The Health and Social Care Act 2008 (Commencement No.16, Transitory and Transitional Provisions) Order 2010

Publication Date:January 01, 2010

2010No. 807 (C. 53)

NATIONAL HEALTH SERVICE, ENGLAND

PUBLIC HEALTH, ENGLAND AND WALES

SOCIAL CARE, ENGLAND AND WALES

The Health and Social Care Act 2008 (Commencement No.16, Transitory and Transitional Provisions) Order 2010

15thMarch2010

17thMarch2010

for all purposes except article 23 and Schedule 2

6thApril2010

for the purposes of article 23 and Schedule 2

1stOctober2010

The Secretary of State for Health makes the following Order in exercise of the powers conferred by sections 161(3) and (4), 167 and 170(3) and (4) of the Health and Social Care Act 2008( 1). The Secretary of State has consulted the Welsh Ministers in accordance with section 172(3) of that Act( 2).

PART 1

General

Citation, commencement and interpretation

1.-(1)This Order may be cited as the Health and Social Care Act 2008 (Commencement No. 16, Transitory and Transitional Provisions) Order 2010 and shall come into force�Çò

(a) for all purposes except article 23and Schedule 2, on 6th April 2010;(b) for the purposes of article 23and Schedule 2, on 1st October 2010.

(2)In this Order�Çò

"the Act" means the Health and Social Care Act 2008;

"the 2000 Act" means the Care Standards Act 2000( 3);

"application date" means a date specified by the Commission( 4) by which a transitional application must be made;

"CSA registrant" means a person�Çò

(a) whose name is included in a register kept by the Commission for the purposes of Part 2 of the 2000 Act( 5) (establishments and agencies) on 6th April 2010 by virtue of carrying on an establishment or agency; and(b) who is carrying on an activity which will be a regulated activity on 1st October 2010,

and "CSA registration" is to be construed accordingly;

"determination" means a decision to give, in relation to the carrying on or management of a regulated activity by any person�Çò

(a) a notice of proposal under section 26(3) of the Act (notice of proposals) to refuse a transitional application; or(b) a notice of decision under section 28 of the Act (notice of decisions) or article 7in respect of a transitional application;

"registered establishment or agency" means an establishment or agency which a person�Çò

(a) is registered to carry on under Part 2 of the 2000 Act; or(b) was registered to so carry on immediately before�Çò(i) registration under that Part was cancelled, or(ii) 1st October 2010;

"registered manager" means a person�Çò

(a) whose name is included in a register kept by the Commission for the purposes of Part 2 of the 2000 Act by virtue of managing a registered establishment or agency; or(b) whose name was so included immediately before�Çò(i) registration under that Part was cancelled, or(ii) 1st October 2010;

"regulated activity" means an activity that is prescribed as being a regulated activity from 1st October 2010 by regulation 3 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010( 6);

"Registration Regulations" means the Care Quality Commission (Registration) Regulations 2009( 7);

"transitional application" means an application for registration as a service provider or manager in respect of a period commencing on or after 1st October 2010 made to the Commission under section 11 of the Act (applications for registration as a service provider), as modified by this Order, by�Çò

(a) a CSA registrant, or on behalf of a registered manager, in relation to whom article 16(1)or 18(1)does not apply, before 1st October 2010; or(b) a person, or on behalf of a registered manager, in relation to whom article 16(1)or 18(1)applies.

(3)Any reference in this Order to a transitional application being�Çò

(a) determined, granted or refused means determined, granted or refused in relation to the carrying on or management of a regulated activity; or(b) made on a particular date means the date on which that application is received by the Commission.

PART 2

Commencement

Appointed day for commencement of provisions relating to the Care Quality Commission

2.-(1)6th April 2010 is the day appointed for the coming into force of the provisions of the Act listed in Part 1 of Schedule 1.

(2)1st October 2010 is the day appointed for the coming into force of the provisions of the Act listed in Part 2 of that Schedule.

PART 3

Transitional and transitory provisions relating to the Care Quality Commission

Notification to CSA registrants of the need to make a transitional application

3.-(1)The Commission must give notice of the need to make a transitional application to each CSA registrant, unless that registrant's only CSA registration is one to which paragraph (2)applies.

