Download - Session 1 2011
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INTRODUCTION
23rd February 2011
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Pro
blemsof
interpretati
on1
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Pro
blemsof
interpretati
on2
duty to children inneed
household in grounds for referral to
childrens hearing
Ability to understand/act in guardianship
cases
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Supreme Court
(appeals only)
Court of Session: Inner House
(mainly appeals, but some
original jurisdiction
Court of Session: Outer House(exclusive jurisdiction over
judicial review/status
Sheriff Principal
(appeals only)
Sheriff
(deals with most of cases
exclusive jurisdiction less than 5,000
and evictions)
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High Court as Court of Appeal
High Court of Justiciary
(jury of 15; exclusive power to
try murder, rape and treason)
Sheriff Solemn Court(jury of 15)
Sheriff Summary Court
(sheriff sits alone)
JP Court
(lay or stipendiary magistrate)
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REGULATION OF SOCIALWORK SERVICES
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Registrati
onR
equiremen
ts Cover:
Social service workers requirement to register
with Scottish Social Services Council
Service providers required to register with
Scottish Commissionfor the Regulationof
Care (
Social
Care a
nd
Social
Wor
k
Improvement Scotland from 1st April 2011)
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Social
Service
Wor
kers 1
SSSCRegistrationRules 2011
Includes social workers, those who workin
care homes a
nd reside
ntial child care w
or
kers
Applicants must
Satisfy qualification and competence requirements
Be ofgood character
Registration lasts 3 years (social workers) or 5
years (most others)
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Social
Service
Wor
kers 2 Post registration
Compliance with Codes ofPractice
CompletionofCPD requirements
E.g. 15 days in each registration period for social
workers (more fornewly qualified)
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Social
Service
Wor
kers 3
Can be removed from registeron grounds ofmisconduct
Investigationfollowing complaint ofmisconduct or criminal
con
viction
conduct, whether by act oromission, which falls short ofthestandard ofconduct expected ofa person registered with the ScottishSocial Services Council, having particular regard to the Code ofPractice forSocial Service Workers ...and the Scottish SocialServices Council (Registration) Rules 2011
E.g. Johnstone convictionfor assault and breach ofbail &involvement inother incidents
Other possibilities include warning, suspensionor impositionofconditions
E.g. Horrobin condition as tofurther training
SSSCConduct Rules 2011
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Care
Services 1
Does not include provisionoffield socialworkservices
Includes: Child minders, support services, care homes,
adoption and fostering services (including thoseprovided by local authority) & housing support
services Subject to some exceptions covering informal
carers and services provided by NHS
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Care
Services 2
Applicant must satisfy requirements as to
fitness (as individual/company and of
premises) certain individuals disqualified
SCRC (SCSWIS) will consider relevant
regulations and Care Standards
Application may be granted subject toconditions
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Care
Services 3
Post registrationMust comply with regulations (including staffing
and record keeping) and with Care Standards
Staffmust be satisfy fitness, qualification andregistration requirements
Registration can be cancelledby application to sheriffin cases ofurgency
by SCRC (SCSWIS) inother casesservices which local authorities under duty to
provide cannot be cancelled
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Inspecti
on1
Registered care services inspected by SCRC(SCWIS)
Periods for inspection vary, e.g. Care home twice every
12 months SCSWIS to review with view to having less frequent, less
intensive inspections for well-performing services and to makeuse ofmore unannounced visits
Review based on self-assessment & visit
As
outc
ome services graded
Report can include requirements may lead toimpositionofadditional conditions on registration andultimately deregistration
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Inspecti
on2
Social WorkInspectionAgency (SCSWIS)
Reviews ofLA social workprovision &
involvement in multi-agency reviews Based on supported selfevaluation
Overall review ofcriminal justice social workcompleted in 2007, National Inspectionof
Prison-based SW services in 2011
Services for children inspected by HMIEServices forChildren Unit
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Complai
nts 2
SCRC (SCSWIS) registered services Conditionofregistration that have complaints
procedure
complaints may be made toSCRC (SCSWIS)directly
Ifdissatisfied with outcome ofLAorSCRC(SCSWIS) complaints procedure can complain
toScottish Public Services Ombudsman orraise actionfor judicial review
SSSC (SCSWIS) complaints procedure
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SP
SO In its own words considers cases where authority
has:
E.g. Case 200701327: Renfrewshire Council
Failure to transfer case files tonew authority inaccordance with procedures and in timely manner
In general cannot complain ifhave not exhaustedauthorities internal procedures
Provided a poor service
Delivered a service badly
Failed to provide a service...ifyou claim you have suffered injustice or
hardship as a result ofthese failures.
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Cha
nges t
osystem
ofregulati
on
Creationofnew body, Social Care andSocial WorkImprovement Scotland to take
over: Registrationfunctions ofScottish Commissionfor
the RegulationofCare
Inspectionfunctions ofSCRC, SWIA and HMIEServices forChildren Unit
Changes to rationalise & simplifycomplaints procedures also promised
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JudicialR
eview 1 Available where no statutory right ofappeal, e.g.
