The next item is the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017, and I call on the Minister for Children and Social Care to move the motion—Huw Irranca-Davies.

Motion NDM6609 Julie James

To propose that the National Assembly for Wales; in accordance with Standing Order 27.5:

Approves that the draft The Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017 is made in accordance with the draft laid in the Table Office on 17 November 2017.

Motion moved.

Diolch, Llywydd, and I move the motion. The Regulation and Inspection of Social Care (Wales) Bill was passed and became the Act, unanimously, almost two years ago. The Act provides the statutory framework for the regulation and inspection of social care services and the regulation of the social care workforce in Wales. 

There are several items of subordinate legislation flowing from the Act, and you, the Members here today, have already passed a number of these regulations. My officials have worked closely with the regulator, and with the sector, to develop regulations that are proportionate, that are robust, and that are fit for purpose. The regulations before you today, the Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017, exercise a number of the powers contained in the Act. They have been subject to wide public consultation.

One of the intentions of the Act is to rationalise the amount of legislation and to ensure an appropriate level of consistency right across the range of regulated services. So, consequently, these regulations apply to care homes, domiciliary support services, secure accommodation and residential family centres. They're supported by statutory guidance, which sets out in greater detail how providers and responsible individuals may comply with the requirements. 

The Act empowers the Welsh Ministers to place requirements on providers of regulated services, and these regulations provide clarity and certainty by setting out those requirements in detail. They focus on outcomes and well-being, and encompass matters that will underpin the quality and the safety of services. This includes the governance of the service, the way in which the service is carried on, its staffing, and how it safeguards the people in its care. There are also requirements in relation to accommodation-based services so as to ensure that premises are suitable for the people living in them. For new premises, there is a greater degree of prescription in order to support an overall improvement over time in the built estate. 

The quality of care is inextricably linked to the quality and the stability of the workforce who provide that care. So, to support this, I have taken this opportunity to place specific requirements on providers of domiciliary support services. This will ensure that workers are offered a choice of contractual arrangements and that care time is planned appropriately, without being eroded by travel time. The Act strengthens corporate accountability by requiring providers to designate a responsible individual as part of their registration. Aligned to that, the Act allows Welsh Ministers to place duties on that responsible individual. The regulations place specific requirements on responsible individuals in terms of the quality and the compliance of the service, and I expect responsible individuals to be involved with, rather than detached from, the service. So, this does include a requirement to visit the service.

The regulations also set out which services are exempt from regulation. It is important that we have clarity here, so that providers are certain as to whether they come within the scope of these regulations or not. These largely replicate the exemptions under existing legislation, but also specify other arrangements, which are intended to fall outside regulation. The regulator must be able to act should providers fall short. The requirements in these regulations are therefore capable of enforcement by the regulator. The regulations also provide clarity as to which breaches of the requirements will be treated as an offence. The regulations also deal with other matters, such as the notification requirements and the arrangements that will apply in the event that a liquidator is appointed or that a provider who is an individual dies. They also set out the circumstances in which the Welsh Ministers, instead of the service provider, may designate an individual to be the responsible individual. These particular regulations are largely technical in nature, but are nonetheless essential to the smooth operation of the overall system.

The regulations as a whole will shape the way in which these care and support services are provided for years to come. I was very pleased with the level of engagement during the public consultation process and naturally there are certain aspects that attracted particular interest. So, I've considered the feedback from the consultations carefully, and have made some amendments as a consequence. In some cases, this has been necessary to clarify the original intention. In other cases, the amendments respond to issues that were raised during the consultation process. So, I've taken, for example, the opportunity to clarify the requirements in relation to registered nurses. I have also adjusted the requirements in relation to shared rooms for adults, and the frequency of Disclosure and Barring Service checks. Likewise, having reflected on the frequency of visits by the responsible individual, I have amended this requirement. 

I am satisfied, Llywydd, that these changes are necessary to establish a system that works effectively in the round without compromising our intentions. I have published a report on the outcome of our public consultation. These regulations are necessary to deliver the new system for regulating and inspecting social care services in Wales from April next year. They will ensure that the same high standards and the focus on improvement and good practice apply right across these regulated services, and I commend them to Members and look forward to contributions today. 

