Draft Regulations laid before the National Assembly for Wales under paragraph 1(9) of Schedule 7 to the European Union (Withdrawal) Act 2018, for approval by resolution of the National Assembly for Wales

2020 No. (W. )

exiting the european union, wales

social care, wales

professional qualifications, wales

 

The Regulation and Inspection of Social Care (Qualifications) (Wales) (Amendment) (EU Exit) (Amendment) Regulations 2020

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations are made in exercise of the powers conferred by paragraph 1(1) of Schedule 2 and paragraph 21 of Schedule 7 to the European Union (Withdrawal) Act 2018 (c. 16) in order to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the United Kingdom from the European Union. 

These Regulations make amendments to the Regulation and Inspection of Social Care (Qualifications) (Wales) (Amendment) (EU Exit) Regulations 2019 to add additional transitional provision relating to—

- the EEA EFTA citizens’ rights agreement signed at London on 2 April 2019 between Iceland, the Principality of Liechtenstein, the Kingdom of Norway and the United Kingdom on arrangements regarding citizens’ rights following the withdrawal of the United Kingdom from the European Union and the EEA Agreement, and

- the Swiss citizens’ rights agreement signed at Bern on 25 February 2019 between the United Kingdom and the Swiss Confederation on citizens’ rights following the withdrawal of the United Kingdom from the European Union and the free movement of persons agreement,

so far as those agreements relate to the mutual recognition of professional qualifications and the temporary and occasional provision of professional services.

The Regulations also correct minor errors in the Regulation and Inspection of Social Care (Qualifications) (Wales) (Amendment) (EU Exit) Regulations 2019.

The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As a result, it was not considered necessary to carry out a regulatory impact assessment as to the likely costs and benefits of complying with these Regulations.

 

 

 Draft Regulations laid before the National Assembly for Wales under paragraph 1(9) of Schedule 7 to the European Union (Withdrawal) Act 2018, for approval by resolution of the National Assembly for Wales

 

2020 No. (W. )

exiting the european union, wales

social care, wales

professional qualifications, wales

 

The Regulation and Inspection of Social Care (Qualifications) (Wales) (Amendment) (EU Exit) (Amendment) Regulations 2020

Made                                                     ***

Coming into force in accordance with regulation 1(2)

The Welsh Ministers, in exercise of the powers conferred by paragraph 1(1) of Schedule 2 and paragraph 21 of Schedule 7 to the European Union (Withdrawal) Act 2018([1]), make the following Regulations.

In accordance with paragraph 1(9) of Schedule 7 to that Act, a draft of this instrument has been laid and approved by a resolution of the National Assembly for Wales.

Title, commencement, application and interpretation

1.—(1)(1) The title of these Regulations is the Regulation and Inspection of Social Care (Qualifications) (Wales) (Amendment) (EU Exit) (Amendment) Regulations 2020.

(2) These Regulations come into force immediately before exit day.

(3)  These Regulations apply in relation to Wales.

Amendment to the Regulation and Inspection of Social Care (Qualifications) (Wales) (Amendment) (EU Exit) Regulations 2019

2. The Regulation and Inspection of Social Care (Qualifications) (Wales) (Amendment) (EU Exit) Regulations 2019([2]) are amended as follows.

Insertion of interpretation provision

3. In Part 2, before regulation 16 insert—

Interpretation of Part 2

15A.—(1) In this Part—

 “the 2007 Regulations” (“Rheoliadau 2007”) means the European Communities (Recognition of Professional Qualifications) Regulations 2007([3]);

“the old 2007 Regulations” (“hen Reoliadau 2007”) means the European Communities (Recognition of Professional Qualifications) Regulations 2007([4]) as they continued to apply immediately before exit day;

“the 2015 Regulations” (“Rheoliadau 2015”) means the European Union (Recognition of Professional Qualifications) Regulations 2015([5]) (but see regulation 15D(4));

 “the 2019 Regulations” (“Rheoliadau 2019”) means the Recognition of Professional Qualifications (Amendment) (EU Exit) Regulations 2019([6]);

“the Directive” (“y Gyfarwyddeb”) means Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, as it had effect immediately before exit day;

“existing contract” (“contract presennol”) means a written contract which was concluded, and the performance of which started, before exit day;

 “qualifying applicant” (“ymgeisydd cymhwysol”) has the meaning given in paragraph 48A of Schedule 1 to the 2019 Regulations([7]);

“relevant applicant” (“ymgeisydd perthnasol”) has the meaning given in paragraph 47A of Schedule 1 to the 2019 Regulations([8]);

