Joint Committee on Statutory Instruments Thirty-Second Report


Memorandum from the Department of Health


1. The Committee has requested a Memorandum on the following point -

Regulation 3(2) provides for the functions of the children's rights director set out in regulation 3(1)(b) to be subject to the requirements of the Care Standards Act 2000 and section 87 of the Children Act 1989. Identify the requirements contemplated, and explain why this saving for primary legislation is necessary.

2. Under regulation 3(1)(b)(i) of the Regulations, the functions of the children's rights director include the function of establishing the procedure to be followed by the National Care Standards Commission ("the Commission") when considering certain applications for registration under section 12 of the Care Standards Act 2000.

3. It is intended that this function is to be subject to section 13 of the Care Standards Act. Section 13(2) of that Act provides that the Commission shall grant an application for registration if satisfied of certain matters set out in that section, and that otherwise it shall refuse the application. Section 13(3) provides that the application may be granted unconditionally or subject to conditions. It is considered that the children's rights director's function of establishing the relevant procedure should clearly be defined by reference to the Act so as to avoid a possible conflict between the procedure established by the director and the provisions of the Act. The reference to the Care Standards Act was included for that purpose.

4. Under regulation 3(1)(b)(ii), the director is also given the function of establishing the methodology for inspection of registered children's services and the premises where they are provided.

5. Section 31(2) to (4) of the Care Standards Act 2000 specifies the powers of the person authorised to enter and inspect the premises of an establishment or agency (as defined in the Act). The power to examine a person accommodated in an establishment is subject to the provisions of section 31(5) and (6) in respect of consent and the inspector's qualifications. Further provisions for inspection, particularly in relation to documents, records and the provision of facilities and assistance to the inspector, are specified in section 32(1) to (4), and the requirement for the inspector to prepare and issue a report is specified in section 32(5). Most of these provisions are reflected in sections 45 and 46 of the Act in relation to inspection of services provided by a local authority in the exercise of relevant adoption functions and relevant fostering functions.

6. It is considered that the methodology of inspection established by the director will include the steps to be taken by the inspector in the course of inspection, and that this function should be defined so as to be consistent with the powers to take action as specified in sections 31 and 32, or 45 and 46.

7. Section 87 of the Children Act 1989 applies to certain schools and colleges. It is less extensive than the above-mentioned sections. It enables authorised persons to enter the premises of such schools and colleagues, but only for the purpose of assisting the Commission to discharge its duty under that section. The Commission has a duty under section 87(3) to take such steps as are reasonably practicable to enable it to determine whether a child's welfare is adequately safeguarded and promoted while he is accommodated by a school or colleague. Under section 87(4), where it is of the opinion that there has been a failure to comply with the requirement to safeguard and promote a child's welfare it must notify the relevant local education authority or the Secretary of State.

8. The reference to section 87 in the Regulations was included for the purpose of ensuring that the director exercises the function consistently with the powers of inspection provided by that section.

27 May 2002

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