(1) There shall be a body corporate, to be known as the Scottish Commission for the Regulation of Care (in this Act referred to as “the Commission”), which shall—
(a) exercise the functions conferred on it by this Act or any other enactment; and
(b) have the general duty of furthering improvement in the quality of care services provided in Scotland.
(2) The Commission shall, in the exercise of its functions, act—
(a) in accordance with any directions in writing given to it by the Scottish Ministers;
(b) under the general guidance of the Scottish Ministers; and
(c) in a manner which encourages equal opportunities and in particular the observance of the equal opportunity requirements.
(3) Schedule 1 to this Act shall have effect with respect to the Commission.
(1) A “care service” is any of the following—
(a) a support service;
(b) a care home service;
(c) a school care accommodation service;
(d) an independent health care service;
(e) a nurse agency;
(f) a child care agency;
(g) a secure accommodation service;
(h) an offender accommodation service;
(i) an adoption service;
(j) a fostering service;
(k) an adult placement service;
(l) child minding;
(m) day care of children; and
(n) a housing support service.
(2) A “support service” is a service provided, by reason of a person’s vulnerability or need (other than vulnerability or need arising by reason only of that person being of a young age), to that person or to someone who cares for that person by—
(a) a local authority;
(b) any person under arrangements made by a local authority;
(c) a health body; or
(d) any person if it includes personal care or personal support,
but the expression does not include a care home service, an independent health care service, a service which provides overnight accommodation, an adoption service, a fostering service or a service excepted from this definition by regulations, paragraphs (c) and (d) above do not apply where the provider is a health body acting in exercise of functions conferred by the National Health Service (Scotland) Act 1978 (c. 29) and paragraph (d) above does not apply if the provider is an individual who personally and solely gives the care or support in question.
(3) A “care home service” is a service which provides accommodation, together with nursing, personal care or personal support, for persons by reason of their vulnerability or need; but the expression does not include—
(a) a hospital;
(b) a public, independent or grant-aided school;
(c) an independent health care service; or
(d) a service excepted from this definition by regulations.
(4) A “school care accommodation service” is a service which is provided to a pupil by an education authority or the managers of an independent or grant-aided school, or by any person under arrangements made by any such authority or managers—
(a) for the purpose of the pupil being in attendance at a public, independent or grant-aided school; and
(b) which consists of the provision, in a place in or outwith the school, of residential accommodation,
but a service may be excepted from this definition by regulations.
(5) An “independent health care service” is any of the following—
(a) an independent hospital;
(b) a private psychiatric hospital;
(c) an independent clinic; and
(d) an independent medical agency.
(6) A “nurse agency” is a service which consists of or includes supplying, or introducing to persons who use the service, registered nurses, registered midwives or registered health visitors; but a service may be excepted from this definition by regulations.
(7) A “child care agency” is a service which consists of or includes supplying, or introducing to persons who use the service, child carers; but the expression does not include a nurse agency and a service may be excepted from this definition by regulations.
(8) In subsection (7) above, “child carer” means a person who—
(a) whether or not for reward; and
(b) whether on a day-to-day or on an occasional basis,
looks after a child wholly or mainly in the home of the child’s parents.
(9) A “secure accommodation service” is a service which provides accommodation approved by the Scottish Ministers in accordance with regulations made under section 29(9)(a) of this Act.
(10) An “offender accommodation service” is a service which consists of giving advice, guidance or assistance to persons who have been provided with accommodation under subsection (1)(b) or (c) of section 27 of the Social Work (Scotland) Act 1968 (c. 49) (supervision and care of persons put on probation or released from prison etc.); but the expression does not include a support service.
(11) An “adoption service” is a service which is—
(a) maintained by a local authority under section 1(1) of the Adoption (Scotland) Act 1978 (c. 28); or
(b) provided by a person other than a local authority and which consists of, or includes, the making of arrangements for or in connection with the adoption of children (whether the person functions generally or in relation to some service maintained, or to be maintained, as part of the Scottish Adoption Service).
(12) For the purposes of subsection (11)(b) above, the making of arrangements for the adoption of a child where the proposed adopter is a relative of the child is not an adoption service.
(13) In subsection (11)(b) above, “the Scottish Adoption Service” has the meaning given by section 1(4) of that Act of 1978.
