The Scottish Government

1. The Act requires persons responsible for certain independent and grant aided schools to register with the local authority in which the school is situated. The schools concerned are residential child care establishments the whole or a substantial part of whose functions are to provide personal care or support for the purpose of the Act or the Social Work (Scotland) Act 1968 (the 1968 Act).

Section 34 (amending Section 61 Social Work (Scotland) Act 1968)

2. Where providing such personal care or support is not a whole or a substantial part of their functions, residential schools may decide to register on a voluntary basis.

Section 34(3) (Substituting Section 61A 1968 Act)

3. This requirement to register will bring certain residential schools within the scope of the regulations made by the Secretary of State in respect of residential and other establishments under Section 60 of the 1968 Act ¹ and general guidance on the registration of residential establishments. ² Guidance on Residential Care applies to care arrangements for all registered residential schools.

4. The requirement does not apply to any school controlled or managed by a Government department or by a local authority or one that is required to be registered with a Government department or local authority under any other enactment. Being registrable by the Registrar of Independent Schools does not exclude an establishment from a requirement to register under section 61.

Section 61 1968 Act

5. Personal care includes the provision of appropriate help to children with physical and social needs extending to the oversight of welfare and active help with dressing, eating, washing, bathing and enabling children with special needs to cope in a living situation. Support includes counselling or other help provided as part of a planned programme of care and help with the management of emotional and behavioural problems and with the development of social skills. The support in question needs to be part of a planned programme of care, identified to meet the person's particular needs.

6. All residential schools provide a degree of personal care and support. For schools to come within the scope of the registration provisions, local authorities will have to consider firstly whether the personal care or support provided is required for the purposes of the Act or the 1968 Act and, secondly, whether that degree of care or support is a whole or substantial part of the school's functions. It is not envisaged that schools that provide boarding accommodation for educational purposes should be registered under the Act. Educational provision in registered establishments will continue to be subject to inspection by H.M. Inspectorate of Schools under the Education (Scotland) Act 1980.

7. Where the local authority considers that a school is required to register and the person responsible for the school disagrees then the local authority should discuss this with the responsible person before reaching a conclusion about whether registration is required.

Registration Requirements and Conditions

8. A registration application should be made by the person responsible for the carrying on of the school to the local authority in whose area the school is situated. The Registered Establishments (Application Form) (Scotland) Order 1988 requires that the following information is provided

• details of the manager or intended manager
• whether the application is for statutory or voluntary registration
• whether the establishment provides, or is intending to provide, nursing care and thus requires to be registered under the Nursing Homes Registration (Scotland) Act 1938
• the applicant's age, professional or technical qualifications, experience, other similar establishments in which he has a business interest; any previous occasions on which his application to run a residential or nursing home or residential school has been refused or registration cancelled. The applicant's details will be those of the principal representative of the school such as the Chair of the board of governors
• a statement of the functions and objectives of the establishment
• the establishment's construction and situation, the services and equipment to be provided, other premises used or to be used in conjunction with the establishment; and whether planning, or building control or other approval has been obtained. Details of accommodation for residents and staff
• staff and their duties and the hours for which each member of staff is employed
• details of the distinction between accommodation for residents and staff, and for resident children and non-resident children
• the numbers and categories of children accommodated and their ages.

9. Where the person registering the establishment proposes to employ a manager to run the establishment on a day-to-day basis he or she should include that person's name in the application and inform the local authority within twenty-eight days of the departure of that person or the employment of a new person. If the local authority considers this person unfit they may cancel the registration. The person registering the establishment must give the local authority twenty-eight days notice of the intention to cease carrying on the establishment.

Section 62(4) 1968 Act

10.Once the local authority are satisfied that the requirements are met they will issue a certificate of registration which shall relate to the whole of the establishment, except for those parts which are used exclusively for educational purposes.

11. The certificate of registration is required to contain the following information

• the name of the person registered in respect of the establishment
• the name of any manager appointed
• the address of the premises at which the establishment is to be carried on
• the maximum number of children who may be accommodated
• the categories of children who may be admitted to the establishment and their ages.

Any material changes occurring in any of the information requires the registered person to notify the local authority and request a variation in registration. If satisfied the local authority should issue a new certificate.

Section 62(6A) 1968 Act

Section 62(6A) 1968 Act

12. Where the person registered in respect of an establishment dies his or her executor, widow or widower or other members of his or her family can carry on the establishment for up to four weeks without being registered. The local authority can agree this for a longer period. If such a person is considered unfit by the local authority they may exercise their powers of cancellation.

