30 September 1988

Dear Colleague

THE REGISTERED ESTABLISHMENTS (SCOTLAND) ACT 1987 AND ASSOCIATED SUBORDINATE LEGISLATION

Summary

1. This Circular draws the attention of local authorities to the coming into force on 17 October 1988 of the Registered Establishments (Scotland) Act 1987 and associated subordinate legislation on the charging of registration fees, the form of application for registration under section 61 of the Social Work (Scotland) Act 1968 and appeals against registration conditions.

1987 Act Commencement Date

2. The Department’s letter of 26 July 1988 gave local authorities notice of the date fixed for the commencement of the 1987 Act by virtue of the Registered Establishments (Scotland) Act 1987 (Commencement) Order 1988; it also indicated that the Secretary of State would be making the Registered Establishments (Fees) (Scotland) Order under section 6(3) of the Act and the Registered Establishments (Application Form) (Scotland) Order 1988 under section 62(2) of the Social Work (Scotland) Act 1968 to come into effect on the same day. Similarly, the Registered Establishments (Appeal Tribunal)(Amendment)(Scotland) Rules 1988 will also be introduced. These Orders and Rules have now been made and are described later in detail in this Circular.

Outline of provisions in the 1987 act

3. The Act amends and extends provisions dealing with the registration of voluntary and other independent establishments contained in section 61-66 of the 1968 Act (see SWSG17/69). The 1987 Act also amends related provisions in the Nursing Homes Registered (Scotland) Act 1938; its effect in this regard is the subject of separate guidance by The Scottish Office Home and Health Department. The Act does not in any way affect the existing duty of local authorities to register and inspect establishments providing social work care though it alters significantly some of the ways in which authorities are able or required to carry out these duties.

4. Sections 5 and 6 apply only to residential establishments catering for adult groups, while section 2 applies only to certain residential establishments for children. The remainder of the Act applies to all establishments (both residential and non-residential) which are

already subject to registration by local authorities under Part IV of the 1968 Act irrespective of the category of client provided for. The main provisions are as follows:

Section 1:

Provides for a new definition of a registrable establishment in Section 61(1) of the 1968 Act;

Section 2:

Makes provision for voluntary registration of certain independent and grant-aided schools;

Section 3:

Requires persons seeking registration to include the name of the proposed manager of an establishment in their application; enables local authorities to attach reasonable conditions to the registration of an establishment; and provides for an establishment which has ceased to be registered in the name of one person to be carried on in the name of another for a limited period with the approval of the local authority;

Section 4:

Sets out the procedures for the notification by the local authority of the attachment of conditions to a registration; provides for a right of appeal against the imposition of such conditions to the tribunal established under the 1968 Act; and provides for conditions appealed against not to take effect until the appeal has been decided;

Section 5:

Amends both the 1968 Act and the Nursing Homes Registration (Scotland) Act 1938 so as to enable establishments providing both social work and nursing care to be registered by the local authority and the Health Board jointly;

Section 6:

Provides local authorities with powers to charge fees within prescribed limits in connection with applications for registration of any residential establishment for adult clients and for related purposes once registration is in effect; and extends Health Boards powers in the same regard.

Section 7:

Provides local authorities with additional powers in the case of a cancellation of registration by making it an offence to reoccupy premises following removal of residents by the local authority under existing powers.

A detailed account of the provisions is contained in Annex A.

Implications of the Act

5. The main implications of the Act for local authorities in the performance of functions relating to the registration and inspection of residential and other establishments in the private and voluntary sectors are set out in paragraphs 6-51 below.

Definition of Registrable Establishment

6. Section 1(1) replaces the existing section 61(1) of the Social Work (Scotland) Act 1968 and provides more specific criteria for the identification of establishments requiring to be registered under the Act. The new provision applies, as does its predecessor, to both residential and other establishments except those controlled or managed by a local authority or Government department or registered under any other enactment.

7. As explained in Annex A, the new provision requires that registration should extend to establishments where the provision of personal care or support for the purposes of the Act represents a substantial element in the functions of the accommodation as distinct from being the establishment’s main intention as required under the 1968 Act hitherto. Accommodation managed by local authorities under housing legislation remains excluded from any requirement to register. Registration will not be an issue in relation to sheltered or other special needs housing in the main: the question of whether the proposed extent and level of personal care or support was in any particular case such as to fall within the terms of the new section 61(1) would be for local authority to decide for itself having regard to the definition of these terms in section 61(1A). Authorities may find it necessary to register an establishment because the provision of care is an element in part of it only. In such cases there seems to be no reason why the requirements of registration should apply to other parts of the establishment.

