Contents
Part 1 · Social care
Chapter 1 · Provision of social care services to children: restrictions on profit
Overview of Chapter
1Overview of Chapter 1#
(1)This Chapter makes provision to restrict the making of profit in the provision of care home services provided wholly or mainly to children (children’s home services), fostering services and secure accommodation services (referred to as “restricted children’s services”).
(2)It does this by amending Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2) (“the 2016 Act”) and Part 6 of the Social Services and Well-being (Wales) Act 2014 (anaw 4) (“the 2014 Act”).
(3)The amendments to the 2016 Act include—
(a)imposing a requirement on a provider of a restricted children’s service that is registered after the coming into force of the provisions to be incorporated as a “not-for-profit entity”;
(b)providing that unreasonable or disproportionate financial arrangements entered into by such an entity are evidence to which the Welsh Ministers must have regard when deciding if a provider is a fit and proper person;
(c)transitional provision for a provider of a restricted children’s service that is registered prior to the coming into force of these provisions (any such provider that remains registered but is not incorporated as a not-for-profit entity may remain registered subject to conditions imposed by regulations).
(4)The amendments to the 2014 Act impose corresponding requirements on a local authority in relation to accommodation provided by the authority to looked after children, including—
(a)amending an existing duty (in section 75 of the 2014 Act) on the authority to take steps to secure that there is sufficient accommodation within its area to meet the needs of looked after children so as to instead require the authority to take all reasonable steps to secure that there is sufficient accommodation provided by not-for-profit entities either within or near to its area to meet the needs of such children;
(b)a new duty on the local authority to submit a sufficiency plan to the Welsh Ministers setting out what steps it is taking to meet the requirement in section 75;
(c)amending an existing duty on the local authority to report to the Welsh Ministers annually (section 144A of the 2014 Act) to reflect both the duty to secure accommodation and the new sufficiency plan.
(5)The duty in the 2014 Act on a local authority to place a looked after child, who cannot live with a parent, in a children’s home or with foster parents is also amended so that where these circumstances arise, the local authority must place the child in accommodation provided by a not-for-profit entity unless that is inconsistent with the duties of the local authority under section 78 of that Act (duty to promote well-being of child) (in which case, the authority must apply for the Welsh Ministers to approve a placement in accommodation provided by a provider that does not meet the requirements imposed under the 2016 Act).
Chapter 2 · Miscellaneous amendments in relation to social care services, social care workers and local authority social care functions
Minor and consequential amendments
Part 2 · Health care
23Overview of Part 2#
(1)Sections 24 and 25 make provision for and in connection with allowing payments to be made directly to a patient or a person nominated by the patients for the purpose of the patient securing services or goods that otherwise must or may be provided under the National Health Service (Wales) Act 2006 (c. 42) (“the 2006 Act”) or under section 117 of the Mental Health Act 1983 (c. 20).
(2)Section 26 amends section 47 of the 2014 Act so as to provide that a local authority may only provide or arrange the provision of services or facilities that are required to be provided under certain health enactments if—
(a)providing the services or facilities would be incidental or ancillary to certain care and support services that the local authority may or must provide under the 2014 Act, and
(b)they are of a nature that the local authority can be expected to provide.
24Direct payments for health care#
(1)The 2006 Act is amended as follows.
