House of Lords - Explanatory Note
Health And Social Care (Community Health And Standards) Bill - continued          House of Lords

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Clause 78: Other reviews and investigations

179.     Clause 78 provides for the CSCI to review or investigate the provision by local authorities in England of social services in circumstances other than when the CSCI is conducting an annual review. Under this function the CSCI may undertake a review of the social services provided by local authorities across the whole of England (paragraph 2(a)), a review of one or more social services across the country, in a particular area or by a particular type of local authority (for example the provision of child protection services by local authorities in large cities) (paragraph 2(b)), or the services (or any of them) provided by an individual local authority (paragraph 2(c)). Subsection (3) provides that the CSCI must, where requested to do so by the Secretary of State, carry out a review of the local authority social services specified in the Secretary of State's request.

Clause 79: Failings

180.     This clause gives the CSCI certain duties that it must carry out when, following an inspection made under clause 77 or 78, it judges that there are failings in the provision of social services by a local authority.

181.     Subsections (2) and (3) provide that the CSCI must recommend certain measures that the Secretary of State should take where local authorities' social services have been awarded the lowest performance rating (currently a zero star) or where the CSCI judges that a local authority is failing to discharge its social services functions to an acceptable standard. Such measures are likely to include closer monitoring of the local authority by the CSCI or use of the Secretary of State's special powers of intervention (as set out in the Local Authority Social Services Act 1970 (section 7), the Children Act 1989 (section 81 and 84), the NHS and Community Care Act 1990 (section 50), the Local Government Act 1999 (section 15), and the Health and Social Care Act 2001 (section 46)). Following a request from the Secretary of State, the CSCI must undertake a further inspection of the local authority concerned and prepare a further report.

182.     Where failings are of a less significant nature, subsection (4) and (5) provide for the CSCI to notify the local authority, setting out the detail of the failure, the action to be taken to rectify it, and the time by which by CSCI considers that this should be done. The CSCI must at this time inform the Secretary of State of the action it has taken.

Audit functions

Clause 80: Studies as to economy, efficiency etc.

183.     Clause 80 replicates, for the CSCI, the powers that sections 33 and 34 of the Audit Commission Act 1998 give to the Audit Commission with respect to local authority social services.

184.     Subsection (1) provides for the CSCI to carry out studies designed to enable it to make recommendations for improving economy, efficiency and effectiveness in the provision of local authority social services, and for improving the management of social services. These provisions will enable the CSCI to carry out value for money studies in a local authority's area. Where there are studies looking at the performance of an individual local authority's social services, or where there is a national study into one particular aspect of social service provision, these will be carried out by the CSCI.

185.     The Audit Commission will retain powers enabling it to carry out studies of local authority social services. However, although this will mean that the functions of the Audit Commission and CSCI will overlap, it is envisaged that in practice they will exercise them in different circumstances. It is envisaged that in the future the CSCI will carry out studies that focus on specifically on social services, calling on the assistance of the Audit Commission where necessary. Where the primary focus of a study is on local authority services other than social services, it is envisaged that such studies will be carried out by the Audit Commission, calling on the assistance of CSCI where necessary. Subsection (5) provides that CSCI must provide the National Audit Office with any material relevant to such a study.

Clause 81: Joint working with the Audit Commission

186.     Clause 81 provides that the Audit Commission and the CSCI may exercise jointly the functions given them by clause 80 and sections 33 and 34 of the Audit Commission Act. This clause also imposes on the CSCI and the Audit Commission a duty to co-operate with one another when performing their respective functions in these areas (subsection (2)). Subsection (4) enables the Secretary of State to give guidance about their functions to both the CSCI and the Audit Commission. The object of such guidance will be to enable the Secretary of State to detail circumstances where he considers that the most appropriate use of public resources and of the expertise of CSCI and the Audit Commission would be for either the Audit Commission or the CSCI to take the lead in work which could be undertaken by either of them.

