Part I

Administration

Central Authority

Powers of Secretary of State.
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.
S. 5(1A) inserted (1.4.1991) by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 51
Words in s. 5(1A) substituted (1.4.1996) by 1994 c. 39, s. 180(1), Sch. 13 para. 76(3)(a); S.I. 1996/323, art. 4(1)(b)(c)
S. 5(1B) added (1.4.1996) by 1994 c. 39, s. 180(1), Sch. 13 para. 76(3)(b); S.I. 1996/323, art. 4(1)(b)(c)
1970 c. 44.
1986 c. 33.
1937 c. 37.
1948 c. 29.
1958 c. 40.
1973 c. 29.
S. 5(1B)(f) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 6(2)
1983 c. 41.
1987 c. 26.
Word in s. 5(1B) before para. (o) repealed (12.12.1996 for certain purposes and otherwise 1.4.1997) by 1995 c. 36, s. 105(4), Sch. 4 para. 15(4)(b)(i), Sch. 5 (with s. 103(1)); S.I. 1996/3201, art. 3(6)(7) (which said art. 3(7) was substituted (7.3.1997) by S.I. 1997/744, art. 2 (with transitional provisions inserted into S.I. 1996/3201 by art. 3)) and said word expressed to be repealed (1.4.2002) by 2001 asp 8, s. 80(1), Sch. 4; S.S.I. 2002/162, art. 2 (subject to arts. 3-13)
S. 5(1B)(o) repealed (1.4.2002) by 2001 asp 8, s. 80(1), Sch. 4; S.S.I. 2002/162, art. 2 (subject to arts. 3-13)
S. 5(2) substituted by Children Act 1975 (c. 72, SIF 49:9, 10), Sch. 3 para. 49
S. 5(2)(c) substituted (1.4.1996) by 1994 c. 39, s. 180(1), Sch. 13 para. 76(3)(c); S.I. 1996/323, art. 4(1)(b)(c)
Words in s. 5(2)(c) substituted (12.12.1996 for certain purposes and otherwise 1.4.1997) by 1995 c. 36, s. 105(4), Sch. 4 para. 15(4)(c) (with s. 103(1)); S.I. 1996/3201, art. 3(6)(7) (which said art. 3(7) was substituted (7.3.1997) by S.I. 1997/744, art. 2 (with transitional provisions inserted into S.I. 1996/3201 by art. 3))
S. 5(3)-(5) substituted (12.12.1996 for certain purposes and otherwise 1.4.1997) for s. 5(3) by 1995 c. 36, s. 105(4), Sch. 4 para. 15(4)(d) (with s. 103(1)); S.I. 1996/3201, art. 3(6)(7) (which said art. 3(7) was substituted (7.3.1997) by S.I. 1997/744, art. 2 (with transitional provisions inserted into S.I. 1996/3201 by art. 3))
S. 5(1B)(k) substituted (5.10.2005) by Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), s. 333(2), sch. 4 para. 1(3); S.S.I. 2005/161, art. 3 (as substituted (1.7.2005) by S.S.I. 2005/375, art. 2 and as amended (22.9.2005) by S.S.I. 2005/459, art. 2)
S. 5(1B)(q) inserted (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), s. 121(2), sch. 2 para. 2(2)(a); S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21) (as amended (7.5.2012) by S.S.I. 2012/99, art. 2)
Words in s. 5(2)(c) substituted (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), s. 121(2), sch. 2 para. 2(2)(b); S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21) (as amended (7.5.2012) by S.S.I. 2012/99, art. 2)
Words in s. 5(5) substituted (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), s. 121(2), sch. 2 para. 2(2)(c); S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21) (as amended (7.5.2012) by S.S.I. 2012/99, art. 2)
S. 5(1B)(i) repealed (28.9.2009) by Adoption and Children (Scotland) Act 2007 (asp 4), s. 121(2), sch. 3; S.S.I. 2009/267, arts. 1(2), 2 (with arts. 3-21) (as amended (7.5.2012) by S.S.I. 2012/99, art. 2)
S. 5(1B)(s) added (24.6.2013) by The Children's Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 1(4)(b)
Words in s. 5(2)(c) substituted (24.6.2013) by The Children's Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 1(4)(c)
Words in s. 5(1) inserted (24.6.2013) by The Children's Hearings (Scotland) Act 2011 (Modification of Primary Legislation) Order 2013 (S.S.I. 2013/211), art. 1, sch. 1 para. 1(4)(a)
S. 5(1B)(r) added (1.4.2014) by Social Care (Self-directed Support) (Scotland) Act 2013 (asp 1), ss. 21(b), 28(2); S.S.I. 2014/32, art. 3
Words in s. 5(1) substituted (1.4.2014) by Social Care (Self-directed Support) (Scotland) Act 2013 (asp 1), ss. 21(a), 28(2); S.S.I. 2014/32, art. 3
S. 5(1C) inserted (1.8.2014) by Children and Young People (Scotland) Act 2014 (asp 8), s. 102(3), sch. 5 para. 1(c); S.S.I. 2014/131, art. 2(2)(3), sch.
S. 5(1B)(t) inserted (1.8.2014) by Children and Young People (Scotland) Act 2014 (asp 8), s. 102(3), sch. 5 para. 1(b); S.S.I. 2014/131, art. 2(2)(3), sch.
Words in s. 5(1) substituted (1.8.2014) by Children and Young People (Scotland) Act 2014 (asp 8), s. 102(3), sch. 5 para. 1(a)(i); S.S.I. 2014/131, art. 2(2)(3), sch. (with art. 4)
Words in s. 5(1) inserted (1.8.2014) by Children and Young People (Scotland) Act 2014 (asp 8), s. 102(3), sch. 5 para. 1(a)(ii); S.S.I. 2014/131, art. 2(2)(3), sch. (with art. 4)
Words in s. 5(1) inserted (1.10.2017) by Carers (Scotland) Act 2016 (asp 9), ss. 37(2), 45(2); S.S.I. 2017/152, reg. 3, sch.
S. 5(1B)(u) inserted (1.10.2017) by Carers (Scotland) Act 2016 (asp 9), ss. 37(3), 45(2); S.S.I. 2017/152, reg. 3, sch.
Words in s. 5(1B)(f) substituted (28.8.2024) by Children (Care and Justice) (Scotland) Act 2024 (asp 5), s. 38(3), sch. para. 22(2); S.S.I. 2024/211, reg. 2(j)(iii) (with reg. 3)