(2)After section 10A insert—“10B 1 The Welsh Ministers may, for the purpose of securing the provision to a patient of anything to which subsection (3) applies, make payments to the patient or to a person nominated by the patient.2 Subsection (1) is subject to any provision made by regulations under section 10C.3 This subsection applies to—a anything that the Welsh Ministers may or must provide under section 2(1) or 3(1);b anything for which the Welsh Ministers must arrange under paragraph 8 of Schedule 1;c any vehicles that the Welsh Ministers may provide under paragraph 9 of Schedule 1;d anything the Welsh Ministers may provide under paragraph 10 of Schedule 1 (including anything for which a grant may be made under paragraph 10(3) of Schedule 1).4 Payments may not be made under subsection (1) unless the patient consents to the making of the payments, subject to any provision made by regulations under section 10C in respect of a patient who lacks capacity or is a child.5 Where the Welsh Ministers make payments under subsection (1), they must, having regard to the purposes for which the payments are made, make arrangements for the provision to the patient, payee or their representative of such information, advice or other support, as the Welsh Ministers consider appropriate.6 Regulations may provide that a Local Health Board may, for the purpose of securing the provision to a patient of after-care services that a Local Health Board must provide under section 117 of the Mental Health Act 1983 (c. 20), make payments to the patient or to a person nominated by the patient.7 Regulations under subsection (6) must—a provide that payments under the regulations cannot be made unless the patient consents to the making of the payments, subject to any provision made by regulations under section 10C in respect of a patient who lacks capacity or is a child;b make provision in respect of information, advice or other support to be provided by a Local Health Board to patients, payees or their representatives in connection with the payments.8 In section 10C and section 10D, “direct payments” means payments made under subsection (1) or under regulations made under subsection (6).9 In this section and section 10C—a “child” means a person who has not attained the age of 16;b references to a person lacking capacity are references to a person lacking capacity within the meaning of the Mental Capacity Act 2005 (c. 9).10C 1 Regulations may make provision about direct payments.2 The regulations may, in particular, make provision about—a the circumstances in which, and descriptions of persons and services in respect of which, direct payments may, must or must not be made;b the circumstances in which direct payments may, must or must not be made to a person nominated by the patient;c the making of direct payments (and, in particular, as to persons to whom payments may or must be made) if the patient lacks capacity to consent to the making of the payments or is a child;d matters to which the Welsh Ministers or a Local Health Board may or must have regard when making a decision about direct payments;e conditions that the Welsh Ministers or a Local Health Board may, must or must not attach in relation to direct payments;f the steps that the Welsh Ministers or a Local Health Board may or must take before, or after, making a decision about direct payments;g the conditions that the patient or (if different) the payee may or must be required to comply with before, after, or at the time when a direct payment is made;h the amount of any direct payment or how it is to be calculated;i the circumstances in which the Welsh Ministers or a Local Health Board may or must stop making direct payments;j the circumstances in which the Welsh Ministers or a Local Health Board may or must require all or part of a direct payment to be repaid by the patient or (if different) the payee, or otherwise;k the monitoring of the making of direct payments, of their use by the patient or (if different) the payee, or of services which they are used to secure;l the review of decisions as to whether a direct payment should be made;m the arrangements to be made by the Welsh Ministers or Local Health Board for providing patients, payees or their representatives with information, advice or other support in connection with direct payments;n the extent to which such support is to be treated as a service in respect of which direct payments may be made.3 If the regulations make provision about persons who lack capacity to consent to the making of direct payments, the regulations may also make provision about the cases or circumstances where a person who has lacked that capacity but no longer does so (whether because of fluctuating capacity or regaining or gaining capacity).4 The regulations may provide for a sum that must be repaid to the Welsh Ministers or Local Health Board (as the case may be) by virtue of a condition or other requirement imposed by or under the regulations to be recoverable as a debt due to the Welsh Ministers or Local Health Board (as the case may be).5 The regulations may make provision—a for a service in respect of which a direct payment has been made under section 10B(1) to be regarded as provided or arranged for by the Welsh Ministers under an enactment mentioned in section 10B(3), only to such extent and subject to such conditions as the regulations may specify;b displacing functions or obligations of a Local Health Board with respect to the provision of after-care services under section 117 of the Mental Health Act 1983 (c. 20), only to such extent and subject to such conditions as the regulations may prescribe.6 In this section, “service” includes anything in respect of which direct payments may be made.10D 1 The Welsh Ministers or a Local Health Board may arrange with any person or body to provide assistance in connection with direct payments.2 Arrangements may be made under subsection (1) with voluntary organisations.3 Powers under this section may be exercised on such terms as may be agreed, including terms as to the making of payments by or to the Welsh Ministers or the Local Health Board.”