“relevant European State” (“Gwladwriaeth Ewropeaidd berthnasol”) means an EEA State or Switzerland;

“relevant qualification” (“cwyhwyster perthnasol”) has the meaning given in paragraph 48A of Schedule 1 to the 2019 Regulations;

“Swiss applicant” (“ymgeisydd Swisaidd”) means a person who—

(a)   is a national of the United Kingdom or, although not such a national, is by virtue of an enforceable EU right entitled to be treated, for the purposes of access to or pursuing social work, or work as a social care manager, no less favourably than such a national, or

(b)   is a national of Switzerland or, although not such a national, is by virtue of an enforceable EU right entitled to be treated, for the purposes of access to or pursuing social work, or work as a social care manager, no less favourably than such a national;

“Swiss citizens’ rights agreement” (“cytundeb ar hawliau dinasyddion Swisaidd”) means the Agreement signed at Bern on 25 February 2019 between the United Kingdom of Great Britain and Northern Ireland and the Swiss Confederation on citizens’ rights following the withdrawal of the United Kingdom from the European Union, and the free movement of persons agreement;

“Swiss recognition period” (“cyfnod cydnabod Swisaidd”) means the period of four years beginning with exit day;

“visiting practitioner transitional period” (“cyfnod trosiannol ymarferwyr sydd ar ymweliad”) means—

(a)   the period of five years beginning with exit day (see Article 23(1) of the Swiss citizens’ rights agreement), or

(b)   if that period is extended in accordance with Article 23(2) of that Agreement, that period as extended.

(2) In these Regulations (other than in regulation 15D), any reference to the 2015 Regulations (or to any provision of those Regulations) includes a reference to the 2007 Regulations (or to any corresponding provision of those Regulations), so far as the 2007 Regulations continue (or, before exit day, continued) to apply by virtue of regulation 78 of the 2015 Regulations or regulation 155 of the European Qualifications (Health and Social Care Professions) Regulations 2016([9]) or by Part 3 of Schedule 1 to the 2019 Regulations([10]).”

Insertion of general saving in connection with actions taken etc. before exit day

4. After regulation 15A (as inserted by regulation 3) insert—

Actions taken, decisions made etc. before exit day: general saving

15B. The amendments made by Part 1 to the 2016 Act do not affect the validity of any action or decision taken, or right accrued, before exit day under that Act, except as provided by any applicable saving or transitional provision made by this Part. 

Insertion of provisions concerning equal treatment and administrative co-operation

5. After regulation 15B (as inserted by regulation 4)—

Equal treatment and administrative co-operation under the Swiss citizens’ rights agreement

15C.—(1) In dealing with a relevant applicant who pursues social work or work as a social care manager in Wales pursuant to the savings provision made in regulation 17 (visiting social workers and visiting social care managers: saving of old law) in relation to any matter, Social Care Wales must treat that person no less favourably than it would treat a native applicant (within the meaning of regulation 2 of the old 2007 Regulations) who pursues social work or work as a social care manager in Wales in relation to that matter. 

(2) Where an individual is providing services that if provided in the United Kingdom would constitute social work or work as a social care manager on a temporary and occasional basis in Switzerland pursuant to Article 23 of the Swiss citizens’ rights agreement, Social Care Wales must cooperate with and provide the appropriate competent authority in Switzerland with any information relevant to the legality of the individual’s establishment and good conduct, as well as the absence of any disciplinary or criminal sanctions of a professional nature, in accordance with the practice information provision.

(3) Where an individual has made or makes an application falling within Article 31(1) or 32(1) or (5) of the Swiss citizens’ rights agreement to a competent authority in Switzerland for recognition of a professional qualification awarded or recognised by Social Care Wales, Social Care Wales must—

(a)   cooperate with the competent authority in Switzerland or the individual (as the case may be), in accordance with the general cooperation provision, and

(b)   exchange information with the competent authority in Switzerland regarding disciplinary action or criminal sanctions taken, or any serious, specific circumstances which are likely to have consequences for the pursuit of professional activities by that individual.

(4) Social Care Wales must exchange information for the purposes of paragraphs (2) and (3) in accordance with the data protection legislation within the meaning of section 3(9) of the Data Protection Act 2018([11]).

(5) In this regulation—

“the general cooperation provision” (“y ddarpariaeth cydweithredu cyffredinol”) means regulation 5(2) to (7) of the old 2007 Regulations to the extent it applies in relation to Social Care Wales;

“the practice information provision” (“y ddarpariaeth gwybodaeth ymarfer”), in relation to Social Care Wales, means—

(a)   to the extent that it applies, regulation 5(2), (3) and (4) of the old 2007 Regulations,

(b)   section 159 of the 2016 Act (disclosure of information about fitness to practise).

