Social Work (Scotland) Act 1968

Part I — Administration

Performance of their duties by local authorities

Control of residential and other establishments.

1

• (1) It shall be the duty of a local authority to enforce and execute within their area the provisions of this Act , Part 2 of the Children (Scotland) Act 1995 (c.36) or Parts 5, 6, 9 to 11, 13 to 16, and 18 of the Children’s Hearings (Scotland) Act 2011 (asp 1) with respect to which the duty is not expressly, or by necessary implication, imposed on some other authority.

• (2) The local authorities for the purposes of this Act shall be councils constituted under section 2 of the Local Government etc. (Scotland) Act 1994

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) The functions of local health authorities in respect of their areas under the following enactments—

• (a) . . .

• (b) Mental Health (Care and Treatment) (Scotland) Act 2003 . . . ; . . .

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) On the date of the commencement of Part III of this Act the functions of education authorities in relation to the establishments which immediately before that date were approved schools and the children resident therein shall be transferred to the local authorities in whose areas the said children are ordinarily resident or, in the case of children who have no ordinary residence in Scotland, such local authorities as the Secretary of State may determine.

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The social work committee

2

The director of social work

3

• (1) For the purposes of their functions under this Act and the enactments mentioned in section 5(1B) of this Act, a local authority shall appoint an officer to be known as the chief social work officer.

• (2) The qualifications of the chief social work officer shall be such as may be prescribed by the Secretary of State.

Provisions relating to performance of functions by local authorities

4

Where a function is assigned to a local authority under this Act or section 25 (provision of care and support services for persons who have or have had a mental disorder), 26 (provision of services designed to promote well-being and social development of such persons) or 27 (assistance with travel in connection with such services) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or Part II of the Children (Scotland) Act 1995 or any of Parts 5, 6, 9 to 11, 13 to 16, and 18 of the Children’s Hearings (Scotland) Act 2011 (asp 1) or Part 2, 3, 4, 5 or 6 of the Carers (Scotland) Act 2016, and a voluntary organisation or other person, including another local authority, is able to assist in the performance of that function, the local authority may make arrangements with such an organisation or other person for the provision of such assistance as aforesaid.

Central Authority

Provision of care and after-care

5

• (1) Local authorities shall perform their functions under this Act , Part 2 of the Children (Scotland) Act 1995, the Social Care (Self-directed Support) (Scotland) Act 2013 (asp 1) Part 6 (in so far as it applies to looked after children) and Parts 12 and 13 of the Children and Young People (Scotland) Act 2014 (asp 8) , Parts 5, 6, 9 to 11, 13 to 16, and 18 of the Children’s Hearings (Scotland) Act 2011 (asp 1) and the Carers (Scotland) Act 2016 under the general guidance of the Secretary of State.

• (1A) Without prejudice to subsection (1) above, the Secretary of State may issue directions to local authorities, either individually or collectively, as to the manner in which they are to exercise any of their functions under this Act or any of the enactments mentioned in subsection (1B) below; and a local authority shall comply with any direction made under this subsection.

• (1B) The enactments referred to in subsection (1A) above are—

• (a) this Act as read with sections 1 and 2(1) of the Chronically Sick and Disabled Persons Act 1970 and the Disabled Persons (Services, Consultation and Representation) Act 1986;

• (b) Part IV of the Children and Young Persons (Scotland) Act 1937;

• (c) section 22(2) to (5A), (7) and (8), section 26(2) to (4) and sections 43, 45, 47 and 48 of the National Assistance Act 1948;

• (d) the Disabled Persons (Employment) Act 1958;

• (e) sections 10 to 12 of the Matrimonial Proceedings (Children) Act 1958, and sections 11 and 12 of the Guardianship Act 1973;

• (f) sections 44, 51 and 216 of the Criminal Procedure (Scotland) Act 1995;

• (g) the Children Act 1975;

• (h) the Adoption Act 1976;

• (i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (j) sections 21 to 23 of the Health and Social Services and Social Security Adjudications Act 1983;

• (k) the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);

• (l) the Foster Children (Scotland) Act 1984;

• (m) sections 38(b) and 235 of the Housing (Scotland) Act 1987;

• (n) the Access to Personal Files Act 1987; . . .

• (o) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (p) Part II of the Children (Scotland) Act 1995;

• (q) the Adoption and Children (Scotland) Act 2007 (asp 4);

• (r) the Social Care (Self-directed Support) (Scotland) Act 2013 (asp 1);

• (s) Parts 5, 6, 9 to 11, 13 to 16, and 18 of the Children’s Hearings (Scotland) Act 2011(asp 1);

• (t) Part 6 (in so far as it applies to looked after children) of the Children and Young People (Scotland) Act 2014 (asp 8);

• (u) the Carers (Scotland) Act 2016.

• (1C) In subsections (1) and (1B) of this section, the references to looked after children are to be construed in accordance with section 17(6) of the Children (Scotland) Act 1995.

• (2) The Secretary of State may make regulations in relation to—

• (a) the performance of the functions assigned to local authorities by this Act;

• (b) the activities of voluntary organisations in so far as those activities are concerned with the like purposes;

• (c) the performance of the functions of local authorities under any of the enactments mentioned in paragraphs (b), (d), (e), (g), (h), (i), (l) , (o) ,(p) , (q) and (s) of subsection (1B) above;

• (d) . . ..

• (3) Without prejudice to the generality of subsection (2) above, regulations under this section may make such provision as is mentioned in subsection (4) of this section as regards—

• (a) the boarding out of persons other than children by local authorities and voluntary organisations, whether under any enactment or otherwise; and

• (b) the placing of children under paragraph (a), or the making of arrangements in respect of children under paragraph (c), of section 26(1) of the Children (Scotland) Act 1995, by local authorities.

• (4) The provision referred to in subsection (3) of this section is—

• (a) for the recording—

• (i) by local authorities and voluntary organisations, of information relating to those with whom persons are so boarded out, or who are willing to have persons so boarded out with them; and

• (ii) by local authorities, of information relating to those with whom children are so placed or with whom such arrangements are made or who are willing to have children so placed with them or to enter into such arrangements;

• (b) for securing that—

• (i) persons are not so boarded out in any household unless it is for the time being approved by such local authority or voluntary organisation as may be prescribed by the regulations; and

• (ii) children are not so placed or, in accordance with such arrangements, provided with accommodation, in any household unless it is for the time being approved by the local authority placing the child or as the case may be making the arrangements;

• (c) for securing that, where possible, the person with whom a child is so placed or with whom such arrangements are made is either of the same religious persuasion as the child or gives an undertaking that the child shall be brought up in that persuasion;

• (d) for securing—

• (i) that a person who is, and the place in which he is, so boarded out by a local authority or voluntary organisation is supervised and inspected by that authority or organisation; and

• (ii) that a child who is, and the place in which he is, so placed or, in accordance with such arrangements, provided with accommodation, by a local authority is supervised and inspected by that authority,

and that he shall be removed from the place in question if his welfare appears to require it.

• (5) In subsections (3) and (4) of this section, “child” means a person who is under the age of 18.

Supervision of establishments providing accommodation for persons and inspection of records etc.

6

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Advisory Council on Social Work

7

Research, training courses and financial and other assistance

Research

8

• (1) The Secretary of State may conduct or assist other persons in conducting research into any matter connected with his functions or the functions of local authorities in relation to social welfare, and with the activities of voluntary organisations connected with those functions.

• (2) Any local authority may conduct or assist other persons in conducting research into any matter connected with their functions in relation to social welfare.

