relevant persons, unless SCW thinks that it is not in the public interest to do so.

(3) For the purposes of subsection (2) “the relevant persons” are—

(a) the registered person to whom the matter relates, and

(b) where the matter was the subject of an allegation mentioned in section 118(1)(a), the person who made the allegation.

(4) SCW may give notice to any other person that a matter is not eligible for onward referral where it is satisfied that it is in the public interest to do so.

(5) SCW may by rules make provision about—

(a) the content of a notice under this section, and

(b) the procedure for giving notice.

123 Notice: onward referral

(1) This section applies where, on conclusion of a preliminary consideration under section 119, a matter is referred—

(a) to a fitness to practise panel under section 121, or

(b) for investigation under section 125.

(2) SCW must give notice to—

(a) the registered person to whom the matter relates;

(b) where the matter was the subject of an allegation mentioned in section 118(1)(a), the person who made the allegation;

(c) each person by whom, to the knowledge of SCW, the registered person is employed as a social care worker;

(d) each person who, to the knowledge of SCW, has an arrangement with the registered person for the registered person to provide services to a third party in his or her capacity as a social care worker;

(e) such other persons as may be prescribed.

(3) SCW must by rules make provision about giving notice under subsection (2).

(4) The rules may, in particular, make provision about—

(a) the content of a notice;

(b) the procedure for giving notice;

(c) the period within which notice must be given.

124 Notice: referral to an interim orders panel

Where a person refers a matter to an interim orders panel under section 118(2)(b) or 119(2) SCW—

(a) must give notice of the referral to—

(i) the registered person to whom the matter relates, and

(ii) where the matter was the subject of an allegation mentioned in section 118(1)(a), the person who made the allegation, and

(b) may give notice of the referral to any other person if SCW thinks it is in the public interest to do so.