(14) A “fostering service” is a service which is provided by—
(a) a local authority under paragraph (a) of section 26(1) of the Children (Scotland) Act 1995 (c. 36) (fostering of children looked after by a local authority);
(b) a person other than a local authority and which consists of, or includes, the making of arrangements for or in connection with the performance of functions assigned to a local authority—
(i) under that paragraph; or
(ii) by virtue of section 5(2) to (4) of the Social Work (Scotland) Act 1968 (c. 49) (regulations relating to performance of functions assigned to a local authority under that Act); or
(c) a local authority and which consists of, or includes, the functions assigned to the authority by sections 3 and 8 to 10 of the Foster Children (Scotland) Act 1984 (c. 56) (ensuring well-being etc. of certain privately fostered children).
(15) The services mentioned in subsection (14)(a) and (b) above and registered under this Act may be collectively referred to as the “Scottish public fostering service”; and those mentioned in subsection (14)(c) above and so registered may be collectively referred to as the “Scottish private fostering service”.
(16) An “adult placement service” is a service which consists of, or includes, arranging for the provision of accommodation for an adult (that is to say for a person who has attained the age of eighteen years), together with—
(a) personal care;
(b) personal support; or
(c) counselling, or other help, provided other than as part of a planned programme of care,
by reason of the person’s vulnerability or need, by placing the person with a family or individual; but a service may be excepted from this definition by regulations.
(17) “Child minding” means, subject to subsections (18), (19) and (21)(a) below, looking after one or more children on domestic premises for reward and “act as a child minder” shall be construed accordingly; but a service may be excepted from those definitions by regulations.
(18) For the purposes of subsection (17) above, a person who—
(a) is the parent, or a relative, of a child;
(b) has parental responsibilities (within the meaning given by section 1(3) of the Children (Scotland) Act 1995 (c. 36)) relating to the child;
(c) is a foster parent with whom a child is placed by a local authority; or
(d) maintains a foster child (within the meaning of the Foster Children (Scotland) Act 1984 (c. 56)),
does not act as a child minder when looking after that child.
(19) For the purposes of subsection (17) above, where a person—
(a) looks after a child for the parents of the child and the work consists of looking after the child wholly or mainly in the parents' home; or
(b) looks after a child for the parents of the child (the “first parents”) and another child for the different parents of that other child (the “second parents”) and the work consists of looking after the children wholly or mainly in the first parents' home or in the second parents' home, or in both those homes,
that work is not child minding.
(20) “Day care of children” means, subject to subsections (21)(b) to (25) below, a service which consists of any form of care (whether or not provided to any extent in the form of an educational activity), supervised by a responsible person and not excepted from this definition by regulations, provided for children, on premises other than domestic premises, during the day (whether or not it is provided on a regular basis or commences or ends during the hours of daylight).
(21) For the purposes of—
(a) subsection (17) above, a person does not act as a child minder;
(b) subsection (20) above, a person does not provide day care of children,
unless the period, or the total of periods, during which the service is provided exceeds two hours in any day.
(22) Where a person provides a service for children in particular premises on less than six days in any year, that provision is not day care of children for the purposes of subsection (20) above if the person has notified the Commission in writing, before the first occasion on which the service is so provided in that year, of the intention so to provide it.
(23) In subsection (22) above, “year” means the year beginning with the day on which the service is (after the commencement of this section) first provided in the premises concerned; and thereafter any year beginning with the anniversary of that day.
(24) For the purposes of subsection (20) above, a service which consists of looking after children who are patients in a hospital and is provided as part of the medical treatment which they are receiving there is not day care of children.
(25) For the purposes of subsection (20) above, a person does not provide day care of children where—
(a) the children are of school age;
(b) the service is provided—
(i) wholly or mainly in a public, independent or grant-aided school; and
(ii) as part of the school’s activities; and
(c) the person is—
(i) the education authority managing the school
(ii) the person carrying on the school; or
(iii) a person employed to work at the school and authorised to provide the service as part of the school’s activities.
(26) Expressions used in subsection (3)(b), (4) or (25) above have the meanings given by section 135(1) of the Education (Scotland) Act 1980 (c. 44).
