23rd February 2011

INTRODUCTION
 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)
• 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
 Supreme Court
(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 Care and Social Work
Improvement Scotland from 1st April 2011)
 Social Service Workers 1
• SSSC Registration Rules 2011
• 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 2011
– 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 2011
 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 (SCSWIS) 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 (SCSWIS) in other cases
– services which local authorities under duty to
provide cannot be cancelled
 Inspection 1
• Registered care services inspected by SCRC
(SCWIS)
– Periods for inspection vary, e.g. Care home twice every
12 months
• SCSWIS to review with view to having less frequent, less
intensive inspections for well-performing services and to make
use of more unannounced visits
– 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 (SCSWIS)
– 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, National Inspection of
Prison-based SW services in 2011
• 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 (SCSWIS) registered services
– Condition of registration that have complaints
procedure
– complaints may be made to SCRC (SCSWIS)
directly
• If dissatisfied with outcome of LA or SCRC
(SCSWIS) complaints procedure can complain
to Scottish Public Services Ombudsman or
raise action for judicial review
• SSSC (SCSWIS) complaints procedure
 SPSO
• In its own words considers cases where authority
has:
• 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.

• 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
 Changes to system of regulation
• 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
• 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
 DISCRIMINATION
• Equality Act 2010
• Prohibits discrimination on basis of protected
characteristics
– Covers all aspects of employment as well as
provision of services, housing, education etc
– Extends to perceived characteristics
– Covers discrimination against those associated with
person having protected characteristic
• Requires making of reasonable adjustments to
accommodate disability
• Prohibits harassment & victimisation on basis
of protected characteristics
 Protected characteristics
• age
• disability
– involves physical or mental impairment having substantial
and long-term effect on ability to carry out normal day-to-
day activities
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
– includes colour, nationality or ethnic or national origin
• religion or belief
• sex
• sexual orientation.
 Discrimination 1
• Direct discrimination
– A person (A) discriminates against another (B)
if, because of a protected characteristic, A treats
B less favourably than A treats or would treat
others
 Discrimination 2
• Indirect discrimination
– Doesn’t apply to pregnancy or maternity
– A person (A) discriminates against another (B) if A applies
to B a provision, criterion or practice which is discriminatory
in relation to a relevant protected characteristic of B's.
– A provision, criterion or practice is discriminatory in relation
to a relevant protected characteristic of B's if—
• A applies, or would apply, it to persons with whom B does not
share the characteristic,
• it puts, or would put, persons with whom B shares the
characteristic at a particular disadvantage when compared with
persons with whom B does not share it,
• it puts, or would put, B at that disadvantage, and
• A cannot show it to be a proportionate means of achieving a
legitimate aim.
 Exceptions & enforcement
• Direct discrimination may be permitted when it
is a proportionate means of achieving a
legitimate aim (and, in context of employment,
that it is an occupational requirement)
• Enforcement through courts and Employment
Tribunals
• Role of Equality and Human Rights
Commission
 Reasonable adjustments
• Involves three requirements:
– where a provision, criterion or practice of A's puts a disabled
person at a substantial disadvantage in relation to a relevant matter
in comparison with persons who are not disabled, to take such
steps as it is reasonable to have to take to avoid the disadvantage.
– where a physical feature puts a disabled person at a substantial
disadvantage in relation to a relevant matter in comparison with
persons who are not disabled, to take such steps as it is reasonable
to have to take to avoid the disadvantage.
– where a disabled person would, but for the provision of an
auxiliary aid, be put at a substantial disadvantage in relation to a
relevant matter in comparison with persons who are not disabled,
to take such steps as it is reasonable to have to take to provide the
auxiliary aid.
 Local authority duties 1
• Public sector equality duty
– Extends to private providers of public services
• A public authority must, in the exercise of its functions,
have due regard to the need to—
– eliminate discrimination, harassment, victimisation and any
other conduct that is prohibited by or under this Act;
– advance equality of opportunity between persons who share
a relevant protected characteristic and persons who do not
share it;
– foster good relations between persons who share a relevant
protected characteristic and persons who do not share it.
 Local authority duties 2
• Having due regard to the need to advance equality of
opportunity between persons who share a relevant protected
characteristic and persons who do not share it involves having
due regard, in particular, to the need to—
– remove or minimise disadvantages suffered by persons who share
a relevant protected characteristic that are connected to that
characteristic;
– take steps to meet the needs of persons who share a relevant
protected characteristic that are different from the needs of persons
who do not share it;
– encourage persons who share a relevant protected characteristic to
participate in public life or in any other activity in which
participation by such persons is disproportionately low.
• Draft regulations require publication of equality outcomes
 Positive action
• Permitted under 2010 Act, including in
cases of employment
Slides available here: http://tgg1971.wordpress.com/