Section 62(8) 1968 Act

13. Where for any reason the registered person ceases to be registered the registering authority may allow another person to carry on the establishment for up to 60 days and subject to any conditions they consider necessary.

14. The local authority is required to make conditions for registration stipulating the maximum number of children to be accommodated in the school at any one time and the categories of such children. The power to make and vary conditions in regard to the categories of children means that local authorities may prevent the mixing of specific categories (whether in terms of age, dependence or other characteristics) in a new school or require an end to undesirable mixing in an existing school.

Section 62(5) 1968 Act

15. Authorities may impose any other reasonable condition they consider necessary in relation to the proper operation and care arrangements of the establishment, for example, that arrangements are in place for advising children of procedures for making complaints to the management of the school, the registering authority or their placing authority.

16. Requests for conditions to be varied or new conditions imposed may come from either the local authority or the registered person. The local authority may decide variations are inappropriate. These are subject to the registered person's right of appeal to a tribunal. The registered person is required to comply with reasonable conditions.

Section 62(5A) of the 1968 Act

Refusal or Cancellation of Registration

17. The local authority may refuse to register the applicant if

• he or she or any person employed by him or her or proposed to be employed by him or her in the management of an establishment (or any part of it) is not a fit person
• if the establishment or premises are not fit for reasons such as situation, construction, state of repair, accommodation, staffing or equipment
• the way that it is proposed to conduct the establishment is such as not to provide services or facilities reasonably required by children using such an establishment.

18. The registering authority will need to be satisfied of the fitness of the applicants and the fitness of those employed by them in the school and to be satisfied that the system of staff selection is properly organised and conducted. The selection procedures should include Scottish Criminal Records Office checks (SCRO) on all individuals employed in view of their contact with children. ³ All references should be taken up. Full employment histories should be taken by schools and gaps and omissions investigated. The use and selection of temporary staff to whom these procedures apply should be looked at particularly closely.

19. The local authority may at any time cancel the registration of a person in respect of an establishment where

• he or she has failed to notify the authority of a change of manager
• he or she has been convicted of an offence relating to the regulations relating to registration
• conditions set by the local authority have not been complied with.

Opportunities should be given for the proprietors to rectify the situation unless registering authorities believe to do so would place children's welfare at risk. A planned programme of change may need to be worked out between the school and the registering authority.

Section 62(4c) of the 1968 Act

Appeals against Refusal of Registration and Conditions

20. Where an application for registration has been refused an appeal to a tribunal (established under Schedule 5 to the 1968 Act) can be made.

Section 64(4) of the 1968 Act

21. The appellant and the registration authority will be notified once the tribunal has been constituted. The appellant has fourteen days to send a written statement setting out the ground of his or her appeal to the tribunal and should provide a copy to the registration authority. The registration authority should send to the tribunal within seven days, a written statement setting out the grounds on which the application was refused, or, as the case may be, on which registration has been cancelled. A copy should be sent to the applicant. A tribunal hearing date will be fixed at which parties have a right of audience and may be represented by counsel or solicitor. The hearing's decision will be issued within fourteen days of its conclusion.

22. Appeals to a tribunal may be made by the person registering an establishment against a condition or conditions imposed by the local authority, whether in the course of registering an establishment initially or otherwise. There is likely in practice to be a discussion between the local authority and the person registered or intending to register on this matter and local authorities should inform that person of the reasons for imposing a condition. Where an appeal is made the condition will not take effect until the tribunal has made its decision.

Voluntary Registration

23. Independent and grant aided schools which are not required to register with the local authority may apply to do so if they wish. Local authorities should encourage such registrations. Voluntary registration can develop closer working relationships between the local authority and the schools in their area and ease access to advice and support for the schools. Schools should consider voluntary registration as demonstrating that the care being provided is of an acceptable standard and will aid local authorities, parents and others in choosing where to place children.

Standards for Registration and Inspection

24. Each local authority has to formulate standards for registration. Schools in their area should be consulted about proposed standards which should focus on children's needs and be realistic, attainable and challenging. There should be flexibility about how standards which have been developed for residential homes are applied to schools. The quality of life experienced by children in the school is the most important consideration. The quality of care provided in schools should not be of a lower standard although the practical application may differ between schools and other residential establishments. Access to standards for registration should be available to current or prospective proprietors or managers considering setting up a school as well as for children and their parents. Where authorities use schools in other authorities' areas they should receive information from registering authorities about their standards, and their comments should be taken into account when standards are being reviewed.

