Prospective
(1)The Public Services Reform (Scotland) Act 2010 is amended as follows.
(2)After section 78G, insert—
(1)The Scottish Ministers—
(a)must exercise the power under section 78(2) to impose on types of person falling within subsection (3), in relation to such time period as is specified in the regulations, an initial information requirement, and
(b)may (subject to section 78I) exercise that power to impose on such types of person—
(i)a profit limitation requirement, and
(ii)a continuing information requirement.
(2)Despite subsection (1)(a), the power under section 78(2) is not to be exercised so as to impose an initial information requirement on a type of person falling within subsection (3) in relation to a period during which a profit limitation requirement applies in relation to that type of person.
(3)A person falls within this subsection if the person—
(a)provides—
(i)a care home service which is provided wholly or mainly to children,
(ii)a school care accommodation service, or
(iii)a secure accommodation service, and
(b)is not a local authority.
(4)Regulations under section 78(2) which impose an initial information requirement or a continuing information requirement on types of person falling within subsection (3) may also impose such a requirement on a parent undertaking or a subsidiary undertaking (within the meaning of section 1162 of the Companies Act 2006) of such types of person.
(5)An initial information requirement is a requirement to provide to the Scottish Ministers such financial and other information as is—
(a)required for the purpose mentioned in subsection (6), and
(b)of a type specified in the regulations.
(6)The purpose is assessing the level of profit made by the types of person falling within subsection (3) from provision of the services mentioned in that subsection in order to inform consideration of—
(a)whether a profit limitation requirement should be imposed, and
(b)if such a requirement is to be imposed, how the requirement should be expressed.
(7)A profit limitation requirement—
(a)is a requirement that any profit made by a type of person falling within subsection (3) from provision of a service mentioned in that subsection must not exceed an amount specified in, or determined in accordance with, the regulations, but
(b)does not apply to a person falling within subsection (3) if the person is a charity.
(8)A continuing information requirement is a requirement to provide to the Scottish Ministers on an annual basis such financial and other information as is—
(a)required for the purposes mentioned in subsection (9), and
(b)of a type specified in the regulations.
(9)The purposes are assessing—
(a)compliance with a profit limitation requirement,
(b)the level of profit made by types of person falling within subsection (3) from provision of the services mentioned in that subsection in order to inform consideration of—
(i)whether a profit limitation requirement should be modified, and
(ii)if such a requirement is to be modified, how the modified requirement should be expressed.
(10)The initial information requirement and the continuing information requirement include power for the Scottish Ministers to require types of person falling within subsection (3), or a parent or subsidiary undertaking mentioned in subsection (4) to whom the requirement applies, to provide to them such additional information in connection with information provided in compliance with those requirements as they consider necessary for the purposes mentioned in subsection (6) or, as the case may be, (9).
(11)Without prejudice to the generality of section 78(2), regulations under that section imposing the requirements mentioned in subsection (1) may specify—
(a)how the level of profit made by types of person falling within subsection (3) from the provision of services mentioned in that subsection is to be determined,
(b)the form in which, and time period within which, information is to be provided to the Scottish Ministers for the purposes of the initial information requirement and the continuing information requirement.
(12)Before imposing (or modifying) a requirement mentioned in subsection (1), the Scottish Ministers must consult—
(a)local authorities,
(b)persons who appear to the Scottish Ministers to represent the interests of persons falling within subsection (3) to whom the requirement would apply,
(c)persons who appear to the Scottish Ministers to represent the interests of any parent or subsidiary undertakings mentioned in subsection (4) to whom the requirement would apply,
(d)such other persons as the Scottish Ministers consider appropriate.
(13)The Scottish Ministers may by regulations modify subsection (3) to add a person, or description of person, as being a person who falls within that subsection.
(14)Before making regulations under subsection (13), the Scottish Ministers must consult such persons as they consider appropriate.
(1)The Scottish Ministers may impose (or modify) a profit limitation requirement only—
(a)if satisfied that it is necessary to do so, having regard to the public interest in securing that persons falling within section 78H(3) are providing care on terms which represent value for money, and
(b)after having regard—
(i)where a profit limitation requirement is being imposed for the first time, to the information provided by persons falling within section 78H(3) or parent or subsidiary undertakings mentioned in section 78H(4) in compliance with an initial information requirement,
(ii)otherwise, to the information provided by persons falling within section 78H(3) or parent or subsidiary undertakings mentioned in section 78H(4) in compliance with a continuing information requirement in the period since the profit limitation requirement was first imposed or, as the case may be, last modified.