8. While an authoritative interpretation of any provisions in the Act would in the last resort be for courts (or an appeal tribunal established under schedule 5 to the 1968 Act) it is suggested that "personal care" may in practice embrace a wide range of social interventions normally occurring in a residential setting extending to oversight of welfare and active help with dressing, eating, washing and bathing; it might also extend to help with emotional problems and with the development of social skills. "Support" may be seen as relating to less direct or intensive services and, in contrast with "personal care", might involve help or supervision provided to persons living reasonably independent lives: the requirement that support should be part of a planned programme of care is intended to exclude cases where assistance is offered only incidentally or is irregular or infrequent.

9. Another change brought about by section 1(1) is that the intentions of the provider of the establishment in terms of the purposes of the 1968 Act are no longer the determining consideration but the test is instead whether personal care or support is actually provided for persons in the establishment.

10. The new provisions have had regard to the fact that new types of accommodation, some serving a social work purpose within a wider housing purpose, have been developed since the 1968 Act came into force. Where the local authority takes the view that an establishment in the independent sector was developed mainly as housing provision, but that care or support is nevertheless now a substantial part of its function, section 61(1) in its new form could bring the establishment within the criteria for registration. It is likely for example that some group home or hostels with resident social work support or subject to routine visiting by social work staff on a carefully programmed basis will become subject to registration in this way.

Voluntary Registration

11. Section 2 inserts new section 61A to the 1968 Act permitting person operating grant-aided or independent schools which also perform social work functions to apply for registration referred to hereunder as "voluntary registration" under the Act.

12. Section 61(1) of the 1968 Act as it has existed hitherto provides specifically that establishments which are already registered with a local authority or Government department under other legislation do not require to be registered with the local authority under that Act. Independent schools require to be registered with The Scottish Office Education Department under the Education (Scotland) Act 1980 and therefore fall into this category whether or not they also provide social care. Grant-aided schools do not require to register under the 1990 Act but it is by no means certain that those which help to meet needs lying partly in the social work field would satisfy the new criterion in the 1968 Act of functioning "wholly or substantially" for the purposes of that Act.

13. Provision for voluntary registration is designed to enable both types of establishment described above to establish closer links with child care services in social work departments. The underlying intention is that establishments so registered should be subject generally to the same kind of monitoring and advice as is provided to those establishments which are subject to formal registration under the 1968 Act, thus making it possible for activities in schools relating to social care to be brought more into the mainstream of social work. Social work involvement in assessments where referrals are made on a mixture of educational and social work grounds is one example and this may be helpful to some schools in securing referrals from social work departments. Some elements of the legislation on registration clearly cannot properly apply where registration is voluntary. Relevant points are identified in section 64(A) of the 1968 Act as now amended and are reproduced in paragraph 8 of Annex A.

14. Registration under this provision could have effect in relation to the whole of the establishment or such parts of it as are not devoted solely to educational purposes; registration should be recorded in the register referred to in section 62(10) as applying for the purpose of section 62 of the Act. The statutory provisions applying to an establishment subject to statutory registration will, formally speaking, be of no effect in relation to a establishment which is registered voluntarily but the local authority can withdraw voluntary registration at any time as it sees fit.

15. Voluntary registration will rest entirely on local agreement. The initiative in seeking registration should come from the school itself but there could be advantage, in the early stages at least, in the local authority which would be responsible for registration making it clear that it would welcome approaches from schools in its area which are eligible to be registered in this way. It is intended nevertheless that once registration is effected the local authority should do everything in its power to see that the school receives a service which makes the arrangements valuable to it while being prepared to draw attention to situations where a change of practice or other corrective action seems desirable.

16. The managers of educational establishments who might wish to consider voluntary registration under this provision are advised to contact the local authority concerned for guidance on the implications on this move. No fees would be payable for initial registration or subsequently.

