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The same as you? A review of services for people with learning disabilities

Appendix 6 The legal background

The main legal requirements for local authorities and health boards to provide social, health, housing, education, employment and services for people with learning disabilities are set out below.

Social Work (Scotland) Act 1968

Section 12

This places a general duty on every local authority to promote social welfare by making advice, guidance and help available on a scale appropriate for their area.

Section 12A

This was added by the National Health Service and Community Care Act 1990 (see section 55). The Social Work (Scotland) Act 1968 was also amended by the Carers (Recognition and Services) Act 1995. This places a duty on the local authority to carry out community care assessments and then decide whether to provide services.

Section 14

This places a general duty on every local authority to provide domiciliary services for households where there are people in need. It also gives the power to provide laundry facilities for these households.

Chronically Sick and Disabled Persons (Scotland) Act 1972

This Act extends sections 1 and 2(1) of the Chronically Sick and Disabled Persons Act 1970 to Scotland.

Section 1 (of the 1970 Act)

This places a duty on every local authority (which has a role under section 12 of the 1968 Act) to know about the numbers of disabled people living in their area and the need to make arrangements for these people. Every local authority should publish general information about the services they provide. They are also to let disabled people know about relevant services that they know others provide.

Section 2(1) (of the 1970 Act)

This lists the arrangements that can be made to help disabled people. These include:

• practical help for that person in his or her home;
• getting, or helping someone to get a radio, tv, phone, or specialist equipment to be able to use a phone;
• help in using library, recreational or educational facilities;
• providing facilities to, or helping with travel to and from home;
• adaptations to the home;
• holidays; and
• meals.

Section 21

This is the Orange Badge Scheme of parking concessions for disabled and blind people.

Employment and Training Act 1973 (as amended by the Trade Union Reform and Employment Rights Act 1993)

This sets out the duty of the Secretary of State for Scotland to provide relevant services for helping people in education to decide on future employment, and what training may be necessary to fit them for this employment.

Sections 10(1) and 10(2)

These say ‘in doing so the Secretary of State shall have regard to the requirements of disabled persons.’

Education (Scotland) Act 1980

Section 1

This places a general duty on education authorities to provide adequate and efficient school education for their area. This must include special educational needs, which covers those with learning difficulties which may arise from a disability.

Section 60(2)

So that education authorities can fulfil their duties in terms of special educational needs, they must find out which children belonging to their area (who are two years old or over but under 16) have obvious, specific or complex special educational needs which need to be reviewed. They must open and keep a Record of Needs for any children who, following assessment, have these needs. They also have the power to carry out these functions for children aged between 16 and 18 who are still at school.

Section 65B

This places a duty on the education authority to provide a future needs assessment for any child with special educational needs so that children may benefit from local authority services after leaving school.

Mental Health (Scotland) Act 1984

Sections 2 to 6

These provide for the Mental Welfare Commission for Scotland whose main function is to use their general protective functions for people with mental disorders. This includes those with learning disabilities. The Commission’s powers cover people in the community as well as those in hospital or other care settings.

Sections 7 and 8

These give power to local authorities to make arrangements for providing services for people with mental disorders. This includes accommodation for those not in hospital, and, in particular, for after-care services for those who are or have been suffering from mental disorders.

Section 11

This says local authorities must provide training and jobs for people with learning disabilities.

Sections 17-35

These cover care and treatment of patients with mental disorders in hospital. Section 17 sets out the conditions for going into hospital.

Sections 35A to 35K

These sections were introduced by the Mental Health (Patients in the Community) Act 1995. They cover community care orders for people who have left hospital to make sure they receive the services they need while in the community. (However, they do not allow for compulsory treatment in the community).

Sections 36-52

These cover guardianship for people with mental disorders if this is appropriate. The guardian may be the local authority or an individual.

Sections 60-76

These set out conditions relating to hospital orders and restriction orders for people with mental disorders who have been charged with offences. They also cover transferring prisoners with mental disorders to hospital where appropriate.

Section 94

This covers managing the property of patients who are receiving treatment in hospital for mental disorders (whether or not they are formally held under the Act) and who cannot manage their own affairs.