Other functions

Clause 82: Additional functions

187.     Clause 82 allows the Secretary of State to confer additional functions through regulations on the CSCI in respect of local authority social services in England. assessment. The social care sector is constantly changing, so this might necessitate giving additional functions to the CSCI which have not yet been identified and therefore cannot be dealt with on the face of the Bill itself. The purpose of this power therefore is to ensure that sufficient flexibility is retained to ensure that the CSCI can be given additional functions by means of secondary legislation, where this would be desirable, in order to enable it to be responsive to changing trends in social services and social care provision. This is necessary since it may be that local authorities will be given new social services functions for which the CSCI will need to be responsible.

Exercise of functions: general

Clause 83: Criteria

188.     This clause provides for the Secretary of State to make regulations requiring the CSCI to devise and publish criteria to be used in relation to its functions under this chapter (other than the annual review function in respect of which provision about criteria is made in clause 77). The regulations will be used to specify exactly what functions CSCI will need to draw up inspection criteria for. The Secretary of State must approve the criteria prior to their publication.

Clause 84: Fees and clause 85: Reports and information

189.     Clauses 84 and 85 refer to the levying of fees. Clause 84 provides for the CSCI to be able to determine and levy fees in relation to the exercise of such of its functions under clauses 77, 78 or 80 as prescribed. Subsection (5) requires that the CSCI must consult appropriate persons before it devises the fee scale. Appropriate persons are likely to be local authorities in general or organisations representative of local authorities, such as the Local Government Association or the Association of Directors of Social Services. Subsection (6) provides for regulations allowing an independent panel to review in individual cases the amount chargeable by the CSCI for a particular service.

190.     Clause 85 makes the same provision as respect as the provision of reports and other information to the public as clause 63 makes for the CHAI.

Clause 86: Right of entry

191.     This clause allows persons authorised by the CSCI to enter premises which are used or are proposed to be used in the provision of an English local authority social service, or where the CSCI believes such use has or will be likely to take place (subsection (2)). Individuals authorised by the CSCI will not have the right, by virtue of this section, to enter private homes where social services are being provided. The powers given to CSCI inspectors by this clause largely mirror those given to the CHAI inspectors by clause 64.

Clause 87: Right of entry: supplementary

192.     This clause gives persons authorised to enter premises under clause 86 rights to copy and inspect documents and remove them from the premises, interview persons working at the premises etc. The powers given to the CSCI inspectors by this clause mirror those given to the CHAI inspectors by clause 65.

Clause 88: Power to require information etc

193.      This clause provides for the CSCI the same right to require information (from the bodies specified in subsection (2)) as clause 66 does for the CHAI.

Clause 89: Power to require explanation

194.     This clause provides that the Secretary of State may make regulations to give the CSCI power to require an explanation of any documents or information it obtains under clauses 86 to 88 or of any matters that are the subject to the exercise of its functions under this chapter. This clause is identical to clause 67 in the CHAI provisions.


Provision of social services

Clause 90: General function

195.     Clause 90 confers a general function upon the Assembly of encouraging improvement in the provision of Welsh local authority social services. The same provision is made as respects the CSCI for England by clause 74.

Clause 91: Reviews of studies and research

196.     The powers given to the CSCI in clause 76 are replicated in this clause for the Assembly.

Clause 92: Reviews and investigations

197.     Clause 92 gives the Assembly similar functions of undertaking reviews and investigations of Welsh social services authorities to those is given to the CSCI in relation to English authorities under clauses 77 and 78. However, the provisions are less prescriptive under clause 92 to take account of the fact that the Assembly is itself also a central governmental body and to provide it with the flexibility to decide how to discharge it function of undertaking reviews and investigations. For example: the Assembly does not have a duty to undertake annual reviews, it may (rather than must) award performance ratings to local authorities, and no provision is necessary to provide links between the Assembly and a central governmental body.