Registration Issues (including the making of conditions)

17. Section 3 contains amendments and additions to section 62 of the 1968 Act which sets out the present arrangements for registration of all residential or non-residential establishments including the grounds for the refusal, or cancellation, of registration. The new provisions are intended to afford authorities greater knowledge of, and control over, registered establishments by (a) requiring that information be provided to them on the identity of the manager of the establishment when there is a change from the name provided in the original application for registration or in any person subsequently registered for this purpose; (b) extending on this account the circumstances in which the local authority can take action to cancel the registration of the establishment; (c) providing for the making of conditions of registration, which shall be enforceable as necessary through cancellation of registration; and (d) providing powers to secure the orderly transfer of registration to a new proprietor with the minimum disturbance to the ongoing care of the residents of the home. It also requires authorities to include certain information in the certificate of registration and to issue new certificates following the provisions coming into force.

18. New sections 62(4) and (4A) institute formal arrangements for the notification to the registering authority of the name of the manager and any subsequent changes in this appointment. Separate registration of the manager may be arranged by agreement with the local authority but is not required under the Act. Section 62(4B) requires that notification be given of a registered person’s intention of withdrawing from registration: this is designed to give authorities early information which may be important to them in taking what measures may be necessary to secure the welfare of residents in situations where a prospective closure might not come to their attention otherwise.

19. Section 62(4C) adds to the existing grounds for cancellation of registration owing to failure to notify a change of manager and to pay the annual fee for renewal of registration.

Conditions of Registration

20. Section 3(2) enables local authorities in registering any establishment to make any reasonable conditions in relation to proper operation subject to the registered person’s right of appeal to a tribunal established under section 64. Conditions may be varied or new conditions imposed at the behest of either the local authority or the registered person. Section 3(2) also requires that conditions should continue to be made in regard to the maximum number of persons permitted to be accommodated in an establishment at any one time and to the categories of person who may be accommodated. The power to make and vary conditions in regard to the categories of person means that local authorities are free both to prevent the mixing of specific categories (whether in terms of age, dependence or other characteristics) in a new establishment and to require an end to undesirable mixing in an existing establishment. It is hoped that authorities will have careful regard to the use of these powers for the greatest benefit of persons who need residential or non-residential care in a controlled environment.

21. The registered person is required to comply with such reasonable conditions. The objective is to give local authorities the opportunity to work flexibly with independent home managers. Non-compliance may be taken as constituting grounds for withdrawal or registration in addition to, or instead of, possible recourse by the local authority to criminal proceedings as allowed for under section 62(6) of the 1968 Act.

22. Authorities will be expected to use the new powers only after considering fully the implications of making particular conditions, whether in relation to a certain establishment or to a group of establishments and their ability to devote staff resources to checking whether particular conditions are complied with in practice. The need for conditions to be in regard to the operation of the established may be seen as excluding matters concerning the design, construction or equipment of the building unless these are directly related to the conduct of the establishment once it is operational. In any case, authorities already have express powers to insist on matters affecting the situation, construction and equipment of establishments which require to be registered and the new condition making power may be seen as complementary to these on operational aspects.

23. Two particular matters which have come to attention recently as possible candidates for operational conditions are the desirability of homes having (a) proper arrangements for advising residents and their representative of the procedures for making complaints to the management of the home or the registration authority, and (b) appropriate records of the residents’ personal property deposited with the management and of financial transactions made on behalf of residents. The Secretary of State will wish to ascertain the use made by local authorities of these powers among others as part of his concern to monitor the practical operation of the provisions of the act: arrangements for this purpose will be made in due course.

24. The 2 points mentioned in paragraph 23 above as the subject for operational conditions are ones which are equally relevant to local authorities’ own establishments. More generally, in their efforts to ensure that registered establishments provide a good quality of care authorities should have the closest possible regard to standards applying to their own establishments and should ensure an even-handed approach between the 2 sectors as far as possible. Authorities should bear in mind at the same time that insistence on excessively high standards of care in the independent sector could work to the disadvantage of persons whose welfare they are seeking to promote by forcing them to remain in, or move into, other accommodation which is less suited to their needs.

25. Authorities are reminded in this connection that the design guidance issued by the Department in relation to new-build projects in the social work field may not, in every case, be a necessary or, in all cases, a proper yardstick for assessing the suitability of existing private or voluntary accommodation for which registration now requires to be sought. Regard should be had in appropriate cases to the benefits of increasing the stock of residential provision available for community care purposes even where economic or other factors might rule out the possibility of physical conversion to the full standards applying to purpose-built accommodation.