Part X covers treating mental disorders of patients who are held to whom Part X applies. In particular, it regulates certain treatments (at present electro-convulsive therapy, drug treatment for more than three months, psychosurgery and implanting hormones). Part X1 covers other conditions including offences against people with mental disorders. Part XI contains offences against people with mental disorders (particularly section 106, which regulates sexual relationships with women with learning disabilities). It places a duty on professionals to give information to relatives and carers of patients under guardianship. It grants powers to Mental Health Officers and the police to intervene if people with mental disorders are neglected or abused, or need care in a public place.

Disabled Persons (Services, Consultation and Representation) Act 1986

Section 4

This places a duty on the local authority to decide whether the needs of a disabled person call for a range of services in line with section 2(1) of the 1970 Act if the disabled person, his or her representative or carer ask for this.

Section 8 (1)

This places a duty on the local authority to take account of the ability of the carer to continue to provide care.

Section 13

This deals with disabled people leaving special education in Scotland. Under this section local authorities have a duty to assess the needs of disabled children in relation to providing services ‘in accordance with the welfare enactments, and for that assessment to be carried out’.

Housing (Scotland) Act 1987

Section 1

This places a duty on local authorities to consider the housing needs of their area, and in doing so, take account of the needs of chronically sick or disabled people.

Section 236

This gives local authorities the power to pay improvement grants to, amongst others, disabled occupants.

National Health Service and Community Care Act 1990

Section 47 (2)

This says that if, during an assessment of need, a person appears to be disabled, the local authority will move automatically to make a decision on services.

Section 55

This added a new section 12A into the 1968 Act under which the local authority would carry out assessments of needs and would then decide whether these needs call for services.

Enterprise and New Towns Act 1990 (as amended by the Trade Unions Reform and Employment Rights Act 1993)

Section 2(3)

This deals with Training for Work. It says that Scottish Enterprise and Highlands and Islands Enterprise must each make appropriate arrangements for helping people to train so that they may get and keep suitable jobs.

Section 2(4)

This says that the above should include arrangements for encouraging more opportunities for (and types of) employment and training that are available to disabled people.

Further and Higher Education (Scotland) Act 1992

Section 1

This says the Secretary of State has a duty to "secure adequate and efficient provision of further education in Scotland". Further education which this duty applies to is described in the Act as amended by Schedule 5, paragraph 8, of the Education (Scotland) Act 1996. In carrying out his duty, the Secretary of State "shall have regard to the requirements of persons over school age who have learning difficulties". The term learning difficulties is used in the Act in its broad sense to include difficulties in learning and barriers to learning.

Carers (Recognition and Services) Act 1995

Section 2 (1)

This changes section 12A of the 1968 Act to make an independent assessment of carers’ needs when they ask for this. However, this only applies if the care they offer is substantial and regular.

Disability Discrimination Act 1995

Section 19

This makes it illegal for anyone providing services to discriminate against a disabled person in relation to access, for example, how information is used and how communication is used.

Part V

This is a matter for the Westminster Parliament and covers regulations to set minimum conditions for providing access for disabled people to public transport vehicles. Rail Vehicle Accessibility Regulations came into force on 1 January 1999. Regulations on access to buses, coaches and taxis are at various stages of being prepared.

The Children (Scotland) Act 1995

Section 22

This places a duty on local authorities to protect and promote the welfare of children in need in their area.

Section 23

This introduces a new legal framework for assessment, services, and support to children with disabilities, children affected by disabilities and their families. The principle behind this is that services are designed to reduce the negative effect of the child’s disability and improve the child’s opportunity to lead as normal a life as possible.

Section 24

In carrying out an assessment to decide on the needs of a disabled child the local authority must assess a carer’s ability to provide, and to continue to provide, care for that child.

Criminal Procedure (Scotland) Act 1995

Sections 52 to 63

These cover putting people accused of offences in hospital if they have mental disorders.

Sections 60 to 76 of the 1984 Act set out the conditions relating to hospital orders and restriction orders for people with mental disorders who have been charged with offences. They also cover transferring prisoners with mental disorders to hospitals where appropriate.

Direct payments Act 1996

This amends the Social Work (Scotland) Act 1968, section 12B and section 12C.

The Adults With Incapacity (Scotland) Act

This Act will replace current arrangements for curators bonis, tutors, tutors dative and guardians appointed under the Mental Health (Scotland) Act 1984. All of these office holders can currently make decisions about either the finances or the welfare of people who do not have the ability legally to make their own decisions.

Prospective Education Bill

This will mean local authorities must provide pre-school education for every three-and four-year-old whose parents want a place. Children with learning disabilities stand to benefit from this duty no less than others.

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