S.I. 2004/1972: memorandum from
the Department of Health
Care Standards Act 2000 (Extension of the Application
of Part 2 to Adult Placement Schemes) (England) Regulations 2004
(S.I. 2004/1972)
The Committee has requested a Memorandum from the
Department of Health on the following point:-
The Department's memorandum states (at paragraph
3) that "the reason the Department is breaching the 21 day
rule is because it gave a commitment to the Minister to have the
regulations governing adult placement schemes in place during
the summer of this year". Elaborate upon why the Department
considers such a commitment to be a proper justification for breaching
the 21 day rule.
4. The Department apologises for the fact that the
memorandum in relation to the Regulations did not fully explain
our reasoning for breaking the 21 day rule.
5. The Regulations provide that the regulation making
powers in Part 2 of the Care Standards Act 2000 ("the Act")
apply, with the modifications set out, to the providers and managers
of adult placement schemes. The Regulations needed to be in force
before the Adult Placement Schemes (England) Regulations 2004
(S.I.2004/2071) could be made ("the substantive regulations").
The substantive regulations set out the full regulatory scheme
in relation to the providers of adult placement schemes.
6. As explained (not entirely satisfactorily) in
our memorandum the need to make the Regulations as a separate
set of regulations prior to the substantive regulations was not
appreciated by us until the final vetting procedures for the substantive
regulations were carried out in Solicitors Office at the beginning
of July. Originally, the Regulations were simply incorporated
into the substantive regulations and were all to be made at the
same time. Having realised that this was not legally correct,
the Department was faced with a choice given the commitment/assurances
referred to below.
7. Ministers had been assured that the substantive
regulations would be in force by the end of August 2004. In addition,
providers of adult placement schemes and the Commission for Social
Care Inspection (the regulatory body) had been assured that the
Regulations would be in force as at that date and had planned
accordingly. The Department had previously consulted on a draft
of the Regulations (which at that time included the substantive
regulations). As a result of the unfortunate oversight by us mentioned
in paragraph 3 above, the Department therefore formed the view
that we would need to break the 21 day rule in respect of either
the Regulations or the substantive regulations in order
that the commitment, and the assurances, would be met. We therefore
considered that it would be preferable to break the 21 day rule
in relation to the Regulations (which are technical only and relatively
short), thereby allowing the substantive regulations to be laid
for a full 21 days before their coming into force date.
8. As we mentioned in our memorandum, the Department
greatly regretted the need to breach the 21 day rule in relation
to the Regulations. But given the commitment/assurances referred
to above it was felt that we had little choice but to bring the
substantive regulations into force at the end of August as promised.
To have delayed implementation would have been more confusing
and disruptive to those who were expecting to operate the schemes.
18th October 2004
