Chapter 1, Part 3 of The Public Health (Wales) Act 2017 and The Smoke-free Premises and Vehicles (Wales) Regulations 2020 come into force on 1 March 2021.
There are changes to requirements governing the smoking of tobacco in :
- Outdoor care settings for children
- Domiciliary care services in private homes
- Adult care homes and
- Adult hospices.
Smoke-free: the smoking of tobacco in any form is banned. Use of e-cigarettes (vaping) is allowed, although local authorities as landowners may choose to prohibit the use of e-cigarettes if they wish.
Indoor – means enclosed or substantially enclosed
Outdoor means substantially unenclosed – i.e. at least 50% open to the air.
This will have an impact for local authorities as regulators of some childcare settings and adult care homes and providers, either directly or through third-party providers of domiciliary care.
There is currently no requirement for outdoor care settings for children to be smoke-free, though indoor care settings are required to be smoke-free.
From 1 March 2021 all outdoor care settings for children in wales are required to be smoke-free, where outdoor care setting for children means the outdoor parts of those areas registered under Part 2 of the Children and Families (Wales) Measure 2010 and are premises which provide childcare or childminding services for children under the age of 12 years.
The requirement is that such premises must be smoke-free when the premises is being used for childcare or childminding purposes, but not outside those times.
Where childcare or child-minding services are provided in the domestic property of the provider the outdoor areas of the property are required to be smoke-free if one or more children are in the outdoor area. This means that if the providers home is being sued for childcare or child-minding services no-one living in the property can smoke in the garden if at least one child is in the garden, but if no children are using the garden smoking is permitted there.
There is no requirement for outdoor childcare settings to display no-smoking signage unless the proprietor wishes to do so, but the requirement to display No Smoking signage inside the premises (unless it is a domestic premises) remains.
Persons who control or manage outdoor care settings and registered childminders must take reasonable steps to stop a person smoking in a smoke-free area from doing so.
Local authorities should identify the care setting care provider/registered childminder and advise them of the new legislative requirements and if resources allow may wish to assist them with advice as to what constitutes reasonable steps to achieve compliance.
What would be regarded as ‘reasonable steps’?
- Advising all person who may use the outdoor setting that smoking is not permitted – staff, parents/guardians and contractors
- Evidencing that (1) has been done – letters /emails to staff/ inclusion in contacting requirements/ letters to parents/ note in introductory pack to new parents etc
- Removal of smoking furniture form outdoor care settings
- Signage at the exterior doors leading to outdoor settings reminding users that the area is smoke-free
List not exclusive or exhaustive.
It is an offence for a person to smoke in a smoke-free outdoor childcare setting – penalty is a Fixed Penalty Notice (FPN), where the FPN is £100, reduced for early payment to £75.
It is an offence for a person who controls or manages an outdoor care setting or a registered childminder to fail to take reasonable steps to stop a person smoking in an outdoor childcare setting. The penalty on summary conviction is a fine not exceeding level 4 on the standard scale (currently £2,500)
It should also be noted that a local authorities may wish to take into account convictions under the legislation for failing to take reasonable steps to prevent persons smoking in outdoor childcare settings when considering applications for registration as a child minder or child care provider.
Enforcement is by local authorities, in most cases by environmental health/public protection teams. Given that the settings covered are used by children enforcement should be low profile and not intrusive with due regard being given to child protection issues.