Clause 73 Appeals against inclusion in the list

215. Individuals will have a right to appeal against a decision by Secretary of State to include them on the list, but (subject to subsection (2)) not against a provisional inclusion while the referral is being investigated. Appeals will be heard by the Tribunal established under PoCA. Individuals will also be able to apply to the Tribunal to appeal against a decision of the Secretary of State not to remove their name from the list on the grounds that their inclusion was erroneous.

216. If the Tribunal is not satisfied, either that the individual was guilty of misconduct, or that they are unsuitable to work with vulnerable adults, it will allow the appeal and direct that the individual's name should be removed from the list. In considering an appeal where an individual has been convicted of an offence, the Tribunal cannot challenge any fact on which the conviction was based.

217. Subsection (2) provides that if an individual's name has provisionally been on the list for more than nine months without a decision being made, he can ask the Tribunal to determine his case instead of the Secretary of State. This will not apply where a criminal or civil case is pending, in which case the individual cannot ask the Tribunal to determine his case until 6 months after the final outcome (or "final determination") of the court case. "Final determination" is defined in subsection (6).

Clause 74 Applications for removal from the list

218. Under this clause, individuals are given a right to apply to have their name removed from the list once a period of ten years has elapsed. Applications will be made to the Tribunal, as before, and it will be for the Tribunal to determine whether the individual is still unsuitable to work with vulnerable adults.

Clause 75 Conditions for application under clause 74

219. Clause 75 gives conditions for application for removal from the list. It provides that such applications may only be made with leave of the tribunal. An individual may only apply after he has been permanently listed for at least ten years, and if unsuccessful, at ten yearly intervals after that. Anyone who was aged under 18 at the time of permanent listing can apply to have his name removed after five years (and at five yearly intervals after that). It will be for the Tribunal to determine whether an individual is now suitable to work with vulnerable adults.

Clause 76 Effect of inclusion in list

220. This clause places a duty on providers of care services to vulnerable adults, including domiciliary care agencies, to check that prospective employees are not on the list before offering them employment in a care position. If they do find the person is on the list, they must not employ them in a care position. Where workers are being supplied by an employment agency or business, the provider must obtain written confirmation from the agency or business to the effect that they have checked that the individual is not on the list within the last twelve months.

Clause 77 Searches of list under Part V of Police Act 1997

221. Clause 77 amends section 113 and 115 of the Police Act 1997. These amendments will, when commenced, enable the Criminal Records Bureau to supply an individual with a criminal record certificate or enhanced criminal record certificate which states whether they are included on the list, and gives any details of the inclusion as may be required in regulations.

Clause 78 Access to list before commencement of section 77

222. This clause provides that pending such time as the Criminal Records Bureau takes on the function of issuing criminal record certificates, any person who wishes to offer an individual employment in a care position, or an employment agency or domiciliary care agency who wishes to take on an individual, or others as may be defined in regulations, is entitled on application to the Secretary of State to the information as to whether the individual is on the list. An application can still be made if the individual is already employed by the person. This means, for example, that an employer can carry out a check in order for a person to change their duties and work in a care position when they had not done so before.

Clause 79 Persons referred for inclusion in list under Protection of Children Act 1999

223. This clause deals with cross-referrals between this list and the list established under section 2 of PoCA, which lists individuals considered unsuitable to work with children. Where a person is referred under PoCA but it appears from the alleged misconduct that they may be unsuitable to work with vulnerable adults, it provides a mechanism for considering inclusion on the vulnerable adults list. Subsection (3) provides, however, that the Secretary of State can only include a person in the vulnerable adults list on a cross-referral if he is first satisfied that they are unsuitable to work with children.

The List kept under Section 1 of the 1999 Act

224. Clauses 80 and 81 make necessary amendments to PoCA.

Clause 80 Employment agencies and businesses

225. This clause inserts a new section into PoCA to modify the application of that Act to employment businesses.

Clause 81 Inclusion in 1999 Act on reference under this Part

226. This clause inserts a new section 3A into PoCA to take account of cross-referral matters. It mirrors the provision under clause 77, in that the Secretary of State may in some circumstances consider an individual for inclusion in the children's list when they have been referred for inclusion in the adults' list, but only if he is satisfied that the person is unsuitable to work with vulnerable adults.

