|
| |
|
(2) | Guidance under subsection (1) may be issued to— |
| |
| |
(b) | persons mentioned in Schedule 2; |
| |
(c) | persons providing regulated services in Wales. |
| |
(3) | Before issuing guidance under subsection (1) the Commissioner must consult |
| 5 |
such persons as he thinks appropriate. |
| |
(4) | Where guidance issued under this section is applicable to a person mentioned |
| |
in subsection (2), that person must have regard to the guidance in discharging |
| |
| |
(5) | In discharging his functions in respect of a person mentioned in subsection (2), |
| 10 |
the Commissioner may have regard to the extent to which the person has |
| |
complied with any guidance issued under this section which is applicable to |
| |
| |
13 | Power of entry and of interviewing |
| |
(1) | The Commissioner or a person authorised by him may, for the purposes of a |
| 15 |
function of the Commissioner under section 3 or 5— |
| |
(a) | enter any premises, other than a private dwelling, for the purpose of |
| |
interviewing an older person accommodated or cared for there; |
| |
(b) | interview the older person, if the older person consents. |
| |
(2) | The interview must be conducted— |
| 20 |
(a) | if the older person requires another person to be present, in that other |
| |
| |
(b) | otherwise in the presence of others only to the extent that the older |
| |
person and the Commissioner have consented to their being present. |
| |
(3) | The powers conferred by subsection (1) are exercisable at any reasonable time. |
| 25 |
14 | Further supplementary functions |
| |
(1) | Regulations may, for any purpose connected with the Commissioner’s |
| |
functions, confer further functions on him. |
| |
(2) | The reference in subsection (1) to the Commissioner’s functions does not |
| |
| 30 |
(a) | his powers under sections 2(3) and 9, to the extent that they are |
| |
exercised in a field in which the Assembly does not have functions; |
| |
(b) | his powers under section 13. |
| |
(3) | Regulations under subsection (1) may, for the purposes of a function conferred |
| |
on the Commissioner by the regulations, confer power on the Commissioner or |
| 35 |
a person authorised by him— |
| |
(a) | to enter any premises, other than a private dwelling, for the purpose of |
| |
interviewing an older person accommodated or cared for there; |
| |
(b) | to interview the older person, if the older person consents. |
| |
(4) | Where regulations under subsection (1) confer power to interview an older |
| 40 |
person, the interview must be conducted— |
| |
(a) | if the older person requires another person to be present, in that other |
| |
| |
|
| |
|
| |
|
(b) | otherwise in the presence of others only to the extent that the older |
| |
person and the Commissioner have consented to their being present. |
| |
15 | Reports following discharge of particular functions |
| |
(1) | Regulations may make provision about the making by the Commissioner of |
| |
reports following the discharge of any of his functions. |
| 5 |
(2) | The reference in subsection (1) to the Commissioner’s functions does not |
| |
include his powers under sections 2(3) and 9, to the extent that they are |
| |
exercised in a field in which the Assembly does not have functions. |
| |
(3) | The regulations may in particular— |
| |
(a) | specify the contents of a report and the persons to whom copies of a |
| 10 |
| |
(b) | provide that the Commissioner may make a joint report with the |
| |
Children’s Commissioner for Wales where they have discharged their |
| |
respective functions under this Act and the Care Standards Act 2000 |
| |
(c. 14) in relation to the same matters; |
| 15 |
(c) | make provision about the publication of a report; |
| |
(d) | specify any further action which the Commissioner is required or |
| |
permitted to take after making a report. |
| |
(4) | Subject to subsection (5), a report made by the Commissioner under the |
| |
| 20 |
(a) | mention the name of any person, or |
| |
(b) | include any particulars which, in the opinion of the Commissioner, are |
| |
likely to identify any person and which, in his opinion, can be omitted |
| |
without impairing the effectiveness of the report. |
| |
(5) | Subsection (4) does not apply if, after taking account of the interests of any |
| 25 |
persons he thinks appropriate, the Commissioner considers it to be in the |
| |
public interest to include that information in the report. |
| |
Working with other ombudsmen |
| |
16 | Working jointly with the Public Services Ombudsman for Wales |
| |
(1) | This section applies where it appears to the Commissioner that— |
| 30 |
(a) | he is entitled to examine a particular case under regulations made |
| |
| |
(b) | the case is one which could also be the subject of an investigation by the |
| |
Public Services Ombudsman for Wales. |
| |
(2) | Where the Commissioner considers it appropriate, he must— |
| 35 |
(a) | inform the Ombudsman about the case; and |
| |
(b) | consult him in relation to it. |
| |
(3) | Where the Commissioner consults the Ombudsman under this section he and |
| |
| |
(a) | co-operate with each other in relation to the case; |
