Ask Sheila - Archive England

Sheila Scott OBE has now retired and therefore is no longer available to answer your social care questions. However, you might still find the answer you’ve been searching for down below.

14th October 2016

Can you provide advice on Regulation 5?

I am after your advice, we are a newly registered Homecare agency and we are having some issues with understanding regulation 5 and the procedure in how we got to the decision of having the two directors in which we have.
We have recently had our inspection and this is one of the areas in which we require improvement.
Can you confirm as to whether the procedure is the same as if employing any other member of staff?
References, dbs, etc?

Dear Chris,

This is the specific regulation that you are referring to and it relates to Company Directors or Charity Trustees and in part to partners in a partnership.
5 Fit and proper persons: directors

[(1) This regulation applies where the service provider is a body other than a partnership.]

(2) Unless the individual satisfies all the requirements set out in paragraph (3), [a service provider] must not appoint or have in place an individual-
(a) as a director of the service provider, or
(b) performing the functions of, or functions equivalent or similar to the functions of, . . . a director.

(3) The requirements referred to in paragraph (2) are that-
(a) the individual is of good character,
(b) the individual has the qualifications, competence, skills and experience which are necessary for the relevant office or position or the work for which they are employed,
(c) the individual is able by reason of their health, after reasonable adjustments are made, of properly performing tasks which are intrinsic to the office or position for which they are appointed or to the work for which they are employed,
(d) the individual has not been responsible for, been privy to, contributed to or facilitated any serious misconduct or mismanagement (whether unlawful or not) in the course of carrying on a regulated activity or providing a service elsewhere which, if provided in England, would be a regulated activity, and
(e) none of the grounds of unfitness specified in Part 1 of Schedule 4 apply to the individual.

(4) In assessing an individual’s character for the purposes of paragraph (3)(a), the matters considered must include those listed in Part 2 of Schedule 4.

(5) The following information must be available to be supplied to the Commission in relation to each individual who holds an office or position referred to in paragraph (2)(a) or (b)-
(a) the information specified in Schedule 3, and
(b) such other information as is required to be kept by the service provider under any enactment which is relevant to that individual.

(6) Where an individual who holds an office or position referred to in paragraph (2)(a) or (b) no longer meets the requirements in paragraph (3), the service provider must-
(a) take such action as is necessary and proportionate to ensure that the office or position in question is held by an individual who meets such requirements, and
(b) if the individual is a health care professional, social worker or other professional registered with a health care or social care regulator, inform the regulator in question.

The guidance to complying with this requirement can be found on the CQC website here here:

Best wishes.


*All information is correct at the time of publishing.

About Sheila

Sheila Scott OBE has now retired and over the years , prior to her retirement she has answered thousands of your social questions. You can still access the many questions below.

For Sheila Scott OBE as the former CEO of National Care Association (NCA), care is Sheila's life. She possesses a strong command of the issues facing the care sector informed by her long career as a nursing professional, the owner and manager of a care business, and as a leader in the care sector.

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