Commissioner for Older People (Wales) Bill [HL]

House of Commons

Session 2005 - 06
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Other Bills before Parliament

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),
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
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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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—
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
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.
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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.
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(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
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
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—
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
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.
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(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.
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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;
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(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
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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
40
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
10
(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.
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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.
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(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—
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(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
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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;
30
(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.