• (3) The Secretary of State and any local authority may make financial assistance available in connection with any research which they may conduct or which they may assist other persons in conducting under the provisions of this section.

Grants in respect of secure accommodation for children.

9

• (1) The Secretary of State may provide courses of training for persons with a view to, or in the course of, their employment or the use of their services for the purposes of this Act , Part 2 of the Children (Scotland) Act 1995 (c.36) or the Children’s Hearings (Scotland) Act 2011 (asp 1).

• (2) The Secretary of State may make grants of such amounts, and subject to such conditions, as he may with the consent of the Treasury determine towards any fees or expenses incurred by persons undergoing training for any of the purposes of this Act , Part 2 of the Children (Scotland) Act 1995 (c.36) or the Children’s Hearings (Scotland) Act 2011 (asp 1) in circumstances such that it appears to the Secretary of State requisite that the grants should be made, and may defray or contribute towards the cost of maintenance of persons undergoing such training.

• (3) The Secretary of State may make grants of such amounts, and subject to such conditions, as he may with the consent of the Treasury determine towards expenses incurred by any body of persons in providing training as aforesaid.

Financial and other assistance to voluntary organisations etc., for social work

10

• (1) The Secretary of State may make grants and loans of such amounts, and subject to such conditions, as he may with the consent of the Treasury determine towards expenses incurred by voluntary organisations or other persons engaged in any activity connected

• (a) his functions; with—

• (b) the functions of local authorities,

under this Act or under the mentioned in paragraphs (b),(d),(e),(g),(h),(i), (l) , (p) and (u) of section 5(1B) of this Act, in circumstances where it appears to the Secretary of State that such grants or loans should be made.

• (1A) The Scottish Ministers may make grants and loans of such amounts, and subject to such conditions, as they may determine to a voluntary organisation engaged as is mentioned in subsection (1) above to enable that organisation (in this section referred to as the “primary organisation”) to make grants and loans (in this section referred to as “secondary grants and loans”) to other voluntary organisations, or other persons, so engaged, in circumstances where it appears to the primary organisation that the secondary grants and loans should be made; and the Scottish Ministers may require that any secondary grant be subject to such conditions (including conditions for securing the repayment in whole or in part of that grant) as they may specify.

• (2) The conditions on which any grants are paid by the Scottish Ministers under subsection (1) or (1A) above may include conditions for securing the repayment in whole or in part of such grants.

• (3) A local authority may make contributions by way of grant or loan to any voluntary organisation the sole or primary object of which is to promote social welfare.

• (3A) In subsection (3) above, “voluntary organisation the sole or primary object of which is to promote social welfare” includes a person providing, as mentioned in paragraph 8(1)(b) of schedule 12 to the Public Services Reform (Scotland) Act 2010 (asp 8), an adoption ... service registered under Part 5 of that Act.

• (4) A local authority may also make available to such a voluntary organisation as aforesaid the use of premises belonging to the authority on such terms as may be agreed, and furniture, vehicles or equipment (whether by way of gift, loan or otherwise) and the services of any staff employed by the authority in connection with the premises or other things belonging to the local authority which the voluntary organisation is permitted to use.

• (5) On the commencement of this Act, the power of the Secretary of State to give financial assistance and of local authorities to give financial and other assistance under section 65 of the Health Services and Public Health Act 1968 and section 16B of the National Health Service (Scotland) Act 1978 shall cease in so far as any such assistance may be given under this section.

Acquisition of land

Acquisition of land

11

• (1) A local authority may be authorised by the Secretary of State to purchase compulsorily any land, whether situated in or outside their area for the purposes of any of their functions under this Act , Part 2 of the Children (Scotland) Act 1995 (c.36) or the Children’s Hearings (Scotland) Act 2011 (asp 1).

• (2) The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall apply in relation to the compulsory purchase of land under this section as if the last foregoing subsection had been in force immediately before the commencement of that Act.

Part II — Promotion of Social Welfare by Local Authorities

General

General social welfare services of local authorities

12

• (1) It shall be the duty of every local authority to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities (including the provision or arranging for the provision of residential and other establishments) as they may consider suitable and adequate, and such assistance may , subject to subsections (3) to (5) of this section, be given in kind or in cash to, or in respect of, any relevant person..

• (2) A person is a relevant person for the purposes of this section if, not being less than eighteen years of age, he is in need requiring assistance in kind or, in exceptional circumstances constituting an emergency, in cash, where the giving of assistance in either form would avoid the local authority being caused greater expense in the giving of assistance in another form, or where probable aggravation of the person’s need would cause greater expense to the local authority on a later occasion.

• (2A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies is not to receive assistance under subsection (1) of this section (whether by way of residential accommodation or otherwise) if his need for assistance has arisen solely—

• (a) because he is destitute; or

• (b) because of the physical effects, or anticipated physical effects, of his being destitute.

• (2B) Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (2A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.

• (3) Before giving assistance to, or in respect of, a person in cash under subsection (1) of this section a local authority shall have regard to his eligibility for receiving assistance from any other statutory body and, if he is so eligible, to the availability to him of that assistance in his time of need.

• (3A) In determining, for the purposes of this section, whether to make available assistance by providing, or securing the provision of, residential accommodation to a person, a local authority shall disregard so much of the person’s resources—

• (a) as may be prescribed; or

• (b) as is determined by them in such a way as may be prescribed,

and any order made by virtue of this subsection may make different provision for different cases and for different persons.

• (3B) An order made by virtue of paragraph (a) of subsection (3A) of this section may prescribe circumstances in which assistance such as is mentioned in that subsection is to be made available disregarding entirely a person’s resources.

• (3C) In subsections (3A) and (3B) of this section, references to a person’s resources are to resources within the meaning of the order prescribing the amount, or as the case may be the way, in question.

• (3D) A statutory instrument made in exercise of the power conferred by paragraph (a) or (b) of subsection (3A) of this section shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

• (4) Assistance given in kind or in cash to, or in respect of, persons under this section may be given unconditionally or subject to such conditions as to the repayment of the assistance, or of its value, whether in whole or in part, as the local authority may consider reasonable having regard to the means of the person receiving the assistance and to the eligibility of the person for assistance from any other statutory body.

• (5) Nothing in the provisions of this section shall affect the performance by a local authority of their functions under any other enactment.

• (6) For the purposes of subsection (2) of this section “person in need” includes a person who is in need of care and attention arising out of drug or alcohol dependency or release from prison or other form of detention.

Power of local authorities to assist persons in need in disposal of produce of their work

13

Where, by virtue of section 12 of this Act, a local authority make arrangements or provide or secure the provision of facilities for the engagement of persons in need (whether under a contract of service or otherwise) in suitable work, that local authority may assist such persons in disposing of the produce of their work.

Home help

Home help and laundry facilities

14

• (1) It shall be the duty of every local authority to provide on such scale as is adequate for the needs of their area, or to arrange for the provision on such a scale as is so adequate of, home helpdomiciliary services for households where such help isservices are required owing to the presence, or the proposed presence, of a person in need or a person who is an expectant mother or lying-in, and every such authority shall have power to provide or arrange for the provision of laundry facilities for households for which home help isdomiciliary services are being, or can be, provided under this subsection.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) On the coming into operation of the provisions of this and the last two foregoing sections, the provisions of sections 13, 44 and 45 of the Health Services and Public Health Act 1968 shall cease to have effect.

Special provisions as to the care of children in need

Duty of local authority to provide for orphans, deserted children, etc.

