Health and Social Care (Wales) Act 2025

Prospective

Regulation of social care services provided to children E+W

2 Restricted children’s services E+W

In the 2016 Act—

(a) in section 1, after paragraph (b) insert—

“(ba) Chapter 2 also makes provision restricting the entities that may provide‍ children’s home services, secure accommodation services and fostering services;”;

(b) after section 2 insert—

“2A Meaning of “restricted children’s service”

(1) For the purposes of this Part, the following regulated services are a “restricted children’s service”—

(a) a care home service‍ in so far as the service is a children’s home service;

(b) a fostering service;

(c) a secure accommodation service.

(2) For the purposes of subsection (1), a “children’s home service” is a care home service provided at one or more places at which the service is provided wholly or mainly to children.‍

(3) Schedule 1 makes further provision about the meaning of a restricted children’s service.”

(c) in Schedule 1, after paragraph 1(3) insert—

“(3A) But a school that constitutes a care home service by virtue of‍ sub-paragraph (3) does not constitute a‍ children’s home service unless–

(a) it has provided more days of accommodation to looked after children than to children who are not looked after children for any period of 12 months falling within the previous 24 months, or

(b) it intends to provide more days of accommodation to looked after children than to children who are not looked after children for any period of 12 months falling within the following 24 months.

(3B) In sub-paragraph (3A), “looked after children‍ means children who are looked after by local authorities as described in section 74(1) of the 2014 Act.”

Commencement Information

I1 S. 2 not in force at Royal Assent, see s. 29(2)

3 Applications for registration in respect of restricted children’s services E+W

(1) The 2016 Act is amended as follows.

(2) In section 6, after subsection (1) insert—

“(1A) In the case of a person, other than a local authority, who wants to provide a restricted children’s service, the application must also include such information as may be prescribed to satisfy the Welsh Ministers that the person meets the requirement in section 6A(1).”

(3) After section 6 insert—

“6A Registration in respect of a restricted children’s service

(1) To be registered in respect of a restricted children’s service, a person who is not a local authority must be a not-for-profit entity.

(2) For the purposes of this Part, a “not-for-profit entity” is a person that meets conditions 1 and 2 in subsections (3) and (4).

(3) Condition 1 is that the person’s objects or purposes primarily relate to—

(a) the welfare of children, or

(b) such other public good as the Welsh Ministers may prescribe.

(4) Condition 2 is that the person is one of the following types of undertaking (as defined in section 6B)—

(a) a charitable company limited by guarantee without a share capital,

(b) a charitable incorporated organisation,

(c) a charitable registered society, or

(d) a community interest company limited by guarantee without a share capital.

6B Registration in respect of a restricted children’s service: definitions

(1) The following definitions apply for the purposes of section 6A(4).

(2) A “charitable company limited by guarantee without a share capital” is a company—

(a) that is registered under the Companies Act 2006 (c. 46) in Wales, England, Scotland or Northern Ireland,

(b) whose liability is limited by guarantee and that does not have a share capital, and

(c) that is a charity registered under one or more of—

(i) the Charities Act 2011 (c. 25);

(ii) the Charities and Trustee Investment (Scotland) Act 2005 (asp 10);

(iii) the Charities Act (Northern Ireland) 2008 (c. 12).

(3) A “charitable incorporated organisation” is an organisation registered under—

(a) section 209, 232 or 238 of the Charities Act 2011 or regulations made under section 234 of that Act,

(b) section 55, 58 or 60 of the Charities and Trustee Investment (Scotland) Act 2005, or

(c) section 111, 114 or 117 of the Charities Act (Northern Ireland) 2008 or regulations made under section 115 of that Act.

(4) A “charitable registered society” is—

(a) a society that is—

(i) a “registered society” within the meaning of section 1(1) of the Co-operative and Community Benefit Societies Act 2014 (c. 14), and

(ii) a charity within the meaning of section 1(1) of the Charities Act 2011,

(b) a society that is—

(i) a “registered society” within the meaning of section 1(1) of the Co-operative and Community Benefit Societies Act 2014, and

(ii) a charity registered under the Charities and Trustee Investment (Scotland) Act 2005, or

(c) a society that is—

(i) a “registered society” within the meaning of section 1A(1) of the Co-operative and Community Benefit Societies Act (Northern Ireland) 1969 (c. 24), and

(ii) a charity registered under the Charities Act (Northern Ireland) 2008.