Thank you very much for the introductory contribution there, Minister. I've a lot of questions on this. I wasn't actually involved with the two Acts that are referred to in this when they came through, so you'll forgive me if I say that I think that some of these regulations have been used as an opportunity to develop policy rather than to implement it—and why it is so important that we get the opportunity in this place through the affirmative procedure to scrutinise regulations. One of the things I wanted to say upfront, actually, is that it's really, really pleasing to see that some of the regulations here make it clear for people who are subject to those regulations how they are to comply with the regulations, in terms of the evidence that they have to provide in order to comply. I think those were omissions in some of the earlier legislation that we brought through in this place, but I think this is a vast improvement on that particular score. 

In a way, Minister, I just want to treat this a little bit more as a statement rather than a debate, so I hope I can just ask you a few questions. The first is that the document that we've got today,—and it's a fairly chunky one, I have to say—only affects four types of regulated service, as defined in the 2016 regulation and inspection Act. I just wondered if you have any plans to introduce separate regulations for the regulated services that aren't covered in this. They may not actually be necessary, but it would be quite useful to have your take on that. And, in identifying those requirements that I've just mentioned to provide evidence, in this case for good standards of care and support by a service provider, Ministers have to have regard to an individual's well-being, as you might expect, and any particular standards set out in a code issued under Section 9 of 2014 social services and well-being Act—obviously, a different Act. At the moment, I understand that there are no codes under that Act. They haven't been issued. But, as we know with school standards and reorganisation, the existence and interpretation of codes have been material in supporting one party's position or another. So, I suppose my question is whether you are expecting any codes to emerge from the 2014 Act, and if some do, will these regulations that you're looking at today be revisited in order to take anything that might be in those codes into account in the future?

On staffing, you mentioned that you'd taken into account information that came to you via the public consultation. You might remember in particular there was some concern—I raised this with your predecessor, actually—about the removal of the requirement for 24-hour nursing care in some homes, despite there being expectations on the part of the people in those homes that that's what they would be getting, and indeed, in some cases, contractual obligations to provide that. Can you tell me how vulnerable to prosecution would the responsible individual be under these regulations in circumstances where nursing care is required unexpectedly for somebody who wasn't actually assessed as needing nursing care as an ongoing requirement—either because of that reason, or because a nurse was identified as necessary but isn't available for some reason, or whether there's a temporary staffing shortage, as opposed to deliberate flouting of the rules? Because we just have to watch out for responsible individuals who might find themselves in this quandary. I'm quite happy to take some written replies to these, because I appreciate some of them are quite detailed.

On zero-hours contracts, I'm really pleased to see that there's something in these regulations about this, although, as I say, this actually feels like policy development as well as bringing some clarity to the position. I just wanted to ask you on this: in the case where a zero-hours-contract care worker might choose to go on a contract, if we were looking at the first choice of contract, which is based on the average number of hours worked in the previous few months, have you made an assessment about the risk of care providers reducing artificially the amount of time that's worked by a care worker during the preceding three months in order to artificially deflate the average number of hours that they're working for a new contract? And, in the case of a contract that would be for less than that average, which is also an option open to a care worker, what would be the benefit for the people being cared for in those circumstances Because potentially they could choose to go on a sort of 'Let's have two hours a week' contract, which probably in some cases would even reduce the continuity of care for some of the people being cared for. As I say, you may not have answers for these today, but I'm genuinely curious to know how that's being looked at.

Then finally—am I allowed to say 'finally'? The delineation between the travel and caring time—I think this is something that we all recognised needed looking at, and I really welcome what you've done on this. Paragraph 41(3)(b) does actually attempt to answer some of my questions regarding this, but in a situation where a care provider has assessed the travel time for a particular individual and that turns out to be inadequate, does the care worker then have a right to go back to the service provider and insist that they relook at that particular period of time that's been assessed? I couldn't find it in the regs. I'm hoping there is something. Thank you very much, Llywydd.

I call on the Minister to reply to the debate. Huw Irranca-Davies. 