15

Assumption by local authority of parental rights

16

Effect of assumption by local authority of parental rights

17

Duration and rescission of resolutions under section 16

18

Amendment of Children Act 1958

19

Duty of local authority to further the best interests of a child in their care and to afford opportunity for his proper development

20

Mode of provision of accommodation and maintenance

21

Removal of children in residential establishments

22

Power of local authorities and voluntary organisations to arrange for emigration of children

23

Financial assistance towards expenses of maintenance, education or training of persons over school age

24

Power of local authority to guarantee indentures and other deeds of apprenticeship etc., of persons in their care

25

After-care of children formerly in care of local authorities or voluntary organisations

26

Supervision and care of persons put on probation or released from prisons etc.

Supervision and care of persons put on probation or released from prisons etc.

27

• (1) It shall be a function of every local authority under this Part of this Act to provide a service for the following purposes, that is to say—

• (za) making available to any court, in accordance with section 22A(1A) or 23B(6) of the Criminal Procedure (Scotland) Act 1995, such information as may be relevant to the court’s determination of whether to grant bail to persons who are accused of or charged with an offence;

• (a) making available to any court such social background reports and other reports relating to persons appearing berfore the court which the court may require for the disposal of a case

• (aa) making available to any children’s hearing such reports relating to persons aged 16 and 17 years in relation to the commission of an offence, as the hearing may require for the disposal of a case;

• (ab) making available to any procurator fiscal or the Lord Advocate such reports as the procurator fiscal or the Lord Advocate may request in relation to persons who are charged with an offence;

• (ac) the provision of advice, guidance and assistance for persons who are in prison or subject to any other form of detention and who—

• (i) resided in their area immediately prior to such imprisonment or detention; or

• (ii) intend to reside in their area on release from such imprisonment or detention,

and who on release from such imprisonment or detention, it appears to the local authority, will be required to be under supervision under any enactment or by the terms of an order or licence of the Scottish Ministers or of a condition or requirement imposed in pursuance of an enactment;

• (ad) making available, for the purposes of parenting orders under section 13 or 102 of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), such services as are required to enable requirements imposed by or under such orders to be carried out in respect of persons in their area;

• (ae) making available to the Scottish Ministers such background and other reports as the Scottish Ministers may request in relation to the exercise of their functions under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9);

• (b) the supervision of, and the provision of advice, guidance and assistance for—

• (i) persons in their area who are under supervision by order of a court made in exercise of its criminal jurisdiction by virtue of any enactment, and

• (ii) persons in their area who, following on release from prison or any other form of detention, are required to be under supervision under any enactment or by the terms of an order or licence of the Secretary of State or of a condition or requirement imposed in pursuance of any enactment; and

• (iii) without prejudice to sub-paragraphs (i) and (ii) above, persons in the area who are subject to a community payback order imposed under section 227A or 227M of the Criminal Procedure (Scotland) Act 1995 imposing an unpaid work or other activity requirement ; and

• (iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (v) without prejudice to sub-paragraphs (i) to (iv) above, persons in their area who are subject to a supervision and treatment order made under section 57(2)(d) of the Criminal Procedure (Scotland) Act 1995;

• (va) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (vb) without prejudice to sub-paragraph (i) above, persons in their area who are under 18 years of age and subject to restriction of liberty orders under section 245A of the said Act of 1995;

• (vi) persons in their area aged 16 and 17 years who are subject to a compulsory supervision order made by virtue of the ground mentioned in section 67(2)(j) of the Children’s Hearings (Scotland) Act 2011 (asp 1);

• (vii) persons in their area who are charged with, but not prosecuted for, any offence and are referred to the local authority by the procurator fiscal or the Lord Advocate; ...

• (viii) persons in their area who are subject to work orders under section 303ZA(6) of the said Act of 1995;

• (c) the provision of advice, guidance and assistance for persons in their area who, within 12 months of their release from prison or any other form of detention, request such advice, guidance or assistance.

• (1A) A local authority may provide advice, guidance or assistance for any person who—

• (a) would fall to be provided for under paragraph (ac) of subsection (1) above but for the fact that it appears to the local authority that he will not be required to be under any form of supervision on release as mentioned in that paragraph; and

• (b) requests such advice, guidance or assistance.

• (1B) Where as respects any person more than one local authority is required by paragraph (ac) of subsection (1) to make such provision as is mentioned in that paragraph, they may agree between themselves that only one of them shall do so; and where there is such agreement the paragraph shall apply accordingly.

• (1C) In paragraphs (ac) and (b)(i) and (ii) of subsection (1) above, “enactment” includes an Act of the Scottish Parliament.

• (1D) The Scottish Ministers may by order amend subsection (1) above so as (any or all)—

• (a) to add to the functions for the time being described;

• (b) to omit any of those functions;

• (c) to alter any of those functions.

• (2) For the purposes of subsection (1) above every local authority shall, ..., prepare a scheme (hereinafter referred to as a community justice scheme) and submit it by such date, as he may require, to the Secretary of State for his approval.

• (3) A community justice scheme shall make provision with regard to the following matters—

• (a) the manner in which any report requested by the court from the local authority is to be prepared and submitted to the court;

• (aa) the matters to be included in such a report;

• (b) arrangements for the attendance of officers of the local authority at the court;

• (c) arrangements for the co-operation of the local authorities with the courts, and such arrangements may include the appointment of one or more sheriffs having jurisdiction in their areas to a committee or sub-committee of such authorities;

• (d) arrangements for the keeping of adequate records and statistics regarding the performance of functions under this section; and

• (e) such other matters as the local authority considers relevant to the service to be provided.

• (4) The Secretary of State may approve a community justice scheme with or without modifications.

• (5) A local authority may apply to the Secretary of State for the revision of a community justice scheme and, if the Secretary of State so requires, shall prepare and submit to the Secretary of State for his approval a revised scheme or a modification of an existing scheme.

• (5A) Before including in a community justice scheme which is made, revised or modified under this section provision for the purposes of subsection (1)(b)(va) or (viii), a local authority shall consult such persons or class or classes of person as the Scottish Ministers may by regulations prescribe.

• (5B) The Scottish Ministers may give local authorities directions in writing as to the content of community justice schemes; and authorities shall comply with any such directions.

• (5C) The power conferred by subsection (5B) above to give a direction shall include power to vary or revoke the direction.

• (6) Any function required by any enactment to be performed by a probation officer shall, after the coming into operation of this Part of this Act, be performed by an officer of the appropriate local authority.

• (7) Section 11 of and Schedule 3 to the Criminal Justice (Scotland) Act 1949 (administrative provisions as to probation) shall cease to have effect.

Ancillary

Burial or cremation of the dead

28

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power of local authority to defray expenses of parent, etc., visiting persons or attending funerals

29

• (1) A local authority may make payments to any parent, relative or other person connected with —

• (a) a person, other than a child, in the care of the authority or receiving assistance from the authority; or

• (b) a child who is being looked after by the authority,

in respect of travelling, subsistence or other expenses incurred by the parent, relative or other person in visiting the person or child, if it appears to the authority that the parent, relative or other person would not otherwise be able to visit him without undue hardship and that the circumstances warrant the making of the payments.

• (1A) In subsection (1), “child” has the meaning given by section 93(2)(a) of the Children (Scotland) Act 1995.

• (1B) In subsection (1), the reference to a child who is “looked after” by a local authority is to be construed in accordance with section 17(6) of that Act of 1995.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part III — Children in need of Compulsory Measures of Care

Definition of child and parent for Part III

30

Restriction on prosecution of children for offences

31

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Part IV of the Children and Young Persons (Scotland) Act 1937 shall have effect subject to the amendments set out in Schedule 2 to this Act.

