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Overview

This guidance is intended to assist service providers and others interpret provisions within The Regulated Services (Service Provider and Responsible Individuals) (Wales) (Amendment) (Coronavirus) Regulations 2020 (‘the Regulations’).

The Regulations, which came into force on 5 June 2020, principally affect providers of care home services for adults but also have direct relevance for providers of domiciliary support services.

They make amendments to certain requirements within The Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017, as amended (‘the 2017 Regulations’). But for these new amendments, the 2017 Regulations and their accompanying statutory guidance remain in effect.

The amendments are temporary in nature, to help manage the effects of the COVID-19 pandemic on the social care sector and will be revoked as soon as they are no longer required. We anticipate this will be no longer than 9 months.

On behalf of the Welsh Ministers, Care Inspectorate Wales (‘CIW’) will notify all relevant providers as to when the Regulations will be revoked. 

This guidance is set out in three parts:

  1. Exemptions for temporary Covid-19 care and support services

Regulations 4 (Exception from scope of care home service) and 5 (Exception from the scope of domiciliary support services) provide that particular services are not to be treated as regulated services for the purpose of responding to the Covid-19 pandemic. They create exceptions for services that would otherwise need to be registered with CIW as a care home service or a domiciliary support service. Guidance is provided in relation to these, for information.

  1. Relaxations around pre-employment checks for care home services for adults and domiciliary support services to adults
  1. Relaxation of the 15% threshold for shared rooms in adult care homes

The guidance in relation to Regulations 6 (Fitness of staff) and 7 (Shared rooms) is statutory, issued under section 29 of The Regulation and Inspection of Social Care (Wales) Act 2016 (‘the Act’). As such, service providers must have regard to this in meeting the requirements of these Regulations.   

CIW, as the service regulator, will use the statutory guidance to inform decisions about the extent to which service providers are meeting those requirements and when considering enforcement action.  Providers remain responsible for deciding how the requirements will be met, taking into account the needs of individuals using the service and the statement of purpose for the regulated service. However, if they do not follow this guidance, they must be able to demonstrate their chosen approach enables them to meet the applicable requirements within the Regulations.

Part 1: Application of the exemption for COVID-19 adult services

Regulation 4 excepts, from the meaning of a ‘care home service’, the provision of accommodation together with nursing or care for adults where the primary purpose of this is to create additional health and social care capacity, in order to respond to the coronavirus pandemic.

Similarly, Regulation 5 excepts, from the meaning of a ‘domiciliary support service’, the provision of care and support for adults for the primary purpose of creating additional health and social care capacity which is needed to meet demand in order to respond to  the coronavirus pandemic. 

The practical effect of this is to allow temporary services to be set up to provide residential and domiciliary care to adults in response to the Covid-19 pandemic, without the requirement to register with CIW.

Conditions of exemption

The exceptions only apply where:

  • the service is provided by a local authority or a Local Health Board, or
  • the service is commissioned by a local authority or a Local Health Board and is operated either:
    • by a service provider already registered with CIW under the Act and who provides a care home service wholly or mainly to adults or who provides a domiciliary support service to adults, or  
    • by providers of care homes or domiciliary care for adults in England, who are already registered with the Care Quality Commission.

This means that, where the service is to be commissioned by a local authority or Local Health Board, only providers who are already registered to operate care home services wholly or mainly for adults can seek to provide additional services that would otherwise need to be registered as such. Equally, only those already registered to provide domiciliary services to adults can seek to provide additional services akin to these.    

In all cases, the CIW must be notified in advance of the arrangements.  A notification form is available for this purpose.

Due to the level of risk and the vulnerability of individuals who would be using these services the exemption does not extend to prospective providers who are not already registered with Care Inspectorate Wales or the Care Quality Commission.

How it will work

The intending provider must inform CIW of their intention to set up a temporary Covid-19 care and support service, using the appropriate form.

CIW will consider the information provided to determine if the proposed service meets the criteria to be exempted from registration.

