Commentary on Provisions Part 4 – residential and secure care Section 27 – secure accommodation services
113.Part 5 of the 2010 Act requires all care services to be registered with the Care Inspectorate. It is an offence under section 80 of the 2010 Act to provide a care service while not registered. A “secure accommodation service” is listed as a care service in section 47(1)(f) of the 2010 Act and defined in paragraph 6 of schedule 12 of that Act.
114.Section 27(4) of this Act replaces the definition in paragraph 6 of schedule 12 of the 2010 Act to give a fuller and clearer explanation of what a secure accommodation service is. It defines such a service by reference to three characteristics.
115.The first characteristic is that it provides accommodation in a residential establishment for the purpose of depriving children of their liberty (rather than for the purpose of restricting the liberty of children). Section 27(4) inserts new paragraph 6A into schedule 12, which adopts the definition of “residential establishment” given in section 105(1) of the 2010 Act.(74) That definition mirrors paragraph (a) of the definition in section 202(1) of the 2011 Act (which is mentioned in paragraph 112 of these Notes), except that it also specifies the Criminal Procedure (Scotland) Act 1995 as an enactment for the purposes of which such residential accommodation is provided. This sets out the legal basis for a service providing secure accommodation and the routes by which children are placed there.
116.The second characteristic is that it also provides, in such an establishment, appropriate care, education and support for the purposes of safeguarding and promoting the welfare of the children who are accommodated there, as well as taking account of the effects of trauma which such children may have experienced. Section 27(4) inserts new paragraph 6B into schedule 12 to define “appropriate care, education and support”. This means the kind of care, education and support required to meet the health, educational and other needs of the children.
117.The third characteristic is that it is approved by the Scottish Ministers, in accordance with regulations made under new section 78A of the 2010 Act, for those purposes.
118.Accordingly, section 27(2) inserts new section 78A into Part 5 of the 2010 Act, which confers a new regulation-making power on the Scottish Ministers.(75) This power enables the Scottish Ministers to set out in regulations a process for approving secure accommodation services under paragraph 6(c) of schedule 12.
119.Section 78A(2) of the 2010 Act provides a non-exhaustive list of the particular kinds of provision that the new power may be used to make. It includes provision about: the making of applications for approval; the procedure to be followed by the Scottish Ministers when deciding on applications; the duration of approvals; the attaching of conditions to approvals and the variation of such conditions; the review, renewal and withdrawal of approvals; and appeals against certain decisions of the Scottish Ministers in respect of approvals.
120.However, section 78A(3) of the 2010 Act provides that regulations under section 78A(1) must include provision requiring the Scottish Ministers to satisfy themselves of certain criteria before approving a secure accommodation service – namely, that the service will ensure that particular children are not placed together in the same residential establishment. The service must therefore show that no child who has been determined(76) to have committed an offence against or in respect of another child – or who has acted or behaved in a way that has had, or is likely to have had, a serious adverse effect on the health, safety or development of another child – will be accommodated within the same secure care unit as that other child.
121.Section 27(3) amends section 104(2) of the 2010 Act so that any regulations made under section 78A will be subject to the affirmative procedure.(77) By virtue of section 104(1)(b) and (c), any such regulations may also include ancillary provision(78) and make different provision for different purposes.
122.Section 27(6) revokes regulation 10(3) of the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011.(79) This is because the changes made by this section supersede that regulation’s requirement for ministerial approval of secure accommodation.