(2)When considering whether to impose (or modify) a profit limitation requirement, the Scottish Ministers must—
(a)treat the need to safeguard and promote the wellbeing of children being looked after by local authorities as their primary concern,
(b)subject to that, also have regard to—
(i)the interests of local authorities, and
(ii)the interests of persons falling within section 78H(3) (including the opportunity to make a profit).
(3)For the purpose of subsections (1)(a) and (2)(b)(ii), a reference to persons falling within section 78H(3) does not include a reference to persons who are charities.
(4)In this section, “looked after” is to be construed in accordance with section 17 of the Children (Scotland) Act 1995.
Regulations under section 78(2) may—
(a)require a person to pay a monetary penalty if the person has failed to comply with a requirement mentioned in section 78H(1) to which the person was subject,
(b)make further provision in relation to the monetary penalties mentioned in paragraph (a), including provision as to—
(i)procedures to be followed before such penalties are imposed,
(ii)the level of such penalties,
(iii)the person to whom such penalties are to be paid,
(iv)appeals against the imposition of a requirement to pay such a penalty,
(c)include provision as to the Scottish Ministers informing SCSWIS when a person falling within section 78H(3) has failed to comply with a requirement mentioned in section 78H(1).”.
(3)In section 104 (orders and regulations: procedure), in subsection (2), after “78,” insert “78H(13),”.
(4)In section 105(1) (interpretation of Part 5), in paragraph (c) of the definition of “child”, for “and 78(2A) and (2B)” substitute “, 78(2A) and (2B), 78H(3) and 78I(2)”.
Commencement Information
I1S. 27 not in force at Royal Assent, see s. 70(2)
(1)The Public Services Reform (Scotland) Act 2010 is amended as follows.
(2)In section 59 (registration of care services), for subsection (3) substitute—
“(3)A person who provides—
(a)an adoption service must be a voluntary organisation,
(b)a fostering service must be a charity.”.
(3)In section 105 (interpretation of Part 5)—
(a)in subsection (1)—
(i)at the appropriate place in alphabetical order insert—
““charity” means a non-natural person—
registered in the Scottish Charity Register,
which—
is registered as a charity in England and Wales in accordance with section 30 of the Charities Act 2011, or
by virtue of subsection (2) of that section, is not required to register as a charity under that section, or
which—
is registered as a charity in Northern Ireland in accordance with section 16 of the Charities Act (Northern Ireland) 2008, or
by virtue of subsection (2A) of that section, is not required to register as a charity under that section,”,
(ii)in the definition of “voluntary organisation”—
(A)the words from “means” to the end become paragraph (a),
(B)after that paragraph, insert—
“(b)includes, in particular, a charity,”,
(b)after subsection (3) insert—
“(4)The Scottish Ministers may by regulations modify the definition of “charity” in subsection (1) so as to specify further descriptions of person who are a charity for the purposes of this Part.”.
(4)In section 104 (orders and regulations: procedure), in subsection (2), after “82B(1)” insert “, 105(4)”.
Commencement Information
I2S. 28 not in force at Royal Assent, see s. 70(2)
(1)The Public Services Reform (Scotland) Act 2010 is amended as follows.
(2)In section 105(1) (interpretation of Part 5), in the definition of “cross-border placement”, for “a residential establishment” substitute “residential accommodation”.
Commencement Information
I3S. 29 not in force at Royal Assent, see s. 70(2)
(1)The Scottish Ministers may make arrangements for the establishment and maintenance of a register of foster carers for the purposes of facilitating—
(a)either or both—
(i)the approval (or otherwise) of persons as foster carers by fostering services,
(ii)the placing of children with foster carers by fostering services,
(b)foster care generally (including improvements in foster care).
(2)The register is to include, in relation to each person who has been approved as a foster carer by a fostering service—
(a)the person’s name and address,
(b)whether—
(i)the person is approved as a foster carer, or
(ii)the person’s approval as a foster carer has been terminated,
(c)where the person is approved as a foster carer, what foster care the person is providing,
(d)where the person’s approval as a foster carer has been terminated, the reasons for that termination,
(e)such other information in relation to the person’s current or previous approval as a foster carer as may be specified (for example, whether the person’s approval relates to any child or to a particular category of children and the number of children the person is permitted to have in the person’s care at any one time),
(f)such other information about—
(i)the person, and
(ii)other members of the person’s household,
as may be specified.