Children in need of compulsory measures of care

32

Formation of children's panels

33

Children's hearings

34

Provisions as to time, place, privacy and notification of children's hearings

35

The reporter and deputies

36

Reports of cases of children who may require compulsory measures of care and the interim detention of such children in places of safety

37

Initial investigation of cases by reporter

38

Action on initial investigation by reporter

39

Attendance of child at children's hearing

40

Attendance of parent at children's hearing

41

Conduct of children's hearing and application to sheriff for findings

42

Discharge of referral and power of children's hearing to order further investigation after consideration of the facts

43

Disposal of case by children's hearing other than by discharge of referral

44

Rules as respects transmission of information and conveyance of children to residential establishments etc.

45

Children to whom Part IV of the Mental Health (Scotland) Act 1960 may apply

46

Duration of supervision requirements and their variation

47

Review of requirement of children's hearing

48

Appeal against decision of a children's hearing

49

Appeal to Court of Session

50

Reconsideration by hearing after appeal, and subsequent appeal

51

Power of Secretary of State to terminate a supervision requirement

52

Legal aid in proceedings before the sheriff and any appeals to the Court of Session

53

Transfer of case to another children's hearing

54

Presumption and determination of age

55

Reference and remit of children's cases by courts to children's hearings

56

Reference and remit of cases of certain young persons by courts to children's hearings

57

Prohibition of publication of proceedings

58

Part IV — Residential and other Establishments

Provision of residential and other establishments

Provision of residential and other establishments by local authorities, and maximum period for repayment of sums borrowed for such provision

59

• (1) Without prejudice to their duties under sections 12 and 13A of this Act, it shall be the duty of a local authority to provide and maintain such residential and other establishments as may be required for their functions conferred under or by virtue of this Act sections 25 and 26 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) , Part 2 of the Children (Scotland) Act 1995 (c.36) , the Criminal Procedure (Scotland) Act 1995 or the Children’s Hearings (Scotland) Act 2011 (asp 1), or arrange for the provision of such establishments.

• (2) For the purpose of discharging their duty under the foregoing subsection a local authority may—

• (a) themselves provide such establishments as aforesaid; or

• (b) join with another local authority in providing those establishments; or

• (c) secure the provision of such establishments by voluntary organisations or other persons including other local authorities.

• (3) The maximum period for the repayment of sums borrowed by a local authority for the purposes of this section shall be such period not exceeding sixty years as may be sanctioned by the Secretary of State; and accordingly in Schedule 6 to the Local Government (Scotland) Act 1947, at the end, there shall be added the following entry, that is to say—

Section 59 of the Social Work (Scotland) Act 1968.	Such period not exceeding sixty years as may be sanctioned by the Secretary of State.

Control of residential and other establishments

60

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Registration of certain residential and other establishments

Restriction on carrying on of establishments

61

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Registration

62

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Special provisions for registration by Secretary of State

63

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appeals against refusal or cancellation of registration

64

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Removal of persons from establishments

65

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duty to furnish particulars of establishments

66

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Inspection of establishments by local authorities

67

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Visiting of persons in establishments on behalf of local authorities

68

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part V

Absence without leave

Abscondment from a place of safety, or from the control of a person imposed by a supervision requirement

69

• (1) If a child—

• (a) absconds from a place of safety in which he has been detained by virtue of this Act, or

• (b) absconds from the control of a person under which he has been placed by a supervision requirement or by virtue of rules made by the Secretary of State under section 45 of this Act,

he may be arrested without a warrant in any part of the United Kingdom or the Channel Islands ; and a court, if satisfied that there are reasonable grounds for believing that the child is within any premises, may grant a search warrant authorising a constable to search those premises for the child.

• (2) A child arrested in pursuance of this section shall be brought back—

• (a) in a case falling within paragraph (a) of subsection (1), to the place of safety,

• (b) in a case falling within paragraph (b) of that subsection, to the person under whose control he has been placed.

• (3) If, in the case of a child required to be brought back in pursuance of the last foregoing subsection—

• (a) the occupier of the place of safety, or

• (b) the person under whose control he has been placed,

is unwilling or unable to receive him, the child shall be detained in a place of safety until the Principal Reporter has considered, in pursuance of section 37 of this Act, whether the child may be in need of compulsory measures of care, or as the case may be, until he can be brought before a children’s hearing for the consideration of his case or for a review of the supervision requirement to which he is subject.

• (4) A children’s hearing arranged for the purposes of the last foregoing subsection shall meet within a period of seven days from the date of the commencement of the detention of the child, and no child shall be detained under that subsection after the hearing have met or beyond that period.

• (5) In this and the next following section any reference—

• (a) to a child absconding includes a reference to his being unlawfully taken away;

• (b) to a child absconding from a place or from the control of a person includes a reference to his absconding while being taken to, or awaiting being taken to, that place or that person as the case may be.

Abscondment from residential establishments

70

If a child who is required by a supervision requirement to reside in a residential establishment—

• (a) absconds from the establishment in which he resides; or

• (b) absconds from any hospital or other institution in which he is temporarily residing; or

• (c) being absent on leave from the residential establishment, either runs away from the person in whose charge he is or fails to return to the establishment at the end of his leave;

he may be arrested without a warrant in any part of the United Kingdom or the Channel Islands and brought back—

• (i) in a case falling within paragraph (b) to the place from which he absconded; or

• (ii) where he has run away from the person mentioned in paragraph (c), to that person; or

• (iii) in any case, to the residential establishment ; and a court, if satisfied that there are reasonable grounds for believing that the child is within any premises, may grant a search warrant authorising a constable to search those premises for the child.

Harbouring

71

Any person who knowingly—

• (a) assists or induces or persistently attempts to induce a child so to act as to be liable to be brought back in pursuance of either of the two last foregoing sections, or

• (b) harbours or conceals a child so liable or prevents him from returning to a place or person mentioned in either of those sections,

shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding six months or to both such fine and such imprisonment.

Transfer

Supervision of children moving to England or Wales or Northern Ireland

72

• (1) Where a children’s hearing are satisfied that a child in respect of whom a supervision requirement under section 44(1)(a) of this Act is in force proposes to reside or is residing in England or Wales or in Northern Ireland they may either—

• (a) discharge the supervision requirement; or

• (b) send notification of the requirement

• (i) in the case of residence in England and Wales, to a youth court acting for the petty sessions area (within the meaning of the Children and Young Persons Act 1969);

• (ii) in the case of residence in Northern Ireland, to a juvenile court acting for the petty sessions district (within the meaning of Part III of the Magistrates’ Courts (Northern Ireland) Order 1981).

in which the child proposes to reside or is residing.

• (1A) A youth courtto which notification of a supervision requirement is sent under this section may make a supervision order in respect of the person to whom the notification relates but, notwithstanding anything in section 76(1) of this Act, shall not include in the order a requirement authorised by section 12 12A, 12AA, 12B or 12Cof the Children and Young Persons Act 1969 unless that person is before the court when the supervision order is made; and in relation to a supervision order made by virtue of this subsection—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . .

• (b) section 17 of that Act shall have effect as if in paragraph (a) the references to three years and the date on which the order was originally made were respectively references to one year and the date on which the said notification was sent and as if in paragraph (b) the words from “the order was” to “and” were omitted.