(6) In so far as the general cooperation provision and the practice information provision apply, by virtue of this regulation, to Social Care Wales, the old 2007 Regulations are to be read as if modified as follows—

(a)   “competent authority” (“awdurdod cymwys”) in relation to Switzerland means a body in Switzerland which is a competent authority for the purposes of regulation 4(4) of the old 2007 Regulations;

(b)   the table in Part 1 of Schedule 1 to the old 2007 Regulations (regulated professions: professions regulated by law or public authority) has effect subject to the following modifications—

                       (i)  in the first column, the reference to “social worker in Wales” has effect as if there were substituted “social worker or social care manager in Wales”,

                      (ii)  in the second column, the reference to the “Care Council for Wales” has effect as if there were substituted “Social Care Wales”.

 

Administrative cooperation under the EEA EFTA citizens’ rights agreement

15D.—(1)Where an individual has, before exit day, made an application under Article 26 of the EEA EFTA citizens’ rights agreement to a competent authority in Iceland, Norway or Liechtenstein for recognition of a professional qualification awarded or recognised by Social Care Wales, Social Care Wales must—

(a)   cooperate with the competent authority or assistance centre in Iceland, Norway or Liechtenstein, or with the individual (as the case may be), in accordance with the general cooperation provision, and

(b)   exchange information with the competent authority or assistance centre in Iceland, Norway or Liechtenstein regarding disciplinary action or criminal sanctions taken, or any other serious, specific circumstances which are likely to have consequences for the pursuit of professional activities by that individual.

(2) Social Care Wales must exchange information for the purposes of paragraph (1) in accordance with the data protection legislation within the meaning of section 3(9) of the Data Protection Act 2018.

(3)  In this regulation—

“the 2015 Regulations” (“Rheoliadau 2015”) means the European Union (Recognition of Professional Qualifications) Regulations 2015 as they had effect immediately before exit day;

“EEA EFTA citizens’ rights agreement” (“cytundeb hawliau dinasyddion EFTA yr AEE”) means the Agreement signed in London on 2 April 2019 between Iceland, the Principality of Liechtenstein, the Kingdom of Norway and the United Kingdom of Great Britain and Northern Ireland on arrangements regarding citizens’ rights following the withdrawal of the United Kingdom from the European Union and the EEA Agreement (as modified from time to time in accordance with any provision of it);

“the general cooperation provision” (“y ddarpariaeth cydweithredu cyffredinol”) means—

(a)   regulation 5(2), (4) and (5) of the 2015 Regulations, as modified by paragraph 44(4)(b) of Schedule 1 to the 2019 Regulations([12]),

(b)   regulation 5(3) of the 2015 Regulations,

to the extent they apply in relation to Social Care Wales.

(4) For the purposes of the application of the general cooperation provision to Social Care Wales by virtue of this regulation—

(a)   “competent authority” (“awdurdod cymwys”), in relation to Iceland, Norway and Liechtenstein, means a body in Iceland, Norway or, as the case may be, Liechtenstein which is a competent authority for the purposes of the 2015 Regulations (see paragraph (b) of the definition of “competent authority” in regulation 2(1) of those Regulations);

(b)   the table in Part 1 of Schedule 1 to the 2015 Regulations is to be read as if in the second column of the table in Part 1 of Schedule 1 to those Regulations, the reference to the “Care Council for Wales” were a reference to “Social Care Wales”.

Insertion of regulation 16A

6. After regulation 16, insert—

Swiss social workers and social care managers qualifying outside Wales

16A.—(1) Where a registration application is received from a Swiss social worker or social care manager before the end of the Swiss recognition period, any provision made by or under the 2016 Act continues to apply in relation to the application (including any appeal arising from it) without the amendments made by Part 1 to the establishment provisions (but subject to the modifications to the 2016 Act specified in paragraph (3)).

(2) The reference in paragraph (1) to “the establishment provisions” is a reference to the 2016 Act (other than the provisions listed in regulation 17(4)).