Restrictions on working with children in independent schools

Clause 82 Additional ground of complaint

227. Clause 82 amends the Education Act 1996 so as to provide for the disqualification from working in an independent school of persons who are unsuitable to work with children. A right of appeal to an Independent Schools Tribunal is given in subsection (2) against a proposal by the Secretary of State to disqualify a person on those grounds.

Clause 83 Effect of inclusion in 1996 Act list

228. Clause 83 amends PoCA so as to require child care organisations, when proposing to offer employment in a child care position, to check that the person they are intending to take on is not disqualified from working in independent schools on those grounds. If he is, they are prohibited from taking him on in that position.

Clause 84 Searches of 1996 Act list

229. It is intended that, when Part V of the Police Act 1997, which provides for the Criminal Records Bureau, comes into force, checks against the exclusion list established under PoCA can be made through that mechanism. Clause 84 makes amendments to the Police Act 1997 to enable the checks provided for in the clauses 82 and 83 above, to be made under the provisions of Part V of the Police Act when it comes into force.

PART VII MISCELLANEOUS

230. Part VII imposes a duty on the proprietor of any boarding school or further education colleges with accommodation to safeguard and promote the welfare of any children accommodated there. It empowers the registration authority to inspect the school or college and report on the welfare arrangements for the children there. Section 87 of the Children Act 1989 (which this Part amends), currently makes similar provision in relation to independent boarding schools only. The new requirements will apply to all types of boarding school and further education college, both state and independent sector. Clauses 85 to 90 amend the Children Act 1989. Unless otherwise stated, functions conferred on the Secretary of State in this Part are exercised in Wales by the National Assembly for Wales, and the term "appropriate authority" means, in relation to England, the Commission, and in relation to Wales, the Assembly. Part VII also makes new arrangements for the regulation of nurses agencies by removing their exemption from the Employment Agencies Act 1973 and repealing the Nurses Agencies Act 1957.

Boarding Schools and Colleges

Clause 85 Welfare of children in boarding schools and colleges

231. This clause extends section 87 of the Children Act (welfare of children in independent schools), to all schools and further education colleges with boarding provision, and puts the duty to monitor welfare in schools onto the appropriate authority in place of the local authority. It imposes a duty upon proprietors and governing bodies to ensure that effective arrangements for the welfare of all children accommodated at boarding schools and colleges are in place and properly adhered to.

232. The appropriate authority is required to determine whether this duty is being adequately discharged and may carry out inspections for that purpose. Where the appropriate authority determines that a school or college is failing in its duty in respect of the welfare of children it must inform the local education authority, or in England the Secretary of State, as the case may be, for any appropriate enforcement action to be taken in accordance with education legislation. In Wales, the National Assembly will be responsible both for inspection and for any enforcement actions which would, in England, be undertaken by the Secretary of State. By existing section 87(9) of the Children Act, which is not reproduced in the Bill, it is an offence to obstruct a person exercising powers of inspection under this section or regulations made under it.

Clause 86 Suspension of duty under section 87(3) of the 1989 Act

233. This clause amends sections 87A and 87B of the Children Act as inserted under the provisions of the Deregulation and Contracting Out Act 1994. Sections 87A and 87B empower the Secretary of State (or in Wales, the National Assembly) to appoint a body, which already acts as an inspector of independent boarding schools for other purposes, to undertake the welfare inspection functions conferred by section 87, and allow schools to make inspection arrangements with such substitute inspectors.

234. The effect of the amendments is to apply these provisions to all boarding schools and further education colleges. Any school or college may enter into an agreement with such a body to inspect its welfare arrangements. The substitute inspector must notify the appropriate authority of its appointment. In that case, the authority's duty to ensure the welfare of children accommodated at that school or college is suspended until the appointment is terminated or the agreement comes to an end.

Clause 87 Boarding Schools: national minimum standards

235. This clause inserts a new section 87C making provision for national minimum standards that schools and colleges accommodating children must comply with in relation to the welfare of children. The national minimum standards will be taken into account by the appropriate authority or any substitute inspector in considering whether there has been a failure to safeguard and promote a child's welfare in any school or college, and in any related proceedings.