• (2) A juvenile court to which notification of a supervision requirement is sent under this section may make in respect of the child subject to that requirement—

• (a) if he is over the age of ten years but has not attained the age of fourteen years, a supervision order placing the child under the supervision of a probation officer;

• (b) if he is over the age of fourteen years, a probation order; or

• (c) in any case, a supervision order placing him under the supervision of an authority within the meaning of the Children (Northern Ireland) Order 1995.

• (2A) An order under subsection (2) shall be for a period not exceeding one year beginning with the day on which the notification was sent.

• (2B) Subject to subsection (2A), the provisions of the Children and Young Persons Act (Northern Ireland) 1968 shall apply to a supervision order under paragraph (a) of subsection (2), the provisions of the Probation Act (Northern Ireland) 1950 shall apply to a probation order under paragraph (b) of that subsection and the provisions of the Children (Northern Ireland) Order 1995 shall apply to a supervision order under paragraph (c) of that subsection as if the supervision or probation order had been made under that Act or Order.

• (3) Where a case is disposed of by a youth court or, as the case may bejuvenile court in pursuance of this section in respect of a child subject to a supervision requirement, the requirement shall cease to have effect.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Supervision of children moving to Scotland

73

• (1) Where a juvenile court in England or Wales or in Northern Ireland is satisfied that a child in respect of whom a probation order or a supervision order is in force proposes to reside or is residing in Scotland, the court may either—

• (a) discharge the probation order or supervision order; or

• (b) send notification of that order to the Principal Reporter

and on the receipt of such a notification it shall be the duty of the Principal Reporter

• (i) in the case of a supervision order made by virtue of sections 189(4) and 390(4) of the Criminal Procedure (Scotland) Act 1975 to notify the appropriate court and to transmit to that court all documents and certified copies of documents relating to the case which the Principal Reporter has received by virtue of section 76 of this Act;

• (ii) in any other case.

to arrange a children’s hearing for the consideration and determination of the case under Part III of this Act.

In this subsection “the appropriate court” means the sheriff having jurisdiction in the area in which the child proposes to reside or is residing or, where the original probation order was imposed by the High Court of Justiciary, that Court.

• (1A) Where a court in England or Wales is satisfied that a child in respect of whom the court proposes to make a supervision order is residing or proposes to reside in Scotland, the court may make the order notwithstanding anything in subsection (1) of section 18 of the Children and Young Persons Act 1969 (which relates to residence of the supervised person in England or Wales); and where the court makes a supervision order by virtue of this subsection—

• (a) the areas to be named in the order in pursuance of subsection (2)(a) of the said section 18 shall be those in which the court is sitting;

• (b) the order may require the supervised person to comply with directions of the supervisor with respect to his departure to Scotland, and any such requirement shall, for the purposes of sections 15 and 16 of that Act (which relate to the variation and discharge of supervision orders), be deemed to be included in the order in pursuance of section 12(2) of that Act; and

• (c) the court shall send notification of the order as mentioned in paragraph (b) of the foregoing subsection and the provisions of that subsection relating to the duty of the Principal Reporter shall apply accordingly.

• (2) For the purposes of a children’s hearing arranged in pursuance of the foregoing provisions of this section the notification by a . . . court of a probation order or supervision order shall be conclusive evidence of the existence of that order in relation to the child.

• (3) When a children’s hearing have disposed of a case referred to them under this section the probation order or the supervision order in respect of the child shall cease to have effect.

Parent of a child in a residential establishment under a supervision requirement moving to England or Wales or Northern Ireland

74

• (1) Where a children’s hearing are satisfied that the parent of a child who is required to reside in a residential establishment under a supervision requirement made under section 44(1)(b) of this Act proposes to reside or is residing in England or Wales or in Northern Ireland they shall review the requirement, and on such review they may as they think proper—

• (a) discharge the supervision requirement;

• (b) continue the supervision requirement;

• (c) vary the supervision requirement by making a supervision requirement under subsection (1)(a) of the said section 44 and send notification of that requirement in accordance with section 72(1)(b) of this Act; or

• (d) make a report on the case to the Secretary of State with a recommendation for the transfer of the child in accordance with the following provisions of this section.

• (2) If the Secretary of State is for any reason unable to accept a recommendation for the transfer of a child made under paragraph (d) of subsection (1) of this section, he may refer the matter back to the children’s hearing for their reconsideration of the case, or himself discharge the supervision requirement.

• (3) Where such a recommendation is made and is not dealt with under subsection (2) of this section, the Secretary of State may make an order transferring the child to the care of the managers of a school . . . in Northern Ireland, being . . . , a training school within the meaning of the Children and Young Persons Act (Northern Ireland) 1950 or, . . . , committing him to the care of the local authority or, as the case may be, of the welfare authority in whose area the parent of the child proposes to reside or is residing.

• (4) The provisions of . . . the said Act of 1950 shall apply to any order under this section transferring a child to the care of the managers of . . . a training school as if it were . . . a training school order made by a court on the date on which the supervision requirement was originally made under section 44 of this Act in respect of the child:

• (a) notwithstanding anything in . . . section 75 of the said Act of 1950, the order under this section shall not be authority for his detention in . . . a training school after he has attained the age of eighteen years,

• (b) the contributions to be made in respect of him under . . . section 126 of the said Act of 1950 shall be made by such council as may be named in the order under this section, being the council within whose district his parent proposes to reside or is residing at the time of the order.

• (5) An order under this section committing a child to the care of an authority within the meaning of the Children (Northern Ireland) Order 1995 shall have effect as if it were a care order under that Order, but as if Article 50(9) were omitted.

• (6) An order under this section committing a child to the care of a local authority shall have effect as if it were a care order under the Children Act 1989, but as if section 31(8) were omitted.

Parent of a child subject to an approved school order or a committal order moving to Scotland

75

• (1) Where . . . the Secretary of State is satisfied that the parent of a child who is subject to an . . . training school order or an order under section 74(3) of this Act relating to a training school proposes to reside or is residing in Scotland, he may refer the case to the Principal Reporter and if the case is so referred the Principal Reporter shall arrange a children’s hearing for the consideration and determination of the case under Part III of this Act.

• (2) Where a child has been committed to the care of a local authority in England or Wales by a care order (other than an interim order) within the meaning of the Children Act 1989 or an order under section 74(3) of this Act, or committed to the care of an authority within the meaning of the Children (Northern Ireland) Order 1995 in Northern Ireland by a care order (other than an interim order) within the meaning of that Order or an order underthe said section 74(3) and that authority are satisfied that the parent of the child proposes to reside or is residing in Scotland, the authority may make the like reference of the case as mentioned in the foregoing subsection and the Principal Reporter shall arrange a children’s hearing accordingly.

• (3) Any reference under subsection (1) or subsection (2) of this section shall include particulars of the . . . training school order or order under the said section 74(3) relating to a training school or, as the case may be, of the order committing the child to the care of the local or other authority; and for the purposes of any children’s hearing arranged pursuant to the reference those particulars shall be conclusive evidence of the existence of that order in relation to the child.

• (4) When a children’s hearing have disposed of a case referred to them under this section the order under the said section 74(3) or of the court in England or Wales or in Northern Ireland in respect of the child shall cease to have effect.

Procedure

76

• (1) A children’s hearing or . . . court, in exercising any jurisdiction under this Part of this Act in respect of a child, may proceed in the absence of the child or his parent or both.

• (2) It shall be the duty of the Principal Reporter at any children’s hearing arranged for the purposes of section 72 of this Act and of the clerk to any . . . court referring a case to the Principal Reporter for the purposes of section 73 of this Act to ensure that all documents relating to the case or certified copies thereof are transmitted to the . . . court or, as the case may be, to the Principal Reporterto which the case stands referred.

