Please note - paragraphs 182 - 214 were incorrect and have been omitted

CHAPTER 5 - SOCIAL SERVICES: FUNCTIONS OF CSCI

Provision of social services

Clause 72: Introductory

215.     This clause places a duty on the CSCI to encourage improvement in the provision of local authority social services in England. It provides that in exercising its functions in respect of local authority social services the CSCI will be concerned in particular with the availability, access, quality, effectiveness, management, economy and efficiency of these services, and also have regard to the need to promote and safeguard the rights and welfare of children and should consider in particular how local authorities are doing this.

216.     The Bill defines English local authority social services at clause 135. The definition of English local authority social services in the Bill includes both local authority social services as defined in the Local Authority Social Services Act 1970 (the "LASS Act") and services provided under local authorities' broad discretionary power under section 2(1)(b) of the Local Government Act 2000 where those services are similar to local authority social services as defined in the LASS Act. Local authority social services are defined in the LASS Act as services provided under the enactments specified in Schedule 1 to that Act. Examples of local authority social services are child protection services, support services to elderly people to enable them to stay in their own homes and the provision of special equipment to help disabled people with their daily living needs. Section 2(1)(b) provides local authorities with a broad discretionary power to provide services calculated to improve the wellbeing of people in their area.

Clause 73: Information and advice

217.     Clause 73 places a duty on the CSCI to keep the Secretary of State informed about the social services provided by English local authorities. Subsection (2) allows for the CSCI to give advice to the Secretary of State on any matters connected with this subject as it sees fit. In particular the CSCI may advise the Secretary of State of any changes to standards issued under section 23 of the CSA that could secure an improvement in the performance by local authorities in England of their adoption and fostering functions. These standards are National Minimum Standards that represent the minimum service level expected of local authorities in exercising their adoption and fostering functions. Similar National Minimum Standards are also issued under section 23 in respect of adoption and fostering services provided by voluntary sector adoption and fostering agencies.

Clause 74: Review of studies and research

218.     This clause enables the CSCI to evaluate work carried out by other bodies, such as academic institutions, into the provision of English local authority social services. The CSCI will be able to make a judgement on the usefulness of such work and the lessons that may be learned from it. The CSCI may publish a report where it thinks appropriate.

Clause 75: Annual Reviews and Investigations

219.     Clause 75 gives the CSCI the function of undertaking an annual review of social services provided by every local authority England. This includes services 'commissioned' by a local authority i.e. care services purchased by a local authority, for an individual for whom it is responsible for providing social services, from a third party provider. For example a local authority might pay for an elderly person to be placed in a voluntary or private sector care home. In assessing how well a local authority is discharging its social services functions CSCI will consider the extent to which 'commissioned' services meet the needs of those for whom they are have been 'commissioned'.

220.     Following each annual review of a local authority, the CSCI will award a performance rating (subsection 2). In practice this will mean the award of a 'star rating'. 'Star rating' is not a term set out in legislation. The star rating system was introduced by the Secretary of State in October 2001. Its aim is to provide a simple indicator of the level of performance of a local authority in its provision of social care services in any one year.

221.     Subsections (3) and (4) provide for the CSCI to devise and publish criteria against which these reviews will be carried out. The Secretary of State will approve such criteria.

222.     When carrying out annual reviews CSCI must take into account guidance issued to local authorities under section 7 of the LASS Act (subsection (5)). Subsection (6) provides that when CSCI inspects a local authority's adoption and fostering functions as part of an annual review it must take into account standards published under section 23 of the CSA that relate to such functions.

223.     In order for the CSCI to carry out these reviews and investigations, subsection (7) enables the CSCI to inspect the local authority being reviewed or any person 'commissioned' on behalf of that local authority to provide a local authority social service.

Clause 76: Other reviews and investigations

224.     Clause 76 provides for the CSCI to review or investigate the provision by local authorities in England of social services in circumstances other than when CSCI is conducting annual review. Under this function the CSCI may undertake a review of the social services provided by local authorities across the whole of England (paragraph 2(a)), a review of one or more social services across the country, in a particular area or by a particular type of local authority (for example the provision of child protection services by local authorities in large cities) (paragraph 2(b)), or the services (or any of them) provided by an individual local authority (paragraph 2(c)). Subsection (3) provides that CSCI must, where requested to do so by the Secretary of State, carry out a review of a specified local authority's social services.