(5) A “community interest company limited by guarantee without a share capital” is a company—

(a) that is registered under the Companies Act 2006 in Wales, England, Scotland or Northern Ireland,

(b) whose liability is limited by guarantee and that does not have a share capital, and

(c) that is a community interest company under Part 2 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c. 27).

(6) In subsections (2) and (5)—

(a) references to a company’s liability being “limited by guarantee” have the meaning given by section 3(3) of the Companies Act 2006, and

(b) a company does not have a share capital if it does not have power under its constitution to issue shares‍.”

Commencement Information

I2 S. 3 not in force at Royal Assent, see s. 29(2)

4 Registration in respect of a restricted children’s service: transitional arrangements E+W

(1) The 2016 Act is amended as follows.

(2) After section 6B (as inserted by section 3) insert—

“6C Registration in respect of a restricted children’s service: transitional arrangements

Schedule 1A makes provision for transitional arrangements in respect of service providers registered prior to the coming into force of section 6A(1).”

(3) After Schedule 1 insert—

(as introduced by section 6C)

“SCHEDULE 1A E+W RESTRICTED CHILDREN’S SERVICES: TRANSITIONAL REGISTRATION ARRANGEMENTS FOR EXISTING SERVICE PROVIDERS

Transitional period in respect of restricted children’s services

1 (1) In this Schedule, in relation to a‍ restricted children’s service, references to the transitional period are to the period that—

(a) begins with the day on which the service becomes a restricted children’s service by virtue of section 6A(1) coming into force in relation to the service, and

(b) ends with the day appointed by the Welsh Ministers by regulations for the purposes of this paragraph.

(2) Regulations made under sub-paragraph (1)(b) may appoint different days for—

(a) different types of restricted children’s service;

(b) different descriptions of service provider (for example service providers that specialise in the provision of a particular type of restricted children’s service).

(3) But sub-paragraph (2) does not limit the application of section 187 in relation to regulations made under sub-paragraph (1)(b).

(4) Before making regulations under sub-paragraph (1)(b) the Welsh Ministers must consult any persons they think appropriate.

Existing service providers: exemption from section 6A(1)

2 (1) This paragraph applies to a service provider, other than a local authority, who is registered—

(a) in respect of a‍ children’s home service, when the transitional period begins in respect of that service;

(b) in respect of a fostering service, when the transitional period begins in respect of that service;

(c) in respect of a secure accommodation service, when the transitional period begins in respect of that service.

(2) And this paragraph applies to such a service provider during the transitional period.

(3) In this Schedule, in relation to a provider, references to the existing service are to the service in respect of which the provider is registered as described in sub-paragraph (1).

(4) In so far as a service provider to‍ which this paragraph applies is registered in respect of the existing service—

(a) the registration of the provider is not subject to the requirement in section 6A(1) (and any reference to that requirement is to be read accordingly), and

(b) (in consequence) the entry in the register in respect of the provider must show—

(i) that the provider’s registration in respect of the existing service is not subject to the requirement in section 6A(1), and

(ii) that the condition in section 7(3)(aa) is not imposed on the provider’s registration in respect of that service.

(5) But sub-paragraph‍ (4) does not apply for the purposes of an application made by the service provider—

(a) in relation to the existing service, under section 11(1)(a)(ii);

(b) in respect of any other service, under section 11(1)(a)(i).

Regulations about provision of restricted children’s services by existing service providers

3 (1) The Welsh Ministers may by regulations make provision imposing conditions on a service provider to‍ which paragraph 2 applies.

(2) Conditions imposed by regulations under sub-paragraph (1) may include—

(a) restrictions on the type of restricted children’s service that the service provider may provide;

(b) restrictions on the description of looked after children in respect of whom the provider may provide the restricted children’s service, for example by reference to their care and support needs.

