Commentary on Provisions Part 4 – residential and secure care Section 28 – regulation of care services providing residential accommodation to children
123.Section 28 makes three main changes to Part 5 of the 2010 Act, which concerns the scrutiny and improvement of social care services.
124.The first main change is to section 50 of the 2010 Act, which requires the Scottish Ministers to prepare and publish standards and outcomes(80) applicable to care services (as well as social work services).(81) The standards and outcomes are taken into account by the Care Inspectorate when making decisions under Part 5 of the 2010 Act.
125.Section 28(2) inserts new subsections (1A) and (1B) into section 50 to confer a new function on the Scottish Ministers. So, in addition to their general duty under section 50(1), they will have the power under section 50(1A) to prepare and publish specific standards and outcomes for specific types of care service which provide residential accommodation to children who are subject to a cross-border placement. Those care services are: (a) care home services(82) which are provided wholly or mainly to children, (b) school care accommodation services,(83) and (c) secure accommodation services.(84) Section 28(5)(b) amends the interpretation provision in section 105(1) of the 2010 Act to include a definition of “cross-border placement”. This means the placement of a child in a residential establishment in Scotland where (a) the child was, immediately before the placement, resident in England, Wales or Northern Ireland, and (b) the placement is authorised under the law in England and Wales or, as the case may be, in Northern Ireland. A placement may be so authorised by virtue of (a) an order made by a court in England and Wales or in Northern Ireland, and/or (b) any provision made by or under an Act of Parliament, an Act of Senedd Cymru, or Northern Ireland legislation (as defined by section 98(1) of the Northern Ireland Act 1998), whenever passed or made. Section 28(5)(c) further amends section 105(1) of the 2010 Act to define “residential establishment” (as mentioned in paragraph 115 of these Notes).
126.Section 28(2) makes further changes to section 50 in consequence of adding the new subsection (1A) power. The changes mean that the existing provisions in section 50 will apply to both the standards and outcomes published under section 50(1) and any standards and outcomes published under section 50(1A). Section 50 includes provision for: the review and amendment of standards and outcomes; prepublication consultation with appropriate persons or groups of persons; the taking into account of standards and outcomes for the purposes of certain decisions and proceedings; and the making of different provision for different care services. The Scottish Ministers will also be able to delegate their function under section 50(1A) to the Care Inspectorate or anyone else they consider appropriate.(85)
127.The second main change is that section 28(3) inserts new section 59A into Part 5 of the 2010 Act, which makes further provision about the registration of care services under that Part. Section 59A(2) sets out two additional requirements that apply to the registration of certain care services for children.(86) Those care services are: (a) care home services which are provided wholly or mainly to children, (b) school care accommodation services, and (c) secure accommodation services. As a result, a registration application for such a service must contain (a) any required information about cross-border placements, and (b) confirmation that notice of the application has been given to the persons mentioned in section 59A(3).
128.The persons mentioned in section 59A(3) are: (a) the local authority(87) for each area in which the service is to be provided, and (b) the relevant health board(88) for each such area. Under Part 3 of the Children and Young People (Scotland) Act 2014, they have the responsibility of preparing (every 3 years) a children’s services plan for the local authority area. This is a document setting out their plans for the provision over that 3-year period of all children’s services and related services.(89) In preparing the plan, section 10(1), (2) and (6) of the 2014 Act requires the local authority and relevant health board to consult with certain persons, including organisations which provide a service for children in the area. However, the notice requirement imposed by section 59A(2)(b) means that local authorities and relevant health boards will automatically be made aware of any prospective services for children in their respective areas for the purposes of children’s services planning. To make sure that the notice requirement is complied with, section 59A(4) precludes the Care Inspectorate from considering an application in respect of any of the listed care services unless and until the required confirmation is given. Knowingly giving a false confirmation in an application would be an offence under section 81 of the 2010 Act.(90)
129.Section 59A(2)(a) enables the Scottish Ministers to prescribe,(91) by order, such information about cross-border placements as they deem appropriate to be included in an application for registration as a care service. Section 59A(2)(b) also enables them to prescribe, by order, the form in which notice of the application is to be given to the persons mentioned in section 59A(3). By virtue of section 104(1)(c) of the 2010 Act, those order-making powers include the power to make different provision for different purposes. Any order made under the new provisions(92) will be subject to the negative procedure(93) by virtue of section 104(3).
130.And, finally, the third main change relates to the regulation-making power in section 78(2) of the 2010 Act. This is a general power that enables the Scottish Ministers, by regulations,(94) to impose on care services any requirements which they consider appropriate for the purposes of Part 5 of the 2010 Act.(95) Section 28(4) inserts new subsections (2A) and (2B) into section 78 to expressly provide for the Scottish Ministers to impose specific requirements on specific types of care service which provide residential accommodation to children who are subject to cross-border placements. Those care services are: (a) care home services which are provided wholly or mainly to children, (b) school care accommodation services, and (c) secure accommodation services. Any requirements imposed by virtue of section 78(2A) would constitute “relevant requirements”(96) for the purposes of section 64(1)(b) of the 2010 Act. This means that a care service’s failure to comply with any such requirement could result in its registration with the Care Inspectorate being cancelled.
131.Section 28(5)(a) amends the definition of “child” in section 105(1) of the 2010 Act for the purposes of the new provisions. As a result, references to “children” in sections 50(1A) and (1B), 59A and 78(2A) and (2B) are to persons who are under the age of 18 (rather than under the age of 16).