26. Requirements in relation to numbers, quality and deployment of staff pose quite different issues and authorities would naturally be very reluctant to accept lower staffing levels or professional standards than they would for equivalent provisions made at their own hands. It is suggested in this connection that a framework of care standards (including staffing levels) should be set by authorities for all homes in their area (including their own) and that access to these standards should be available to any prospective proprietor or manager of an independent establishment for which an application for registration is being considered as well as any registered home which is already operating.

27. Some establishments, eg those provided by housing associations, for which registration is sought will be financed from public funds, a corollary of which is commonly the need for compliance with prescribed physical standards of accommodation which are seen as being appropriate to the needs of the category of resident concerned. In such cases it seems necessary that the local authority should have a clear justification, for example in relation to levels of dependency or care objectives, for imposing any more exacting space or constructional standards for the purpose of social work registration. It is clearly necessary that where such higher standards are to be applied, notice of this should be given to the intending applicant for registration at the earliest possible moment.

28. Some independent homes (including voluntary homes operated by bodies with lengthy experience in the social work field) have developed a comprehensive approach to standards of care in their own homes: moreover, some private homes belong to an association which has adopted a code of practice for all its members. In these and other suitable cases authorities are urged to foster practices of self regulation and mutual assessment insofar as this can be compatible with proper external monitoring and control.

29. The publication "Home Life: A Code of Practice for Residential Care" published by the Centre for Policy on Ageing in 1984 has received official recognition as a guide to good practice and has been enjoined by Government Ministers on both the local authority and independent sectors of home care in the past. The present circular provides an opportunity to remind those concerned of the usefulness of this publication, despite its ostensible orientation towards the legislative circumstances of England and Wales, in setting standards that can be addressed by both local authorities and the independent sectors.

Appeals Against Conditions

30. The provisions contained in section 4 are intended to operate in relation to appeals by a person against a condition or conditions imposed by the local authority, whether in the course of registering an establishment initially or otherwise, in the same way as the existing section 64 operates for appeals against refusal or cancellation of registration. In the case of an appeal against a condition of registration it is not felt necessary for the local authority to set out formal grounds for the making of a condition as is required in the case of refusal or cancellation of registration; there is likely in practice to be discussion between the authority and the person registered or intending to be registered on this matter and local authorities should always ensure that the reasons for imposing a condition are clearly understood.

Joint registration with Health Boards

31. Section 5 extends the Social Work (Scotland) Act 1968 and the Nursing Homes Registration (Scotland) Act 1938, providing for the joint registration with the local authority and Health Board of establishments providing both residential and nursing care under the one roof; neither the 1968 nor the 1938 Act has addressed the issue of joint registration in the past.

32. The new provisions now incorporated in each of these Acts are intended to build on non-statutory arrangements for joint registration which have emerged to a limited extent. A major objective in breaking down the rigid distinction between nursing homes and residential homes as separate kinds of establishment is to reduce the need to have residents transferred from one type of home to another on account of changes in their condition after original admission. There should be a less frequent need for this where homes contain provision allowing for a wider range of care while still complying with existing registration requirements in the social work and nursing fields respectively.

33. The line between nursing care and personal care appropriate to a residential context is not entirely clear cut, particularly where very frail elderly persons or those with some physical or mental handicaps or illnesses are concerned. The position hitherto has been that residential care homes registered under the 1968 Act are not permitted to provide nursing care as a major part of the home’s functions but are expected rather to cater for persons in reasonable health, however frail, and offer the kind of services which might be provided in a person’s own home with the support of a carer (possibly a caring member of the family) or friends. Any nursing which takes place in a residential care home is intended to be provided by, or be under the supervision of, the Health Board’s community nursing service.

34. Increasingly, however, nursing and social care are seen as integral or closely complementary activities. For homes wishing to be jointly registered, applications will require to be submitted to both the local authority and the Health Board who will have to decide between them whether there should be joint responsibility for registering the whole establishment or certain parts should be their separate responsibility. Joint registration can in addition be in respect of part of an establishment so that the whole can be registered with the local authority and one part with the Health Board as well, or vice versa. Where joint registration relates to part of an establishment this will virtually always be in separately identifiable accommodation, eg a separate wing or floor, through this does not preclude less obvious physical divisions.