(3) Sub-paragraph (4) applies where—

(a) a service provider fails to comply with conditions imposed by regulations under sub-paragraph (1), or

(b) in the case of a service provider described in paragraph 2(1)(b), the provider fails to comply with regulations made under section 87 of the 2014 Act.

(4) Where this sub-paragraph applies, the Welsh Ministers may—

(a) exercise their functions under section 13 to vary the provider’s registration by removing the service or a place at which the existing service is provided, or

(b) exercise their functions under section 15 to cancel the provider’s registration in respect of the existing service.

(5) Before making regulations under sub-paragraph (1) the Welsh Ministers must consult any persons they think appropriate.‍

Existing service providers: application for variation of registration

4 (1) This paragraph applies in respect of a service provider‍ that is registered in respect of an existing service.

(2) Despite paragraph 2(4), a service provider to‍ which this paragraph applies may apply to the Welsh Ministers for the provider’s registration in respect of the existing service to be subject to the requirement in section 6A(1).

(3) But where a service provider to which this paragraph applies makes an application under section 11(1)(a)(i) or (ii) in respect of a restricted children’s service that is not the existing service, the provider must apply to the Welsh Ministers for the provider’s registration in respect of the existing service to be subject to the requirement in section 6A(1).

(4) An application under‍ this paragraph must—

(a) include such information as may be prescribed to satisfy the Welsh Ministers that the person meets the requirement in section 6A(1), and

(b) be in the prescribed form.

(5) The Welsh Ministers must grant an application under‍ this paragraph if satisfied that—

(a) the application—

(i) contains everything required under sub-paragraph (4)(a), and

(ii) meets the requirements prescribed under sub-paragraph (4)(b), and

(b) the provider meets the requirement in section 6A(1).

(6) In any other case the Welsh Ministers must refuse the application.

(7) Where the Welsh Ministers grant an application under sub-paragraph (5), the Welsh Ministers mus‍t, in so far as the provider is registered in respect of the existing service—

(a) impose the condition in section 7(3)(aa) on the provider’s registration;

(b) show in the register that—

(i) the provider’s registration in respect of the existing service is subject to the requirement in section 6A(1), and

(ii) the condition in section 7(3)(aa) is imposed on the provider’s registration in respect of that service.

(8) Where a variation under this paragraph takes effect, paragraphs 2(4) and 3 do not apply to the service provider.

(9) A variation under this‍ paragraph takes effect only if the requirements of section 18 to 20 are met (so far as applicable).

Interpretation

5 In this Schedule—

(a) “looked after children” means children who are looked after by local authorities as described in section 74(1) of the 2014 Act;

(b) references to the “register are to the register maintained under section 38 of this Act.”

(4) In section 45, after “section 27 or 37(2)(a)” insert “or under paragraph 3(1) of Schedule 1A”.

Commencement Information

I3 S. 4 not in force at Royal Assent, see s. 29(2)

5 Grant or refusal of registration in respect of a restricted children’s service E+W

(1) The 2016 Act is amended as follows.

(2) In section 7(1), after paragraph (a) insert—

“(aa) in the case of an application in respect of a restricted children’s service, the applicant meets the requirement in section 6A(1);”.

(3) In section 7(3)—

(a) at the end of paragraph (a) omit “and”;

(b) after paragraph (a) insert—

“(aa) must, in the case of an application in respect of a restricted children’s service, be subject to a condition that the service provider notify the Welsh Ministers of any circumstances under which the provider no longer meets the requirement in section 6A(1), and”.

Commencement Information

I4 S. 5 not in force at Royal Assent, see s. 29(2)

6 Fit and proper person: relevant considerations E+W

(1) The 2016 Act is amended as follows.

(2) In section 9(7), after paragraph (d) insert—

“(e) where the person is a service provider that—

(i) is registered in respect of a restricted children’s service, and

(ii) is subject to the requirement in section 6A(1),

whether it appears to the Welsh Ministers that the provider has entered into a financial arrangement that falls within section 9A.”

