The Regulation and Inspection of Social Care (Wales) Act 2016 (Commencement No. 6, Savings and Transitional Provisions) Order 2019

EXPLANATORY NOTE

(This note is not part of the Order)

This is the sixth Commencement Order made by the Welsh Ministers under the Regulation and Inspection of Social Care (Wales) Act 2016 (“the Act”).

Article 2 and the Schedule bring into force provisions of the Act relating to the regulation of certain social care service providers.

Section 6 of the Act is brought into force on 29 April 2019 to allow applications for registration to be made in respect of an adoption service, a fostering service, an adult placement service or an advocacy service. 29 April 2019 is the coming into force date for the provisions of Part 1 as they apply to persons providing an adoption service, a fostering service, an adult placement service or an advocacy service. Article 2 also commences relevant consequential amendments in Part 1 of Schedule 3 to the Act.

Articles 3 to 13 make savings and transitional provisions to deal with the periods within which a person registered under Part 2 of the Care Standards Act 2000 (“the 2000 Act”) must apply to the Welsh Ministers to register and during which they will be exempt from the requirement to be registered under the Act and will continue to be regulated under Part 2 of the 2000 Act.

Article 3 provides a definition of a “transition service” to describe a relevant agency which is included in an application for registration under the Act. A relevant agency is a voluntary adoption agency, an adoption support agency, an adult placement scheme or a fostering agency which is carried on by a person registered under Part 2 of the 2000 Act immediately before the appointed day (29 April 2019). A “transition service” also includes a relevant agency whose provider is already registered under the Act as a care home service, a secure accommodation service, a residential family centre service or a domiciliary support service. In such a case, the provider which is already registered under the Act will need to apply to vary its registration in order to provide an adoption service, a fostering service, an adult placement service or an advocacy service.

Article 4 disapplies, for a transition period, section 5 of the Act. Section 5 makes it an offence to provide a regulated service without being registered under the Act. A person carrying on a relevant agency will not be liable under section 5 until the relevant date (31 August 2019) but, provided they have submitted an application to register, or to vary their registration, under the Act before the relevant date, the transition period is extended to the time when that application is determined.

Article 5 provides that where a relevant agency is subject to cancellation under the 2000 Act but the process is not determined on the date by which an application would normally have to be made to register under section 6 of the Act, then the date is put back to a date 6 weeks after the cancellation process is determined. The effect therefore is to extend the transition period. Similar provision is made in article 6 in relation to a relevant service which is subject to cancellation under the Act. A relevant service is a care home service, a secure accommodation service, a residential family centre service or a domiciliary support service, which is provided by a person who also provides a relevant agency.

Article 7 saves relevant provisions of Part 2 of the 2000 Act so that the provisions of Part 2, and regulations made under Part 2, continue to apply to those whose activity is governed by them during the transition period. The savings apply to providers, to the registration authority, to the First-tier Tribunal and to Magistrates’ Courts but not to managers. The registration of a manager registered under Part 2 of the 2000 Act ends therefore on 29 April 2019.

Article 8 allows the Welsh Ministers to postpone consideration of an application to register under the Act where the transition service is one which is subject to one of the specified enforcement measures under the 2000 Act, until after the outcome of the process which relates to the enforcement measure. Similar provision is made in article 9 in relation to a relevant service (where the provider of the relevant service also provides a transition service) which is subject to one of the specified enforcement measures under the Act.

Article 10 allows the Welsh Ministers to treat an outstanding application for registration under the 2000 Act as if it were an application to register under section 6 of the Act, or an application to vary registration under section 11(1)(a) of the Act, and to request any additional information to enable them to do so.

Article 11 allows the Welsh Ministers not to determine an application for variation or removal of conditions of registration made by a provider who, in the transition period, is still being regulated under the 2000 Act and instead consider it as part of the provider’s application to register under the Act.

Article 12 provides that if a manager of an agency is subject to a notice of decision to cancel his or her registration and the manager has, before the expiry of the transition period, lodged an appeal to the First-Tier Tribunal, then the manager’s registration will continue until the appeal is determined or abandoned.

Article 13 makes provision for persons who have been providing adoption services, fostering services, adult placement services or advocacy services in Wales prior to 29 April 2019 but have been unable to register under the 2000 Act either because their business is a branch of an English-registered agency but is based in Wales (in the case of a voluntary adoption agency); they are precluded from registration as unincorporated bodies (in the case of an unincorporated adoption support agency); they are not currently required to register (in the case of an advocacy service); or their business is located outside Wales (in the case of a fostering agency, an adoption support agency or an adult placement scheme). Where these providers make an application to register under section 6 of the Act by 31 August 2019 they will be able to continue to provide services and will not be liable to prosecution under section 5 of the Act.