35. The different authorities involved in the joint registration of a particular residential unit require to co-operate closely over registration, inspections and other matters. The respective authorities need to be able to agree on physical and care standards for joint registration to be possible in respect of a whole establishment or particular part of it. It may be helpful to have a "lead" authority for any establishment where the whole, or any part, is to be registered jointly. Joint inspections by both registration authorities should be undertaken wherever necessary. For these parts of the home, persons carrying out inspections for one authority may act for the other as well for particular purposes by arrangement. Joint inspection may be desirable in any case as a means of reducing the demands which could be made on homes by separate registration authorities. It is hoped that close co-operation between the 2 authorities in individual cases will extend to a common approach to registration functions more generally. It should not, for example, be possible for home operators to move from one form of care, and thus one registration system, to the other as a means of avoiding the need to meet particular registration requirements.

36. It is recognised that separate arrangements existing between the Secretary of State and local authorities and Health Boards respectively in the matter of guidance and direction over the performance of functions could be a complicating factor in attempts to secure a common approach at local level. Full regard will be had to this consideration in the advice which the Scottish Home and Health Department is currently preparing for Health Boards in connection with their responsibility for the registration and control or private nursing homes.

Registration Fees

37. The Registered Establishments (Fees)(Scotland) Order 1988 has been revoked; the current (ie 1 April 1995) list of maximum fees prescribed by the Secretary of State (and the times at which they are payable) is contained in the Registered Establishments (Fees)(Scotland) Order 1995 (see Circular SWSG7/95). The fee limits were subject to consultation prior to the making of the Order. The basis on which the fees are calculated was explained fully in the Group’s letter of 2 June 1988. See also paragraphs 30-36 of the Annex to this Circular.

38. Establishments providing day care together with any establishment provided by children have been excluded from the fee provisions because the services they provide are ones for which local authorities themselves would be likely to have to pay (and in the case of children in care would be certain to have to pay). Grant-aided or independent schools applying for voluntary registration under section 61A are likewise exempt from the payment of any fees.

39. Authorities are given discretion to set their own fees within the prescribed limits, and may charge a nominal fee or no fee at all if they see good reason for so doing. Where no such reason is seen, however, authorities must, in accordance with section 6(3), have regard to their reasonable costs in carrying out the tasks of registration and inspection in relation to particular establishments or group of establishment in respect of which fees are payable. This means that local authorities would not be allowed to charge higher fees than are necessary to meet their costs: work carried out before an application for registration is received should not be regarded as contributing to those costs.

40. It is expected that authorities will use the income they derive as far as possible to promote the maintenance of proper standards or social care in these establishments to the benefit of the persons who are resident in, or attend them.

Initial Application for Registration

41. No initial application fee for registration is chargeable in respect of an establishment already registered or one for which an application for registration has already been submitted at the time the Act comes into force, or for an establishment already in being at that time which will be jointly registrable with the Health Board under section 5 of the Act, provided the application is submitted within 3 months of that date.

42. The Secretary of State sees it as necessary for authorities to develop a fee structure which will give them a reasonable opportunity to recoup the expenditure they incur in handling applications for registration while avoiding any significant disincentive in relation to the growth of the independent sector and the provision of smaller homes in particular. He believes that the maximum fees he has set provides each local authority with the discretion it needs to balance these 2 factors and produce a tariff appropriate to the requirements of its own area.

43. Authorities are accordingly urged to propose a scale of fees for the purpose of initial registration based on the size of the establishment and to indicate this to prospective applicants in advance. The charging of proportionately lower fees in the case of smaller homes is seen as a helpful part of a strategy for encouraging homes of different sizes to become established. Any adjustment to scale fees to be made in respect of a given application should be made known as far as possible in advance of an application being made. Where, for example, an application is made in respect of a home not employing a manager some remission of the fees might be considered. The transfer of an existing establishment to new ownership represents a situation where consideration could perhaps be given to a rather greater reduction.

44. No provision is made for a separate maximum fee in respect of the re-registration of an establishment which is already registered but has undergone some material change. It will be for the local authority to decide in each case whether the situation requires the issuing of a new certificate with a change of information or whether for all practical purposes the previous establishment should be seen as having ceased to exist and the proprietor invited to make a fresh application for which a new registration fee would necessarily be chargeable.