(3)In section 203(6A)—
(a)after “section 10A(1),” insert “section 10C(1) (direct payments),”;
(b)after “section 82A (pharmaceutical needs assessments)” insert “or the first regulations under section 10B(6) (direct payments by Local Health Boards)”.
25Direct payments for health care: minor and consequential amendments#
Schedule 2 makes minor and consequential amendments relating to direct payments for health care.
26Provision of health services by local authorities#
(1)The 2014 Act is amended as follows.
(2)In section 47(1)—
(a)the words from “doing so would be incidental” to the end become paragraph (a);
(b)at the end of that paragraph, insert “, andb the service or the facility in question would be of a nature that the local authority could be expected to provide.”
(3)In section 47(2)—
(a)the words from “doing so would be incidental” to the end become paragraph (a);
(b)at the end of that paragraph insert “, andb the service or the facility in question would be of a nature that the local authority could be expected to provide.”
Part 3 · General
27General interpretation#
In this Act—• “the 2006 Act” (“Deddf 2006”) means the National Health Service (Wales) Act 2006 (c. 42);• “the 2014 Act” (“Deddf 2014”) means the Social Services and Well-being (Wales) Act 2014 (anaw 4);• “the 2016 Act” (“Deddf 2016”) means the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2).
28Consequential and transitional provision etc.#
(1)The Welsh Ministers may by regulations—
(a)make provision that is incidental or supplementary to, or consequential on, any provision of this Act;
(b)make transitional or saving provision in connection with any provision of this Act.
(2)Regulations under this section—
(a)may amend, modify, repeal or revoke any enactment, whenever enacted or made, including this Act;
(b)are to be made by statutory instrument.
(3)A statutory instrument containing regulations made under this section that amend, modify or repeal an enactment contained in primary legislation may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, Senedd Cymru.
(4)Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of Senedd Cymru.
(5)In subsection (3), “primary legislation” means—
(a)an Act of Senedd Cymru;
(b)a Measure of the National Assembly for Wales;
(c)an Act of the Parliament of the United Kingdom.
29Coming into force#
(1)The following provisions come into force on the day after the day on which this Act receives Royal Assent—
(a)in Part 1—
(i)sections 1, 16, 21 and 22 (in so far as it relates to paragraph 3(b) of Schedule 1);
(ii)paragraphs 2(1) and (6), 3(b), 5(1) and (4), 7(1), (3), (4), (14) and (15) of Schedule 1;
(b)in Part 2, sections 23 and 26;
(c)this Part.
(2)The other provisions of this Act come into force on a day appointed by the Welsh Ministers in an order made by statutory instrument.
(3)An order under subsection (2) may make transitional or saving provision.
Schedule 1 · Social care: minor and consequential amendments
Part 1 · Provision of social care services to children: minor and consequential amendments
(2)
(1)The 2016 Act is amended as follows.
(2)In section 13, in subsection (5), for paragraph (a) substitute—“a in the case of variation—i under subsection (1), (3)(a) or (c) or (4)(a), orii in accordance with paragraph 3(4)(a) of Schedule 1A,the requirements of sections 18 and 19 are met;”
(3)In section 15, in subsection (3), for paragraph (a) substitute—“a in the case of—i cancellation on the grounds set out in subsection (1)(a), (b), (ba) or (g), orii cancellation in accordance with paragraph 3(4)(b) of Schedule 1A,the requirements of sections 18 and 19 are met;”
(5)In section 187, in subsection (2)—
(a)after paragraph (c) insert—“ca section 6A(3)(b) (regulations prescribing public goods to which a person’s objects or purposes must primarily relate);”
(b)after paragraph (w) insert—“x paragraphs 1(1)(b) and 3(1) of Schedule 1A (regulations in relation to transitional period for restricted children’s services).”
