SECTION 21 - APPEALS TO THE TRIBUNAL
Under this section, the registered person has a right of appeal to the Health, Education and Social Care Chamber of the First–tier Tribunal established under the Tribunals, Courts and Enforcement Act 2007. Any decision of the registration authority may be appealed, as may a decision of a justice of the peace made under the urgent enforcement procedure provided for by section 20 of the Care Standards Act 2000.
There are time limits on bringing appeals. They must be brought within 28 days of the day on which notice of the decision in question was served upon the registered person (subsection (2)).
The tribunal, on an appeal, either confirms the decision or directs that it shall not have effect (subsections (3) and (4)). The tribunal also has the power to vary, remove or add conditions of registration (subsection (5)).
Guidance and other relevant material
The rules which govern the making of appeals to the First-tier Tribunal are the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (S.I. 2008/2699), which are available at www.opsi.gov.uk/si/si2008/uksi_20082699_en_1.
The making of a further appeal to the Upper Tribunal is governed by the Tribunal Procedure (Upper Tribunal) Rules 2008 (S.I. 2008/2698), which are available at www.opsi.gov.uk/si/si2008/uksi_20082698_en_1.
As many readers will be aware, the relevant tribunal for hearing appeals in care standards cases used to be the Care Standards Tribunal. The functions of that tribunal were transferred to the First-tier Tribunal on 3 November 2008 by the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 (S.I. 2008/2684) which is available at www.opsi.gov.uk/si/si2008/uksi_20082684_en_1 and the Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833): see www.opsi.gov.uk/si/si2008/pdf/uksi_20082833_en.pdf.
Further details about the operation of the Tribunals are available at the Tribunal Service’s website: www.tribunals.gov.uk/index.htm.
SECTION 22 - REGULATION OF ESTABLISHMENTS AND AGENCIES
The regulations under this section set out how registrable children’s services are to be conducted. The exceptions are voluntary adoption agencies and adoption support agencies: regulations about their conduct are made under the Adoption and Children Act 2002.
Regulations are made in England by the Secretary of State, and in Wales by the Welsh Ministers. It is a requirement of registration that the regulations be complied with (see section 14 of the Care Standards Act 2000). In addition, in many cases it is a criminal offence to breach the requirements of the regulations.
The Explanatory Notes to the Care Standards Act 2000 describe this section as follows:
“Subsection (1) provides a general power to make regulations imposing any requirements as the [Secretary of State or Welsh Ministers] thinks fit. Subsection (2) amplifies this, providing for regulations to be made that will be key to the registration of establishments and agencies. It will be essential that the registration authority can ensure establishments and agencies are carried on or managed by persons who are fit to do so. This subsection allows regulations to be made to ensure that establishments and agencies are suitably managed, staffed and equipped and that premises are fit for their purpose.
Subsection (2) (d) provides powers to make regulations regarding the welfare of persons accommodated in establishments or provided with services by them…Subsection (2) (e) provides similar powers to make regulations to secure the welfare of children placed by independent fostering agencies.
Subsections (3) and (4) provide that regulations may be made prohibiting a person's appointment as manager of, or employment in, an establishment or agency unless they are on a register of social care workers, maintained under section 56.
Subsections (5) and (6) provide that the welfare regulation making powers in (2) (d) and (e) may cover the protection and promotion of health, the control and restraint of adults, and the control and restraint and discipline of children. This will enable regulations to set out what is acceptable behaviour management for adults and children.
Subsection (7) gives the [Secretary of State or Welsh Ministers] power to make provision as to the conduct of an establishment or agency, including the provision of facilities and services, record keeping, notification of events, arrangements for dealing with complaints and in relation to independent hospitals and clinics, the arrangements to be made to secure that any medical or psychiatric treatment or listed services meet appropriate standards.
Subsections (7)(h) and (i). Just as it will be important for the registration authority to be made aware of a change in the person managing a home or branch of an agency, so will it be important to have notice of changes in the ownership or the officers of a company which was registered in respect of a service. Fit person checks of company officers have a cost, and so in order to satisfy itself that the officers of the company taking over are fit persons, the registration authority would need to carry out these checks and be able to charge for this.
Subsection (8) concerns regulations made in respect of secure accommodation for children, which may cover both its provision and its use, and facilities for religious instruction in children's homes.
Subsection (9) requires the [Secretary of State or Welsh Ministers] to consult such persons as they consider appropriate before making or significantly amending regulations under the powers in this section.”
Regulations made under this section
England
The Children’s Homes Regulations 2001 (S.I. 2001/3967) have been made under this section. They are available here
The Fostering Services Regulations 2002 (S.I. 2002/57) have been made under this section. They are available here
The Residential Family Centres Regulations 2002 (S.I. 2002/3213) have been made under this section. They are available here
Wales
The Children’s Homes (Wales) Regulations 2002 (S.I. 2002/327) have been made under this section. They are available here
The Residential Family Centres (Wales) Regulations 2003 (S.I. 2003/781) have been made under this section. They are available here
The Fostering Services (Wales) Regulations 2003 (S.I. 2003/237) have been made under this section. They are available here
SECTION 22A - POWER OF CHIEF INSPECTOR WHERE A PERSON IS FAILING TO COMPLY WITH REQUIREMENT RELATING TO CHILDREN’S HOMES ETC
This section, which applies in England only, was inserted in the Care Standards Act 2000 by section 26 of the Children and Young Persons Act 2008 and is in force from 1 April 2010.
The official explanatory notes for the 2008 Act describe this section as follows:
“The section…enables the Chief Inspector to serve a "compliance notice" where he is of the opinion that an establishment or agency (children's home, a fostering agency, a residential family centre, an adoption support agency or a voluntary adoption agency) is not meeting the required standards, as set out in the relevant regulations and National Minimum Standards.
