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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/