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Coronavirus (Scotland) (No.2) Act 2020

Schedule 1: Protection of the individual

Student residential tenancy: termination by tenant

24.Paragraph 1 of schedule 1 defines a student residential tenancy as one which meets the conditions in paragraph 5(1) of schedule 1 of the Private Housing (Tenancies) (Scotland) Act 2016.

25.Paragraph 2 enables a person with a student residential tenancy to terminate the accommodation agreement with their landlord where certain requirements are met.

26.Paragraph 3 sets out the requirements that a notice to terminate a student residential tenancy must meet and the minimum notice periods that apply. These provisions mean that for a notice to be valid it must be in writing (this includes electronic communications) and it must state the day on which the tenancy is to end, which must be a day that is after the last day of the minimum notice period. The minimum notice periods that apply are 7 days (where the tenancy was entered into before the coming into force of this provision and the let property was occupied by the tenant at any time before the coming into force of this paragraph) and 28 days (in any other case).

Tenancies: pre-action requirements for order for possession or eviction order on ground of rent arrears

27.Paragraph 4 gives Scottish Ministers a regulation making power (affirmative) to introduce private landlord pre-action requirements that should be complied with when seeking to end an assured or short assured tenancy due to rent arrears where all, or part of the arrears, are a result of the impact of the Covid-19 pandemic and ensures that the First-tier Tribunal for Scotland (Housing and Property Chamber) take account of the extent to which a landlord has complied with the pre-action requirements provided for by regulations in deciding whether it is reasonable to grant an eviction order in relation to assured and short assured tenancies.

28.Paragraph 5 gives Scottish Ministers a regulation making power (affirmative) to introduce private landlord pre-action requirements that should be complied with when seeking to end a private residential tenancy due to rent arrears where all, or part of the arrears, are a result of the impact of the Covid-19 pandemic and ensures that the First-tier Tribunal for Scotland (Housing and Property Chamber) take account of the extent to which a landlord has complied with the pre-action requirements provided for by regulation in deciding whether it is reasonable to grant an eviction order in relation to a private residential tenancy.

Carer’s allowance supplement

29.Paragraph 4 amends section 81 of the Social Security (Scotland) Act 2018. This has the effect of adding an additional £230.10 to awards of Carer’s Allowance Supplement for the period from 1 April 2020 to 30 September 2020.

Social care staff support fund

30.Paragraph 7 makes provision to require the Scottish Ministers to establish a social care staff support fund as soon as is possible when the Act comes into force. Paragraph 7(2) sets out what the fund is to be used for. The Scottish Ministers must use the fund to provide financial assistance to workers in the social care sector who have a restricted ability to work due to coronavirus and, as a result of that, have a reduced income and consequently are experiencing, or would experience, financial hardship.

31.Paragraphs 7(3) to (7) require the Scottish Minsters to make further provision by regulations about the establishment, maintenance and administration of the fund. Those regulations are subject to made affirmative procedure. This means the regulations will come into force when they are made (ie signed) and will cease to have effect 28 days after being made, if the Scottish Parliament does not approve them within that period.

Bankruptcy

32.Paragraph 8 makes temporary modifications to section 26 of the Interpretation and Legislative Reform (Scotland) Act 2010 (“the 2010 Act”) as that section applies to documents which are authorised or required to be sent by or under the Bankruptcy (Scotland) Act 2016 (“the 2016 Act”).

33.Paragraph 8(2)(a) substitutes a new section 26(2)(c) of the 2010 Act with effect that a document may be transmitted to a person electronically.

34.Paragraph 8(2)(b) repeals existing section 26(3) of the 2010 Act which requires both the sender and the recipient of a document to agree in writing that the document may be transmitted electronically.

35.Instead, paragraph 8(2)(c) substitutes a new section 26(6) of the 2010 Act. New subsection (6)(a) provides that electronic transmission of a document must be effected in a manner that the recipient has indicated to the sender that they are willing to receive the document electronically. Subsection (6)(b) makes provision as to the circumstances in which willingness to receive a document electronically may be given or inferred. Subsection (6)(c) provides that uploading a document to an electronic storage system from where it may be downloaded by the recipient may constitute electronic transmission.

