2012 No. 65
Social Care

The Community Care (Joint Working etc.) (Scotland) Amendment Regulations 2012

Made
Laid before the Scottish Parliament
Coming into force
The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 13(1), 14, 15(1), (2) and (4) and 23(4) of the Community Care and Health (Scotland) Act 20021 and all other powers enabling them to do so.

Citation and commencement1.

These Regulations may be cited as the Community Care (Joint Working etc.) (Scotland) Amendment Regulations 2012 and come into force on 30th March 2012.

Amendment of the Community Care (Joint Working etc.) (Scotland) Regulations 20022.

The Community Care (Joint Working etc.) (Scotland) Regulations 20022 are amended as follows—

(a)

in regulation 1(2) after the definition of “the Act” insert—

““delegated” means delegated by virtue of an arrangement entered into under section 15(1) of the Act and “delegation” is to be construed accordingly (with the exception of the reference in Schedule 2, paragraph 2);”

(b)

omit regulation 2(2)(b)(iii) and (iv);

(c)

omit regulation 3(3)(b)(iii) and (iv);

(d)

in regulation 4 for “Schedule 3” substitute “Schedule 5”;

(e)

in regulation 5(1) for “Schedule 2” substitute “Schedule 6”;

(f)

after regulation 9 insert—

“Treatment of a payment under section 15(1)(b)9A.

(1)

Subsection (2) applies where a payment is made by virtue of an arrangement entered into under section 15(1)(b) of the Act and no fund is established under section 15(1)(c).

(2)

A payment made by one party (“X”) to another party (“Y”) in respect of the exercise of a delegated function is to be treated as expenditure by X on that function and income in relation to that function by Y.”.

(g)

in regulation 10—

(i)

for paragraph (3)(c) substitute—

“(c)

preparing such information as is reasonably required by each contributor to enable that contributor to monitor the effectiveness of the agreement and to account for that contributor’s share of the transactions, assets and liabilities in the fund.”; and

(ii)

omit paragraphs (4) and (5);

(h)

in regulation 11—

(i)

in paragraph (i) after “agreement” insert “, including risk management,”;

(ii)

omit “and” immediately after paragraph (i); and

(iii)

after paragraph (j) insert—

“(k)

the systems for financial management for payments made under the arrangement, including the frequency of the payments and the content and frequency of reporting on those payments; and

(l)

a dedicated lead officer from each party who is responsible for ensuring the agreed aims and outcomes of the arrangement are delivered.”;

(i)

in the title to Schedule 2 omit “, JOINT WORKING UNDER SECTION 15”;

(j)

in the title to Schedule 3 omit “JOINT WORKING UNDER SECTION 15 AND”; and

(k)

after Schedule 4 insert Schedules 5 and 6 as set out in the Schedule to these Regulations.

NICOLA STURGEON
A member of the Scottish Executive

St Andrew’s House,

Edinburgh

SCHEDULE

Regulation 2(k)

“SCHEDULE 5LOCAL AUTHORITY SERVICES PRESCRIBED FOR JOINT WORKING UNDER SECTION 15 OF THE ACT

Regulation 4

1.

(1)

The functions of local authorities under the enactments specified in sub-paragraph (2) are prescribed for the purposes of—

(a)

delegation to an NHS body; and

(b)

use in conjunction with functions which have been delegated to an authority by an NHS body.

(2)

Those enactments are—

(a)

section 48 of the National Assistance Act 19483;

(b)

section 3 of the Disabled Persons (Employment) Act 19584;

(c)

sections 4, 5A, 5B, 12, 12A, 12AA, 12AB, 12B, 12C, 13, 13ZA, 13A, 13B, 14, 27, 27ZA, 28, 29 and 59 of the 1968 Act5;

(d)

sections 1 and 2(1) of the Chronically Sick and Disabled Persons Act 19706;

(e)

sections 22 and 23 of the Health and Social Services and Social Security Adjudications Act 19837;

(f)

sections 3, 4, 7 and 8 of the Disabled Persons (Services, Consultation and Representation) Act 19868;

(g)

sections 1 to 8 of Part I, Part II and Part XIII of the Housing (Scotland) Act 19879;

(h)

Part II of the Children (Scotland) Act 199510;

(i)

Part 1 of the Housing (Scotland) Act 200111;

(j)

section 6 of the Act;

(k)

sections 25, 26, 27 and 33 of the Mental Health (Care and Treatment) (Scotland) Act 200312;

(l)

Part 1 of the Adult Support and Protection (Scotland) Act 200713.

2.