Important

In the event that CIW considers the proposed service does not fall within the exception and therefore requires registration, it will notify the intending provider.  Should the provider persist in providing the service, CIW will inform them that they are operating a regulated service without being registered to do so and could subsequently consider enforcement action including criminal prosecution.  Operating a regulated service without registration is an offence, under section 5 of the Act, and could result in a fine or imprisonment of up to 2 years.  

It is therefore essential that CIW is provided with the information it requires in order to make this judgement.

In addition to allowing CIW to have an understanding of the type of service to be operated and be able to satisfy itself that the service does fall within one of these exemptions, this will enable the regulator to ensure these services cease to operate once the Covid-19 pandemic has passed, and also to ensure any residual service which continues to operate is brought within the scope of regulation.

After the present emergency, if a provider who is already registered with CIW intends to continue to operate these services, there will be a period allowed for them to vary their registration to include this service as either a care home service or a domiciliary support service (as applicable), if they meet the necessary requirements set out in the 2017 Regulations.  For providers registered with the Care Quality Commission, they will also be given a period of time to register with CIW if they intend to continue to operate their service in Wales.

On behalf of the Welsh Ministers, CIW will notify all relevant providers as to when the Regulations will be revoked, and these exemptions ended.

To note

This exemption would apply to new services set up to provide emergency CV-19 care and support only. Should existing adult residential care home services wish to extend the number of beds they provide within their existing premises, the current requirements to apply to Care Inspectorate Wales for a variation to their maximum numbers will continue to apply. Care Inspectorate Wales is making arrangements to treat such applications (which must be considered on a case by case basis given the unique nature of each home) as a priority. 

Part 2: Relaxations around pre-employment checks for care home services for adults and domiciliary support services to adults

Regulation 6 (Fitness of staff) amends requirements made under section 27(1) of the Act. Therefore this guidance, issued under section 29 of the Act, is statutory. Providers of care home services for adults and domiciliary support services must have regard to it for as long as the Regulations remain in force. 

This part also includes a note about Disclosure and Barring Service (‘DBS’) checks, which is provided for information.

Summary

To help accelerate the recruitment of additional staff and volunteers in care home services for adults and domiciliary support services, Regulation 6 amends Regulation 35 of the 2017 Regulations, to ease some of the existing requirements on providers regarding pre-employment checks.

Those existing requirements, set out within Part 1 of Schedule 1 to the 2017 Regulations, are for:

4.  Two written references, including a reference from the last employer, if any.

6.  Documentary evidence of any relevant qualification.

8.  A full employment history, together with a satisfactory written explanation of any gaps in employment.

9.  Evidence of satisfactory linguistic ability for the purposes of providing care and support to those individuals for whom the worker is to provide care and support.

Given the potential difficulty of obtaining some of these documents in an emergency situation, the existing requirements on providers are being changed temporarily so that they apply only in so far as it is reasonably practicable to obtain the information.

Conditions

Before employing a person, a provider must be satisfied:

  • that the person cannot reasonably provide full and satisfactory information or documentation regarding these matters, as a result of the Covid-19 pandemic, and
  • that they have provided as full and satisfactory information as is reasonably practicable.

‘In so far as is reasonably practicable’ could mean, for example, the person only secures one written reference and the provider makes a record of a telephone conversation confirming good conduct in previous employment.

Also, the information (in whatever form) will still need to be available at the service for inspection by CIW.

How it will work

It remains the case that providers must satisfy themselves that a person they intend to employ is fit and proper for the role as set out in Regulation 35 and Schedule 1 of the 2017 Regulations, albeit with these relaxations applied.  In the current Covid-19 pandemic, providers may need to consider starting someone in their new role before all of the usual recruitment information is available and assessed. 

Providers will still have to obtain evidence and satisfy themselves of a person’s fitness to carry out their new role.  This includes examples of their employment history, professional registration (where relevant), references from previous employers and evidence of their conduct in previous employment in health or social care with children or vulnerable adults, and (where reasonably practicable) the reasons why that employment ended.

Providers will also have to maintain records to show they have done all that is reasonably practicable to obtain the above information.  This could include a written record of a telephone conversation with the employee’s previous employer or screen shots of qualifications sent by e-mail.  They should record the reasons for their employment decision and what efforts have been made to obtain references, and where they can, the reasons why the information could not be obtained (e.g. the person’s current or last employer is closed due to the current pandemic situation, qualification certificates not readily available, etc.).