45. As indicated in paragraph 38 above, the charging of fees must be related to the formal part of the process of registration: this process begins with the submission of an application for registration and no question therefore arises of the recovery of pre-application costs. The fee now proposed has regard to the findings of the recent DHSS study of registration costs in England and Wales which showed inter alia that pre-applications costs represents about 50% for the total costs of handling enquiries through to final disposal of applications. It will be for authorities to decide for themselves the point at which a formal application for registration should be required and in so doing to balance the advantages of an extensive period of informal discussion against the costs involved.

Changes to Conditions of Registration

46. Fees for changes of conditions will be payable by all establishments except those mentioned in paragraph 37. They will not, however, apply to conditions made at the initial registration or changed subsequently at the instance of the local authority but only to changes sought by registered persons.

47. The range of costs which could be involved in determining the need for a change in conditions of registration seems likely to be considerable. The fee is to be paid at the time of lodging the application. While it is recognised that it may be difficult for authorities to fix an appropriate fee at this stage it should nevertheless be possible to provide some indication to registered persons of the likely cost of their seeking to change an existing condition within the prescribed limit. Authorities should indicate in advance their intentions as regards the fees for applications in respect of changes in conditions where more than one change is sought at the one time.

Fees for Issue of New Certificate of Registration

48. The initial registration process covered by the fee referred to in paragraph 43 above will include the preparation of a certificate for registration as required under section 61(3) of the 1968 Act. This fee will, however, be payable for the issue of a new certificate following a change made at the instance of the registered person to the name of a registered person, the name of the manager, the address of the establishment, the maximum number of persons who may be accommodated or the categories of persons who may be admitted all of which must be included under the terms of section 3 of the Act in the certificate or registration. It will not be payable for the initial issue of the new form of registration certificate required within 60 days of the Act coming into force as provided for a new section 62(6B) of the 1968 Act.

Annual Continuation of Registration Fee

49. This fee will be payable by all establishments other than those identified in paragraph 37. As with the other fees, local authorities will be able to fix a fee per place of less than the maximum for any particular class of establishment or in any particular case. The annual renewal of registration seems to be another case where discretion in the application of the maximum fee may be called for, particularly in the case of the largest establishments (many of which have been registered for many years). It is clearly desirable that fee levels should be decided well in advance and be brought to the attention of the proprietors of establishments in good time.

50. The fee is closely related to authorities’ responsibility to give advice to establishments once registered and the duty of the local authority under Section 67 of the 1968 Act to carry out such inspections of the state and management of the establishment as they consider necessary. The frequency and extent of such visits may vary according to particular needs and circumstances but the fee for the continuation of registration below is based on the assumption that authorities will wish to make suitably intensive visits on average 2 times in the year, and not necessarily by prior arrangement in every case.

Monitoring of Registration Costs

51. The 1987 Act empowers the Secretary of State to prescribe new levels of fees at any time. It is proposed that these should be reviewed at appropriate intervals based on the experience of local authorities in operating under the existing maximum fees. Advice will be issued as soon as possible, following discussion with local authorities interests, on the information required for this purpose.

Orders

The Registered Establishments (Application Form) (Scotland) Order 1988

52. Annex B contains details of the new form of application for registration as a social work establishment. New provisions in the 1987 Act on voluntary registration, joint registration and the requirement to include the manager’s name in an application for registration have necessitated the revision of certain parts of the present form used for applications for registration. The opportunity has also been sent to include a number of other desirable changes, the object being to bring the form more into line with what are seen as the wider requirements of local authorities in exercise of their registration functions.

The Registered Establishments (Appeal Tribunal) (Amendment) (Scotland) Rules 1988

53. Section 4 of the 1987 Act extends the grounds of appeal to the tribunals to include conditions of registration. The Secretary of State has accordingly amended the 1983 Rules (see Circular SWSG1/83). The arrangements relating to such appeals are described in paragraph 21-24 of Annex A.

Action

54. Authorities are asked to bring this Circular to the attention of relevant staff in social work departments.

Contact Point

55. Please direct any enquiries about this Circular to Mr Trevor Hall, Social Work Services Group, Room 44, James Craig Walk, Edinburgh EH1 3BA

(telephone 0131 244 5455).