(27) A “housing support service” is a service which provides support, assistance, advice or counselling to a person who has particular needs, with a view to enabling that person to occupy residential accommodation as a sole or main residence; but a service may be excepted from this definition by regulations and such residential accommodation does not include accommodation specified as excepted accommodation in regulations under section 91(9) of the Housing (Scotland) Act 2001 (asp 10).
(28) In this Act, unless the context otherwise requires—
“someone who cares for” (or “a person who cares for”) a person, means someone who, being an individual, provides on a regular basis a substantial amount of care for that person, not having contracted to do so and not doing so for payment or in the course of providing a care service;
“vulnerability or need”, in relation to a person, means vulnerability or need arising by reason of that person—
being affected by infirmity or ageing;
being, or having been, affected by disability, illness or mental disorder;
being, or having been, dependent on alcohol or drugs; or
being of a young age;
“personal care” means care which relates to the day to day physical tasks and needs of the person cared for (as for example, but without prejudice to that generality, to eating and washing) and to mental processes related to those tasks and needs (as for example, but without prejudice to that generality, to remembering to eat and wash); and
“personal support” means counselling, or other help, provided as part of a planned programme of care.
The Scottish Ministers, after consulting such persons, or groups of persons, as they consider appropriate, may by order amend the definition of “care service” in section 2(1) of this Act so as to add to the services which that definition comprehends such other service as they think fit.
(1) The Commission shall provide information to the public about the availability and quality of care services.
(2) A person requesting from the Commission information provided under subsection (1) above is entitled to receive it in such form as that person may reasonably request.
(3) The Commission—
(a) may at any time, and shall when asked to do so, provide advice to the Scottish Ministers; and
(b) shall when asked to do so provide advice to—
(i) persons who provide, seek to provide or may seek to provide care services;
(ii) persons, or groups of persons, representing those who use, or are eligible to use, care services;
(iii) persons, or groups of persons, representing those who care for those who use, or are eligible to use, care services;
(iv) local authorities;
(v) health bodies; and
(vi) such other persons, or groups of persons, as may be prescribed,
about any matter relevant to the functions of the Commission.
(4) The Commission may charge a reasonable fee determined by it for any advice, forms or documents provided for the assistance of any such person, authority or body as is mentioned in paragraph (b) of subsection (3) above.
(1) The Scottish Ministers shall prepare and publish national care standards applicable to care services; and they shall keep the standards so published under review and shall publish amended such standards whenever they consider it appropriate to do so.
(2) Before publishing under subsection (1) above any—
(a) standards; or
(b) amended standards which in the opinion of the Scottish Ministers are substantially different from the standards (or amended standards) last so published,
they shall consult such persons, or groups of persons, as they consider appropriate.
(3) In relation to a care service other than those mentioned in subsection (4) below, the national care standards and the Scottish Social Services Council’s codes of practice (that is to say, the codes of practice published by the Council under section 53 of this Act) shall be taken into account—
(a) by the Commission in making any decision under this Part;
(b) in any proceedings for the making of an order under section 18 of this Act;
(c) in any proceedings on an appeal—
(i) under section 20(1) of this Act; or
(ii) against such an order; and
(d) in any proceedings for an offence in relation to registration under this Part.
(4) In relation to an adoption service mentioned in subsection (11)(a) of section 2 of this Act, a fostering service mentioned in subsection (14)(a) or (c) of that section or any other care service registered under Part 2 of this Act, the national care standards and the codes of practice mentioned in subsection (3) above shall be taken into account—
(a) by the Commission in making any decision under this Part or Part 2 of this Act;
(b) in any proceedings on an appeal under section 39 of this Act; and
(c) in any proceedings for an offence in relation to registration under that Part.
(1) The Commission shall establish a procedure by which a person, or someone acting on a person’s behalf, may make complaints (or other representations) in relation to the provision to the person of a care service or about the provision of a care service generally.
(2) The procedure must provide for it to be available whether or not procedures established by the provider of the service for making complaints (or other representations) about that service have been or are being pursued.
(3) Before establishing a procedure under subsection (1) above, the Commission shall consult all local authorities and health bodies and such other persons, or groups of persons, as it considers appropriate on its proposals for such a procedure and shall require to obtain the consent of the Scottish Ministers to those proposals.
(4) The Commission shall keep the procedure under review and shall vary it whenever, after such consultation and with such consent, it considers it appropriate to do so.