25. The standards should cover the fitness of persons responsible for the establishment, the establishment's fitness for its purpose and the way the establishment is run. In inspecting the achievement of registration standards there should be room for flexibility according to circumstances, for example the quality of life for service users will not be determined solely by the application of criteria such as the size of the establishment or the qualifications of staff. Good schools may be of varying sizes. The fitness of each school and each manager should be assessed in its particular circumstance. Other regulatory or standard setting bodies such as Her Majesty's Inspectors of Schools, Building Control, Planning, Environmental Health and Fire departments should be consulted as appropriate.

Residential Establishment Regulations and Guidance

26. The Residential Establishments - Child Care (Scotland) Regulations 1996 and related guidance apply to all registered child care establishments including independent and grant-aided schools which are registered under the Act.

Monitoring Registered Establishments

27. Under the regulations the registering authority are expected to

• visit registered establishments at least yearly, and more frequently if this is necessary to ensure the safety and welfare of the children
• satisfy themselves that the establishment continues to conform to the requirements for registration and in so doing have regard to the statement of functions and objectives
• notify any placing authority of any concerns about the welfare or safety of children.

28. Although the Regulations prescribe a minimum of one visit per year it is up to local authorities to determine the number of visits per establishment (whether registered or managed by a local authority). A minimum of two visits per year would be the normal expectation and one of these should be unannounced. ⁴

29. The local authority has the power to authorise a person to enter any registered establishment in their area or any establishment that they think should be registered and any place they have reasonable cause to believe is being used as an establishment that should be registered. The purpose of the visit is to examine the state and management of the establishment and the condition and treatment of the children in it. An inspection of any register or records relating to the place or relevant persons may also be made.

30. The main purpose of inspection visits is to safeguard the well-being and interests of the children through an evaluation of the quality of life experienced by children using the service.

Liaison with HM Inspectors of School (HMI) and Local Authorities

31. There is a new duty on education authorities and on the managers of independent, grant-aided and self-governing schools, who provide, or arrange for the provision of, residential accommodation for their pupils (whether the accommodation is inside or outside the school establishment), to safeguard and promote the welfare of the pupils resident there. The duty applies to pupils under 18 years of age. A school inspection may include an inspection of whether education authorities and the managers of other schools are adequately safeguarding and promoting the welfare of such residential pupils. These are described by HMI as Welfare of Residential Pupil Inspections (WRP Inspections).

Section 35

Section 66 of the 1980 Education Act

32. Local authorities should liaise closely with HMI and inform them of schools they have registered. They should send copies of reports of inspections to the Chief Inspectors of schools in the relevant Divisional HMI offices, who will draw the attention of the Registrar of Independent Schools to any relevant aspects of those reports which may have a bearing on possible action by him on the registration of independent schools. HMI will in turn pass copies of their reports to the local authority. Welfare of Residential Pupil Inspections on such schools will only be carried out as part of the general inspection programme or related to specific complaints. Authorities should inform HMI about planned dates for inspections. HMI will inform the local authorities when they are intending to undertake an inspection on a school which is registered with the local authority under Section 61 of the 1968 Act as well as for educational purposes. There may be occasions where concerns about a school indicate the need for joint inspection.

Quality Of Care

33. The principles underlying good quality care are set out in Volume 2 chapter 4 at paragraphs 17-41 and apply to all residential establishments including schools registered under the Act.

34. Living in a residential school is not necessarily the same as living in a residential home and practical arrangements for meeting the child's care needs will have to be considered in that context. A school's statement of functions and objectives should set out the type of education and care being provided. Where children remain at the school for fifty-two weeks a year some practical arrangements may differ from schools which only have pupils in term time. In developing their framework of registration standards after consultation with independent and grant aided schools registering authorities will need to take this into consideration. Changes to the school considered necessary by the registering authority may have to be implemented over a period of time and a flexible approach needs to be adopted by both parties. If children are living in schools for the provision of certain forms of education and/or care then they may not require the same forms of care as if it were a substitute home for them. Many residential schools will be much larger than residential homes and from the perspective of the delivery of education that may be preferable.