Clause 88 Annual Fee for boarding school inspections

236. This clause inserts new section 87D which provides for regulations to be made regarding annual inspection fees payable to the appropriate authority. The level of such fees and when they become due will be set out in the regulations. Unpaid fees may be recovered in the magistrates court.

Clause 89 Inspection of schools etc. by persons authorised by Secretary of State

237. The Secretary of State and National Assembly (by virtue of section 80(1) of the Children Act) have wide powers to inspect premises in which children are accommodated, including independent schools. This clause extends powers under section 80 to inspect or to obtain information, to any school or college providing accommodation for any child.

238. It also adds a person carrying on a fostering agency (as defined in clause 4(4)) to those persons whom section 80(5) places under a duty to provide the Secretary of State (or in Wales, the National Assembly) with information or access to records for inspection purposes.

Fostering

Clause 90 Extension of Part IX to school children during holidays

239. The effect of this clause is to apply existing provision, whereby a child who stays at an independent boarding school for more than two weeks in the school holidays is treated as a privately fostered child, to all schools. The local authority must be notified of the child's presence in the school and has to satisfy itself as to his welfare.

Employment Agencies

Clause 91 Nurses Agencies

240. This clause repeals the Nurses Agencies Act 1957 and brings nurses agencies under the Employment Agencies Act 1973. Nurses agencies are currently licensed by local authorities under the Nurses Agencies Act 1957, while all other employment agencies and businesses are covered by the Employment Agencies Act 1973. The effect of this clause is to bring nurses agencies into line with employment agencies and businesses which supply other healthcare professionals, such as locum doctors, dentists and professions allied to medicine, who are all subject to the Employment Agencies Act 1973. In addition, the Government has decided that nurses agencies should be required to register with the Commission (or, for agencies in Wales, the Assembly). (See notes to clause 4(5) and Hansard [Col. 1202])

241. These changes apply to England and Wales. Nurses agencies in Scotland will continue to be licensed under Part III of the Nurses (Scotland) Act 1951.

PART VIII AND SCHEDULES 3, 4 AND 5: GENERAL AND SUPPLEMENTAL

Chapter I: Miscellaneous

Clause 92 Default powers of the appropriate Minister

242. Subsection (1) confers default powers on the Secretary of State in respect of the Commission and the General Social Care Council (GSCC). Subsection (2) makes similar provision for default powers for the National Assembly for Wales in respect of the Care Council for Wales (CCW). If the appropriate Minister is satisfied that the Commission or the GSCC or the CCW has failed to discharge any of its functions, without good reason, or in discharging its functions has failed to comply with any directions or guidance given to it, this clause confers a two-fold default power.

243. Subsection (3) details the first stage: the appropriate Minister may make an order declaring the Commission or Council to be in default and issues directions requiring them to take specific action within a specific timescale. If the Commission or Council still fail to act, the second stage (subsection (4)) is triggered. This results in the appropriate Minister either carrying out the functions himself or nominating a person or organisation to discharge these functions on his behalf.

Clause 93 Schemes for transfer of staff

244. This clause provides that the provisions in both this clause and clause 94 apply to all transfers of staff made under the Bill (see clauses 36, 66 and 68(3)). Subsection (3) provides that schemes may be made by Order in Council, provided that prescribed requirements for consultation have been met in respect of every individual to be transferred.

Clause 94 Effect of schemes

245. This clause provides that all staff transfers made under the Bill will reflect the Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981 No 1794) (TUPE) principle, that staff transferred will do so on their existing terms and conditions. In addition, the new bodies may make provision for occupational pensions and compensation for loss of employment. It is intended that staff who transfer will continue to have pension provision through their existing schemes (see Hansard [Col. 736]).

246. Subsection (1) provides that under a scheme an employee's existing contract of employment would not be terminated, but would transfer to the new employer and be treated as having effect from the date it was originally made.

247. Subsections (3) and (4) provide that an employee may object to transferring to a new employer, and that their contract of employment can be terminated before the date of transfer. This would not be treated as a dismissal.

248. Subsection (5) provides that these arrangements will not affect the right of an employee to terminate his or her contract if their working conditions were to suffer a significant change which was to their detriment.