(5) The Commission shall give such publicity to the procedure (including the procedure as varied under subsection (4) above) as it considers appropriate and shall give a copy of the procedure to any person who requests it.
(1) A person who seeks to provide a care service shall make an application to the Commission for registration of the service.
(2) An application shall—
(a) give such information as may be prescribed about prescribed matters;
(b) identify an individual (who may be the applicant) who is to manage the service;
(c) give any other information which the Commission may reasonably require the applicant to give; and
(d) without prejudice to subsection (1)(b) of section 24 of this Act, be accompanied by the fee imposed under subsection (2)(a) of that section.
(3) A person who provides, or seeks to provide, more than one care service must make a separate application in respect of each of them.
(4) The provision, by two or more branches, of services which (but for this subsection) would be one care service, shall, for the purposes of this Act, instead be treated as the provision of two, or as the case may be a number of, separate care services, each by one of those branches.
(5) In subsection (4) above, “branch” means an entity, of whatever description, which is separately carried on or managed; but a branch may provide a care service from two or more premises.
(6) A person who provides an adoption service or a fostering service must be a voluntary organisation.
(7) Subsections (1) to (6) above do not apply to a local authority—
(a) seeking to provide—
(i) an adoption service mentioned in subsection (11)(a); or
(ii) a fostering service mentioned in subsection (14)(a) or (c),
of section 2 of this Act; or
(b) seeking to provide a care service in respect of which they have made such determination as is mentioned in section 33(1)(c) of this Act.
(8) Subsection (7)(b) above is subject to section 33(3) of this Act.
(1) For the purposes of Part 4 of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (management of resident’s finances), a person who provides, or seeks to provide, a service which provides accommodation but is not a care service may make an application to the Commission for registration of the service.
(2) Subsection (2) of section 7 of this Act applies in relation to an application under subsection (1) above as it applies in relation to an application under subsection (1) of that section.
(3) Sections 7(3) to (5), 9, 24 and 28 of this Act apply in relation to a service in respect of which an application is made under subsection (1) above as they apply in relation to a care service.
(4) Sections 6, 10 to 20, 24 to 28, 29 (except subsections (4) and (6)) and 32 apply in relation to a service registered under section 9 of this Act by virtue of subsection (3) above (a service so registered being, in this Act, referred to as a limited registration service) as they apply in relation to a registered care service.
(1) An application under section 7 of this Act may be granted either unconditionally or subject to such conditions as the Commission thinks fit to impose.
(2) If the Commission is satisfied, in relation to the application, that the requirements of—
(a) such regulations as are applicable under section 29 of this Act to the care service; and
(b) any other enactment which appears to the Commission to be relevant,
will be complied with in relation to that service, it shall give notice under section 15(1)(a), or as the case may be 17(1), of this Act; otherwise it shall give notice under section 15(1)(b) of this Act.
(3) On granting the application the Commission shall issue a certificate of registration to the applicant.
(4) The person for the time being providing the service shall ensure that the certificate (or a copy of it) is, while the certificate is current, kept affixed in a conspicuous place in each of the premises in or from which that service is provided; and, if those premises do not include the principal (or only) office of the service, then in that office also.
(1) The Commission may at any time give notice (in this Act referred to as an “improvement notice”) to the person for the time being providing a service registered under this Act that, unless within such reasonable period as may be specified in the notice, there is a significant improvement, of such nature as may be so specified, in the provision of that service, it intends—
(a) in a case other than that mentioned in paragraph (b) below, to make a proposal under section 12 of this Act; or
(b) in the case of a local authority providing an adoption service mentioned in subsection (11)(a) of section 2 of this Act, a fostering service mentioned in subsection (14)(a) or (c) of that section or any other care service registered under Part 2 of this Act, to make a report to the Scottish Ministers under section 41 of this Act.
(2) Where notice under subsection (1)(a) above is given to a person other than a local authority, the Commission shall send forthwith a copy of that notice to the local authority within whose area the service is provided.
(3) This section is without prejudice to section 18 of this Act.
(1) Where the Commission has given an improvement notice to a local authority in respect of a care service provided by them and registered under this Part and the authority determine that the service is one which they must provide in order to fulfil a statutory duty, they shall within fourteen days after receiving the notice notify that determination to the Commission; and the authority shall append to the notification a statement of their reasons for so determining.