• (3) Where a child is to be transferred from a residential establishment in Scotland to any place in England or Wales or in Northern Ireland under this Part of this Act, it shall be the duty of the local authority responsible for the child to ensure the transfer of the child to that place.

• (4) Where a children’s hearing is arranged under this Part of this Act in respect of a child subject to an . . . training school order or order under section 74(3) of this Act relating to a training school or committed to the care of a local authority in England or Wales or of an authority within the meaning of the Children (Northern Ireland) Order 1995 in Northern Ireland, it shall be the duty of the managers . . . of the training school or, as the case may be, of that local or other authority to ensure the transfer of the child to the place notified to them by the Principal Reporter.

Meaning of child for the purposes of this Part of this Act

77

• (1) “Child” in this Part of this Act means—

• (a) for the purpose of sections 69 to 71, a child within the meaning of Part III of this Act,

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) for any other purpose, a person under eighteen.

• (2) “Parent” in this Part of this Act includes a guardian.

Part VI — Contributions in respect of Children in Care etc.

Duty to make contributions in respect of children in care etc.

78

• (1) Where a child is being looked after by a local authority or a compulsory supervision order to which this Part of this Act applies has been made in respect of him, contributions in respect of the child (hereinafter in this Part of this Act referred to as the “maintainable child”) shall be payable—

• (a) while the maintainable child is under sixteen years of age, by any natural person who has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to him;

• (b) if he is over sixteen years of age . . . , by the maintainable child himself.

• (2) This Part of this Act applies to any compulsory supervision order which requires the child concerned to reside in a place or places other than his own home.

• (2A) No contributions shall be payable under subsection (1)(a) of this section by a contributor during a period when he is in receipt of universal credit under Part 1 of the Welfare Reform Act 2012, income support , an income based jobseeker’s allowance (payable under the Jobseekers Act 1995) , an income-related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance) or family credit.

• (3) In this Part of this Act “contributor” means a person liable to make contributions by virtue of subsection (1) of this section in respect of a maintainable child.

Recipients of contributions

79

• (1) Subject to the provisions of the following subsection, contributions payable under the last foregoing section shall be payable to the local authority within whose area the contributor is residing, and shall, in the case of contributions paid in respect of a maintainable child looked after by a local authority, other than the authority to whom the contributions are payable as aforesaid, be paid over by the last-mentioned authority to that other authority, but subject to such deductions in respect of services rendered by the local authority to whom the contributions were payable as may be agreed between the authorities concerned or as, in default of agreement, may be determined by the Secretary of State.

• (2) Where a contributor is for the time being residing in England or Wales or Northern Ireland contributions payable by him under the last foregoing section shall be payable to the local authority looking after the child.

Enforcement of duty to make contributions

80

• (1) Where a child becomes a maintainable child by virtue of being looked after by a local authority, any court of summary jurisdiction, having jurisdiction in the place where the contributor is for the time being residing, may, on the application of the local authority, at any time make an order on any contributor, hereinafter in this Act referred to as a contribution order, for weekly contributions in respect of the child of such amount as the court thinks proper.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) Subject to the following provisions of this section, a contribution order in respect of a maintainable child shall remain in force throughout the period during which he is looked after by a local authority

• (5) No contribution shall be payable, by virtue of a contribution order by a contributor who , being a natural person, has parental responsibilities (within the meaning of section 1(3) of the Children (Scotland) Act 1995) in relation to the maintainable child, in respect of any period after the maintainable child becomes sixteen.

• (6) A contribution order may be revoked or varied by any court of summary jurisdiction having jurisdiction in the place where the contributor is for the time being residing and shall be enforceable in like manner as a decree for aliment.

• (7) Where a contributor resides in England or Wales or Northern Ireland this section shall have effect as if for any reference to a court of summary jurisdiction having jurisdiction in a place where the contributor is for the time being residing there were substituted a reference to a court of summary jurisdiction having jurisdiction in any place within the area of the local authority looking after the child.

Provisions as to decrees for aliment

81

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) Where a decree for aliment of a maintainable child is in force, on the application of the local authority concerned, any court of summary jurisdiction having jurisdiction in the place where the person liable under the decree is for the time being residing may, at any time, order the payments under the decree . . . to be paid to the local authority who are from time to time entitled under either of the last two foregoing sections to receive contributions in respect of the child.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . where an order made under this section in respect to a decree for aliment is in force any sums received under the decree for aliment shall be applied in like manner as if they were contributions received under a contribution order.

• (4)

• (a) In this section the local authority concerned means the local authority which may make application for a contribution order in respect of a child under the last foregoing section;

• (b) where the person liable to pay aliment for a child under a decree is resident in England or Wales or Northern Ireland, subsection (2) of this section shall have effect as if for the reference to a court of summary jurisdiction having jurisdiction in the place where that person is for the time being residing, there were substituted a reference to a court of summary jurisdiction having jurisdiction in any place within the area of the local authority concerned.

Recovery of arrears of contributions

82

• (1) Where, by virtue of an order or decree made under either of the last two foregoing sections, any sum is payable to a local authority, the local authority in whose area the person liable under the order or decree is for the time being residing, or, as the case may be, the local authority looking after the child to whom the order or decree relates, shall be entitled to receive and give a discharge for, and, if necessary, enforce payment of, any arrears accrued due under the order or decree, notwithstanding that those arrears may have accrued at a time when he was not resident in that area or, as the case may be, when the authority were not entitled to sums payable under the order or decree.

• (2) In any proceedings under either of the last two foregoing sections, a certificate purporting to be signed by the clerk to a local authority for the time being entitled to receive contributions, or by some other officer of the authority duly authorised in that behalf, and stating that any sum due to the authority under an order or decree is overdue and unpaid, shall be sufficient evidence of the facts stated therein.

Variation of trusts

83

• (1) Where a child is by virtue of a compulsory supervision order removed from the care of any person and that person is entitled under any trust to receive any sum of money in respect of the maintenance of the child, on the application of the local authority concerned any court of summary jurisdiction, having jurisdiction in the place where that person is for the time being residing, may at any time order the whole or any part of the sums so payable under the trust to be paid to the local authority, to be applied by the authority for the benefit of the child in such manner as, having regard to the terms of the trust, the court may direct.

• (2) Where the person in whose care a child has been residing is for the time being residing in England or Wales or Northern Ireland the foregoing subsection shall have effect as if for the reference to a court having jurisdiction in the place where that person is residing there were substituted a reference to a court of summary jurisdiction having jurisdiction in any place within the area of the local authority looking after the child.

Part VII — Miscellaneous and General

General

Transfer of assets and liabilities

84

Where any functions are transferred to a local authority by virtue of this Act all property, rights, liabilities and obligations relating to the performance of those functions which immediately before the date of transfer were the property, rights, liabilities and obligations of the body or person from which the functions are transferred shall on that date be transferred to and vest in the local authority or, as the case may be, the local authorities to which the functions have been transferred, and the provisions of Schedule 6 to this Act shall have effect for the purposes of this section.

