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Commissioner for Older People (Wales) Bill [HL]


Commissioner for Older People (Wales) Bill [HL]

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(2)   

Guidance under subsection (1) may be issued to—

(a)   

the Assembly;

(b)   

persons mentioned in Schedule 2;

(c)   

persons providing regulated services in Wales.

(3)   

Before issuing guidance under subsection (1) the Commissioner must consult

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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

his functions.

(5)   

In discharging his functions in respect of a person mentioned in subsection (2),

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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

that person.

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—

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(a)   

if the older person requires another person to be present, in that other

person’s presence; and

(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.

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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

include—

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(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

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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

person’s presence; and

 
 

Commissioner for Older People (Wales) Bill [HL]

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(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

report must be sent;

(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;

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(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

regulations must not—

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(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

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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

under section 10; and

(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—

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(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

the Ombudsman may—

(a)   

co-operate with each other in relation to the case;

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(b)   

conduct a joint examination of the case;

(c)   

prepare and publish a joint report in relation to the examination.

 
 

Commissioner for Older People (Wales) Bill [HL]

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(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

person.

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

is—

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

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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

matter they may—

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(a)   

co-operate with each other in the separate investigation of each of those

matters;

(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.

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(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

the other ombudsman.

(6)   

In this section “other ombudsman” means—

(a)   

the Public Services Ombudsman for Wales;

(b)   

the Children’s Commissioner for Wales.

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(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—

(a)   

adding a person;

(b)   

omitting a person;

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Commissioner for Older People (Wales) Bill [HL]

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(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

his functions;

(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

ombudsmen).

(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;

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(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);

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(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

in the public interest;

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(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

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interest.

(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.

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Commissioner for Older People (Wales) Bill [HL]

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(5)   

In determining for the purpose of this section whether disclosure of

information is in the public interest, the Commissioner must take into account

the interests of—

(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

relate to—

(a)   

a matter in respect of which the Information Commissioner could

exercise a power conferred by an enactment mentioned in subsection

(7); or

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(b)   

the commission of an offence mentioned in subsection (8).

(7)   

The enactments are—

(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

recommendations); and

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(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

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etc. records with intent to prevent disclosure).

(9)   

In this section—

“other ombudsman” has the same meaning as in section 17;

“permitted person” means—

(a)   

the Assembly;

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(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

Ireland;

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(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;

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(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

subsection (9) by—

(a)   

adding a person;

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(b)   

omitting a person;

(c)   

changing a description of a person.

19      

Protection against defamation

(1)   

For the purposes of the law of defamation, the following are absolutely

privileged—

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Commissioner for Older People (Wales) Bill [HL]

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(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

under section 10.

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

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(c).

(4)   

In this section “other ombudsman” has the same meaning as in section 17.

Complaints procedure

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

of his functions.

(2)   

The procedure established under subsection (1) must include provision

about—

(a)   

how a complaint may be made;

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(b)   

the person to whom a complaint may be made;

(c)   

the period within which consideration of a complaint must begin and

should be concluded; and

(d)   

action that the Commissioner must consider taking in response to a

complaint.

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(3)   

The Commissioner may amend the procedure established under subsection (1)

from time to time.

(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

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Commissioner must send a document setting out the procedure to the

Assembly.

 
 

 
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