(3) After section 9 insert—

“9A Fit and proper person test: financial arrangements relating to restricted children’s services

(1) For the purposes of the fit and proper person test in section 9, a financial arrangement falls within this section if it is an arrangement with or for the benefit of a relevant person that—

(a) is unreasonable or disproportionate in all of the circumstances, and

(b) (in consequence) may undermine the service provider’s pursuit of its objects or purposes (as‍ to which, see section 6A(3)).

(2) When determining whether such a financial arrangement has been entered into, regard must be had to—

(a) the size or value of the arrangement and its purpose (including the extent to which it relates to the provision of the restricted children’s service);

(b) the size or value of the arrangement relative to the amount of income the service provider receives from providing the restricted children’s service;

(c) the proportion of the service provider’s total income that comes from providing the restricted children’s service;

(d) the well-being of children who receive care and support (in the provision of the restricted children’s service).

(3) For the purposes of section 9(7)(e) and this section—

(a) “entering into a financial arrangement” includes but is not limited to making a payment or awarding any benefit (direct or indirect) that has monetary value (and references to a financial arrangement are to be read as including a series of arrangements);

(b) “relevant person” means any of the following—

(i) an employee, worker or officer of the service provider;

(ii) a person connected to an employee, worker or officer of the service provider;

(iii) where the service provider is part of a group of persons under common ownership or common control, any person within that group.

9B Financial arrangements relating to restricted children’s services: supplementary provision

(1) In section 9A(3)(b)—

(a) “employee” and “worker” have the meanings given by section 230 of the Employment Rights Act 1996 (c. 18);

(b) an “officer” means—

(i) any director, manager, secretary or other similar officer of the service provider (and, in relation to a service provider whose affairs are managed by its members, “director” means a member of the service provider);

(ii) any other person having the general control and management of the service provider,

and, where the service provider is a charity, this includes any charity trustee within the meaning of the Charities Acts.

(2) For the purposes of section 9A(3)(b), the following are connected to an employee, worker or officer of the service provider—

(a) their child, parent, grandchild, grandparent, brother or sister;

(b) their spouse or civil partner;

(c) a person carrying on business in partnership with them or with any person falling within paragraph (a) or (b);

(d) an institution which is controlled—

(i) by them or by any person falling within paragraph (a), (b) or (c), or

(ii) by two or more persons falling within sub-paragraph (i), when taken together;

(e) a body corporate in which—

(i) the person or any connected person falling within any of paragraphs (a) to (c) has a substantial interest, or

(ii) two or more persons falling within sub-paragraph (i), when taken together, have a substantial interest.

(3) In subsection (2)—

(a) “child” includes a stepchild;

(b) where two people are not married to, or civil partners of, each other but live together as if they were a married couple or civil partners, each of them is to be treated as the spouse or civil partner of the other;

(c) “institution” has the meaning given by section 9(3) of the Charities Act 2011 and a person controls an institution if the person is able, directly or indirectly, to secure that the affairs of the institution are conducted in accordance with the person’s wishes;

(d) references to having a “substantial interest in a body corporate” have the meaning given by section 352 of the Charities Act 2011.

(4) For the purposes of section 9A(3)(b)(iii), a group of persons is to be treated as being under common control if the group—

(a) is a group of interconnected bodies corporate,

(b) consists of bodies corporate of which one and the same person or group of persons has control, or

(c) consists of one or more bodies corporate and a person who, or a group of persons which, has control of that or those bodies corporate.

(5) In subsection (4), a “group of interconnected bodies corporate” means a group consisting of two or more bodies corporate all of which are interconnected with each other.

(6) For the purposes of subsection (5), any two bodies corporate are interconnected if—

(a) one of them is a body corporate of which the other is a subsidiary, or

(b) both of them are subsidiaries of one and the same body corporate (and “interconnected bodies corporate” is to be construed accordingly).

(7) For the purposes of subsection (4)(b) and (c), a person or group of persons controls a body corporate if the person or group of persons is able, directly or indirectly, to secure that the affairs of the body corporate are conducted in accordance with the wishes of the person or group of persons.