Clause 93: Studies as to economy, efficiency etc

198.     This clause provides powers for the Assembly in relation to Welsh social services authorities (in the same way that clause 80 does for the CSCI in relation to English authorities), that are similar to those conferred upon the Audit Commission by sections 33 and 34 of the Audit Commission Act 1998. Subsection (1) provides for the Assembly to promote or undertake studies designed to enable it to make recommendations for improving economy, efficiency and effectiveness in the provision of local authority social services ('value for money' studies), and for improving the management of social services. Subsection (3) provides that the Assembly must publish, or otherwise make available, its recommendations and a report resulting from these studies. Subsection (4) provides that the Assembly and the Audit Commission must co-operate with each other with respect to their similar functions.

Clause 94: Additional Functions

199.     Where the Secretary of State confers additional functions on the CSCI by regulations under clause 80, clause 94 provides that the Assembly may make regulations to confer such functions on itself in relation to the provision of Welsh social services.

Clause 95: General considerations

200.     This clause sets out the matters with which the Assembly must in particular be concerned in the exercise of its functions under the preceding social care clauses of the Bill.

Ancillary powers

Clause 96: Right of Entry, Clause 97: Right of entry: supplementary, Clause 98: Power to require information, Clause 99: Power to require explanation

201.     The powers given to the CSCI in clauses 86-89 in relation to English social services authorities are replicated in these clauses for the Assembly in relation to Welsh authorities.


202.     The National Care Standards Commission ('NCSC') was established by the CSA 2000 to regulate specified types of social care and private and voluntary health care services in England. Its functions were set out in Parts 1 to 3 and Part 8 of the CSA 2000.

203.     Regulation is dealt with in Part 2 of the CSA 2000. The types of service subject to regulation under Part 2 are collectively defined in the Act as "establishments and agencies". Persons wishing to carry on establishments and agencies of the types required to be regulated must apply to the NCSC in England and the National Assembly for Wales in Wales to be registered in respect of the establishment or agency which they wish to carry on. Under section 11 of the CSA 2000, it is a criminal offence to carry on or manage an establishment or agency subject to registration requirements without having registered with the registration authority.

204.     Where an establishment or agency applies to register under the CSA 2000, the NCSC inspects it to assess whether it meets the applicable regulatory requirements under the CSA 2000 or other legislation. In deciding this, the NCSC is obliged to take into account the requirements of any National Minimum Standards applying to the service in question issued by the Secretary of State under section 23 of the CSA 2000. The NCSC may grant or refuse an application to register an establishment or agency or may register it subject to conditions. The establishment or agency may appeal to an independent tribunal against the refusal of registration or the imposition of conditions.

205.     The registration authority will periodically re-inspect the establishment or agency to ensure that appropriate standards continue to be maintained. Section 14 of the CSA 2000 provides that the registration authority may cancel registration in the circumstances set out in that section. Section 20 sets out an urgent cancellation procedure whereby the registration authority may apply to a justice of the peace for an order cancelling registration, or varying any conditions imposed as to registration.

206.     The types of establishment and agency currently regulated by the NCSC are as follows:

  • residential and nursing homes,

  • children's homes,

  • private and voluntary hospitals and clinics,

  • fostering agencies,

  • independent medical agencies,

  • domiciliary care agencies,

  • nurse agencies,

  • residential family centres and

  • voluntary adoption agencies.

207.     Adoption support agencies will be regulated by the NCSC when the relevant provisions of the Adoption and Children Act 2002 are implemented, this is currently planned for the end of 2004.

Functions of CHAI and CSCI

Clause 100:     Transfer of functions to CHAI and CSCI

208.     This clause transfers to the CHAI the responsibility for regulating independent hospitals, independent clinics and independent medical agencies, (defined in clause 104 as 'independent health services') and transfers to the CSCI the responsibility for regulating children's homes, residential and nursing homes, residential family centres, domiciliary care agencies, nurses agencies, fostering agencies, voluntary adoption agencies and adoption support agencies (defined in clause 105 of the Bill as 'registered social care services'). The NCSC is abolished by clause 43 of the Bill.