(3) The modifications to the 2016 Act mentioned in paragraph (1) are that the 2016 Act is to be read as if—

(a)   in section 85 (qualifications gained outside Wales – social workers), for “an exempt person” there were substituted “a Swiss social worker”;

(b)   in section 85A (qualifications gained outside Wales – social care managers), for “an exempt person” there were substituted “a Swiss social care manager”;

(c)   in section 90(8) (visiting social workers from relevant European States)—

                       (i)  in the definition of “General Systems Regulations”, at the end there were inserted “as (and only to the extent that) they have effect, after exit day, in relation to an entitlement which arises in relation to a relevant qualification (within the meaning given in paragraph 48A of Schedule 1 to the Recognition of Professional Qualifications (Amendment etc.) (EU Exit) Regulations) 2019;”;

                      (ii)  there were inserted, at the appropriate place—

                            ““Swiss social worker or social care manager” has the meaning given in regulation 16A(4) of the Regulation and Inspection of Social Care (Qualifications) (Wales) (Amendment) (EU Exit) Regulations 2019”;

(d)   in section 105 (other appeals: decisions made under the General Systems Regulations)—

                       (i)  in subsection (1), paragraph (c) were omitted;

                      (ii)  in subsection (5)(b), the words from “or, in the case” to the end were omitted.

(4) In this regulation—

“registration application” (“cais cofrestru”) means an application for admission to a register maintained in accordance with section 80 of the 2016 Act;

“Swiss social worker or social care manager” (“gweithiwr Cymdeithasol Swisaidd neu reolwr gofal Cymdeithasol Swisaidd”) means a qualifying applicant who had not, before exit day, made a registration application (other than an application under section 90 or 90A of the 2016 Act).

Amendment of regulation 17 (visiting social workers and visiting social care managers: saving of old law)          

7. Regulation 17 is amended as follows—

(a)     after paragraph (1), insert—

(1A) But a relevant applicant to whom paragraph (1) applies may only provide services as a social worker or a social care manager for a period not exceeding 90 days in total in any calendar year.;

(b)     for paragraph (2) substitute—

(2) Despite the amendments made by Part 1, the relevant provisions of the 2016 Act specified in paragraph (4) continue to apply in relation to the provision of those services by a person to whom paragraph (1) applies on or after exit day, as they applied before that day, but subject to—

(a)   the modifications specified in regulation 18(1) (interpretation of saved provisions);

(b)   in the case of a relevant applicant, the modifications specified in paragraphs (1) and (2) of regulation 18.;

(c)     after paragraph (3), insert—

(4) The relevant provisions of the 2016 Act are—

(a)   in section 66(1) (interpretation of Parts 3 to 8), the definitions of “exempt person”, “the General Systems Regulations”, “national”, “relevant European State”, “visiting European social care manager part” and “visiting European social worker part”;

(b)   section 74(3) (rules: fees);

(c)   in section 80, subsections (1)(c) and (d), (2)(c) and (d) and (3)(c) and (d) (the register);

(d)   section 90 (visiting social workers from relevant European States);

(e)   section 90A (visiting social care managers from relevant European States);

(f)   section 105 (other appeals: decisions made under the General Systems Regulations);

(g)   section 113(3) to (5) (continuing professional development).

 

Amendment of regulation 18 (interpretation of provisions saved by regulation 17(2))

8.—(1)(1) Regulation 18 is amended as follows.

(2) The current text of the regulation becomes paragraph (1).

(3)  In paragraph (1)(a)(ii), in the definition of “the General Systems Regulations” immediately before “means” insert “(other than in that definition as saved by regulation 16A)”.

(4) After paragraph (1)(a)(ii) insert—

(iii)  subsection (8), is also to be read as if, in the definition of “national” for “is not” there were substituted “was not immediately before exit day”.

(5) At the end, insert—

(2) In so far as the following further provisions of the 2016 Act continue to apply in the case of a relevant applicant by virtue of regulation 17(2)(b), they apply with the following modifications—

(b)   section 90 (visiting social workers from relevant European States) is to be read as if for subsection (1) there were substituted—

(1) This section applies to a relevant applicant (within the meaning given in paragraph 47A of Schedule 1 to the Recognition of Professional Qualifications (Amendment etc.) (EU Exit) Regulations 2019) (“V”) who is lawfully established in Switzerland, as a social worker.;

(b)   section 90A (visiting social care managers from relevant European States) is to be read as if for subsection (1) there were substituted—

(1) This section applies to a relevant applicant (within the meaning given in paragraph 47A of Schedule 1 to the Recognition of Professional Qualifications (Amendment etc.) (EU Exit) Regulations 2019) (“V”) who is lawfully established in Switzerland, as a social care manager.;

(c)   section 113 (continuing professional development) is to be read as if in subsection (5) for “the relevant” to the end there were substituted “Switzerland”.

 

 

 

Name

Deputy Minister for Health and Social Services, under authority of the Minister for Health and Social Services, one of the Welsh Ministers,

Date