Commissioner’s Legal Powers

The Commissioner’s role and statutory powers are defined by the Commissioner for Older People (Wales) Act 2006 and accompanying Regulations.

The Act outlines the action that the Commissioner is able to take to ensure that the interests of older people are safeguarded and promoted when public bodies discharge their functions and the assistance the Commissioner may provide directly to older people in certain situations.

Relationship with Older People

The Commissioner must ensure that:

  • Older people in Wales are made aware of the existence and functions of the Commissioner’s office. 
  • Older people in Wales are made aware of the location of the Commissioner’s office or offices and the ways in which they may communicate with the Commissioner and his or her staff.
  • Older people are encouraged to communicate with the Commissioner and his or her staff
  • The views of older people are sought as to how the Commissioner should exercise his or her functions and as to the content of the Commissioner’s annual work programme
  • The Commissioner and his or her staff make themselves available to such older people in the older person’s locality

Review of discharge of functions (Section 3 Review)

The Commissioner may review the way in which the interests of older people are safeguarded and promoted when public bodies discharge their functions, propose to discharge their functions or fail to discharge their functions. This includes those who are discharging functions on behalf of public bodies.

The Commissioner has legal authority to enter premises other than private homes to interview older people (with their consent).

The Commissioner has discretion to decide whether or not she publishes a report with her findings and whether or not she makes recommendations.

Where the Commissioner chooses to issue a report and recommendations following Section 3 review, she may request that the recommendations are responded to by the bodies reviewed. The 2007 Regulations specify the legal timetable and reporting requirements for this type of follow up work.

Review of advocacy, whistle-blowing or complaints arrangements (Section 5 Review)

Similar to a Section 3 Review, but focused on whether, and to what extent, the arrangements of certain bodies’ advocacy, whistle-blowing and complaints arrangements are effective in safeguarding and promoting the interests of relevant older people in Wales.

During this type of review, the Commissioner may require bodies to provide the information she needs to carry out the review. Any failure to provide such information may be referred, by certificate, to the High Court for it to look at the matter. Someone refusing to supply information may be treated as if in contempt of court.

Following such a review, the Commissioner may issue a report and recommendations and may require that bodies provide information outlining how they will comply with the recommendations or explaining why they will not. Any failure to provide such information may be referred, by certificate, to the High Court.

Assistance (Section 8)

The Commissioner may assist a person who is, or has been, an older person in Wales in making a complaint about or representation to public bodies. Assistance includes financial assistance or arranging for a person to advise, represent or assist an older person.

The Commissioner may assist a person in certain legal proceedings but may not review or examine a matter that is currently under judgement or has been decided by a court of law or tribunal. The Commissioner may only assist in legal proceedings where the issues in the case are of wider interest to older people and not merely specific to a particular older person.

Examination (Section 10)

The Commissioner may examine the case of an older person in relation to a matter which affects the interests of a wider group of older people and not just the individual concerned. Following an examination the Commissioner must produce a report and may make recommendations.

The 2007 Regulations set out the main parameters within which an examination may be conducted, setting out terms of reference, for example, the ability to question under oath, summon witnesses, etc.  

If any person or body refuses to comply with an examination, to supply information in connection with an examination, or explain how they will comply with the recommendations, the Commissioner may issue a certificate to the High Court for it to look at the matter and may result in a person or body being treated as if in contempt of court.

Issuing Guidance (Section 12)

The Commissioner may produce guidance on best practice in connection with any matter relating to the interests of older people in Wales. The Commissioner must consult with such persons as she thinks appropriate when producing the guidance.

Once the guidance is produced, public bodies and those providing regulated services must have regard to the guidance when discharging their functions.

Other sections of the Act

Other sections of the Commissioner for Older People (Wales) Act 2006 make provision for the Commissioner to undertake research and educational activities in connection with any of her functions, carry out joint examinations / investigations and work collaboratively to share best practice and other appropriate information with similar bodies. 

Legislation: 

Commissioner for Older People (Wales) Act 2006
http://www.legislation.gov.uk/ukpga/2006/30/contents   

The Commissioner for Older People in Wales Regulations
http://www.legislation.gov.uk/wsi/2007/398/contents/made