Section 87 of the 1968 Act is prescribed for the purpose of delegation to an NHS body but only for the purpose of recovering a charge for any function which has been delegated to an NHS body by a local authority.

3.

The functions of local authorities under the following enactments are prescribed only for the purpose of use in conjunction with functions which have been delegated to an authority by an NHS body—

(a)

section 11 of the Matrimonial Proceedings (Children) Act 195814;

(b)

sections 1 and 6B of the 1968 Act15;

(c)

section 50 of the Children Act 197516;

(d)

sections 1, 4 and 125A of the Education (Scotland) Act 198017;

(e)

the Foster Children (Scotland) Act 198418;

(f)

sections 203 and 245A(11A) of the Criminal Procedure (Scotland) Act 199519;

(g)

sections 2A and 34 of the Standards in Scotland’s Schools etc. Act 200020;

(h)

the Antisocial Behaviour etc. (Scotland) Act 200421;

(i)

the Education (Additional Support for Learning) (Scotland) Act 200422;

(j)

the Adoption and Children (Scotland) Act 200723.

SCHEDULE 6NHS FUNCTIONS PRESCRIBED FOR JOINT WORKING UNDER SECTION 15 OF THE ACT

Regulation 5(1)

1.

(1)

The functions of NHS bodies under the enactments specified in sub-paragraph (2) are prescribed for the purposes of—

(a)

delegation to a local authority; and

(b)

being used in conjunction with functions which have been delegated to an NHS body by a local authority.

(2)

Those enactments are—

(a)

sections 2A, 13, 16, 16A, 16B, 25(1), 26(1), 27(1), 36, 37, 38, 38A, 38B, 39, 40, 41, 42 and 45 of the 1978 Act24;

(b)

sections 21 and 36 of the Children (Scotland) Act 1995;

(c)

sections 23 and 24 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

2.

Section 98 of the 1978 Act is prescribed for the purpose of delegation to a local authority but only for the purpose of recovering a charge for any function which has been delegated to a local authority by a NHS body.

3.

The functions of NHS bodies under the following enactments are prescribed only for the purpose of being used in conjunction with functions which have been delegated to an NHS body by a local authority—

(a)

section 2C, 17I, 43, and 64 of the 1978 Act25;

(b)

section 7 of the Disabled Persons (Services, Consultation and Representation) Act 1986;

(c)

sections 40, 42 and 45 of the Adults with Incapacity (Scotland) Act 200026;

(d)

the Public Health etc. (Scotland) Act 200827.”
EXPLANATORY NOTE
(This note is not part of the Regulations)

These Regulations amend the Community Care (Joint Working etc.) (Scotland) Regulations 2002 (“the 2002 Regulations”) to specify new functions which may be delegated between NHS bodies and local authorities. The Regulations also make some adjustments to the accounting requirements for arrangements under sections 13 to 15 of the Community Care and Health (Scotland) Act 2002 (“the 2002 Act”).

Regulation 2 makes the following amendments to the 2002 Regulations:

(a)

paragraphs (b) and (c) remove the necessity for a body to set up a system of monitoring and to provide audited accounts for payments under sections 13 or 14 of the 2002 Act;

(b)

paragraph (f) sets out the requirements where a payment is being made by virtue of an arrangement under section 15(1)(b) of the 2002 Act where a pooled fund is not being established under section 15(1)(c) of that Act;

(c)

paragraph (g) simplifies the requirements for a pooled fund established under section 15(1)(c) of the 2002 Act;

(d)

paragraph (h) imposes a duty for the written agreement to include terms regarding the financial management of payments made under the arrangement and for the specification of a lead officer from each party to the arrangement who is responsible for ensuring the aims and outcomes of the arrangement are achieved;

(e)

paragraphs (i) and (j) amend the titles to Schedules 2 and 3 to the 2002 Regulations to account for the insertion of the new Schedules. Schedules 2 and 3 of the 2002 Regulations previously prescribed functions for section 15(2) of the 2002 Act but those functions are now prescribed in the new Schedules inserted by these Regulations;

(f)

paragraph (k) inserts the new Schedules 5 and 6 into the 2002 Regulations (which are now cross-referred to in regulations 4 and 5 of the 2002 Regulations by virtue of paragraphs (c) and (d)).

New Schedule 5 prescribes the functions of a local authority which may be delegated to an NHS body and also prescribes those functions which a local authority may use in conjunction with functions which have been delegated to an authority by an NHS body. Paragraph 1 of that Schedule sets out functions which may be used for both of those purposes and paragraph 2 sets out those which may only be used for the latter.

New Schedule 6 makes parallel provision for NHS bodies.