| 40 |
(b) | conduct a joint examination of the case; |
| |
(c) | prepare and publish a joint report in relation to the examination. |
| |
|
| |
|
| |
|
(4) | The Assembly may by order provide that this section is also to apply where it |
| |
appears to the Commissioner that a case could be the subject of an |
| |
investigation by a person who is specified in the order as if references in this |
| |
section to the Public Services Ombudsman for Wales were references to that |
| |
| 5 |
(5) | Before making an order under subsection (4), the Assembly must consult the |
| |
Commissioner and any other persons it thinks appropriate. |
| |
17 | Working collaboratively with other ombudsmen |
| |
(1) | This section applies where it appears to the Commissioner that a case which he |
| |
| 10 |
(a) | examining in accordance with regulations made under section 10, or |
| |
(b) | considering whether to examine in accordance with such regulations, |
| |
| relates to or raises a matter which could be the subject of an investigation by |
| |
another ombudsman (the “connected matter”). |
| |
(2) | Where the Commissioner considers it appropriate, he must inform the other |
| 15 |
ombudsman about the connected matter. |
| |
(3) | Where the Commissioner considers that the case also relates to or raises a |
| |
matter which he is entitled to examine himself (the “older people matter”), he |
| |
must also if he considers it appropriate— |
| |
(a) | inform the other ombudsman about the Commissioner’s proposals for |
| 20 |
the investigation of the case; and |
| |
(b) | consult the other ombudsman about those proposals. |
| |
(4) | Where the Commissioner and the other ombudsman consider that they are |
| |
entitled to investigate, respectively, the older people matter and the connected |
| |
| 25 |
(a) | co-operate with each other in the separate investigation of each of those |
| |
| |
(b) | act together in the investigation of those matters; and |
| |
(c) | prepare and publish a joint report containing their respective |
| |
conclusions in relation to the matters they have each investigated. |
| 30 |
(5) | Where the Commissioner considers— |
| |
(a) | that the case is not one which relates to or raises a matter that he is |
| |
entitled to examine himself, and |
| |
(b) | that it is appropriate to do so, |
| |
| he must inform the person whose case it is, or another person interested in it |
| 35 |
that he thinks fit, about how to secure the referral of the connected matter to |
| |
| |
(6) | In this section “other ombudsman” means— |
| |
(a) | the Public Services Ombudsman for Wales; |
| |
(b) | the Children’s Commissioner for Wales. |
| 40 |
(7) | In this section “investigation” includes examination and inquiry, and cognate |
| |
expressions are to be construed accordingly. |
| |
(8) | The Assembly may by order amend subsection (6) by— |
| |
| |
| 45 |
|
| |
|
| |
|
(c) | changing the description of a person. |
| |
(9) | Before making an order under subsection (8), the Assembly must consult the |
| |
Commissioner and any other persons it thinks appropriate. |
| |
Disclosure of information etc. |
| |
18 | Power to disclose information |
| 5 |
(1) | This section applies to— |
| |
(a) | information obtained by the Commissioner in the discharge of any of |
| |
| |
(b) | information obtained by the Commissioner from the Public Services |
| |
Ombudsman for Wales by virtue of section 25A of the Public Services |
| 10 |
Ombudsman (Wales) Act 2005 (c. 10) (working jointly with the |
| |
Commissioner for Older People in Wales); |
| |
(c) | information obtained by the Commissioner from another ombudsman |
| |
by virtue of any provision in an enactment relating to that ombudsman |
| |
which corresponds to any provision of section 17; |
| 15 |
(d) | information obtained by the Commissioner from the Information |
| |
Commissioner by virtue of section 76 of the Freedom of Information |
| |
Act 2000 (c. 36) (disclosure between Information Commissioner and |
| |
| |
(2) | Information to which this section applies must not be disclosed except where |
| 20 |
its disclosure is authorised by subsection (3). |
| |
(3) | The Commissioner may disclose information to which this section applies— |
| |
(a) | for the purpose of the discharge of any of his functions; |
| |
(b) | if he is satisfied that the condition in subsection (4) is met and the |
| |
disclosure is to a permitted person; |
| 25 |
(c) | for the purpose of proceedings for an offence of perjury alleged to have |
| |
been committed in the course of an examination by the Commissioner |
| |
under regulations made under section 10; |
| |
(d) | for the purpose of an inquiry with a view to the taking of proceedings |
| |
mentioned in paragraph (c); |
| 30 |
(e) | for the purpose of proceedings under section 11; |
| |
(f) | if the information is to the effect that a person is likely to constitute a |
| |
threat to the health or safety of one or more persons and the disclosure |
| |
is to a person to whom the Commissioner thinks it should be disclosed |
| |
| 35 |
(g) | if the information is information to which subsection (6) applies and the |
| |
disclosure is to the Information Commissioner; |