Clause 95 and Schedule 3 Minor and consequential amendments

249. Clause 95 makes provision for Schedule 3, which makes minor and consequential amendments other legislation. The following amendments are of particular note:

250. Paragraph 2 amends the Adoption Act 1976 to provide for the regulation of voluntary adoption agencies under this Bill.

251. Paragraph 7 makes amendments to the Children Act 1989, in particular to the definition of "registered children's home", which becomes a "private children's home" in order to avoid confusion. An "appropriate children's home" is any type of children's home (that is, private, voluntary or community home), in respect of which a person is registered under the Care Standards Bill.

252. Paragraph 15 amends section 9(2) of the Protection of Children Act 1999 in order that the Tribunal established under that Act should also determine appeals against decisions made under this Bill.

Clause 96 and Schedules 4 and 5: Transitional provisions, savings and repeals

253. Clause 96 makes provision for Schedule 4, which details transitional provisions and savings, and Schedule 5 which details repeals.

254. Paragraph 1 concerns fostering agencies. These are not currently regulated so this paragraph provides for a smooth transition to the registration scheme. This will be achieved by allowing agencies who have submitted an application in accordance with the provisions of clause 10, and who meet any conditions that may be set down in regulations, to be regarded as being registered for a given period. This mechanism will allow fostering agencies to continue to operate lawfully for that period once the new system has come into force, whether or not they have completed the full registration process. The registration authority will then be able to carry out full registration checks on each agency.

255. Paragraph 2 makes transitional provisions for voluntary adoption agencies. These are approved by the Secretary of State under the Adoption Act at present. The transitional arrangement will be that any agency with a current approval under the Adoption Act when clause 10 of this Bill comes into force, and which meets any requirements that may be set down in regulations will be treated as being registered under this Bill, whether unconditionally or subject to conditions. Pending applications for approval will be treated as applications for registration under the Care Standards Bill.

Schedule 5 Repeals

256. Schedule 5 details repeals.

Chapter II: Supplemental

Clause 97 Orders and regulations

257. Clause 97 provides that all orders and regulations made under the Bill, other than orders making staff transfer schemes, will be made by statutory instrument. Apart from commencement orders, in England these will be subject to Parliamentary scrutiny under negative procedures. The Government of Wales Act 1998 places duties on the National Assembly for Wales in respect of making regulations. These are set out in full in Standing Order 22 of the Assembly. An order made by the Secretary of State under section 98(2) which amends the text of an Act is subject to Parliamentary scrutiny under the affirmative procedure.

258. Subsection (4) gives the appropriate Minister power to use any regulation making power flexibly to make similar or different provision for various cases. For example, in clause 21 a power is given to set out in regulations what constitutes 'fit premises'. Different requirements will need to be set depending on whether the premises are to be used as a home, an agency, or another type of registerable establishment.

Clause 98 Supplementary and consequential provision etc.

259. Clause 98 gives the appropriate Minister power enabling him to make such additional provision as he considers necessary in order to give full effect to the provisions of the Bill.

Clause 99 Wales

260. Clause 99 provides for receipts to the Assembly from registration and other fees to be paid into its own budget rather than the Consolidated Fund.

Clause 100 General Interpretation etc.

261. Clause 100 is a general interpretation provision.

Clause 101 Commencement and Clause 102 Short title and extent

262. Clause 101 makes standard provision for commencement. Clause 102 provides that this Bill extends only to England and Wales, except clause 66 (abolition of CCETSW), which also extends to Scotland and Northern Ireland. In addition, clauses 93 and 94 (which relate to schemes for the transfer of staff) and 97 (concerning orders and regulations) also apply to Scotland and Northern Ireland in so far as they relate to staff transfers from CCETSW or the winding-up of CCETSW.

FINANCIAL EFFECTS OF THE BILL

National Care Standards Commission

263. The National Care Standards Commission will be set up to regulate providers of social care and private and voluntary healthcare services. The cost of setting up the Commission will be met by the Department of Health. In Wales, these functions will be carried out by the National Assembly for Wales, which will meet the equivalent set-up costs.

264. Once the Commission and the National Assembly for Wales's functions have been established, the aim will be for them to recover their running costs from fees paid by the service providers who are regulated or inspected by them.