(3)The register may also include such information as is specified about persons who have been considered by a fostering service for approval as a foster carer but not so approved.
(4)The information mentioned in subsections (2) and (3) is to be provided to the relevant person by the fostering service which approved or, as the case may be, did not approve the person to whom the information relates as a foster carer.
(5)In this section, “specified” means specified in regulations made by the Scottish Ministers.
Commencement Information
I4S. 30 not in force at Royal Assent, see s. 70(2)
(1)The Scottish Ministers may by regulations make further provision in relation to—
(a)the arrangements to be made under section 30(1),
(b)the register of foster carers.
(2)Provision made under subsection (1) may, in particular, include provision—
(a)as to circumstances in which information in relation to a person who has been approved (or not approved) as a foster carer by a fostering service is not to be included in the register (and in relation to which section 30(4) accordingly does not apply),
(b)as to when and how information mentioned in section 30(2) and (3) is be provided by a fostering service to the relevant person,
(c)as to when information in relation to a person is to be removed from the register,
(d)as to the form in which information included in the register is to be kept,
(e)creating offences in relation to—
(i)failures by fostering services to provide information as required by section 30(4),
(ii)the provision of late or incorrect information,
(f)modifying Part 5 of the Public Services Reform (Scotland) Act 2010 so as to—
(i)provide for offences created by virtue of paragraph (e) to be relevant offences, or
(ii)otherwise make provision as to how the matters mentioned in paragraph (e)(i) and (ii) are to be treated,
for the purposes of that Part,
(g)as to the payment of fees in connection with—
(i)the inclusion of information in the register,
(ii)the disclosure of information from the register,
(iii)other matters relating to the register.
Commencement Information
I5S. 31 not in force at Royal Assent, see s. 70(2)
(1)The register of foster carers is not to be open to public inspection or search.
(2)The Scottish Ministers, by regulations—
(a)must authorise the disclosure of information derived from the register by the relevant person to a fostering service for a purpose mentioned in section 30(1)(a),
(b)may authorise the disclosure of information derived from the register by the relevant person to other persons for the purpose mentioned in section 30(1)(b), for example, for use—
(i)for statistical or research purposes,
(ii)in identifying training, development and other support needs of foster carers,
(c)may authorise the disclosure of information derived from the register by a fostering service to other persons for purposes specified in the regulations.
(3)Authority to disclose information by virtue of regulations made under subsection (2) is subject to any further provision made in the regulations as to such disclosure, including provision—
(a)setting out conditions on which information may be disclosed (for example, a condition that information for use as mentioned in subsection (2)(b)(i) or (ii) must be anonymised),
(b)specifying steps to be taken by a fostering service in relation to information disclosed to it.
(4)It is an offence to disclose any information derived from the register other than in accordance with regulations made under subsection (2).
(5)Subsection (4) does not apply to a disclosure of information by or with the authority of the Scottish Ministers.
(6)A person who is guilty of an offence under this section is liable on summary conviction to—
(a)imprisonment for a term not exceeding 3 months,
(b)a fine not exceeding level 5 on the standard scale, or
(c)both.
Commencement Information
I6S. 32 not in force at Royal Assent, see s. 70(2)
(1)Arrangements made by the Scottish Ministers under section 30(1) may in particular—
(a)authorise an organisation to perform the Scottish Ministers’ functions in relation to the register (other than functions of making subordinate legislation),
(b)provide for the Scottish Ministers to make payments to an organisation authorised under paragraph (a).
(2)The Scottish Ministers must publish arrangements under section 30(1) in so far as they authorise an organisation as mentioned in subsection (1)(a).
(3)An organisation authorised in pursuance of subsection (1) must perform functions delegated to it in accordance with any directions (general or specific) given to it by the Scottish Ministers.
Commencement Information
I7S. 33 not in force at Royal Assent, see s. 70(2)
(1)The Scottish Ministers may, by regulations, provide for the carrying out of a pilot scheme in relation to the register of foster carers.