Yours faithfully

GAVIN ANDERSON

ANNEX A

PROVISIONS IN DETAIL

Section 1: Definition of "Establishment"

1. Section 1(1) replaces section 61(1) of the 1968 Act (referred to below as "the main Act") by new sections 61(1) and 61(1A). Section 61(1) defines the establishments required to be registered under the Act by reference to the level and type of care provided. It applies to both residential and day care establishments offering services which are required for the purposes of the 1968 Act. Included are any such establishment the function of which is to provide a "substantial" element of "personal care" or "support": this contrasts with the pre-existing requirement in section 61 that the ‘sole or main’ purpose of such an establishment should be the accommodation for persons for the purposes of the Act. The requirement for registration applies irrespective of whether board is provided or whether the establishment is operated for financial gain.

2. Section 61(1A) contains 3 definitions, the first of which serves inter alia to define categories of "establishment" which are not required to register as above. These comprise establishments controlled by, managed by, or required to be registered under any other enactment with a local authority or Government Department. The reference to sections 61A and 63B extend the exemption from the need to register to grant-aided or independent schools (who may nevertheless register voluntarily under Section 2) and to nursing homes (subject however to the joint registration provisions in the main Act). The definitions of "personal care" and "support" are considered in the main body of the circular (paragraphs 7 and 8).

3. Section 1(2) deals with the 2 exceptions to the general prohibition against carrying on an unregistered establishment contained in section 61(2) of the Act. These are the existing section 62(8) of the main Act (which covers the situation immediately following the death of a registered person) and new section 62(8A) (cessation of registration for any other reason) inserted by section 3(5) of the present Act. The first meets a purely technical point arising on the earlier legislation and the second makes necessary allowance in similar terms for the new section 62(8A) which provides for the temporary de facto registration of the successor of a person who ceases to be registered.

Section 2: Voluntary Registration

4. Section 2(1), inserts new section 61A into the main Act to permit any grant-aided school or independent school within the meaning of section 135(1) of the 1980 Act to apply for registration under the main Act on a voluntary basis.

5. Section 61(A)1 provides that any such school which performs functions which are described in section 61(1) as amended may, but shall not be required to, apply for registration under Part IV of the main Act.

6. Section 61A(2) provides that where such a school applies for registration the establishment shall be entered in the register kept by the local authority for the purposes of section 61(2) or - where the Secretary of State had issued directions under section 63 calling in the application for his own decision - in the register kept by him for the same purpose.

7. Section 61A(3) provides that any certificate of registration granted for such a school shall relate to the whole of the establishment excepting any part which is used exclusively for educational purposes.

8. Section 61A(4) applies the provisions of Part IV of the main act to such schools but disapplies certain provisions which can apply in practice only in regard to establishments which are required to register under the Act, as follows:

a. the offence of carrying on an unregistered establishment and the penalties in sections 61(2) and (3);

b. the facilities for a person to carry on an establishment without being registered following the death of the registered person or withdrawal from registration for any other reason, as provided for in section 62(8) and 8(A) respectively;

c. the provision for urgent removal of persons from establishments under section 65;

d. - e. the powers of entry and inspection of establishments providing or believed to be providing social work care under section 67(2); the powers of entry and inspection of registrable establishments under section 67(1) apply only where the establishment has in fact been registered.

9. Section 2(2) makes a consequential amendment to section 135(1) of the Education (Scotland) Act 1980 by amending the definition of "school" so as to allow an establishment, registered under the 1968 Act by virtue of new section 61A, to be registered as the same time as an independent school for the purposes of the 1980 Act.

Section 3: Registration

10. This section amends the procedures for registration in section 62 of the main Act in several ways.

11. Section 3(1) deals mainly with notifications requiring to be made to the registering authority. It replaces section 62(4) of the main Act with new sections 62(4)-(4C). New section 62(4) requires the person applying to be registered to include in his application the name of the proposed manager and to inform the local authority within 28 days of any change of manager.

12. Section 62(4A) requires the local authority to be notified of the name of any existing manager within 28 days of commencement of the section.

13. Section 62(4B) requires the registered person to give 28 days’ notice of intention to cease carrying on the establishment.