35. The standard of accommodation should enable children to live a full life in the school community. The nature of the living space and overall environment will help children adjust to living away from home. Personal space is important to young people's social well-being. Individual rooms may not be required in all settings. Residents need to personalise those areas which they can regard as their own, store possessions in their own lockable cupboard or chest of drawers, enjoy opportunities for privacy and have access to staff in private.

36. Children may in a residential school be some distance from their home communities. Social work departments and education departments responsible for placing children should promote regular contact by families with the child and school. Residential schools should encourage family contact where that is appropriate. Opportunities and space for private visiting and facilities for overnight stays for visitors should be provided

37. Schools will need to have their own complaints system for children. Children need to be aware of the complaints system used by their placing local authority if applicable. Access to a children's rights or advocacy service is helpful to children in residential settings. ⁵

38. There may be aspects of care in schools where similar standards to those developed by registering authorities for residential homes are not appropriate. For example, dormitory accommodation, open washing facilities. Registering authorities will need to discuss with school proprietors the level of minimum standards which are acceptable in the context of the quality of life for children attending the school. Time may be needed by some schools to upgrade facilities to minimum standards and negotiations around timescales will be appropriate. There may be occasions where a planned programme of change is a condition of continued registration; and other occasions where immediate changes are required.

39. Schools need to ensure that arrangements are in place for the oversight of children's health and to deal with matters of concern as they arise. Children should be registered with a local general medical and dental practitioner or the school should have an agreed arrangement with them to provide primary medical and dental services. Children who fall ill should be able to be accommodated separately from the rest of the school when necessary with easy and quick access to a member of staff at all times of the day and night. Children receiving specialist medical care may need to have responsibility for their health care needs transferred to the health services where the school is located. Provision should be made for those children who require regular medication or other treatment.

40. Schools should ensure that children have an opportunity to have contact with the wider community where the school is based. This may be through contact with relevant professionals and through local sports, leisure, youth groups or others as appropriate.

41. Schools should keep parents informed of the educational progress of their child and of their welfare. This may need on occasion to be done through placing authorities.

42. Schools will be involved in child care planning and review arrangements for individual children. Where a child is looked after by a local authority the child and school will be involved in child care reviews and decisions affecting the child. Where children are the subject of a supervision requirement from a children's hearing arrangements need to be in place to provide reports for the Hearing covering education and care needs. Education, as well as care staff, should contribute to planning and review of care arrangements for individual children.

Child Protection Issues

43. Children may suffer physical, sexual or emotional abuse either at home or away from the school, or within the school itself, by staff, other adults including parents, and other children. Staff should be aware of behavioural and physical indicators that may draw attention to the possibility of abuse. To ensure, as far as possible, that the welfare of children is secured, schools should have recognised procedures for responding to allegations of abuse. These can be based on guidelines circulated by the Scottish Council for Independent Schools. ⁶

44. Procedures should be compatible with procedures laid down by the Child Protection Committee for the locality in which the school is situated. Local authorities placing children should inform schools of their child protection procedures. The local social work department is responsible for ensuring that inquiries are made into allegations or suspicions of abuse. If the allegations refer to abuse at the child's home or home area this is a matter for the placing authority. Schools should provide for

• a senior member of staff to have responsibility for co-ordinating child protection within the school, and for liaison with the local social work department and placing authority
• a detailed record to be made when abuse is alleged, and for the local social work department (and placing local authority where applicable) to be informed at once. The social work department in consultation with the police and other relevant agencies will decide how to proceed and will discuss with the placing authority the appropriate steps to take
• appropriate arrangements with the placing social work department for parents to be informed or arrangements for the school to do this

45. Schools should co-operate fully with any inquiries or investigation in order to establish the truth and details of any allegation of abuse. They are responsible for safeguarding the welfare of their pupils. Where members of staff or others are under suspicion proprietors and managers will need to act in accordance with the requirements of the police and social work staff dealing with the allegation in order to ensure that there is a proper investigation and that children are fully protected. This may mean suspending staff from duty and instituting disciplinary proceedings in addition to any action taken by the police. Even where there is insufficient evidence for a prosecution, consideration should be given to the possible need for disciplinary proceedings and ultimately dismissal of a staff member. Where the alleged perpetrator is a fellow resident both placing authorities should be informed as well as the local social work department. Care will need to be taken in any contact between the parties whilst the investigation is underway. Schools should also consider the need for counselling by specialist practitioners for children who have suffered abuse and any others closely involved. They should also have regard to the effect on other children and staff in the school.