Commentary on Sections Part 1 .Social Care Chapter 1 .Provision of Social Care Services to Children: Restrictions on Profit Section 4 – Registration in respect of a restricted children's service: transitional arrangements
19.Section 4 inserts a new Schedule 1A into the 2016 Act to make provision about transitional arrangements in respect of service providers who are already registered prior to the coming into force of new section 6A (as to which see section 3).
20.After the commencement of section 6A, the requirement in respect of a restricted children’s service imposed under that section (to be a not-for-profit entity) will apply to all new entrants to the register maintained by the Welsh Ministers under the 2016 Act and all existing service providers for so long as they remain registered. However, paragraphs 1 and 2 of Schedule 1A make provision for a transitional period during which providers who were registered in respect of a service before it became a restricted children's service (by virtue of section 6A coming into force) are not subject to the requirements in section 6A(1) except for the purposes of any applications that the service provider makes under section 11 of the 2016 Act to vary registration to add a restricted children’s service or to provide the existing restricted children’s service at or in relation to a new place.
21.The transitional period begins when section 6A comes into force in respect of the service and ends on a day appointed by the Welsh Ministers in regulations.
22.As provided for by paragraph 3 of the Schedule, the Welsh Ministers may make regulations which impose conditions on existing service providers during the transitional period, including restrictions on the type of service they may provide and the description of looked after children they may accommodate. For example, this would enable Welsh Ministers to limit the circumstances in which providers who are subject to the transitional provisions may accept placements from local authorities in England. The power could also be used to prevent providers who are subject to the transitional provisions from providing a place for any new child after a certain date, or to require that only specialist services of a certain description may be provided.
23.If a service provider fails to comply with these conditions, the Welsh Ministers may vary or cancel their registration in accordance with sections 18 and 19 of the 2016 Act.
24.In the case of a provider of a fostering service to whom paragraph 2 applies a failure by that provider to comply with requirements imposed during the transitional period by regulations made under section 87 of the 2014 Act will also trigger the Welsh Ministers’ power to vary or cancel the provider’s registration. Section 87 of the 2014 Act is referred to because this is the power which enables regulations to be made which restrict the ability of providers of fostering services who are subject to paragraph 2 of Schedule 1A to approve new foster parents.
25.Under paragraph 4 of the Schedule, providers of existing services may apply to vary their registration so that their registration in respect of an existing service is subject to the requirement in section 6A(1) and, accordingly, any conditions that might have been imposed on them under paragraph 3 of the Schedule no longer apply. By contrast, if a provider of an existing service applies under section 11(1)(a)(i) or (ii) of the 2016 Act to vary their registration in respect of a restricted children’s service that is not the existing service, the provider must apply to the Welsh Ministers for their registration in respect of the existing service to be subject to the requirement in section 6A(1). This ensures that providers will not be able to be registered as subject to the 6A(1) requirement in relation to one service, or in respect of a place or places, and registered as not subject to the requirement in relation to another service or place(s). Variations under this paragraph are subject to the notice procedures set out in sections 18 to 20 of the 2016 Act and the associated appeal rights under section 26 of the 2016 Act.
26.Section 4(4) amends section 45 of the 2016 Act so that the Welsh Ministers may also prescribe by regulations that it is an offence for a provider to fail to comply with conditions imposed in regulations made under paragraph 3 of Schedule 1A. As the power to create a criminal offence in the regulations is conferred by section 45 of the 2016 Act, the penalties set out in section 51 of the 2016 Act will apply where this power is exercised, as will the power to issue penalty notices under section 52 of the 2016 Act.