(2) On receiving notification under subsection (1) above, the Commission shall as soon as practicable send a copy of the improvement notice to the Scottish Ministers together with a copy of the notification, of the appended statement and of a note of any reason the Commission has for not agreeing with the authority’s determination.
(3) On receiving an improvement notice sent under subsection (2) above, the Scottish Ministers shall state whether or not, in their opinion, the determination of the authority is justified; and if their statement is that the determination is justified, the care service shall be deemed, for the purposes of any application of the provisions of this Act which follows on from the giving of an improvement notice, to be a care service duly registered not under Part 1 but under Part 2 of this Act (the improvement notice itself being deemed duly given under subsection (1)(b) of section 10 of this Act and not under subsection (1)(a) of that section).
(1) The Commission may, at any time after the expiry of the period specified in an improvement notice given in respect of a care service, propose to cancel the registration, under this Part, of a care service—
(a) on the ground that any person has been convicted of a relevant offence in relation to the service;
(b) on the ground that the service is being, or has at any time been, carried on other than in accordance with the relevant requirements; or
(c) on any other ground which may be prescribed.
(2) For the purposes of—
(a) paragraph (a) of subsection (1) above, the following are relevant offences—
(i) an offence under this Act;
(ii) an offence under regulations made under this Act; or
(iii) an offence which, in the opinion of the Commission, makes it appropriate that the registration should be cancelled; and
(b) paragraph (b) of that subsection, the following are relevant requirements—
(i) any requirements or conditions imposed by or under this Act; or
(ii) the requirements of regulations made under this Act.
(3) This section is without prejudice to section 18 of this Act.
(1) The Commission may at any time give notice (in this Act referred to as a “condition notice”) to the person for the time being providing a service registered under this Part that it proposes to—
(a) vary or remove a condition for the time being in force; or
(b) impose an additional condition,
in relation to the registration.
(2) This section is without prejudice to section 18 of this Act.
(1) A person providing a service registered under this Part may apply to the Commission—
(a) for the variation or removal of any condition for the time being in force in relation to the registration; or
(b) for cancellation of the registration,
but no such application shall be competent in circumstances mentioned in subsection (2) below.
(2) The circumstances are that the Commission has given the person notice—
(a) under section 15(2) of this Act of its proposal to cancel the registration (unless the Commission has decided not to take that step); or
(b) under section 17(3) of this Act of its decision to cancel the registration and the time within which an appeal may be brought has not expired or, if an appeal has been brought, that appeal has not been determined.
(3) An application under subsection (1) above shall be made in such manner and state such particulars as may be prescribed; and, without prejudice to subsection (1)(b) of section 24 of this Act, shall be accompanied by the fee imposed under subsection (2)(a) or as the case may be (c) of that section.
(4) If the Commission decides to grant an application under subsection (1)(a) above it shall give the applicant notice of its decision (stating, where applicable, the condition varied or removed) and issue a new certificate of registration.
(1) If an application has been made under section 7 of this Act and the Commission proposes—
(a) to grant that application but to do so subject to a condition which has not been agreed in writing between it and the applicant, it shall give the applicant notice of the proposed condition;
(b) to refuse that application, it shall give such notice of the proposed refusal.
(2) Except where it makes an application under section 18(1) of this Act, the Commission shall give any person who provides a service registered under this Part notice of a proposal to cancel the registration (other than in accordance with an application under subsection (1)(b) of section 14 of this Act).
(3) The Commission shall give an applicant under subsection (1)(a) of section 14 of this Act notice of a proposal to refuse that application.
(4) A notice under this section shall give the Commission’s reasons for its proposal.
(1) A condition notice or a notice under section 15 of this Act shall state that, within fourteen days after service of the notice, the person to whom it is given may make written representations to the Commission concerning any matter which that person wishes to dispute.
(2) Where such a notice has been given, the Commission shall do the thing proposed only after (whichever first occurs)—
(a) the person to whom the notice was given makes such representations as are mentioned in subsection (1) above;
(b) that person notifies the Commission in writing that such representations will not be made; or
(c) the period of fourteen days so mentioned elapses.
(3) Subsections (1) and (2) of this section do not apply as respects a condition notice given by virtue of section 35.