(6)In Schedule 1—
(a)in paragraph 1(1)—
(i)for the words “at a place” substitute “,”;
(ii)after the words “in Wales” omit “,”;
(b)in paragraph 1(4), for the words “by a” to the end substitute “does not constitute a care home service if the accommodation and care is provided by—a a person, other than a local authority, who has parental responsibility for the child;b a relative of the child;c a foster parent in relation to the child (but see also paragraph 5A(3) of Schedule 7 to the Children Act 1989 (c. 41).”
(c)for paragraph 1(6) substitute—“6 In sub-paragraph (4), “parental responsibility has the meaning given by section 3 of the Children Act 1989 (c. 41).”
Part 2 · Miscellaneous amendments in relation to social care services etc.: minor and consequential amendments
(3)In the Mental Health Act 1983 (c.20), in section 117(2C)—
(a)in paragraph (a)(ii)—
(i)for “sections 50, 51 and 53 of” substitute “Schedule A1 to”;
(ii)omit the words in parentheses;
(b)in paragraph (b), for the words from “be provided” to the end substitute “otherwise be provided under this section”.
(4)
(1)The Safeguarding Vulnerable Groups Act 2006 is amended as follows.
(2)In section 6, after subsection (8G) (as inserted by paragraph 4(2) of Schedule 2) insert—“8H A local authority does not make arrangements for another to engage in a regulated activity by virtue of anything the authority does under regulations under section 49A of, or Schedule A1 to, the Social Services and Well-being (Wales) Act 2014 (anaw 4);8I A person (P) who is authorised as mentioned in subsection (5)(a) of section 50 of, or paragraph 4(5)(a) of Schedule A1 to, the Social Services and Well-being (Wales) Act 2014 does not make arrangements for another to engage in a regulated activity by virtue of anything that P does under subsection (5)(b) or (6)(b) of section 50 or paragraph 4(5)(b) or (6)(b) of Schedule A1.”
(3)In section 30(8), for “sections 50 to 53 of” substitute “section 49A of, or Schedule A1 to,”.
(5)
(1)The 2014 Act is amended as follows.
(2)In section 49(1)(a), for “sections 50 to 53” substitute “sections 49A to 53A”.
(3)In section 53—
(a)for “50, 51 or 52” each time it appears, substitute “49A”;
(b)in subsection (1)(k), for “50” substitute “49A”;
(c)in subsection (7), for “51” substitute “49A(1)(b)”;
(d)omit subsection (11).
(4)In section 124(9), in the Welsh language text, after “Nid yw’r adran hon yn gymwys” insert “—a i awdurdod lleol sy’n lleoli plentyn mewn llety diogel yn yr Alban o dan adran 25 o Ddeddf Plant 1989, nab ”
(5)In section 187(2), for “section 50 or 51” substitute “section 49A or Schedule A1”.
(6)In section 189—
(a)in subsection (5)(a)(ii), for “section 50 or 52” substitute “section 49A(1)(a) or (c)”;
(b)in subsection (7)(b), for “section 50 or 52” substitute “section 49A(1)(a) or (c)”.
(6)
(1)The Criminal Justice and Courts Act 2015 is amended as follows.
(2)In section 21, in subsection (8), for paragraph (d) substitute—“d Schedule A1 to the Social Services and Well-being (Wales) Act 2014 (anaw 4) (direct payments for after-care made by local authorities);e regulations under section 49A of the Social Services and Well-being (Wales) Act 2014 (direct payments for care and support) where the payment is made towards the cost of meeting the needs of an adult or a carer who is an adult.”
(7)
(1)The 2016 Act is amended as follows.
(2)In section 1, in paragraph (c), at the end insert “and investigations”.
(3)In section 16, in subsection (1)—
(a)in paragraph (a), for “section 15” substitute “section 15(1)(c), (d), (e) or (f)”;
(b)in paragraph (b), for “section 13(3) or (4)” substitute “section 13(3)(b) or (4)(b), (ba) or (c)”.