Diolch. [Interruption.] Yes. I will do my best to reply to a string of questions, but can I first of all just thank you, Suzy, for the broad welcome you have for the detail within these regulations, and also the clarity that the regulations do bring for providers? I think some of that clarity has come through, I have to acknowledge, the scrutiny that it has received in its transition to this point, including under the previous Bill by Assembly Members, but also the work done by my former colleague the Minister on my left, as well. There's been extensive stakeholder engagement, and that I think has informed the progress of this to get to this level of detail. In some ways, whilst the focus has been on that continual improvement and driving up standards both from the service and the workforce, it has also been on pragmatic solutions that will work, as well, with the sector. So, I think we've come to a pretty good place.   

Let me try and turn to some of the issues that she mentioned. First of all, one of the issues that was quite interesting in terms of the consultation and broader feedback was exactly that point about accommodation or other services that are not caught within the compass of this current set of regulations. Well, there is actually scope within the Act to revisit that. So, for example, one of the ones that's been mentioned previously has been the issue of day centres. Now, there are day centres and there are day centres. There are day centres that can operate almost like a lunch club—arriving for a couple of hours and a great medium for social engagement and wider things. There are other ones that are, in effect, for people who are attending for two or three days of the week for a large segment of time. Now, those don't fall, based on the feedback that we've had, currently within this, but the Act allows that flexibility to revisit and review as time goes by other services that could be deemed to be within the care provision generally there.   

On the codes that you mentioned, I can tell you that the codes relevant to those areas have actually been issued already flowing from the 2014 Act, but I'll happily write with more detail on that. [Interruption.] Ah, right, okay. Well, in that case, to clarify, I'll happily write to clarify on that, Suzy, if you're receiving some different information there. 

In terms of the approach, whether it's to the requirements on nursing—which, by the way, now are very much focused on the outcomes of individuals; it's very much person centred, rather than in any way more prescriptive, normative thing that say that you must have x number of nurses for x numbers of people, and so on. This is much more to do with—there is a requirement here on the manager and on the responsible individual who oversees those managers of the individual services to make sure that the needs of those individual people in each individual service have been accounted for, and if that requires full-time nursing presence of one or two, or whatever, that will be provided for. 

The question that you raised was, 'What happens if there is a failure in that?' This is exactly where the regulator then would step in, but taking, I have to say, a proportionate approach, because if it was part of a clear and deliberate pattern, I suspect the regulator would take a very different approach to something that happened on a temporary, emergency basis, where there was a process being filled in to fill that gap rapidly. So, a proportionate approach would be taken, I think, by the regulator. 

You also touched on the issue of travel time and the role there as well, the clarity that is now given with this and the regulator. Again, the oversight of the—. What we haven't done in here, deliberately based on the consultation, is taken, again, an overly prescriptive way that says to a provider, 'You must do exactly this model of how you account for travel time and care time'. What we've said is, 'You've got to have, according to these regulations, a plan in place, you've got to have a planned approach towards your rota-ing of staff'. We recognise it will vary in different locations and different types of service provided, but we want to see that, and the regulator will want to see that. And if that is not in place, then there is the ability of the regulator here to actually step in, and if there isn't a proper model in place then the regulator will take a dim view of this, and has the powers within here. 

So, there is a requirement here both on the manager of that service, but also on that responsible individual, to make sure that those plans are in place and that there is that separation of the travel time and the care time. At the moment, as we know, unfortunately, what we have sometimes—not all providers, because there's some very good practice out there—but some are too encroached upon each other, and that is neither good necessarily for the care of the individual, but it's also not good for the way that the staff themselves feel valued as part of their profession. A key part of my approach is to make sure that we—part of the regulations do this, whether it's this or the approach that we're taking to zero hours within here—actually say to the profession, 'This is valued profession, we want to see you lifted up.'

If there is anything in terms of the codes that I need to write on clarity to you, I'd be happy to do that. Were there any other aspects? I think I've dealt with—

I don't think we've got time.

—all of your points. Well, thank you very much for those contributions. I'll write to clarify what's happened as a result of the 2014 Act in terms of the issuing of codes. Thank you. 

The proposal is to agree the motion. Does any Member object? The motion is therefore agreed in accordance with Standing Order 12.36.

Motion agreed in accordance with Standing Order 12.36.