Decisions on community care services, decisions onapplications to be housed as homeless person
Only available inCourt ofSession
Seeking review ofLA decision and usually askingcourt to set it aside
To
so
me exten
t con
cern
ed with pro
cedural mattersand therefore same decision canoften be takenagainfollowing correct procedure
E.g.Malloch v Aberdeen Corporation
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JudicialR
eview 2 Grounds for seeking review can be categorised
in various ways, one is:
Failure tofollow correct procedures Acting illegally, including fettering discretion
Acting in a way which no reasonable authoritywould act
Court will also consider whether any rightsunder EuropeanConventionon HumanRightsinfringed
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Failure tofo
llo
w procedures
Includes breaching rules ofnatural justice,
e.g. requirement for impartiality and to
allow person affected to state his/her case
Can include failure tofollow correct
guidance, e.g. on carrying out community
care assessment
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Acti
ng illegally
For example doing something which the
authority has no legal power to do
Alternatively not doing something which it
is legally required to do, e.g. Provisionof
accommodation inMacGregor v South
Lanarkshire Council
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Unreas
onable decisi
on
E.g. Kelly v Monklands District Council
LA duty to provide housing to homeless persononlyarose if(in circumstances) applicant was vulnerable
L
Adecided that applica
nt
not vul
nerable eve
nth
oughshe
had left home after being assaulted by father
had no income and nowhere else to stay
suffered from depression and had cut her wrist with a razor
Court held decision unreasonable Note that in this type ofcase not open to LA to take
same decision againfollowing correct procedure
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Otherfo
rmsof
liability 1 Liability fornegligence ofemployees
Main examples - negligence in planning for &
caring for looked after children (though no dutyowed to parents/others accused ofabusing
children)
Standard required is that ofreasonable care a
reasonably competent memberofa profession
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Otherfo
rmsof
liability 2 Breaches ofrights under EuropeanConvention
on HumanRights
Section 6(1) ofHumanRights Act 1998 states
that:
It is unlawful for a public authority to act in a way
which is incompatible with a Convention right.
Right to sue for damages, for interdict or to
make authority carry out its obligations
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Protected characteristics age
disabilityinvolves physical or mental impairment having substantial
and long-term effect on ability to carry out normal day-to-
day activities gender reassignment
marriage and civil partnership
pregnancy and maternity
raceincludes colour, nationality or ethnic ornational origin
religionor belief
sex
sexual orientation.
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Discrimi
nati
on1
Direct discrimination
A person (A) discriminates against another (B)
if, because ofa protected characteristic, A treatsB less favourably thanA treats or would treat
others
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Discrimi
nati
on2 Indirect discrimination
Doesnt apply to pregnancy or maternity
A person (A) discriminates against another (B) ifA appliestoB a provision, criterionor practice which is discriminatory
in relation to a relevant protected characteristic ofB's. A provision, criterionor practice is discriminatory in relation
to a relevant protected characteristic ofB's if A applies, or would apply, it to persons with whom B does not
share the characteristic,
it puts, or would put, persons with whom B shares the
characteristic at a particular disadvantage when compared withpersons with whom B does not share it,
it puts, or would put, B at that disadvantage, and
A cannot show it to be a proportionate means ofachieving alegitimate aim.
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Exception
s & enfo
rcement
Direct discrimination may be permitted when
it is a proportionate means ofachieving a
legitimate aim (and, in context ofemployment,that it is anoccupational requirement)
Enforcement through courts and Employment
Tribunals
Role ofEquality and HumanRights
Commission
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R
eason
able adjustments
Involves three requirements:where a provision, criterionor practice ofA's puts a disabled
person at a substantial disadvantage in relation to a relevant matterin comparison with persons who are not disabled, to take such
steps as it is reasonable to have to take to avoid the disadvantage.where a physical feature puts a disabled person at a substantial
disadvantage in relation to a relevant matter in comparison withpersons who are not disabled, to take such steps as it is reasonableto have to take to avoid the disadvantage.
where a disabled person would, but for the provisionofan
auxiliary aid, be put at a substantial disadvantage in relation to arelevant matter in comparison with persons who are not disabled,to take such steps as it is reasonable to have to take to provide theauxiliary aid.
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Local auth
ority duties 1
Public sector equality dutyExtends to private providers ofpublic services
A public authority must, in the exercise ofits functions,
have due regard to the need toeliminate discrimination, harassment, victimisation and any
other conduct that is prohibited by or under this Act;
advance equality ofopportunity between persons who sharea relevant protected characteristic and persons who donotshare it;
foster good relations between persons who share a relevantprotected characteristic and persons who donot share it.
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Local auth
ority duties 2
Having due regard to the need to advance equality ofopportunity between persons who share a relevant protectedcharacteristic and persons who donot share it involves havingdue regard, in particular, to the need to
remove or minimise disadvantages suffered by persons who sharea relevant protected characteristic that are connected to thatcharacteristic;
take steps to meet the needs ofpersons who share a relevantprotected characteristic that are different from the needs ofpersonswho donot share it;
encourage persons who share a relevant protected characteristic toparticipate in public life or in any other activity in whichparticipation by such persons is disproportionately low.
Draft regulations require publicationofequality outcomes
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Po
sitive action
Permitted under 2010 Act, including in
cases ofemployment
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Slides available here: http://tgg1971.wordpress.com/