36.Paragraph 9 makes provision in relation to the criteria for determining whether a debtor who applies for sequestration under section 2 of the 2016 Act is eligible for the form of sequestration known as the minimal asset process (“MAP”).

37.Paragraph 9(2)(a) raises the threshold specified in section 2(2)(b)(ii) of the 2016 Act from £17,000 to £25,000. Debtors whose total debts fall within the upper and lower monetary thresholds specified in section 2(2)(b) of the 2016 Act are eligible for MAP.

38.Paragraph 9(2)(b) inserts a new subsection (2A) into section 2 of the 2016 Act. New subsection (2A) provides for debt arising from student loans to be disregarded for the purposes of determining whether the total of an individual’s debts falls within the monetary thresholds specified in section 2(2)(b) of the 2016 Act.

39.Paragraph 10 temporarily modifies the definitions of “qualified creditor” and “qualified creditors” in section 7(1) of the 2016 Act by raising the amount of money a creditor or a group of creditors must be owed in order to be “qualified” from £3,000 to £10,000. A qualified creditor has the right to petition the court for a debtor’s bankruptcy in terms of section 2(1)(b)(i) of the 2016 Act, where the debtor is apparently insolvent.

40.Paragraph 11 temporarily extends the period within which a trustee in sequestration must submit initial proposals for a debtor contribution order to the Accountant in Bankruptcy under section 90(2) of the 2016 Act from 6 weeks to 12 weeks. Paragraph 11(3) provides that the modification applies only where the date of the award of sequestration falls on or after the date on which paragraph 11 comes into force.

41.Paragraph 12 temporarily modifies paragraph 13 of schedule 6 of the 2016 Act to allow meetings of creditors to take place using electronic means. Paragraph 12(2)(b) makes consequential amendments.

42.Paragraph 13 modifies regulation 3 of the Bankruptcy (Scotland) Regulations 2016 (S.S.I. 2016/397) to allow the forms set out in schedule 1 of those Regulations to be signed with an electronic signature.

43.Paragraph 14 makes provision in relation to the fees which are payable where a debtor applies for sequestration under section 2(1)(a) of the 2016 Act.

44.Paragraph 14(2) inserts a temporary regulation 7A into the Bankruptcy Fees (Scotland) Regulations 2018 (S.S.I. 2018/127) (“the 2018 Regulations”). New regulation 7A creates an exemption from the fee that would otherwise be payable under entry 22 of the table of fees in the schedule of the 2018 Regulations where an individual applies for sequestration. The exemption applies to individuals who are, or have been, in receipt of certain benefits.

45.Paragraph 14(3) reduces the fees specified in entry 22 of the table of fees in the schedule of the 2018 Regulations. The fee specified in entry 22(a) is payable by a MAP debtor to whom section 2(2) of the 2016 Act applies. The fee specified in entry 22(b) is payable by any other debtor. Paragraph 14(3) reduces these fees to £50 and £150 respectively.

Mental health: named person nomination

46.Section 250(2A) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”) provides that the nomination of a named person is only valid if a docket to the nomination states that the person nominated has consented to the nomination, the docket is signed by the nominated person, and the nominated person’s signature is witnessed by a prescribed person.

47.Paragraph 15 amends Section 250(2A) of the 2003 Act so that the nominated person’s signature will no longer require to be witnessed by a prescribed person.

Care Homes

48.Section 63 of the Public Services Reform (Scotland) Act 2010 (“the 2010 Act”) adds provisions on improvements notices for local authority services to cover cases where the local authority considers that a withdrawal of registration would place it in breach of a statutory duty.

49.Paragraphs 16 and 17 of schedule 1 add temporary modifications to Part 5 of the 2010 Act. These modifications will have effect for a limited period of time.