They must properly risk-assess the situation and put measures in place to mitigate any risks identified, as far as possible.  Mitigation actions could include:

  • avoiding lone working where for example the provider is awaiting the employee’s certificate or other outstanding recruitment check information;
  • putting in place robust induction and supervision arrangements;
  • avoiding lone working until the provider is satisfied the employee is competent to do so;
  • regularly checking the satisfaction of individuals using the service who are in contact with that member of staff.

Providers should consider how they can easily identify staff records for those recruited during the Covid-19 pandemic.  This could be done by the addition of a simple code or use of the word ‘Covid-19’ on that record, which would help highlight that individual to allow review at a later date and ensure that full recruitment procedures are followed later if any gaps have been left in the short term.

Providers must continue to put the safety and wellbeing of those using their service first, and to act appropriately on any information they do receive, however delayed that information might be.

During the Covid-19 pandemic, and with increasing pressure on services, it is vital that safeguarding is not seen as an area of responsibility that can be marginalised.  Service providers must take all reasonable steps to continue to protect individuals using their services from abuse or neglect. CIW will to continue to monitor this throughout the emergency period.

Providers will still need to make decisions about how staff and volunteers are deployed to carry out duties which are appropriate to their level of knowledge, skills, experience and competency.  They will need to make suitable arrangements, with a safe level of induction and support which reflects local circumstances and the role.

On behalf of the Welsh Ministers, CIW will notify all relevant providers as to when the Regulations will be revoked, and these easements ended.

A note in relation to Disclosure and Barring Service checks:

In respect of the need for DBS checks, the DBS has introduced a temporary new service for certain roles such as nurses, midwives and social workers, see:

From 30 March 2020 the DBS has established arrangements to fast track the applications against both of the barred lists, within 24 hours. 

Consideration is being given to whether any further provision is needed in relation to DBS checks, potentially by using the Notice-issuing powers conferred on the Welsh Ministers by section 33 of the Coronavirus Act 2020.

Part 3: Relaxations in relation to the 15% threshold for shared rooms in adult care homes

Regulation 7 (Shared rooms) amends requirements made under section 27(1) of the Act. Therefore this guidance, issued under section 29 of the Act, is statutory. Providers of care home services for adults must have regard to it for as long as the Regulations remain in force. 

Summary

Regulation 7 amends Regulation 45 of the 2017 Regulations, to relax conditions which limit the number of individuals who may be accommodated in shared rooms in care homes for adults.

Relaxing these conditions on a temporary basis will enable service providers with unoccupied rooms or rooms which are not currently in use as bedrooms to increase the maximum capacity within their home, where this is needed as a consequence of the Covid-19 pandemic.

Conditions

Amendment to regulation 45(2)(d)

On or after 5 June 2020:

  • the need to exceed 15% of the total number of adults accommodated by the service arises as a consequence of the Covid-19 pandemic; and
  • the room(s) to be used must have been unoccupied immediately before 5 June 2020.    

Amendment to regulation 45(3)(c)

On or after 5 June 2020:

  • the need to continue to exceed 15% of the total number of adults accommodated by the service arises as a consequence of the Covid-19 pandemic; and
  • the room(s) to be used must have been unoccupied immediately before 5 June 2020.   

If providers wish to do this, the current requirements to apply to CIW for a variation to their maximum numbers will continue to apply. Decisions would be made on a case-by-case basis with the best interests of all residents in mind.

Any room which is occupied by an existing resident may not be turned into a shared room.

How it will work

Applications should be made online for a variation of maximum number in the normal way.

CIW will consider any application to increase the maximum number of beds on a case by case basis with regard to the best interests of all the residents. 

Any increase to the maximum number (including where there would otherwise be a breach of the 15% threshold) will be conditional and time limited.

As within the existing statutory guidance, in circumstances where sharing a room is under consideration, the discussion with the individuals concerned or their representatives, and the decision made, should be documented by the service provider.

On behalf of the Welsh Ministers, CIW will notify all relevant providers as to when the Regulations will be revoked, and these easements ended.

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