PART 1

Main provisions

NHS and local authority care and support

Section 16: further provision
17
1
The Scottish Ministers may issue guidance to local authorities about the exercise of their functions under the following provisions in consequence of section 16—
a
Part 2 of the 1968 Act;
b
sections 22, 23 and 29 of the 1995 Act;
c
sections 25, 26 and 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);
d
section 1 of the 2013 Act;
e
Parts 2 and 3 of the 2016 Act.
2
A local authority—
a
must have regard to any guidance issued under subsection (1);
b
must comply with such guidance issued under subsection (1) as the Scottish Ministers direct;
c
may disregard, so far as it is inconsistent with guidance issued under subsection (1)—
i
any guidance issued under section 5(1) of the 1968 Act;
ii
a code of practice published under section 274(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003.
3
The Scottish Ministers may—
a
from time to time revise any guidance issued under subsection (1);
b
vary or revoke a direction made under subsection (2)(b).
4
A local authority must not recover a charge under section 87 of the 1968 Act for—
a
community care services provided to a person if, in reliance on section 16(1), the authority did not—
i
comply with section 12A of the 1968 Act before providing the services, or
ii
comply with section 1 of the 2013 Act in relation to the services;
b
services provided to a child under section 22(1) of the 1995 Act if, in reliance on section 16(7), the authority did not—
i
where the services were provided following a request being made to the authority in relation to the child under section 23(3) of the 1995 Act, assess the child's needs for the services before providing them, or
ii
comply with section 1 of the 2013 Act in relation to the services;
c
advice, guidance or assistance provided to a person under section 29(1) or (5A) of the 1995 Act if, in reliance on section 16(9), the local authority did not carry out an assessment of the person's needs under section 29(5) of that Act before providing the advice, guidance or assistance.
5
For the purposes of subsection (4), a local authority did not—
a
comply with a provision if it only partially complied with the provision;
b
carry out an assessment if it only partially carried out the assessment.
6
Nothing in subsection (4) prevents a local authority from recovering charges if—
a
the authority provides—
i
services in the circumstances described in paragraph (a) or (b) of subsection (4), or
ii
advice, guidance or assistance in the circumstances described in paragraph (c) of that subsection,
b
the authority subsequently complies with the provisions mentioned in paragraph (a), (b) or (c) of that subsection (as the case may be) in relation to the services or the advice, guidance or assistance, and
c
the charges relate only to the period after the authority so complies.
7
Subsection (8) applies where—
a
a local authority provides accommodation to a person under Part 2 of the 1968 Act in the circumstances described in paragraph (a) of subsection (4),
b
the authority subsequently complies with the provisions mentioned in that paragraph in relation to the provision of the accommodation, and
c
after it complies with those provisions, the authority continues to provide the accommodation to the person.
8
Despite subsections (4)(a) and (6), the authority may recover charges for the provision of the accommodation for any period—
a
before the authority complied with the provisions mentioned in subsection (4)(a), and
b
during which the person was a permanent resident.
9
For the purposes of subsection (8), a person is a permanent resident if the person is expected to be provided with accommodation by the authority for a period of more than 52 weeks.
10
Subsection (11) applies where—
a
any provision of section 16 has had effect for a period, and
b
that period has ended.
11
In determining for the purposes of any proceedings whether a local authority has complied with any duty to carry out a relevant assessment within a reasonable period, a court must take into account (among other things) the following factors—
a
the length of any period for which any provision of section 16 had effect, and
b
the number of relevant assessments which need to be carried out by the local authority following the end of any such period.
12
In subsection (11), “relevant assessment” means—
a
an assessment under—
i
section 12A(1)(a) of the 1968 Act;
ii
section 23(3) of the 1995 Act;
iii
section 29(5) of the 1995 Act;
b
the preparation of—
i
an adult carer support plan under section 6 of the 2016 Act;
ii
a young carer statement under section 12 of the 2016 Act.
S. 17 in force at 5.4.2020 by S.S.I. 2020/121, reg. 2(b)