UK Offence Report

Offences – responsible individuals

regulation 55(1) of The Regulated Adoption Services (Service Providers and Responsible Individuals) (Wales) Regulations 2019

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

1 It is an offence for the responsible individual to fail to comply with

a requirement of any of the provisions specified in paragraph (2).

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
failing to comply with a notice or direction
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 55(1)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. On these words it is an offence to fail to comply with a requirement of any of the provisions specified in paragraph (2).
  2. Being served with a notice under the Regulated Adoption Services (Service Providers and Responsible Individuals) (Wales) Regulations 2019 and doing nothing by the date it specifies.
  3. Doing part of what the notice requires, where it required all of it.
  4. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
29 March 2019
In force from
29 April 2019
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations are made under the Regulation and Inspection of Social Care (Wales) Act 2016 (“the Act”) and set out the regulatory requirements and related provisions for providers of regulated adoption services and for those persons who are designated as the “responsible individuals” for such services. The Act introduced a new concept of “regulated services” which is defined in section 2 of that Act. A person who wants to provide a regulated service must make an application for registration to the Welsh Ministers (in the exercise of their regulatory functions) specifying the regulated service that the person wants to provide. Section 2(1)(d) of the Act provides that an adoption service is a regulated service, which is defined in Schedule 1 to that Act as meaning a service provided in Wales by (a) an adoption society within the meaning of the Adoption and Children Act 2002 (“the 2002 Act”) which is a voluntary organisation within the meaning of that Act, or (b) an adoption support agency within the meaning given by section 8 of that Act. A person who is registered to provide an adoption service is referred to in these Regulations as a “service provider”. Section 27 of the Act provides that regulations may impose requirements on a service provider in relation to a regulated service. Section 28 further provides that regulations may impose requirements on a responsible individual designated by a service provider. Section 30 of the Act enables the Welsh Ministers to make regulations about a service provider who is liquidated, with section 31 allowing regulations to be made about a provider who has died. The Welsh Ministers may make regulations to provide that it is an offence for a service provider (section 45 of the Act) and for a responsible individual (section 46) to fail to comply with specified provisions. Part 1 of these Regulations contains definitions of certain terms used in the Regulations. An adoption service is referred to as a “service” and “support” includes the support which an adoption society is required to provide in the course of making arrangements for adoption or after adoptions have been arranged as well as the adoption support services which may be provided by either an adoption society or an adoption support agency. Part 2 covers exceptions. The regulation in Part 2 is made under powers in section 2(3) of the Act which enable the Welsh Ministers to prescribe things which, despite Schedule 1 to the Act (which sets out the definitions of regulated services), are not to be treated as a regulated service. Part 3 sets out the general requirements on the service provider as to the way in which the service is provided, including requirements in relation to the statement of purpose, the arrangements for monitoring and improvement, the support to be provided to the responsible individual, the steps to be taken to ensure the financial sustainability of the service and the policies and procedures which must be in place. Part 3 also describes various requirements in relation to the designation of a responsible individual. Under section 6 of the Act, a person who wants to provide a regulated service must make an application for registration to the Welsh Ministers in which a person is designated as the responsible individual. Part 4 covers the requirements as to the steps to be taken before the service provider agrees to provide support to an individual. A service provider must not agree to provide support unless they have first determined that the service is suitable to meet the individual’s needs. Regulation 12 sets out the steps that must be taken and the matters which must be taken into account when making this determination. Where there is no care and support plan, adoption support plan, or placement plan in place, the steps to be taken include carrying out an assessment of the individual’s need for support. Part 5 deals with the requirements as to the information to be provided to individuals on the commencement of the provision of support. Regulation 13 requires that this information must be in the form of a written guide and sets out detailed requirements about the guide, including its contents and format. More detail of the information it is expected the guide would usually contain is in the guidance issued under section 29 of the Act. Part 6 contains requirements as to the standard of support to be provided. These include overarching requirements as well as more detailed requirements relating to the provision of information, meeting individuals’ language and communication needs and treating individuals with respect and sensitivity. Part 7 contains specific requirements in relation to