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 (OFSTED), 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 [up to £5,000] (subsections (4) and (5)).”
Failure to act on the compliance notice is also a ground for cancellation of registration under section 14 of the Care Standards Act 2000.
SECTION 22B – NOTICE RESTRICTING ACCOMMODATION AT CERTAIN ESTABLISHMENTS
This section was inserted in the Care Standards Act 2000 by section 27 of the Children and Young Persons Act 2008 and came in to force in England on 1 April 2010 and, in Wales, on 26 April 2010.
The official explanatory notes for the 2008 Act describe this section as follows:
“Section 22B…enables the Chief Inspector (OFSTED) or, in Wales, the Welsh Ministers, (Care and Social Services Inspectorate Wales) to impose a requirement preventing any new admissions of children to certain residential settings (children’s homes and residential family centres). 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.
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 23 - NATIONAL MINIMUM STANDARDS
The National Minimum Standards issued for registrable children’s services are probably the most well known instruments made under the Care Standards Act 2000. It is important, however, to note that, despite their name, the standards are not a set of hard-and-fast rules: they are merely to be taken into account when regulatory decisions are made under the Care Standards Act 2000.
The Explanatory Notes to the Care Standards Act 2000 describe this section as follows:
“Section 23 provides for the appropriate minister [Secretary of State in England and the Welsh Ministers in Wales] to prepare and publish national minimum standards applicable to establishments and agencies. These will specify the standards applicable to the services and which, as subsection (4) makes clear, must be taken into account by a registration authority when making any decision, or in any proceedings for an offence under regulations under Part II. The standards may include parts of the GSCC codes of conduct and practice for employers of social care staff (see note to section 62).”
The National Minimum Standards (NMS)
England
The NMS for children’s homes are available at www.dh.gov.uk/assetRoot/04/03/43/19/04034319.pdf
The NMS for residential family centres are available at www.dh.gov.uk/assetRoot/04/03/44/12/04034412.pdf
The NMS for Fostering Services are available at www.dh.gov.uk/assetRoot/04/03/43/84/04034384.pdf
Wales
The equivalent NMS for Wales are available at www.csiw.wales.gov.uk/fe/default.asp?n1=7
SECTION 24 - FAILURE TO COMPLY WITH CONDITIONS
SECTION 25 - CONTRAVENTION OF REGULATIONS
The Explanatory Notes to the Care Standards Act 2000 describe this section as follows:
“Subsection (1) provides that regulations made under this Part may provide that a failure to comply with the regulations will be an offence…the regulations [for England] provide that the registration authority may serve a notice in respect of a breach of a regulatory requirement, requiring it to be remedied within a specified period. If at the end of that period the breach has not been remedied, the person shall be guilty of an offence. Subsection (2) provides the fine shall not exceed level 4 on the standard scale [currently £2,500].”
SECTION 26 - FALSE DESCRIPTIONS OF ESTABLISHMENTS AND AGENCIES
The Explanatory Notes to the Care Standards Act 2000 describe this section as follows:
“Section 26 makes it an offence for a person to describe any premises as a particular kind of establishment or agency when it is not registered as such. This would catch, for example, an unscrupulous hotel proprietor who tried to pretend his hotel was a nursing home. It would also catch registered persons who misrepresent the nature of their establishment, by claiming it is suitable for a particular category of resident when it is not. The penalty on summary conviction is a fine not exceeding level 5 on the standard scale [currently £2,500].”
SECTION 27 - FALSE STATEMENTS IN APPLICATIONS
The Explanatory Notes to the Care Standards Act 2000 describe this section as follows:
“This section makes it an offence for an applicant knowingly to make a false or misleading statement in applications to the registration authority. The penalty will be a fine of up to £2,500. The application forms will inform people of this offence, which should act as a strong incentive for people to complete their applications accurately.”
SECTION 28 - FAILURE TO DISPLAY CERTIFICATE OF REGISTRATION
The Explanatory Notes to the Care Standards Act 2000 describe this section as follows:
“Section 28 makes it an offence not to display a certificate of registration [in a conspicuous place in the establishment or at the agency in question]. The penalty on summary conviction is a fine not exceeding level 2 on the standard scale, currently £500.”
SECTION 29 - PROCEEDINGS FOR OFFENCES
This section provides that, normally, proceedings in respect of criminal offences committed under the Care Standards Act 2000 are to be brought by the registration authority. Other persons (such as. private individuals) need the consent of the Attorney General before they can bring proceedings.
Normally, proceedings in respect of offences created by the Care Standards Act 2000 (summary offences) must be brought within six months of the date on which the offence is committed. This could have caused problems for Care Standards Act prosecutions because some offences may come to light only after an inspection or whistleblowing incident some time after the offence is committed. Subsection (2), therefore, provides for a six-month limit from when the offence comes to light, with an overall limit of three years from the commission of the offence.
SECTION 30 - OFFENCES BY BODIES CORPORATE
A body corporate, such as a registered company or local authority, has its own legal personality and so is capable of committing a criminal offence – for example, the offence under section 11 of the Care Standards Act 2000 of carrying on a children’s home without being registered. The purpose of this section is to prevent culpable managers of corporate bodies from hiding behind the corporate veil if the body commits an offence. It is important to note that, under this section, a local authority is treated as a body corporate and, hence, local authority officers and members may be proceeded against under this section where the authority itself has committed an offence.
The Explanatory Notes to the Care Standards Act 2000 describe this section as follows:
“Subsection (2) provides that if an offence under Part II is proved to have been committed with the consent or connivance of an officer of a body corporate then he as well as the company is guilty of the offence. Individual officers of a body corporate who are complicit in an offence under this Part of the Act, will not be able to escape prosecution simply because the body corporate is liable: both may be liable to prosecution.”