50.Paragraph 16 adds sections 63A and 63B to the 2010 Act.

51.Section 63A requires that where the Health Board considers that, for a reason relating to coronavirus, there is a material risk to the health of persons at the specified accommodation, the Health Board my issue a direction to the service provider to take specific steps. Subsection (3) requires that the steps must relate directly to reducing the risk to the health of persons at the care home. Subsection (7) requires the direction to be in writing.

52.Subsections (4) and (5) of section 63A provide that when making a direction, the health board must have regard to any guidance issued by Scottish Ministers which must be published by the Scottish Ministers in an appropriate manner.

53.Subsection (6) of section 63A gives the health board power to vary or revoke a direction.

54.Section 63B gives Health Boards the power to act where a section 63A direction has not been complied with. Subsection (2) of section 63B allows the Health Board to enter the care home, carry out the steps themselves and recover the costs incurred of doing so from the provider.

55.Subsections (3) and (4) of section 63B allow a Sheriff to grant a warrant to allow the Health Board to carry out these actions if entry to the care home is refused and if there are reasonable grounds for entering the care home. Subsection (5) provides that the warrant will expire either within 28 days of when it was granted or once the specified steps have been taken.

56.Subsection (6) of section 63B provides that a failure to comply with a warrant granted under section 63B is a relevant offence for the purposes of section 64 of the 2010 Act. This means that the Care Inspectorate(4) may cancel the registration of a provider if they fail to comply with a warrant.

57.Paragraph 17 inserts sections 65A and 65B into the 2010 Act.

58.Section 65A(1) provides that Scottish Ministers may apply to a Sheriff Court or Court of Session for an emergency intervention order in respect of a care home service provided at a care home which is stated in the application. Subsection (7) provides that the court must make an emergency intervention order if it appears there is, due to coronavirus, a serious risk to the life, health and wellbeing of people at the care home. Subsection (8) provides for any necessary incidental provisions to be included in the order (such as prohibiting the provider of a care home service from selling the care home, if the court considers such a provision should be contained in an order)

59.Subsection (2) provides that, when granted by a court, an emergency intervention order authorises the Scottish Ministers to nominate an officer who can enter the care home, direct and control the provision of the care home service and do anything that the officer considers necessary to ensure the service is provided to an appropriate standard for an initial period of up to 12 months. The provider of the care home service is required to comply with any direction given by the nominated officer.

60.Subsection (3) provides the court may make an interim order on application.

61.Subsection (5) provides that Scottish Ministers can exercise these powers prior to making an application to the Sheriff Court or Court of Session where the Scottish Ministers are satisfied that intervening in a care home is essential to prevent imminent or serious risk to the life or health of any person in the care home. Subsection (6) provides that where this power has been exercised, the Scottish Ministers must make an application to the court within 24 hours.

62.Subsections (13) and (14) provide that the court may vary, extend or revoke an order on application of the Scottish Ministers or the affected providers. This also applies to interim orders. An emergency intervention order can be extended for a further period of up to 6 months. This means that the maximum amount of time that an emergency intervention order can be in place for is 18 months.

63.Where an application for an emergency intervention order (or an interim order) is granted or refused, the usual rights of appeal from decisions of a sheriff as set out in the Court Reform (Scotland) Act 2014. Similarly, where an application for an emergency intervention order (or an interim order) is determined by the Court of Session, the usual rights of appeal against decisions made by a court of session judge, as set out in the Court of Session Act 1988, will apply. Section 65B provides that Scottish Ministers may make further provisions to the emergency intervention orders in Section 65A by laying regulations before the Scottish Parliament. Those regulations are subject to the ‘made affirmative’ procedure. This means that the regulations will take effect when they are made (signed) and will cease to have effect if they are not approved by the Scottish Parliament within 28 days of day on which they were made.