ensuring individuals are safe and protected from abuse, neglect and improper treatment. As well as requiring policies and procedures to be in place in relation to safeguarding, the regulations in this Part place specific requirements as to the action to be taken in the event of an allegation or evidence of abuse. Part 8 contains requirements as to staffing, which include general requirements as to the deployment of sufficient numbers of staff and specific requirements as to the fitness of individuals working at the service. These requirements apply not just to employees but extend also to volunteers and to other persons working at the service. The fitness requirements include a requirement for specific information and documentation to be available in respect of persons working at the service, as set out in Schedule 1. Other requirements contained in Part 8 include requirements relating to supporting and developing staff, providing information to staff and the operation of a suitable disciplinary procedure. To ensure that employees report incidents of abuse to an appropriate person, the regulations in this Part require the provider’s disciplinary procedure to provide that a failure to report would itself be grounds for disciplinary proceedings. Part 9 ensures that premises to be used in relation to adoption services are adequate for the supervision of staff and secure storage of records. Part 10 contains miscellaneous requirements on service providers, including requirements as to the keeping of records and the making of notifications to the service regulator and other bodies. Schedule 2 sets out the records which are required to be kept and Schedule 3 sets out the specific notifications which are required to be made. Parts 11 to 15 contain the requirements imposed on responsible individuals. The regulations in these Parts are made under section 28 of the Act. Part 11 sets out requirements on responsible individuals which relate to the effective management of the service. The responsible individual has a general duty to supervise the management of the service and specific duties to appoint a fit person to manage the service. The responsible individual must also put arrangements in place for the management of the service when the manager is absent. Part 12 contains requirements on responsible individuals for ensuring the effective oversight of the service. By placing these requirements on the responsible individual, the regulations in this Part ensure that a person of an appropriately senior level in the organisation is accountable for service quality and compliance. The responsible individual is also required to make reports to the service provider on the adequacy of resources and on other matters. The responsible individual must make arrangements for engagement with individuals and others so that their views on the quality of support provided can be taken into account by the provider. Part 13 sets out the duty of the responsible individual for ensuring compliance of the service with other requirements, including requirements as to the notification of incidents and complaints and the keeping of records. The responsible individual must also ensure that the policies and procedures of the service provider are kept up to date. Part 14 covers the responsible individual’s responsibilities in relation to monitoring and reviewing the quality of the service, and making a report to the service provider. Part 15 covers other requirements on the responsible individual, including requirements to make certain notifications to the service regulator contained in Schedule 4. Part 16 covers offences. Regulation 54 is made under the powers in section 45 of the Act and provides that a failure of a service provider to comply with the requirements of specified provisions in these Regulations is an offence. In addition, where a service provider fails to comply with certain other requirements, regulation 54(3) provides that this is also an offence if the failure to comply results in a child being exposed to avoidable harm or significant risk of such harm or suffering a loss of money or property as a result of theft, misuse or misappropriation. Part 16 also provides that a failure of a responsible individual to comply with the requirements of specified provisions in these Regulations is an offence. This regulation is made under section 46 of the Act. Part 17 specifies the responsibilities on the “appointed person” in the event of the insolvency of the service provider. Part 17 also sets out steps to be taken by the personal representatives of the deceased in the event of the death of a service provider who is an individual. It enables the personal representatives to act in the capacity of the provider and modifies the Act so that in these circumstances, the personal representatives are not required to register as provider, and one of the personal representatives can be designated as the responsible individual. Part 18 sets out the circumstances in which the Welsh Ministers (instead of a service provider) may designate an individual to be a responsible individual despite the eligibility requirements of section 21(2) of the Act not being met in respect of the individual. This regulation is made under section 21(5) of the Act. The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result, a regulatory impact assessment has been prepared as to the likely costs and benefits of complying with these Regulations. A copy can be obtained from the Department of Health and Social Services, Welsh Government, Cathays Park, Cardiff, CF10 3NQ.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.90.

Basis
the provision says “it is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.90 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source