(2)Regulations under subsection (1) must provide that arrangements made under section 30(1) are, for a period specified in the regulations, to apply—
(a)only—
(i)in relation to such fostering services as are specified in the regulations (for example, fostering services operating in a particular area), or
(ii)in relation to such matters as are specified in the regulations (for example, the identification of persons who are able to provide respite foster care), or
(b)in relation to such fostering services as are specified in the regulations, in relation to such matters as are specified in the regulations.
(3)As soon as reasonably practicable after making regulations under subsection (1), the Scottish Ministers must lay before the Scottish Parliament a statement describing—
(a)the pilot scheme, and
(b)how they intend to evaluate the pilot scheme.
(4)As soon as reasonably practicable after the expiry of the period mentioned in subsection (2), the Scottish Ministers must lay before the Scottish Parliament—
(a)an evaluation of the pilot scheme, and
(b)a statement describing what action they intend to take in connection with section 30(1) as a result of the pilot scheme.
Commencement Information
I8S. 34 not in force at Royal Assent, see s. 70(2)
“foster carer” means a person approved as suitable to be a foster carer in accordance with the Looked After Children (Scotland) Regulations 2009 (S.S.I. 2009/210) (and references to a person being approved or not approved as a foster carer, or to a person’s approval being terminated, are to be construed accordingly),
“fostering service” means a service which is provided by—
a local authority under paragraph (a) of section 26(1) of the Children (Scotland) Act 1995 (fostering of children looked after by a local authority), or
a person other than a local authority and which consists of, or includes, the making of arrangements for or in connection with the performance of functions assigned to a local authority—
under that paragraph, or
by virtue of section 5(2) to (4) of the Social Work (Scotland) Act 1968 (regulations relating to performance of functions assigned to a local authority under that Act),
“register of foster carers” means the register established and maintained under section 30(1),
“relevant person” means—
where the Scottish Ministers have authorised an organisation to perform the Scottish Ministers’ functions in relation to the register under section 33, that person,
otherwise, the Scottish Ministers.
Commencement Information
I9S. 35 not in force at Royal Assent, see s. 70(2)
(1)The Adoption and Children (Scotland) Act 2007 is amended as follows.
(2)In section 110 (allowances for care of certain children: regulations)—
(a)in subsection (1)—
(i)the words from “payments” to the end of the subsection become paragraph (a),
(ii)after that paragraph insert—
“(b)other payments by a local authority to foster carers.”,
(b)in subsection (3), after paragraph (e) insert—
“(f)requiring local authorities to publish the rates paid by them, broken down into allowances, fees and any other payments, in such manner and at such times as may be specified.”,
(c)after subsection (6) insert—
“(7)In this section, “foster carer” means a person approved as suitable to be a foster carer in accordance with the Looked After Children (Scotland) Regulations 2009 (S.S.I. 2009/210).”.
(3)The section title of section 110 becomes “Allowances and other payments for care of certain children: regulations”.
(4)The italic heading immediately before section 110 becomes “Care allowances and other payments: regulations”.
Commencement Information
I10S. 36 not in force at Royal Assent, see s. 70(2)
(1)The Adoption and Children (Scotland) Act 2007 is amended by subsections (2) and (3).
(2)In section 110 (allowances for care of certain children: regulations), after subsection (3) insert—
“(3A)Sections 86A and 86B of the Social Security (Scotland) Act 2018 apply as if a rate of payment specified in regulations made under subsection (1)(a) was a relevant figure for the purposes of those sections.”.
(3)In section 117 (orders and regulations), in subsection (5), paragraph (a), after sub-paragraph (iii) insert—
“(iv)section 110(1)(a) which make provision of a kind mentioned in subsection (3)(c) of that section,”
(4)The Children and Young People (Scotland) Act 2014 is as amended by subsections (5) and (6).
(5)In section 73 (kinship care assistance: further provision)—
(a)after subsection (2) insert—
“(2A)Sections 86A and 86B of the Social Security (Scotland) Act 2018 apply as if a rate of payment specified in regulations mentioned in subsection (2B) was a relevant figure for the purposes of those sections.
(2B)The regulations are regulations made under section 71(2) that specify a rate of payment to be made to kinship carers.”,
(b)after subsection (4) insert—
“(5)In this section, “kinship carer” means a person approved as suitable to be a kinship carer in accordance with the Looked After Children (Scotland) Regulations 2009 (S.S.I. 2009/210).”.
