Select Committee on Delegated Powers and Deregulation Second Report

PART I: Introductory


15.  Clause 1 defines children's homes. Clause 1 (4) enables regulations to be made to exclude certain establishments from the definition of children's homes. This power replicates an existing power in the Children Act in respect of registered children's homes (see section 63(3) (b)). The regulations may be made by the appropriate Minister (see clause 96(1) for the definition of "regulations").

16.  There will be some places where children are provided with care and accommodation which it will not be appropriate to register. This might include hostels for apprentices, some of whom may be under 18 years of age, e.g. for jockeys or trainee professional footballers. Other kinds of accommodation where children are provided with care and accommodation may arise in the future and might require an exception to be made from the definition. Regulations will prove an easier means of doing this than amending primary legislation.


17.  Clause 2 (4) defines an independent clinic as a prescribed establishment (which is not a hospital) where medical practitioners provide services, other than NHS services. It is intended for example to make regulations prescribing premises such as walk in medical centres and private primary care premises which are used for the purposes of consultation. There is a need for flexibility here as premises currently outside the definition may start to undertake procedures that may need to be registered.

18.  Clause 2 (6) - premises in which listed services are provided come within the definition of a hospital and will be regulated by the registration authority. Subsection (6) defines listed services and includes (clause 2(6)(g)) treatments using prescribed techniques or prescribed technology. It is intended to make regulations setting out prescribed techniques and prescribed technologies used for treatment purposes. This might include treatments or procedures involving class 3B and 4 lasers, which are currently prescribed under section 21(4) of the 1984 Act.

19.  Clause 2 (7)(a) enables the appropriate minister through secondary legislation to except from regulation an establishment described in subsections (2) to (4). By setting out this power to except kinds of establishment through regulations, amendments can be made more easily, than if the exceptions were set out in primary legislation. This will enable the appropriate Minister to respond to future changes in the delivery of healthcare services.

20.  Clause 2 (7)(b) enables the appropriate minister through secondary legislation to modify the services listed in subsection (6). These listed services may be carried out in hospitals or in clinics. Not all of these are for treatment or diagnosis, for example, the delivery of babies and surgery for cosmetic reasons. The power to modify the list of services in subsection (6) in regulations will enable the legislation to be amended by the appropriate Minister. This will ensure that legislation can reflect the changes in the independent sector's delivery of healthcare and protect the public without having to amend primary legislation.


21.  Clause 3 (3) enables the appropriate Minister to except in regulations certain establishments from the definition of "care home". Classes of establishments such as schools, further education colleges and universities will be excepted. Consideration will also be given to excepting other establishments through regulations. It will be important to retain the flexibility to make further exceptions, as it is difficult to predict what new kinds of establishment might develop in future which, if caught by the definition under clause 3, it would be inappropriate to register as care homes.


22.  Clause 4 (5) makes provision for an establishment, undertaking or agency to be excepted by regulations from the definitions of "residential family centre", "domiciliary care agency" or "fostering agency".

23.  As with the delegated powers in clauses 1- 3 which allow establishments or agencies to be excepted through regulations from the definitions of "children's home", "independent hospital", "independent clinic", or "care home", provision is also needed to ensure that other types of undertakings, establishments or agencies are not inappropriately caught by the definitions of "residential family centre", "domiciliary care agency" or "fostering agency". This is best achieved through regulations, which will allow greater flexibility to respond to changing circumstances.


24.  Clause 6 (2) (a) enables the Secretary of State to give directions to the Commission as respects the exercise of its functions. Directions will be writing. For example, the Secretary of State may wish to ensure the continuing use of lay assessors in the inspection process, and to do so he would need to be able to direct the Commission accordingly. The direction making power avoids unnecessary detail in the primary legislation and allows the Secretary of State to respond to unforeseen circumstances (see also paragraph 3 of Schedule 1).

25.  Clause 6 (3) gives effect to Schedule 1 which deals with the constitution, powers, etc. of the Commission and English and Welsh Councils. The Schedule is considered at the end of this memorandum.


26.  Clause 7 (6) provides for the Secretary of State to make regulations conferring additional functions on the Commission in relation to services of the kind provided by persons registered under Part II. The services concerned are those provided by "establishments" and "agencies" defined in clause 4 (9) and (10). In addition to promoting the quality of services, and reporting and advising the Secretary of State on the provision of registered services, the Commission will be well placed to discharge other functions which stem from its role in regulating care services. The Department is of the view that providing for the Secretary of State to give the Commission further functions through regulations, will provide the necessary flexibility to react to future needs and developments in relation to social care services without the need for primary legislation.

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