(8) In this section—

• “the Charities Acts” (“y Deddfau Elusennau”) means the Charities Act 2011 (c. 25), the Charities and Trustee Investment (Scotland) Act 2005 (asp 10) and the Charities Act (Northern Ireland) 2008 (c. 12);

• “person” (“person”) includes a body corporate, a partnership and an unincorporated association;

• “subsidiary” (“is-gorff) has the meaning given by section 1159 of the Companies Act 2006 (c. 46).”

Commencement Information

I5 S. 6 not in force at Royal Assent, see s. 29(2)

7 Providers of restricted children’s services: information contained in annual return E+W

In the 2016 Act, in section 10—

(a) in subsection (2)(a), after paragraph (viii) insert—

“(viiia) such information about evidence relevant to the fit and proper person test as may be prescribed;”;

(b) after subsection (2) insert—

“(2A) In the case of a service provider, other than a local authority, that provides a restricted children’s service, a return must also contain such information as may be prescribed to satisfy the Welsh Ministers that the provider meets the requirement in section 6A(1).

(2B) But subsection (2A) does not apply in respect of a provider to‍ which section 6A does not apply by virtue of paragraph 2(4) of Schedule 1A.”;

(c) in subsection (6)—

(i) in paragraph (b), at the end omit “or”;

(ii) after paragraph (b) insert—

“(ba) the first regulations made under subsection (2)(a)(viiia),”;

(iii) in paragraph (c), at the end insert “or”;

(iv) after paragraph (c) insert—

“(d) the first regulations made under subsection (2A),”.

Commencement Information

I6 S. 7 not in force at Royal Assent, see s. 29(2)

8 Variation or cancellation of registration as a provider of a restricted children’s service E+W

(1) The 2016 Act is amended as follows.

(2) In section 11, after subsection (3) insert—

“(4) In the case of an application under subsection (1)(a)(i) to provide a restricted children’s service, the application must also contain such information as may be prescribed to satisfy the Welsh Ministers that the service provider meets the requirement in section 6A(1)”.

(3) In section 12—

(a) in subsection (1), for “subsection (2)” substitute “subsections (1A) and (2)”;

(b) after subsection (1) insert—

“(1A) In the case of an application under section 11(1)(a)(i) to provide a restricted children’s service, the Welsh Ministers may only grant an application if they are satisfied that the service provider meets the requirement in section 6A(1).”

(4) In section 13, in subsection (3)—

(a) at the end of paragraph (a) omit “or”

(b) at the end of paragraph (b) insert “, or”;

(c) after paragraph (b) insert—

“(c) where the service is a restricted children’s service, the service provider does not meet the requirement in section 6A(1).”

(5) In section 13, after subsection (3) insert—

“(3A) See also paragraph 3(4)(a) of Schedule 1A, in respect of variation of a service provider’s registration to remove a restricted children’s service during the transitional period defined in that Schedule.”

(6) In section 15—

(a) in subsection (1), after paragraph (f) insert— “;

(g) each of the services that the service provider is registered in respect of is a restricted children’s service and the service provider does not meet the requirement in section 6A(1)”;

(b) after subsection (1) insert—

“(1A) See also paragraph 3(4)(b) of Schedule 1A, in respect of cancellation of the registration of a service provider in respect of a restricted children’s service during the transitional period defined in that Schedule.”

Commencement Information

I7 S. 8 not in force at Royal Assent, see s. 29(2)

9 Restricted children’s services: information contained in the register of service providers E+W

In the 2016 Act, in section 3‍8‍—

(a) in subsection (2)—

(i) after paragraph (a) insert—

“(aa) whether any of those services is a restricted children’s service;”;

(ii) after paragraph (d) insert—

“(da) in the case of a provider of a restricted children’s service—

(i) that the provider’s registration in respect of that service is subject to the requirement in section 6A(1), and

(ii) that the condition in section 7(3)(aa) is imposed on the provider’s registration in respect of that service;”;

(b) after subsection (2) insert—

“(2A) See also Schedule 1A, in respect of the registration of a provider of a restricted children’s service that is not subject to the requirement in section 6A(1) during the transitional period defined in that Schedule.”

Commencement Information

I8 S. 9 not in force at Royal Assent, see s. 29(2)