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Children’s homes and healthcare: Registration issues

In December 2019 guidance was published to clarify arrangements for:

  • Children’s homes which provide healthcare
  • Children’s healthcare settings, if the main function is care and accommodation rather than provision of acute interventions.

The guidance is intended to assist inspectors and providers in reaching decisions about whether:

  • The provider of a children’s home that is registered with the Office for Standards in Education, Children’s Services and Skills (Ofsted), is providing regulated activities that must be registered with the Care Quality Commission (‘CQC’)
  • A provider regulated by the CQC needs to register a location with Ofsted as a children’s home.

What Ofsted registers and regulates:

Ofsted is responsible under the Care Standards Act 2000 (‘CSA’) for regulating establishments and agencies that provide children’s social care services. There are six types of establishments and agencies which require registration with Ofsted:

  • Children’s homes
  • Independent fostering agencies
  • Voluntary adoption agencies
  • Adoption support agencies
  • Residential family centres
  • Residential holiday schemes for disabled children.

Ofsted has a range of enforcement powers it can use when a regulated service fails to meet the requirements of the CSA and the relevant regulations. Ofsted also regulates the providers of childcare under the Childcare Act 2006.

What Ofsted inspect

The following are inspected but not regulated by Ofsted:

  • Secure training centres
  • Children and Family Court Advisory and Support Service (CAFCASS)
  • Local authority children’s services
  • Welfare of children in residential special schools, some boarding schools, residential further education colleges and independent specialist colleges; and
  • Schools, colleges, initial teacher training, work based learning and skills training, adult and community learning and education in young offender institutions.

What the Care Quality Commission regulates

CQC is the independent regulator of health and adult social care. This includes the regulation of most types of healthcare for children, as well as care homes and domiciliary care agencies, some of which may provide services to children. The Health and Social Care Act 2008 (HSCA) requires providers who carry on ‘regulated activities’ to register with the CQC. Regulated activities are set out in Schedule 1 of the 2014 Regulations.

If an activity involves the carrying on of an establishment or agency within the meaning of the CSA for which Ofsted is the registration authority under that Act, then this is not a ‘regulated activity’ under HCSA 2008 and does not require the provider to register this with the CQC. For example, a home registered with Ofsted as a children’s home is exempt from registering with the CQC as a care home, even if some of the residents are adults. However, the provider may need to register with the CQC in respect of any ‘regulated activities’ under HSCA 2008 being carried out there, for example, personal care, nursing and/or medical treatment.

It is important to note that Section 8 of the HSCA 2008 does not place a blanket exemption on children’s social care providers that offer health activities from registering with the CQC. Rather, when providers are registering with the CQC, they will need to consider any health activities that are not part of the standard social care functions of their establishment that are overseen by Ofsted.

Children’s homes

s.1 (2) CSA states that an establishment in England is a children’s home (subject to proviso) if it provides care and accommodation wholly or mainly for children (a child is defined as under 18 years old). Wholly or mainly means that most who stay must be children.

If a child is placed in accommodation because of their need for nursing or personal care, it is likely that this will be a care home and should be registered with the CQC. If the primary reason for placing a child in that accommodation is care which is not nursing or personal care, it is likely this will be a children’s home that should be registered with Ofsted.

Residential services for children which are not children’s homes

Section 1(4A) CSA confirms the following are not a children’s home:

  • A hospital (within the meaning of the National Health 2006)
  • A residential family centre
  • A description excepted by regulations

s.1(6) CSA provides that a school is a children’s home if it has accommodated children for more than 295 days in each of the preceding two years or if it intends to accommodate children for more than 295 days in any year.

How the HSCA 2008 affects children’s homes that also provide healthcare

If the healthcare is a regulated activity as defined in Schedule 1 of the 2014 Regulations, the provider will also need to register with the CQC. The healthcare must be provided in accordance with the requirements of the fundamental standards.

Regulated activities in children’s homes which are likely to require registration with the CQC include:

  • Surgical procedures
  • Treatment of disease, disorder or injury
  • Diagnostic and screening procedures
  • Nursing care
  • Accommodation for persons who require treatment for substance misuse.

Healthcare activities that must be carried out by a qualified healthcare professional

Ofsted and the CQC take the view that any healthcare activities that must be performed by a qualified healthcare professional, and which cannot be delegated to a competent lay person, require registration with the CQC. The distinction lies between those health activities that, with appropriate instruction, a competent lay person could administer, and those that must be performed by a qualified healthcare professional.

Applications for registration

When a provider applies to register with both the CQC and Ofsted, the inspectorates will co-ordinate their approach to the setting and agree the most appropriate registration arrangement.  Individual processes will be followed to register or refuse the application.

It is the provider’s responsibility to apply to register to ensure they are registered with the correct regulator. The provision of services without the necessary registration is an offence under both CSA 2000 and HSCA 2008. Ofsted and the CQC have powers to take enforcement action. There is a Memorandum of Understanding between the two organisations regarding their joint working arrangements.

Providers may wish to seek advice regarding registration requirements and we can assist in this regard.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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