209.     Part 3 of the CSA 2000 gave the NCSC the function of inspecting local authority adoption and fostering services. These are defined as 'relevant services' by section 43 of the CSA 2000. In carrying out such inspections, the NCSC is obliged to take account of national minimum standards issued under section 23 of that Act. This part of the CSA 2000 will be repealed in part (see schedule 12).

210.     Chapter 5 of this Bill provides the CSCI with the general powers to inspect local authority social services. These powers will also allow the CSCI to inspect local authority adoption and fostering services. The elements of Part 3 that have been retained provide for the Secretary of State to make regulations with regard to relevant services and also to make regulations prescribing the frequency with which relevant services must be inspected.

211.     Subsection (4) allows the inspection of relevant services currently carried out by the NCSC, to be transferred to CSCI for any interim period before CSCI takes on its general powers to inspect local authority social services under chapter 5.

Clause 103: Fees

212.     Fees are currently chargeable in respect of registered social care services and independent healthcare services under the CSA 2000, however they are set out in regulations made by the Secretary of State. This clause amends section 113 of CSA 2000 so that instead of the Secretary of State, the CHAI and the CSCI may determine fees in respect of their respective functions under Part 2 of that Act. Both Commissions and the Secretary of State must consult appropriate persons before fees devised by them come into effect (subsections (5) and (6) of the new section 113A). Subsection (4) of the new section 113A provides that Secretary of State must approve any fees determined by either Commission before they come into effect.


Clause 104: Meaning of "independent medical agency"

213.     Clause 104 amends section 2(4) of the CSA 2000 to make it clear (for the avoidance of doubt) that the term 'independent medical agency' neither includes independent clinics nor independent hospitals. The term "independent clinic" in the CSA 2000 refers to an establishment in which one or more medical practitioners provide services other than those that would render the establishment an independent hospital.

Clause 105: Children's homes providing secure accommodation

214.     This clause amends the CSA 2000 so that children's homes providing secure accommodation will require registration by the CSCI. Previously such combined services had to be registered with the NCSC to operate and with the Secretary of State to provide secure accommodation. Under the provisions in the Bill the CSCI will take on both the registration role of the NCSC and the Secretary of State's function of assessing suitability to provide secure accommodation.

Clause 106: Information and inspection

215.     Subsection (2) of this clause amends section 31 of the CSA 2000 to give inspectors the power to require at any time, from a person who carries on or manages an establishment or agency, copies of any medical or other personal records or other documents, insofar as is necessary to enable the registration authority - the CHAI or the CSCI in England, the Assembly in Wales - to discharge its functions. Where these documents or records are stored on a computer they must be produced in a legible form. Currently inspectors may only inspect such documents or records when they are already engaged in the inspection of an establishment or agency.

216.     Subsections (3)(a) and (4) also amend section 31 to enable inspectors to inspect and take copies of medical and other personal records when inspecting a premises. Subsection 3(b) replaces the inspectors' power to interview anyone 'employed' at premises with a power to interview anyone 'working' there. This will enable inspectors to interview temporary and agency staff contracted by a provider as well as permanent employees.

Clause 107: Assembly: duties relating to children

217.     Clause 107 amends the CSA 2000 so that the Assembly must have particular regard to the need to safeguard and promote the rights and welfare of children in the exercise of its regulatory functions under that Act.


Clause 108 Boarding schools and colleges

218.     This clause transfers to the CSCI the existing responsibilities of the NCSC with respect to boarding schools and colleges. This means that the CSCI will have responsibility for inspecting such establishments.

Clause 109: Boarding schools and colleges: reports

219.     This clause amends section 87 of the Children Act 1989 (welfare of children accommodated in independent schools) to make clear that the CSCI and the National Assembly for Wales must each publish reports in relation to the exercise of their functions under that section where they carry out an inspection.