(4)In section 18, in subsection (1)—
(a)at the end of paragraph (b) omit “or”;
(b)in paragraph (c)(ii), for “section 13(3) or (4), 23(1)(b) or 25(2)(a).” substitute “section 13(3)(b) or (4)(b), (ba) or (c), 23(1)(b) or 25(2)(a), or”;
(c)after paragraph (c) insert—“d cancel the registration of a service provider other than under section 15(1)(c), (d), (e) and (f).”
(5)In the heading of Chapter 3, for the words “and inspections” substitute “, inspections and investigations”.
(6)In the heading of section 33, after the word “inspections” insert “, investigations”.
(7)In the heading of section 34, omit “and inspect”.
(8)In the heading of section 50, at the end insert “and investigations”.
(9)In section 144, in subsection (6), for the words “; see section 148 (extension of interim order by the tribunal)” substitute “by the tribunal under section 148”.
(10)In section 146, in subsection (9), in paragraph (a) omit “by the tribunal”.
(11)In section 149, in subsection (4)(a), for “by the tribunal” substitute “(whether by a panel or the tribunal)”
(12)In section 161, in subsection (6)(b), for “or vary” substitute “, vary or extend”.
(13)In section 163, in subsection (1)(d), for “or varied” substitute “, varied or extended”.
(14)In Schedule 2, in paragraph 15(3)(d), for “of the National Assembly” substitute “of Senedd Cymru”.
(15)In the following provisions, in each place that it appears, for “the National Assembly for Wales” substitute “Senedd Cymru”—
(a)section 10(6);
(b)section 27(5);
(c)section 41(4);
(d)section 42(5);
(e)section 186(4), (5) and (6);
(f)section 187(2) and (3);
(g)Schedule 2, paragraphs 15(3)(d) and 16(4)(b).
Schedule 2 · Direct payments for health care: minor and consequential amendments
(1)
(1)The Mental Health Act 1983 is amended as follows.
(2)In section 117(2C)—
(a)at the end of paragraph (a)(ii) omit “or”;
(b)at the end of paragraph (a)(iii), for “and” substitute “or”;
(c)after paragraph (a)(iii) insert—“iv regulations under section 10B(6) of the National Health Service (Wales) Act 2006, and”
(2)
(1)The Disabled Persons (Services, Consultation and Representation) Act 1986 is amended as follows.
(2)In section 2(5), after paragraph (aa) insert—“ab in hospital accommodation in Wales or in England in respect of the provision of which direct payments are made under section 10B(1) of the National Health Service (Wales) Act 2006, or”
(3)
(1)The National Health Service (Wales) Act 2006 is amended as follows.
(2)In section 184—
(a)in subsection (2)—
(i)in paragraph (b), after “local NHS bodies” insert “, direct payment service providers”;
(ii)in paragraph (c), after “local NHS bodies” insert “or direct payment service providers”;
(iii)in paragraph (d), after “local NHS bodies” insert “or direct payment service providers”;
(iv)in paragraph (e), after “local NHS body” insert “or a direct payment service provider”;
(v)in paragraph (f), after “local NHS body” insert “or a direct payment service provider”;
(b)after subsection (3) insert—“3A For the purposes of subsection (2) and section 186, “direct payment service provider in relation to an overview and scrutiny committee of a local authority means a person who provides services to any person residing in the authority’s area in respect of which direct payments have been made under section 10B(1), or under regulations made under section 10B(6).”
(3)In section 186(3)—
(a)at the end of paragraph (a) omit “or”;
(b)after paragraph (a) insert—“ab by adding any description or other provision in connection with a direct payment service provider or services provided by, or under arrangements made by, a direct payment service provider, or”
(4)In section 187—
(a)in subsection (2)—
(i)in paragraph (a), before “health service body” insert “direct payment service provider,”;
(ii)in paragraph (ca), before “health service body” insert “direct payment service provider,”;
(b)in subsection (3), in the appropriate place insert—“• “direct payment service provider means a person who provides services to any person in respect of which direct payments have been made under section 10B(1), or under regulations made under section 10B(6),”
(5)In section 207, in the appropriate place insert—“”
(5)
(1)The Criminal Justice and Courts Act 2015 is amended as follows.