Transfer and compensation of officers

85

Adjustments between authority providing accommodation etc., and authority of area of residence

86

• (1) Any expenditure which apart from this section would fall to be borne by a local authority—

• (a) in the provision under this Act , or under section subsection 25 of the Children (Scotland) Act 1995, of accommodation for a person ordinarily resident in the area of another local authority, or

• (b) in the provision under Part II of this Act , or under or by virtue of Part II of the said Act of 1995 or under or by virtue of the Children’s Hearings (Scotland) Act 2011, of services and facilities for a person ordinarily so resident (including, in the case of a child, any expenses incurred after he has ceased to be a child, and, in the event of another local authority taking over, under section 25(4) of the Act of 1995, the provision of accommodation for him, including also any travelling or other expenses incurred in connection with the taking over),

• (ba) in making a payment under section 12B of this Act in relation to the provision of a service direct payment under the Social Care (Self-directed Support) (Scotland) Act 2013 for the purpose of arranging for the provision of support within the meaning of section 5 or 8 of that Act for a person ordinarily so resident; or

• (c) for the conveyance of a person ordinarily resident as aforesaid, or

• (d) in administering a compulsory supervision order or interim compulsory supervision order in respect of a person ordinarily resident as aforesaid, or

• (e) in the provision, for persons ordinarily so resident, of services under section 25 (care and support services for persons who have or who have had a mental disorder), 26 (services designed to promote well-being and social development of such persons) or 27 (assistance with travel in connection with such services) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);

shall be recoverable from the other local authority, and in this subsection any reference to another local authority includes a reference to a local authority in England or Wales and to a Health and Social Care trust in Northern Ireland.

• (2) Any question arising under this section as to the ordinary residence of a person shall , in a case where there is a dispute about the application of any of paragraphs 1 to 4 of Schedule 1 to the Care Act 2014 (cross-border placements), be determined in accordance with paragraph 5 of that Schedule; and in any other case, the question shall be determined by the Secretary of State, and the Secretary of State may determine that a person has no ordinary residence.

• (3) In determining for the purposes of subsection (1) of this section the ordinary residence of any person or child, any period during which he is provided with accommodation under this Act or under sections 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), any period during which he was a patient in a hospital forming part of the hospital and specialist services provided under sections 2 and 3 of the National Health Service Act 2006, sections 2 and 3 of the National Health Service (Wales) Act 2006 or Part II of the National Health Service (Scotland) Act 1978 or in a hospital managed by a National Health Service trust established under the National Health Service Act 2006, the National Health Service (Wales) Act 2006 or section 12A of the National Health Service (Scotland) Act 1978 health service hospital (within the meaning of section 108(1) of the National Health Service (Scotland) Act 1978 (c. 29)) or, in the case of a child, any period during which he resided in any place as an inmate of a school or other institution, or in accordance with the requirements of a compulsory supervision order or interim compulsory supervision order, supervision order , community payback order under section 227A of the Criminal Procedure (Scotland) Act 1995, , youth rehabilitation order or probation order or the conditions of a recognizance, or while boarded out under this Act or under . . . the Children and Young Persons (Scotland) Act 1937 by a local authority or education authority or placed with local authority foster parents under the Children Act 1989 or provided with accommodation under paragraph (a) of, or by virtue of paragraph (c) of, section 26(1) of the Children (Scotland) Act 1995 shall be disregarded.

• (4) This subsection applies where a local authority (“the responsible authority”) performs a function under—

• (a) this Act;

• (b) Part II of the Children (Scotland) Act 1995 (c. 36); ...

• (c) section 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13),

• (d) the Children’s Hearings (Scotland) Act 2011

by making arrangements with a person (“the provider”) in terms of which the provider undertakes to accommodate, or to secure accommodation for, another person.

• (5) Where subsection (4) applies—

• (a) any expenditure incurred under the arrangements by a provider which is a local authority is recoverable from the responsible authority; and

• (b) any period during which the person is accommodated under the arrangements is to be disregarded in determining the person's ordinary residence for the purposes of subsection (1) of this section.

• (6) The Scottish Ministers may make regulations specifying circumstances in which a local authority (“the providing authority”) may recover from another local authority (“the other authority”) expenditure which the providing authority incurs in the provision of services or facilities under arrangements made with the other authority for the purpose of enabling that other authority to perform a function under—

• (a) this Act;

• (b) Part II of the Children (Scotland) Act 1995 (c. 36); ...

• (c) section 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

• (d) the Children’s Hearings (Scotland) Act 2011.

• (7) The Scottish Ministers may make regulations specifying circumstances which must be taken into account, or disregarded, when determining a person's ordinary residence for the purposes of subsection (1) of this section (and such regulations may modify subsection (2), (3) and (5)(b) of this section).

• (8) Regulations made under subsection (6) or (7) of this section may—

• (a) make different provision for different cases and for different persons;

• (b) include such supplementary, incidental, consequential and transitional provisions and savings as the Scottish Ministers think fit.

• (9) Despite section 90(2) of this Act, no statutory instrument containing regulations made under subsection (7) of this section which includes provisions which modify this section may be made unless a draft of the instrument has been laid before, and approved by a resolution of, the Scottish Parliament.

• (10) References in subsections (4) to (6) of this section to a local authority which is providing accommodation, service or facilities include references to a local authority in England or Wales and to a Health and Social Care trust in Northern Ireland.

• (10A) A person who, as a result of Schedule 1 to the Care Act 2014 (cross-border placements), is treated as ordinarily resident in an area in England, Wales or Northern Ireland (as the case may be) is to be treated as ordinarily resident in that area for the purposes of this section.

• (10B) A person who, as a result of that Schedule, is not treated as ordinarily resident anywhere in England or Wales (as the case may be) is not to be treated as ordinarily resident there for the purposes of this section.

• (11) In this section—

• “compulsory supervision order” has the meaning given by section 83 of the Children’s Hearings (Scotland) Act 2011; and

• “interim compulsory supervision order” has the meaning given by section 86 of that Act.

Charges that may be made for services and accommodation

87

• (1) Subject to sections 78 and 78A of this Act (contributions in respect of maintainable children) and to the following provisions of this section, a local authority providing a service under this Act ... section 7 (functions of local authorities) or 8 (provision of after-care services) of the Mental Health (Scotland) Act 1984 section 25 (care and support services for persons who have or have had a mental disorder), 26 (services designed to promote well-being and social development of such persons) or 27 (assistance with travel in connection with such services) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or section 24(4) of the Carers (Scotland) Act 2016 or under or by virtue of Part II of the Children (Scotland) Act 1995 may recover such charge (if any) for it as they consider reasonable.

• (1A) If a person—

• (a) avails himself of a service provided under this Act ... section 7 or 8 of the said Act of 1984 section 25, 26 or 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or section 24(4) of the Carers (Scotland) Act 2016 or under or by virtue of Part II of the Children (Scotland) Act 1995; and

• (b) satisfies the authority providing the service that his means are insufficient for it to be reasonably practicable for him to pay for the service the amount which he would otherwise be obliged to pay for it,

the authority shall not require him to pay more for it than it appears to them that it is practicable for him to pay.

• (1B) Subsections (1) and (1A) above do not apply as respects any amount required not to be charged by subsection (1) of section 1 of the Community Care and Health (Scotland) Act 2002 (asp 5)(charging and not charging for social care) or required to be charged or not to be charged by virtue of subsection (4) of that section.

• (1C) Despite section 25(3) of the Public Bodies (Joint Working) (Scotland) Act 2014, where a local authority delegates a function in pursuance of an integration scheme under that Act to a person in pursuance of which a service mentioned in subsection (1) is provided by (or under the direction of) that person, subsections (1) to (1B) apply subject to the modifications in subsection (1D).