(6)In section 99 (subordinate legislation), in subsection (2), after “section 68(3)(b)” insert—
“section 71(2), where provision of a kind mentioned in section 73(2B) is made”.
Commencement Information
I11S. 37 not in force at Royal Assent, see s. 70(2)
(1)The Scottish Ministers must issue guidance to managers of relevant care services about the use of restraint and seclusion in relevant care services.
(2)Guidance under subsection (1) must in particular include guidance about—
(a)the meanings of restraint and seclusion for the purposes of this section,
(b)appropriate and inappropriate forms of restraint and seclusion,
(c)alternatives to restraint and seclusion,
(d)action that might be taken to prevent or minimise the use of restraint and seclusion,
(e)matters to be taken into consideration with a view to safeguarding persons being provided with a relevant care service who are subject to restraint or seclusion,
(f)legal requirements, and any other legal considerations, that might apply or be relevant to the use of restraint or seclusion,
(g)action to be taken following an incident resulting in the use of restraint or seclusion,
(h)the recording, reporting and monitoring of incidents involving the use of restraint or seclusion,
(i)inspection of the practice of restraint and seclusion,
(j)the training of staff in the use of restraint and seclusion,
(k)processes for the making of complaints about the use of restraint and seclusion and the provision of information about the making of such complaints,
(l)action to be taken to resolve or remedy complaints.
(3)The Scottish Ministers must keep the guidance under review and may issue revised guidance from to time to time.
(4)Guidance under this section may make different provision for different purposes, including different provision for different relevant care services.
(5)Before issuing guidance or revised guidance under this section, the Scottish Ministers must consult—
(a)managers of relevant care services,
(b)Social Care and Social Work Improvement Scotland,
(c)the Commissioner for Children and Young People in Scotland,
(d)persons who are being provided with, or who have at any time been provided with, a relevant care service,
(e)such other persons as the Scottish Ministers consider appropriate.
(6)For the purposes of subsection (5), it is immaterial that anything done by way of consultation in relation to the first guidance issued under this section was done before this section comes into force.
(7)A manager of a relevant care service must have regard to guidance and revised guidance issued under this section.
(8)Guidance and revised guidance issued under this section must be published in such manner as the Scottish Ministers consider appropriate.
(9)In this section—
“relevant care service” means—
a care home service which is provided wholly or mainly to children,
a school care accommodation service which is provided within the same facility as a secure accommodation service,
a secure accommodation service,
“care home service” has the meaning given by paragraph 2 of schedule 12 of the Public Services Reform (Scotland) Act 2010,
“school care accommodation service” has the meaning given by paragraph 3 of that schedule,
“secure accommodation service” has the meaning given by paragraph 6 of that schedule.
Commencement Information
I12S. 38 not in force at Royal Assent, see s. 70(2)
(1)The Scottish Ministers must, as soon as reasonably practicable after the end of each reporting period—
(a)prepare a report on any deaths mentioned in subsection (2) which are notified to them during the reporting period,
(b)make the report publicly available, and
(c)lay a copy of the report before the Scottish Parliament.
(2)The deaths referred to in subsection (1)(a) are those—
(a)of children who were being looked after by a local authority at the time of their death and which are notified to the Scottish Ministers by a local authority,
(b)which are notified to the Scottish Ministers by a local authority under—
(i)section 26A(10) of the Children (Scotland) Act 1995,
(ii)section 4(4) of this Act.
(3)A report under subsection (1) may include, for example, information about—
(a)the number of deaths,
(b)the age ranges within which those individuals fell at the time of their deaths,
(c)where known, the causes of death,
(d)the types of review (if any) which have been undertaken or are underway in respect of the deaths.
(4)A person mentioned in subsection (5) must comply with any written direction issued by the Scottish Ministers requiring the person to provide such information as is specified by Ministers in the direction (being information which they consider that they require in connection with the production of a report under subsection (1)).
(5)The persons referred to in subsection (4) are—
(a)Social Care and Social Work Improvement Scotland,
(b)a local authority,
(c)any other person.
(6)In this section, “reporting period” means—
(a)the period of 1 year beginning with the day of Royal Assent,
(b)each subsequent period of 1 year.
Commencement Information
I13S. 39 not in force at Royal Assent, see s. 70(2)