225.     Subsections (4) and (5) provide that in exercising its functions under this clause CSCI must take into account guidance issued under section 7 of the LASS Act ¹⁶ and standards published under section 23 of the CSA. This mirrors the provisions made in subsections (5) and (6) of clause 75 in relation to the CSCI's annual reporting function.

¹⁶ This is guidance issued by the Secretary of State to local authorities with regard to the exercise of their functions. Case law provides that local authorities must comply with such guidance unless they have good reason not to do so.

226.     In order for the CSCI to carry out these reviews and investigations, subsection (6) enables the CSCI to inspect any local authority in England or any person who is providing an English local authority social service.

Clause 77: Failings

227.     This clause gives the CSCI certain duties that it must carry out when, following an inspection made under clause 76, it judges that there are failings in the provision of social services by a local authority.

228.     Subsections (2) and (3) provide that the CSCI must recommend certain measures that the Secretary of State should take where local authorities' social services have been awarded the lowest performance rating (currently a zero star) or where the CSCI judges that a local authority is failing to discharge its social services functions to an acceptable standard. Such measures are likely to include closer monitoring of the local authority by the CSCI or use of the Secretary of State's special powers of intervention (as set out in the Local Authority Social Services Act 1970 (section 7), The Children Act 1989 (section 81 and 84), The NHS and Community Care Act 1990 (section 50), The Local Government Act 1999 (section 15), and The HSC Act 2001 (section 46)). Following a request from the Secretary of State, the CSCI must undertake a further inspection of the local authority concerned and prepare a further report.

229.     Where failings are of a less significant nature, subsection (4) and (5) provide for the CSCI to notify the local authority, setting out the detail of the failure, the action to be taken to rectify it, and the time by which by this must be done. The CSCI must at this time inform the Secretary of State of the action it has taken.

Audit functions

Clause 78: Studies as to economy, efficiency etc.

230.     Clause 78 replicates, for the CSCI, the powers that sections 33 and 34 of the Audit Commission Act 1998 give to the Audit Commission with respect to local authority social services.

231.     Subsection (1) provides for the CSCI to carry out studies designed to enable it to make recommendations for improving economy, efficiency and effectiveness in the provision of local authority social services, and for improving the management of social services. These provisions will enable the CSCI to carry out value for money studies in the local authority's area. Where there are studies looking at the performance of an individual local authority's social services, or where there is a national study into one particular aspect of social service provision, these will be carried out by the CSCI.

232.     The Audit Commission will retain powers enabling it to carry out studies of local authority social services. However, although this will mean that the functions of the Audit Commission and CSCI will overlap, it is envisaged that in practice they will exercise them in different circumstances. It is envisaged that in the future the CSCI will carry out studies that focus on specifically on social services, calling on the assistance of the Audit Commission where necessary. Where the primary focus of a study is on local authority services other than social services, it is envisaged that such studies will be carried out by the Audit Commission, calling on the assistance of CSCI where necessary.

Clause 79: Joint working with the Audit Commission

233.     Clause 79 provides that the Audit Commission and the CSCI may exercise jointly the functions given them by clause 78 and sections 33 and 34 of the Audit Commission Act. This clause also imposes on the CSCI and the Audit Commission a duty to co-operate with one another when performing their respective functions in these areas (subsection (2)). Subsection (3) enables the Secretary of State to give guidance about their functions to both the CSCI and the Audit Commission. The object of such guidance will to enable the Secretary of State to detail circumstances where he would like either the Audit Commission or the CSCI to take the lead in joint work.

Other functions

Clause 80: Additional Functions

234.     Clause 80 allows the Secretary of State to confer additional functions through regulations on the CSCI in respect of local authority social services in England. It is intended that this would be used by the Secretary of State to ensure that the CSCI is responsive to future developments in the field of public sector performance assessment.

Exercise of functions: general

Clause 81: General considerations

235.     Subsection (1) places a duty on the CSCI to have regard to such government policy as the Secretary of State may direct, in exercising its functions.