• (1D) The modifications are—

• (a) subsection (1) applies as if—

• (i) the reference to a local authority providing a service mentioned in that subsection were to a person mentioned in subsection (1C) to whom a function is delegated (or another person under the direction of that person) providing the service, and

• (ii) the reference to a local authority recovering a charge for a service provided by it were to a local authority recovering a charge for a service that is provided by (or under the direction of) a person mentioned in subsection (1C) to whom a function is delegated, and

• (b) subsection (1A) applies as if the reference to the authority providing the service were to a local authority mentioned in subsection (1C).

• (2) Persons, other than maintainable children, for whom accommodation is provided under this Act or section 7 of the said Act of 1984 section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), shall be required to pay for that accommodation in accordance with the subsequent provisions of this section.

• (3) Subject to the following provisions of this section, accommodation provided under this Act or section 7 of the said Act of 1984 section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) shall be regarded as accommodation provided under Part III of the National Assistance Act 1948, and sections 22(2) to (8) and 26(2) to (4) (as amended by any enactment within the meaning of the Scotland Act 1998 (c. 46)) of the said Act of 1948 shall apply accordingly.

• (4) In the application of the said section 22, for any reference to the Minister there shall be substituted a reference to the Secretary of State, and in the application of the said section 26, any references to arrangements under a scheme for the provision of accommodation shall be construed as references to arrangements made by a local authority with a voluntary organisation or any other person or body for the provision of accommodation under this Act or section 7 of the said Act of 1984 section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

• (4A) Despite section 25(3) of the Public Bodies (Joint Working) (Scotland) Act 2014, where a local authority delegates a function in pursuance of an integration scheme under that Act to a person in pursuance of which accommodation mentioned in subsection (3) is provided by (or under the direction of) that person, subsections (3) and (4) apply subject to the modifications in subsection (4B).

• (4B) The modifications are that subsection (4) applies as if—

• (a) after “Secretary of State” there were inserted—

and that section 22 applies as if— (a) in subsection (2), the reference to the authority managing premises in which the accommodation is provided were to a local authority mentioned in subsection (4A) of this section, (b) in subsection (3)— (i) the reference to accommodation provided in premises managed by a local authority were to accommodation provided in premises managed by (or under the direction of) a person mentioned in subsection (4A) of this section to whom a function is delegated, and (ii) the reference to the local authority were to a local authority mentioned in subsection (4A) of this section, and (c) in subsection (5A)— (i) the reference to an authority managing premises in which accommodation is provided were to a local authority mentioned in subsection (4A) of this section, and (ii) the reference to the authority providing accommodation were to a person mentioned in subsection (4A) of this section to whom a function is delegated, (d) in subsection (8), the reference to a local authority providing accommodation were to a local authority mentioned in subsection (4A) of this section,

,

• (b) at the end of the subsection there were inserted—

and that section 26 applies as if— (a) in subsection (2)— (i) the reference to the local authority making payments to the organisation with whom the arrangements are made to provide the accommodation were to a person mentioned in subsection (4A) of this section to whom a function is delegated (or another person under the direction of that person) making those payments, and (ii) the reference to the local authority recovering an amount of refund were to a local authority mentioned in subsection (4A) of this section recovering that amount, (b) in subsection (3), the reference to the refund of any payments to the local authority were to the refund of any such payments to the local authority mentioned in subsection (4A) of this section, (c) in subsection (3A)— (i) the reference to the making of arrangements by the local authority were to the making of arrangements by (or under the direction of) a person mentioned in subsection (4A) of this section to whom a function is delegated, (ii) in paragraphs (a) and (c), the references to the local authority were to a person mentioned in subsection (4A) of this section to whom a function is delegated , and (iii) in paragraph (b) the reference to the local authority were to a local authority mentioned in subsection (4A) of this section,

and

• (d) for subsection (4) there were substituted—

(4) Section 22(5A) of this Act applies for the purposes of subsection (3A) as it applies for the purposes of that section but as if— (a) the reference to an authority managing premises in which accommodation is provided were to a local authority mentioned in section 87(4A) of the Social Work (Scotland) Act 1968, and (b) the reference to the authority providing accommodation were to a person mentioned in section 87(4A) of the Social Work (Scotland) Act 1968 to whom a function is delegated.

• (5) The Secretary of State may, with the consent of the Treasury, make regulations for modifying or adjusting the rates at which payments under this section are made, where such a course appears to him to be justified, and any such regulations may provide for the waiving of any such payment in whole or in part in such circumstances as may be specified in the regulations.

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duty of parents to notify change of address

88

Application of Tribunals and Inquiries Act 1958

89

Orders, regulations etc.

90

• (1) Any power to make regulations or orders . . . . . . , or to make rules conferred on the Secretary of State by this Act shall be exercisable by statutory instrument.

• (2) Any statutory instrument made in the exercise of any power to make regulations conferred by this Act shall be subject to annulment in pursuance of a resolution of either House of Parliament.

• (3) Any power conferred by this Act to make orders shall include a power, exercisable in the like manner and subject to the same conditions, to vary or revoke any such order.

• (4) A statutory instrument containing an order under section 27(1D) or 27A(1A)(c) of this Act is not made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament.

Expenses

91

There shall be defrayed out of moneys provided by Parliament—

• (a) any sums required for the payment of grants under this Act or any other expenses of the Secretary of State under this Act, and

• (b) any increase attributable to the provisions of this Act in the sums payable out of such money under any other Act.

Effect of Act on rate support grant

92

• (1) The Secretary of State shall have power, by an order made in the like manner and subject to the like provisions as a rate support grant order, to vary the provisions of any rate support grant order made before the commencement of this Act for a grant period ending after the commencement of this Act.

• (2) Any order made by virtue of this section may be made for all or any of the years comprised in the said rate support grant period, as may be specified in the order, and in respect of the year or years so specified shall increase the annual aggregate amount of the rate support grants to such extent as may appear to the Secretary of State to be appropriate having regard to any additional expenditure incurred or likely to be incurred by councils of counties or of large burghs in consequence of the passing of this Act.

• (3) The provisions of this section shall have effect without prejudice to the exercise of any power conferred by section 4 of the Local Government (Scotland) Act 1966 (which confers power to vary rate support grant orders in consequence of unforeseen increases in the level of prices, costs or remuneration).

• (4) In this section the expressions “rate support grant order” and “grant period” have the meanings respectively assigned to them by subsection (1) and subsection (3) of section 3 of the Local Government (Scotland) Act 1966.

Supplementary

Transitional provisions

93

The transitional provisions set out in Schedule 7 to this Act shall have effect for the purposes of the transition to the provisions of this Act from the law in force before the commencement of this Act.

Interpretation

94

• (1) In this Act, except where otherwise expressly provided or the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them—

• “approved school” means a school approved by the Secretary of State under section 79 of the Children and Young Persons Act 1933,

• “approved school order” has the meaning assigned to it by section 107(1) of the Children and Young Persons Act 1933,

• . . .

• . . .

• ...

• ...

• “compulsory supervision order” has the meaning given by section 83 of the Children’s Hearings (Scotland) Act 2011 (asp 1),

• “contributor” and “contribution order” have the meanings respectively assigned to them by sections 78 and 80 of this Act,

• “domiciliary services” means any services, being services provided in the home, which appear to a local authority to be necessary for the purpose of enabling a person to maintain as independent an existence as is practicable in his home;

• “establishment” means an establishment managed by a local authority, voluntary organisation or any other person, which provides non-residential accommodation for the purposes of this Act , Part 2 of the Children (Scotland) Act 1995 (c.36) or the Children’s Hearings (Scotland) Act 2011 (asp 1), whether for reward or not,

• “functions” shall include powers and duties,

• . . .