(2)In section 21, in subsection (8), after paragraph (b) insert—“ba section 10B of the National Health Service (Wales) Act 2006 (c. 42) (direct payments for health care);bb regulations under section 10B(6) of the National Health Service (Wales) Act 2006 (direct payments for after-care made by Local Health Boards);”
(6)
(1)The Public Services Ombudsman (Wales) Act 2019 is amended as follows.
(2)In section 1(5)—
(a)in paragraph (a), for “and palliative care providers” substitute “, palliative care providers and direct payment service providers”;
(b)in paragraph (b), for “and palliative care” substitute “, palliative care and direct payment services”;
(c)in paragraph (c), for “the social care and palliative care matters” substitute “the matters relating to social care, palliative care and direct payment services”;
(d)in paragraph (d), for “and palliative care” substitute “, palliative care and direct payment services”;
(e)in paragraph (e), for “and palliative care” substitute “, palliative care and direct payment services”.
(3)In the heading of Part 5, for “and palliative care” substitute “, palliative care and direct payment services”.
(4)In section 42—
(a)in subsection (1), after paragraph (c) insert—“d action taken by a direct payment service provider in connection with the provision of direct payment services.”
(b)in subsection (6)—
(i)for “64” substitute “64A”;
(ii)in the appropriate places insert—“• “direct payment service” (“gwasanaeth taliadau uniongyrchol”);”“• “direct payment service provider” (“darparwr gwasanaeth taliadau uniongyrchol);”
(5)In section 47(2)—
(a)at the end of paragraph (c) omit “or”;
(6)After section 64 insert—“64A 1 This section applies for the purposes of this Act.2 “Direct payment service” means a service provided in Wales or in England in respect of which direct payments have been made under section 10B(1), or under regulations made under section 10B(6), of the National Health Service (Wales) Act 2006 (c. 42).3 “Direct payment service provider” means a person who provides direct payment services but does not include an individual who—a carries on an activity that involves the provision of domiciliary care in Wales or in England in respect of which direct payments have been made under section 10B(1), or under regulations made under section 10B(6), of the National Health Service (Wales) Act 2006,b carries on the activity otherwise than in partnership with others,c is not employed by a body corporate or unincorporated association to carry it on,d does not employ any other person to carry out the activity, ande provides or arranges the provision of domiciliary care to fewer than four people.4 Action is to be treated as action taken by a direct payment service provider if it is taken by—a a person employed by that provider,b a person acting on behalf of that provider, orc a person to whom that provider has delegated any functions.5 Action is also to be treated as action taken by a direct payment service provider if—a that provider provides direct payment services by means of an arrangement with another person, andb the action is taken by or on behalf of the other person in carrying out the arrangement.”
(7)In section 71(1)(d)(i), for “or independent palliative care provider” substitute “, independent palliative care provider or direct payment service provider”.
(8)In section 78(1), in the appropriate places insert—“• “direct payment service” (“gwasanaeth taliadau uniongyrchol”) has the meaning given by section 64A(2);”“• “direct payment service provider” (“darparwr gwasanaeth taliadau uniongyrchol) has the meaning given by section 64A(3);”
(9)In section 79—
(b)after subsection (7) insert—“7A “Former direct payment service provider” means a person who—a at the relevant time, provided direct payment services of a particular description, andb subsequently ceased to do so (whether or not the person has later started to do so again).”
(10)In Schedule 1—
(a)in paragraph 6(1)(f) for “or independent palliative care provider;” substitute “, independent palliative care provider or direct payment service provider;”;
(b)in paragraph 15(7)(a) for “or independent palliative care provider” substitute “, independent palliative care provider or direct payment service provider”.
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