236.     Subsection (2) provides for the Secretary of State to make regulations requiring CSCI to devise and publish criteria to be used in relation to its functions under this chapter (other than the review and investigation criteria provided for by clause 70). The Secretary of State will approve such criteria.

Clause 82: Failure in discharge of functions

237.     This clause is in the same terms as clause 59 for CHAI.

Clause 83: Fees and clause 84:Reports and information

238.     Clauses 83 and 84 refer to the levying of fees. Clause 83 provides for the CSCI to be able to determine and levy fees in relation to the exercise of such of its functions under clauses 75, 76 or 78 as prescribed. This clause requires that the CSCI must consult appropriate persons before it devises the fee scale. Appropriate persons are likely to be local authorities in general or organisations representative of local authorities, such as the Local Government Association or the Association of Directors of Social Services. Subsection (6) provides for regulations allowing an independent panel to review the amount chargeable by the CSCI for a particular service.

239.     Clause 84 makes the same provision as respect as the provision of reports and other information to the public as clause 61 makes for CHAI.

Clause 85: Right of entry

240.     This clause allows persons authorised by CSCI to enter premises which are used or are proposed to be used in the provision of an English local authority social service, or where the CSCI believes such use has or will be likely to take place (subsection (2)). Individuals authorised by the CSCI will not have the right, by virtue of this section, to enter private homes where social services are being provided. The powers given to CSCI inspectors by this clause largely mirror those given to CHAI inspectors by clause 62.

Clause 86: Right of entry: supplementary

241.     This clause gives persons authorised to enter premises under clause 85 rights to copy and inspect documents, interview persons working at the premises etc The powers given to CSCI inspectors by this clause mirror those given to CHAI inspectors by clause 63.

Clause 87: Power to require information

242.      This clause provides for the CSCI the same right to require information (from the bodies specified in subsection (2)) as clause 64 does for the CHAI.

Clause 88: Power to require explanation

243.     This clause provides that the Secretary of State may make regulations to give the CSCI power to require an explanation of any documents or information it obtains under clauses 85 to 87 or of any matters that are the subject to the exercise of its functions under this chapter. This clause is identical to clause 65 in the CHAI provisions.

CHAPTER 6 - SOCIAL SERVICES: FUNCTIONS OF NATIONAL ASSEMBLY FOR WALES

Provision of social services

Clause 89: General function of encouraging improvements

244.     Clause 89 provides for the Assembly to have a general function of encouraging improvement in the provision of Welsh local authority social services. The same provision is made as respects the CSCI by clause 67.

Clause 90: Reviews of studies and research

245.     The powers given to the CSCI in clause 90 are replicated in this clause for the Assembly.

Clause 91: Reviews and investigations

246.     Clause 91 gives the Assembly a similar function of reviewing and investigating as that which is given to the CSCI under clause 76. Save that, subsection (3) allows for inspections in Wales to be based on set criteria which may result in the award of a performance rating.

Clause 92: Studies as to economy, efficiency etc

247.     This clause replicates, for the Assembly (in the same way that clause 78 does for the CSCI), the powers that sections 33 and 34 of the Audit Commission Act 1998 confer on the Audit Commission with respect to local authority social services. Subsection (1) provides for the Assembly to promote or undertake studies designed to enable it to make recommendations for improving economy, efficiency and effectiveness in the provision of local authority social services ('value for money' studies), and for improving the management of social services. Subsection (3) provides that the Assembly must publish, or otherwise make available, its recommendations and any report resulting from these studies. Subsection (4) provides that the Assembly and the Audit Commission must co-operate with each other with respect to their similar functions.

Clause 93: Additional Functions

248.     Where the Secretary of State confers additional functions on the CSCI by regulations under clause 80, clause 93 provides that the Assembly may make regulations to confer such functions on itself in relation to Wales.

Clause 94: General considerations

249.     This clause highlights the requirement of the Welsh Assembly to concern itself with the availability and access, the quality and effectiveness, and the economy and efficiency of all elements of services provided in exercising its functions in clauses 89 to 92 and as specified by any additional function conferred under regulations in clause 93.

Ancillary powers

Clause 95: Right of Entry, Clause 96: Right of entry: supplementary, Clause 97: Power to require information, Clause 98: Power to require explanation

250.     The powers given to the CSCI in clauses 85-88 are replicated in these clauses for the Assembly.