Children and Young Persons Act 2008

Children and Young Persons Act 2008

2008 CHAPTER 23

Commentary on Sections

Part 2 - Functions in Relation to Children and Young Persons

Enforcement of care standards (Sections 26 to 29)

110. Under the provisions of Part 2 of the Care Standards Act 2000, a person who carries on or manages a children’s home, a fostering agency, a residential family centre, an adoption support agency or a voluntary adoption agency must be registered with the registration authority. Conditions may be imposed in relation to registration, either at the point of registration or at a later date, and it is an offence to breach those conditions. There is a right of appeal to a Tribunal against a refusal to register a person, a variation of registration conditions or a decision to cancel registration. The registration authority in England is the Chief Inspector of Education, Children’s Services and Skills and in Wales is the Welsh Ministers.

111. Standards of provision in children’s social care establishments and agencies are inspected by the registration authority for compliance with the applicable regulations made under section 22 of the Care Standards Act 2000, or in the case of adoption agencies, under section 9 of the Adoption Act 1976 and section 9 of the Adoption and Children Act 2002.

112. Each type of establishment and agency is subject to its own set of regulations. For example, children’s homes are subject to the Children’s Homes Regulations 2001, which impose various obligations on the person carrying on the home and the manager, for example, making sure staff employed at the home have the necessary qualifications and experience. National Minimum Standards (NMS) are also published for each type of establishment and agency under section 23 of the Care Standards Act 2000, these must be taken into account when an establishment or agency is assessed for compliance with the applicable regulations by the registration authority. The degree to which a children’s home complies with the requirements in the regulations, with reference to the NMS, will be considered when the registration authority takes any decision relating to  registration of an establishment or agency, the imposition of conditions for registration and enforcement action including proceedings for cancellation of registration or prosecution. The NMS are currently being reviewed by the Department and new NMS are expected to be published in 2009, to come into effect in 2010.

113. Sections 26 to 29 amend the Care Standards Act 2000 to confer additional powers and duties on the registration authority in relation to standards in children’s social care settings. The children’s social care settings affected by section 26are those establishments and agencies regulated under Part 2 of the Care Standards Act 2000, including children’s homes, fostering agencies, residential family centres, adoption support agencies and voluntary adoption agencies. Section 27 (restriction on admissions) applies only to residential settings, i.e. children’s homes and residential family centres.

Section 26 Power of Chief Inspector where person is failing to comply with requirement relating to children’s homes etc.

114. Section 26 applies to England only. The section inserts new section 22A into the Care Standards Act 2000 to enable the Chief Inspector to serve a “compliance notice” where he is of the opinion that an establishment or agency is not meeting the required standards, as set out in the relevant regulations and NMS.

115. The notice may be served on the registered owner or proprietor of the establishment or agency as well as on the person managing it. It must specify how, in the view of the Chief Inspector, the establishment or agency is failing to meet the standards and the steps that need to be taken to remedy this (subsection (3)). Failing to take these steps within the required timescale is a criminal offence and a person who is found guilty may be fined accordingly (subsections (4) and (5)).

116. Failure to act on the compliance notice is a ground for cancellation of registration. Subsection (1) of this section amends section 14 of the Care Standards Act 2000 to that effect.

Section 27: Notice restricting accommodation at certain establishments

117. Section 27 inserts a new section 22B into the Care Standards Act 2000 to enable the Chief Inspector or, in Wales, the Welsh Ministers, (the registration authority) to impose a requirement preventing any new admissions of children to certain residential settings. Where the registration authority imposes such a requirement it is necessary for a notice to be served on each person who is registered in respect of the establishment concerned.

118. The notice must set out the reasons for the notice being served and must explain the right of appeal (subsection (3)); it may be time-limited; and it may be revoked (subsection (4)). The notice is subject to a right of appeal to a Tribunal provided for in section 28.

Section 28: Appeals etc. in relation to notices under section 22B of the Care Standards Act 2000

119. This section amends section 21 of the Care Standards Act 2000 to create new grounds for an appeal to the Tribunal, namely the serving of a notice restricting accommodation (as provided for in section 27). Appeals must be made to the Tribunal within 28 days of the notice being served (subsection (3)). Upon hearing the appeal, the Tribunal may confirm the notice and the ensuing restriction on accommodation or uphold the appeal in favour of the provider and direct that the notice no longer has any effect.

120. Subsection (6) clarifies that the NMS should be taken into account when the registration authority is considering whether to issue a notice under new section 22B and when the Tribunal makes decisions about appeals regarding these notices.

Section 29: Notification of matters relating to persons carrying on children’s homes etc

121. This section places a duty on the Chief Inspector or, in Wales, the Welsh Ministers, to notify each local authority in England and Wales when certain enforcement action is taken. The section inserts a new section 30A into the Care Standards Act 2000 to this effect.

122. The enforcement action may be:

• a decision to cancel registration;

• bringing proceedings for an offence (such as the failure to comply with a notice under new section 22A or other offences as specified in section 30A(7));or

• service of a notice restricting accommodation (as provided for in new section 22B).

123. The notification will alert local authorities to the underperformance of a provider. It is intended that, in the case of residential settings, and where a child (or children) in their care is currently provided with accommodation with that provider, local authorities will conduct a review as to whether those placements should continue.

124. Section 30A(3) enables the appropriate national authority to make regulations to specify the circumstances in which local authorities should be advised of an updated position (e.g. a prosecution is no longer proceeded with or a provider has successfully appealed a decision to cancel registration).

125. Section 30A(4) enables the making of regulations specifying the information to be contained in the notification (e.g. the name of the provider and of the relevant establishment or agency).

126. Section 30A(5) provides that a notification under this section may be transmitted electronically (as defined in subsection (7) of that section) if the local authority has consented to this arrangement.