(2)This paragraph applies to a CSA registration in respect of which at the time the notification would otherwise be given�Çò

(a) an application has been made for cancellation under section 15(1)(b) of the 2000 Act (applications by registered persons); or(b) the CSA registrant comes within article 14(2).

(3)Notification sent pursuant to paragraph (1)must specify�Çò

(a) the form in which the application must be made;(b) what information it must contain or be accompanied by;(c) the application date; and(d) that the transitional application must be made to the Commission on or before the application date, in the specified form and contain or be accompanied by the specified information, in order for article 9(2)to apply.

(4)The application date must be a date that is not less than 28 days after the date on which the notification under paragraph (1)is sent.

Modification of the Act in relation to the making of a transitional application

4.-(1)Sections 11(3) and 14(1) and (3) of the Act (applications for registration as a service provider or manager) do not apply to a transitional application.

(2)Section 12(2) of the Act (grant or refusal of registration as a service provider) is modified as if "insofar as it relates to the carrying on of the regulated activity" were inserted after "the application".

(3)Section 14(2) of the Act (applications for registration as a manager) is modified as if for "The application" there were substituted "An application, insofar as it includes an application for a person to be a registered manager,".

(4)Section 15(1) of the Act (grant or refusal of registration as a manager) is modified as if for "under section 14" to the end there were substituted "includes an application for a person to be a registered manager in relation to a regulated activity".

Activities to be covered by a transitional application

5.-(1)Subject to paragraph (3), a CSA registrant who wishes to carry on one or more regulated activities on or after 1st October 2010 must make a single transitional application covering both the carrying on, and the management of, all activities�Çò

(a) that�Çò(i) the CSA registrant making that application is entitled to carry on, or(ii) a registered manager is entitled to manage,

at the premises of a registered establishment or agency by virtue of registration under Part 2 of the 2000 Act on the date on which the transitional application is sent to the Commission;

(b) that are regulated activities; and(c) that the CSA registrant intends to carry on at the premises of that registered establishment or agency on or after 1st October 2010.

(2)Subject to paragraph (3), the single transitional application must also cover both the carrying on, and the management of, all activities that�Çò

(a) do not require registration of the establishment or agency at which they are carried on under section 11 of the 2000 Act;(b) the applicant carries on at a registered establishment or agency on the date on which the transitional application is sent to the Commission;(c) the applicant intends to carry on at the premises of that establishment or agency on or after 1st October 2010; and(d) are regulated activities.

(3)A transitional application must not include an application for registration to�Çò

(a) carry on or manage a regulated activity where, and insofar as, that activity is to be carried on at the premises of a registered establishment or agency in respect of which a CSA registrant comes within article 14(2)on the date on which that application is sent to the Commission;(b) manage a regulated activity if the registered manager comes within article 14(2)on the date on which that application is sent to the Commission where, and insofar as, that activity is to be managed at the premises of a registered establishment or agency in respect of which the registered manager comes within article 14(2)on the date on which that application is sent to the Commission; or(c) manage a regulated activity unless that activity will be subject to a registered manager condition pursuant to regulation 5 of the Registration Regulations (registered manager condition).

(4)Where a transitional application is made pursuant to notification by the Commission under article 16(4)or 18(3), this article shall apply to such an applicant as if they were a CSA registrant but subject to paragraph (1)being modified as if at the end of sub-paragraph (a) there were inserted "or would have been so entitled immediately before 1st October 2010 had the registration not been cancelled".

(5)A transitional application may include an application in respect of one or more persons to be registered as a manager only where each such person has, in that application, given their written consent to that application being made on their behalf.

Transitional provisions relating to the grant or refusal of registration

6.-(1)Sections 12 and 15 of the Act (grant or refusal of registration as a service provider or manager) apply to a transitional application as if modified as set out in paragraph (2).

(2)For subsections (2) and (3) of sections 12 and 15 of the Act substitute�Çò

"(2)If the Commission is satisfied that the requirements of regulations under section 20 are being and will continue to be complied with (so far as applicable) in relation to the carrying on of the regulated activity, it must grant the application either unconditionally or subject to such conditions...

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