General Social Care Council and Care Council for Wales

265. The General Social Care Council (GSCC) in England and the Care Council for Wales (CCW) will be established to promote high standards of conduct and practice among social care workers and high standards of training in social care.

266. The cost of setting up and running the GSCC will be contained within the Department of Health grant to cover the running costs of the Central Council for Education and Training in Social Work, whose functions in relation to England are being transferred to the GSCC. The National Assembly for Wales will cover the costs of the CCW. It is envisaged that in time registration fees will contribute to the costs of the registration function.

Protection of Vulnerable Adults

267. The Secretary of State will maintain a list of individuals considered unsuitable to work with vulnerable adults. Its purpose is to prevent unsuitable people from working with vulnerable adults in certain specified services. Employers in the specified services will be required to refer the names of staff in certain circumstances to the Secretary of State. These employers will also be required to check the names of potential employees against the list and to refuse employment to anyone included in the list. The costs associated with the register will be met by the Department of Health.

Tribunal

268. The Bill provides for appeals against decisions made by the National Care Standards Commission in England, the National Assembly for Wales, the GSCC and CCW, Her Majesty's Chief Inspector of Schools in England regarding childminding and day care and the Secretary of State for Health regarding inclusion on the Protection of Vulnerable Adults List. These Appeals to be made to the Tribunal established under the Protection of Children Act 1999. The Tribunal's costs will be met by the Department of Health and Department for Education and Employment.

Regulation of nurses' agencies

269. Nurses agencies will be subject to the provisions of the Employment Agencies Act which will increase the costs of the Employment Agency Standards Inspectorate which is funded by the Department of Trade and Industry (DTI). These costs will be offset by equivalent savings in the current regulatory system.

Child minding and day care for young children

270. In England the transfer of responsibilities and resources from local authorities to HMCIS is not expected to increase public expenditure. Over time, it is envisaged that streamlining of the current regulatory regimes will lead to a reduction in expenditure. However, it is estimated that HMCIS will require around £7 million over an initial two year period to carry out training and other set-up activities.

271. The costs of transferring responsibility for regulating day care and child minding from local authorities to the National Assembly for Wales will be met from within the overall costs to the National Assembly for Wales of taking on the health and social care regulatory function.

EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER

National Care Standards Commission and National Assembly for Wales

272. The regulatory authorities will be staffed primarily by the inspection staff who operate the current system, and who are based in local authority and Health Authority inspection units throughout England and Wales. These staff will be able to transfer to the Commission or the National Assembly for Wales. As more services will be regulated under the new arrangements, there may be a need to employ additional inspection staff.

General Social Care Council (GSCC) and Care Council for Wales (CCW)

273. There will be no additional staff required for the GSCC or CCW. They will be staffed mainly by the relevant parts of the workforce transferring from the Central Council for Education and Training in Social Work (a UK body), which is to be abolished.

Child minding and day care for young children

274. The number of staff working on early years education and day care regulation (including administrative functions) will be a matter for HMCIS in England, and the National Assembly for Wales. Any such decision is likely to be influenced by factors such as the expanding market for day care and child minding, introduction of national standards for regulation, extension of the "fit person" check for those working with older children and removal of the current exemptions for certain day care providers.

Tribunal arrangements

275. Appeals against decisions made under the Act will be heard by the Tribunal established by the Protection of Children Act 1999. In effect that tribunal will replace the existing Registered Homes Tribunal, as well as exercising new jurisidictions under the provisions of the Bill and the Protection of Children Act 1999. The membership of the tribunal and staffing of its secretariat will need to be reviewed before it takes on the full range of functions given to it by the Bill.

276. The constitution of the Tribunal is set out in the Schedule to the Protection of Children Act 1999. Appeals will be heard by a legally-qualified chairmen and two other members who, it is intended, will have relevant social care experience. There will be panels of persons suitable to serve as Tribunal members, and sufficient numbers will need to be recruited to these panels to enable the tribunal to deal reasonably promptly with appeals.

SUMMARY OF THE REGULATORY APPRAISAL

277. A regulatory impact assessment has been drawn up to assess the impact of these measures. The assessment of cost impact is summarised in the paragraphs below.