| |
(h) | if the information was obtained by the Commissioner more than 70 |
| |
years before the date of the disclosure and the disclosure is to a person |
| |
to whom the Commissioner thinks it should be disclosed in the public |
| 40 |
| |
(4) | The condition is that the disclosure is— |
| |
(a) | appropriate for the purpose of the discharge by the permitted person of |
| |
any of his functions; and |
| |
(b) | in the public interest. |
| 45 |
|
| |
|
| |
|
(5) | In determining for the purpose of this section whether disclosure of |
| |
information is in the public interest, the Commissioner must take into account |
| |
| |
(a) | any person to whom the information relates; and |
| |
(b) | such other persons he thinks appropriate. |
| 5 |
(6) | This subsection applies to information if it appears to the Commissioner to |
| |
| |
(a) | a matter in respect of which the Information Commissioner could |
| |
exercise a power conferred by an enactment mentioned in subsection |
| |
| 10 |
(b) | the commission of an offence mentioned in subsection (8). |
| |
| |
(a) | Part 5 of the Data Protection Act 1998 (c. 29) (enforcement); |
| |
(b) | section 48 of the Freedom of Information Act 2000 (c. 36) (practice |
| |
| 15 |
(c) | Part 4 of that Act (enforcement). |
| |
(8) | The offences are those under— |
| |
(a) | any provision of the Data Protection Act 1998 other than paragraph 12 |
| |
of Schedule 9 to that Act (obstruction of execution of a warrant); or |
| |
(b) | section 77 of the Freedom of Information Act 2000 (offence of altering |
| 20 |
etc. records with intent to prevent disclosure). |
| |
| |
“other ombudsman” has the same meaning as in section 17; |
| |
“permitted person” means— |
| |
| 25 |
(b) | the Public Services Ombudsman for Wales; |
| |
(c) | the Children’s Commissioner for Wales; |
| |
(d) | the Children’s Commissioner; |
| |
(e) | the Commissioner for Children and Young People for Northern |
| |
| 30 |
(f) | a housing ombudsman appointed in accordance with a scheme |
| |
approved under section 51 of the Housing Act 1996 (c. 52); |
| |
(g) | a council for a county or county borough in Wales; |
| |
(h) | a council for a county or district in England; |
| |
(i) | a council for a London borough; |
| 35 |
(j) | a chief of police of a police force for a police area; |
| |
(k) | the chief constable of the British Transport Police Force. |
| |
(10) | The Assembly may by order amend the definition of “permitted person” in |
| |
| |
| 40 |
| |
(c) | changing a description of a person. |
| |
19 | Protection against defamation |
| |
(1) | For the purposes of the law of defamation, the following are absolutely |
| |
| 45 |
|
| |
|
| |
|
(a) | the publication of a matter by the Commissioner in a report made |
| |
under regulations made under section 15 or paragraph 8 of Schedule 1; |
| |
(b) | the publication in communications between the Commissioner and the |
| |
Public Services Ombudsman for Wales or another ombudsman of a |
| |
matter which the Commissioner is permitted to disclose to that |
| 5 |
ombudsman by virtue of subsection (3)(a) of section 18; |
| |
(c) | the publication in communications from the Commissioner to a person |
| |
mentioned in subsection (3) of a matter in connection with an |
| |
examination by the Commissioner into a case under regulations made |
| |
| 10 |
(2) | For the purposes of the law of defamation, the publication in communications |
| |
from a person mentioned in subsection (3) to the Commissioner of a matter in |
| |
connection with an examination by the Commissioner into a case under |
| |
regulations made under section 10 has qualified privilege. |
| |
(3) | The persons referred to in subsections (1)(c) and (2) are— |
| 15 |
(a) | the person whose case is being examined; |
| |
(b) | a person whose conduct is the subject of the examination; |
| |
(c) | a person with whom the Commissioner is communicating for the |
| |
purpose of obtaining information about the case; and |
| |
(d) | a person acting on behalf of a person falling within paragraphs (a) to |
| 20 |
| |
(4) | In this section “other ombudsman” has the same meaning as in section 17. |
| |
| |
20 | Complaints procedure in respect of the Commissioner |
| |
(1) | The Commissioner must establish a procedure for the investigation of |
| 25 |
complaints made in respect of his actions or omissions relating to the discharge |
| |
| |
(2) | The procedure established under subsection (1) must include provision |
| |
| |
(a) | how a complaint may be made; |
| 30 |
(b) | the person to whom a complaint may be made; |
| |
(c) | the period within which consideration of a complaint must begin and |
| |
| |
(d) | action that the Commissioner must consider taking in response to a |
| |
| 35 |
(3) | The Commissioner may amend the procedure established under subsection (1) |
| |
| |
(4) | Before establishing or amending the procedure under subsection (1) the |
| |
Commissioner must consult the Assembly and obtain its approval. |
| |
(5) | After establishing or amending the procedure under subsection (1) the |
| 40 |
Commissioner must send a document setting out the procedure to the |
| |
| |
|
| |
|