(This note is not part of the Regulations)
Sections 189 to 191 of the Social Services and Well-being (Wales) Act 2014 (“the Act”) impose duties (“temporary duties”) on local authorities in Wales to meet care and support needs of adults, or support needs of carers, in circumstances where registered providers of care are unable to carry on because of “business failure”.
These Regulations make provision as to the interpretation, for those purposes, of “business failure” and as to circumstances in which a person is to be treated as unable to do something because of “business failure”.
Regulation 2 sets out the events which constitute “business failure” for the purposes of the temporary duties on local authorities in Wales.
In relation to a provider, other than an individual, registered in Wales, business failure consists of—
the appointment of an administrator;
the appointment of a receiver;
the appointment of an administrative receiver;
the passing of a resolution for a voluntary winding up in a creditors’ voluntary winding up;
the making of a winding up order;
the making of bankruptcy orders where individual members of a partnership present a joint bankruptcy petition;
in relation to an unincorporated charity, the charity trustees becoming unable to pay their debts as they fall due;
all members of a partnership being made bankrupt; or
a voluntary arrangement being approved under the Insolvency Act 1986 (“the 1986 Act”) or the Insolvency (Northern Ireland) Order 1989 (“the 1989 Order”).
In relation to a provider who is an individual registered in Wales, “business failure” consists of the individual being made bankrupt or proposing or entering into an individual voluntary arrangement under Part 8 of the 1986 Act or Part 8 of the 1989 Order, or being the subject of a debt relief order under Part VIIA of the 1986 Act or Part 7A of the 1989 Order.
Under the Act, the temporary duties are triggered where a registered provider becomes unable to carry on or manage an establishment or agency because of business failure. Regulation 2(1)(b) provides that a provider is to be treated as unable to carry on or manage an establishment or agency because of business failure if the provider’s inability to do so follows business failure.
The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result, a regulatory impact assessment has not been prepared as to the likely costs and benefits of complying with these Regulations.