INTRODUCTION3rd March 2010

Sources of law

• Legislation– Acts of UK Parliament– Acts of Scottish Parliament– Delegated legislation

• Made under powers delegated by parliament• Same legal effect as Act• Looked after children regulations

• Supplemented by– Circulars– Guidance– Codes of Practice

• E.g. Around AWI and Mental Health (Care and Treatment)(Scotland) Act 2003• Don’t have force of law generally (though some close, e.g. on child protection

committees)• May be referred to by courts if LA actions challenged, e.g. Community care

assessments

Problems of interpretation 1

Problems of interpretation 2

• ‘duty’ to children in need

• ‘household’ in grounds for referral to children’s hearing

• Ability to understand/act in guardianship cases

House of Lords(appeals only)

Court of Session: Inner House(mainly appeals, but some

original jurisdiction

Court of Session: Outer House(exclusive jurisdiction over

judicial review/status

Sheriff Principal(appeals only)

Sheriff(deals with most of cases

exclusive jurisdiction less than £5,000 and evictions)

High Court as Court of Appeal

High Court of Justiciary(jury of 15; exclusive power to try murder, rape and treason)

Sheriff Solemn Court(jury of 15)

Sheriff Summary Court(sheriff sits alone)

JP Court(lay or stipendiary magistrate)

REGULATION OF SOCIAL WORK SERVICES

Registration Requirements

• Cover:– Social service workers – requirement to register

with Scottish Social Services Council– Service providers – required to register with

Scottish Commission for the Regulation of Care

Social Service Workers 1• SSSC Registration Rules 2009B

• Includes social workers, those who work in care homes and residential child care workers

• Applicants must– Satisfy qualification and competence requirements

– Be of good character

• Registration lasts 3 years (social workers) or 5 years (most others)

Social Service Workers 2• Post registration

– Compliance with Codes of Practice– Completion of CPD requirements

• E.g. 15 days in each registration period for social workers (more for newly qualified)

Social Service Workers 3

– Can be removed from register on grounds of misconduct

• Investigation following complaint of misconduct or criminal conviction

– conduct, whether by act or omission, which falls short of the standard of conduct expected of a person registered with the Scottish Social Services Council, having particular regard to the Code of Practice for Social Service Workers ...and the Scottish Social Services Council (Registration) Rules 2009B

– E.g. Johnstone – conviction for assault and breach of bail & involvement in other incidents

• Other possibilities include warning, suspension or imposition of conditions

– E.g. Horrobin condition as to further training• SSSC Conduct Rules 2009B

Care Services 1

• Does not include provision of field social work services

• Includes:– Child minders, support services, care homes,

adoption and fostering services (including those provided by local authority) & housing support services

– Subject to some exceptions covering informal carers and services provided by NHS

Care Services 2

• Applicant must satisfy requirements as to fitness (as individual/company and of premises) – certain individuals disqualified

• SCRC will consider relevant regulations and Care Standards

• Application may be granted subject to conditions

Care Services 3

• Post registration– Must comply with regulations (including staffing

and record keeping) and with Care Standards– Staff must be satisfy fitness, qualification and

registration requirements• Registration can be cancelled

– by application to sheriff in cases of urgency– by SCRC in other cases– services which local authorities under duty to

provide cannot be cancelled

Inspection 1

• Registered care services inspected by SCRC– Periods for inspection vary, e.g. Care home

twice every 12 months– Review based on self-assessment & visit– As outcome services graded– Report can include requirements – may lead to

imposition of additional conditions on registration and ultimately deregistration

Inspection 2

• Social Work Inspection Agency– Reviews of LA social work provision &

involvement in multi-agency reviews– Based on supported self evaluation– Overall review of criminal justice social work

completed in 2007

• Services for children inspected by HMIE Services for Children Unit

Complaints 1

• Local authority complaints and representations procedure– Covers both discharge and failure to discharge

duties– Extends to services provided by third parties by

arrangement with LA (though LA can delegate handling of complaints to third party)

– 3 stages envisaged• Attempt to resolve complaint informally• Review by single council officer• Complaints Review Committee

Complaints 2

• SCRC registered services– Condition of registration that have complaints

procedure– complaints may be made to SCRC directly

• If dissatisfied with outcome of LA or SCRC complaints procedure can complain to Scottish Public Services Ombudsman or raise action for judicial review

• SSSC complaints procedure

SPSO• In its own words considers cases where authority

has:

• E.g. Case 200701327: Renfrewshire Council – Failure to transfer case files to new authority in

accordance with procedures and in timely manner• In general cannot complain if have not exhausted

authorities internal procedures

• Provided a poor service• Delivered a service badly • Failed to provide a service...if you claim you have suffered injustice or hardship as a result of these failures.

Changes to system of regulation

• Public Services Reform (Scotland) Bill:– Creation of new body, Social Care and Social

Work Improvement Scotland to take over:• Registration functions of Scottish Commission for the

Regulation of Care• Inspection functions of SCRC, SWIA and HMIE

Services for Children Unit• See Scottish Govt website

• Changes to rationalise & simplify complaints procedures also promised

Judicial Review 1

• Available where no statutory right of appeal, e.g. Decisions on community care services, decisions on applications to be housed as homeless person

• Only available in Court of Session• Seeking review of LA decision and usually asking

court to set it aside• To some extent concerned with procedural matters

and therefore same decision can often be taken again following correct procedure– E.g. Malloch v Aberdeen Corporation

Judicial Review 2

• Grounds for seeking review can be categorised in various ways, one is:– Failure to follow correct procedures– Acting illegally, including fettering discretion– Acting in a way which no reasonable authority

would act

• Court will also consider whether any rights under European Convention on Human Rights infringed

Failure to follow procedures

• Includes breaching rules of natural justice, e.g. requirement for impartiality and to allow person affected to state his/her case

• Can include failure to follow correct guidance, e.g. on carrying out community care assessment

Acting illegally

• For example doing something which the authority has no legal power to do

• Alternatively not doing something which it is legally required to do, e.g. Provision of accommodation in MacGregor v South Lanarkshire Council

Unreasonable decision• E.g. Kelly v Monklands District Council

– LA duty to provide housing to homeless person only arose if (in circumstances) applicant was vulnerable

– LA decided that applicant not vulnerable even though she

• had left home after being assaulted by father• had no income and nowhere else to stay• suffered from depression and had cut her wrist with a razor

– Court held decision unreasonable

• Note that in this type of case not open to LA to take same decision again following correct procedure

Other forms of liability 1

• Liability for negligence of employees– Main examples - negligence in planning for &

caring for looked after children (though no duty owed to parents/others accused of abusing children)

– Standard required is that of reasonable care – a ‘reasonably competent’ member of a profession

Other forms of liability 2

• Breaches of rights under European Convention on Human Rights

• Section 6(1) of Human Rights Act 1998 states that:– It is unlawful for a public authority to act in a way

which is incompatible with a Convention right.

• Right to sue for damages, for interdict or to make authority carry out its obligations

Slides available here: http://tgg1971.wordpress.com/