Powers to purchase care home services and care at home providers

64.Paragraphs 18 to 20 provide a local authority and various heath bodies with temporary powers to purchase a care home or a care at home service. Paragraph 18 provides that a local authority may purchase, by agreement, a care home service, a care at home service and any asset or liability of those services under the circumstances outlined in Paragraph 20. A local authority can exercise these powers without prejudice to its powers to purchase or acquire property or land contained at sections 69 and 70 of the Local Government (Scotland) Act 1973.

65.Paragraph 19 provides that a health body (a Health Board, the Common Services Agency and Health Improvement Scotland) may purchase, by agreement, a care home service and any asset or liability of that provider on behalf of Scottish Ministers under the circumstances in Paragraph 20. Paragraph 19 also provides that the health body must comply with a written direction by Scottish Ministers. Directions must be published and they can be varied or revoked by a subsequent direction.

66.Paragraph 20 describes the circumstances in which the local authority can purchase the provider of a care home or care at home services (or any asset or liability of that provider) and a health body can purchase the provider of a care at home service (or any asset or liability of that provider). These circumstances are where, for a reason relation to coronavirus: the provider is in serious financial difficulty; the local authority or health body is satisfied there is a threat to the life, health or wellbeing of people receiving the service; or where a provider has recently stopped providing the services.

67.Paragraphs 20(3) and 20(4) set out that a provider is regarded as being in serious financial difficulty if it notifies the Care Inspectorate of an insolvency event. An insolvency event is defined with reference to regulation 6A, 6B or 6C of the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011. After receiving notification of such an event, the Care Inspectorate must inform any local authority and health board in whose areas the services are being provided, the Common Services Agency and Healthcare Improvement Scotland.

68.Paragraph 20(5) provides that before being satisfied as to the threat to life, health or wellbeing, the purchaser must consult the Care Inspectorate, any other local authority or health board in whose area the services are being provided, the Common Services Agency, Healthcare Improvement Scotland and any other persons or bodies it considers appropriate.

69.Paragraph 21 contains definitions of terminology used in paragraphs 18 to 20.

Care homes: further provision

70.Section 53 of the Public Services Reform (Scotland) Act 2010 (“the 2010 Act”) provides that Social Care and Social Work Improvement Scotland (otherwise known as the Care Inspectorate) may inspect registered care services, and sets out the purpose of inspections.

71.Paragraph 22 adds section 53A to the 2010 Act, requiring that the Care Inspectorate must lay a report before Parliament every two weeks during the emergency period (the period for which paragraph 22 is in force). These reports must set out which care home services it has inspected in the two week period as well as the findings of those inspections.

72.Paragraph 23 inserts section 79B into the 2010 Act which introduces new duties about the reporting of deaths in care homes services from or attributable to coronavirus.

73.Section 79A(1) of the 2010 Act requires that care home service providers must provide certain information to the Care Inspectorate each day in relation to the numbers of deaths which have occurred in a care home service, whether caused by or attributable to coronavirus or not.

74.Section 79A(2) of the 2010 Act requires that the Care Inspectorate must prepare a report of the information provided by care home service providers as soon as practicable at the end of every seven day period during which the Care Inspectorate has been receiving such information. This report is to be shared with the Scottish Ministers.

75.Section 79(3) of the 2010 Act requires the Scottish Ministers to subsequently lay reports prepared by the Care Inspectorate under section 79A(2) before Parliament as soon as practicable after having received these from the Care Inspectorate and in any event no later than seven days after receipt.

Marriage and civil partnership

76.Paragraph 24 of schedule 1 requires the Scottish Ministers, in conjunction with the Registrar General of Births, Deaths and Marriages for Scotland, to take steps to ensure that the solemnisation of marriages and registration of civil partnerships continue to be available in Scotland whilst paragraph 24 is in force. It also requires the Scottish Ministers to report every two months on the steps taken and on the numbers of marriages and civil partnerships that have taken place.

4

The statutory name of the Care Inspectorate is Social Care and Social Work Improvement Scotland and in the 2010 Act it is referred to as SCSWIS.

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