Clause 110: Secure training centres

220.     Secure Training Centres accommodate children aged under 18 who are sentenced to Detention and Training Orders under the Crime and Disorder Act 1998 section 73 (since consolidated into section 100 of the Powers of Criminal Courts (Sentencing) Act 2000), and children sentenced under sections 90 and 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (for 'grave crimes'). The Home Office is responsible for Secure Training Centres. This clause enables the CSCI to inspect Secure Training Centres if they are asked to do so by the Home Secretary. The arrangements they may enter into with the Home Secretary may specify such things as frequency with which inspections must be carried out and the criteria that will be used in inspections.


Clause 111: Complaints about health care

221.     Clause 111 gives the Secretary of State and the Assembly powers to make regulations setting up procedures for dealing with complaints about health care.

222.     Subsection (1) provides for regulations to be made to provide for the handling and consideration of complaints. It sets out what services may be the subject of complaints under the procedure. It includes the provision of services by an English NHS body or cross-border Special Health Authority under a partnership arrangement made by it under section 31 of the Health Act 1999 in relation to the exercise of the health-related functions of a local authority. That section allows the NHS and local authorities to work together by enabling them to pool resources, delegate functions and resources from one to another and enable a single provider to provide both health and local authority services. The intention is that a person receiving both health and local authority services from a health body under such an arrangement will be able to complain to that health body even if the complaint is about local authority services which it provides.

223.     Subsection (2) gives the Assembly the same power in respect of Welsh NHS bodies as the Secretary of State has in relation to English NHS bodies and cross border bodies in subsection (1).

224.     By subsection (3) the regulations may provide for who may consider a complaint. It is envisaged that in both England and Wales regulations will provide that the complaint be made to the health care provider which is the subject of the complaint, where an attempt will be made to investigate and resolve the matter. If this is not possible, the second stage will involve consideration by the CHAI for complaints in England and by an independent lay person and, if further investigation under the complaints procedure is felt to be warranted, by an independent lay panel for complaints in Wales.

225.     It is envisaged that the focus of the CHAI's role in the second stage of the complaints procedure in England will be to establish the facts pertinent to a complaint in order to identify how, and by whom, the complaint is most likely to be resolved to the satisfaction of the complainant and the body or persons complained about. Following the CHAI's assessment of an individual case, it is envisaged that it will decide what, if any, further action, and by whom, is appropriate. Options likely to be available to the CHAI include: making recommendations to the NHS body complained about in relation to further action that may be needed locally to resolve the complaint; full investigation by the CHAI, either by itself or by any independent panel or person established or engaged by the CHAI; referral for consideration by other agencies (for example, the National Clinical Assessment Authority or a professional regulatory body); referral, subject to agreed criteria, for consideration by the Health Service Commissioner or no further action to be taken.

226.     In Wales it is envisaged that an independent lay person, with the benefit of independent clinical advice if necessary, will determine how a complaint that has not been dealt with to the patient's satisfaction by the NHS body complained about should proceed. The options open to the independent lay person are likely to include, as set out above in relation to CHAI in England, making recommendations to the NHS body in question about further action that may be taken to resolve the complaint locally; full investigation by an independent panel; referral for consideration by other agencies; referral, subject to agreed criteria, for consideration by the Health Service Commissioner; or no further action. The principal difference in the way that Wales will deal with NHS complaints is that there will be no role for CHAI. As set out above, it is envisaged that an independent lay person and, if convened, an independent panel will fulfil the same role in relation to NHS complaints in Wales as CHAI will in England.

227.     The regulations may, by virtue of subsection (4), provide for a complaint or any matter raised by a complaint to be referred to a Health Service Commissioner for consideration as to whether to investigate the complaint under the Health Service Commissioners Act 1993, or to any other person or body, such as the police or a professional regulatory body, for them to decide whether to take any action themselves.

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Prepared: 14 July 2003