14. Section 62(4C) specifies 2 additional grounds for cancellation of registration to those in existing section 62(4) (the grounds for refusal of initial registration as in section 62(3), the commission of an offence in relation to the establishment by the person registered or somebody else under Part IV of the Act): these are failure to notify changes of manager and non-payment of the annual fee for continuation of registration, both of which stem from provisions in the present Act).

15. Section 3(2) deals with conditions of registration. It replaces section 62(5) of the main Act with new sections 62(5) of (5A). The new Section 62(5) requires the person registered to comply with such reasonable conditions relating to the proper operation of the establishment as may be imposed by the local authority. These conditions must include one stipulating the maximum number of persons (other than persons carrying on or employed in the establishment and their families) who can be accommodated at any one time and another the categories of person who may be admitted to the establishment (following the previous section 62(5)).

16. Section 62(5A) provides that the new conditions may be imposed or existing conditions varied at the instance of either the local authority or the registered person.

17. Section 3(3) is a consequential amendment to the existing section 62(6) (on offences) which it expands so as to cover the wider powers relating to conditions and additional sections under which conditions can be made as described in paragraphs 15/16 above and paragraph 24 below.

18. Section 3(4) deals with certificates of registration and inserts new sections 62(6A) and 62(6B) in the main Act. Section 62(6A) requires that the certificate of registration must include information as follows:

a. the name of the person registered in respect of the establishment;

b. the name of any manager appointed by the person mentioned in paragraph 18 a above;

c. the address of the premises at which the establishment is to be carried out;

d. the maximum number of persons who may be accommodated in the establishment;

e. the categories of persons who may be admitted to the establishment under subsection (5)(b) above.

It also requires the issue of a new certificate following any material change to the information stipulated above.

19. Section 62(6B) requires the local authority within 60 days of the section coming into force to make out a new certificate of registration covering the above information for each establishment which is already registered.

20. Section 3(5) introduces new section 62(8A) which provides that where registration ceases for any reason the establishment concerned may be carried on without registration for a period of up to 60 days as approved by the local authority, subject to any conditions imposed by that authority.

Section 4: Appeals Against Conditions of Registration

21. Section 4 inserts a new section 63A in the main Act. This sets out a procedure for the giving of notice in regard to the making of conditions as above and extends the grounds of appeal to the tribunal under Schedule 5 of the 1968 Act to include appeals against such conditions. Section 63A(1) requires the registering authority to give 14 days’ notice by recorded delivery of it’s intentions to impose or vary a condition of registration (this being the same period of notice as is already required for notice of refusal or cancellation of registration). Section 63A(2) gives the applicant or registered person or his representative 14 days from receipt of the notice to give notice of his intentions to make representations against the proposed conditions and to indicate what alternative conditions might be appropriate. Section 63A(3) requires the authority to hear such representations as to have been intimated before reaching its decision; and the decision shall be sent to the applicant or registered person by recorded delivery.

22. Section 63(A)(4) gives a person aggrieved by the conditions imposed, the opportunity to appeal to the tribunal mentioned in the preceding paragraph. Any such appeal must be brought within 21 days of receipt of the last notice referred to above.

23. Section 63A(5) requires that where conditions relating to initial registration are appealed against, the registration shall not take effect until either any appeal has been determined or the period for appeal has elapsed without an appeal having been brought or proceeded with. In the latter cases, the registration will become subject to the conditions as notified by the authority, and where conditions or variations of conditions imposed at later stages are appealed against they will not come into effect until either the appeal has been determined or the period for bringing an appeal has expired without an appeal being brought or (if intimated) proceeded with.

24. Section 63A(7) allows that the tribunal may confirm, vary or quash any conditions or variation in connection with the subject of the appeal. It cannot impose other conditions.

Section 5: Jointly Registrable Establishments

25. Section 5 provides for joint registration with local authorities and Health Boards of establishments providing both social work and nursing care. Section 5(1) inserts a new section 63B into the main Act to make explicit provision for joint registration in relation to establishments which are registered or registrable under that Act.

26. Section 63B(1) applies the provisions on registration in the Act to establishments which also provide or intend to provide nursing care in respect of which registration would be required under the Nursing Home Registration (Scotland) Act 1938. Such homes must seek registration under the Act and so become subject to its full provisions on registration. Nursing homes providing only nursing care remain exempt from any requirements to register with the local authority.

27. Section 63B(2) defines "jointly registrable establishment" in terms of the main Act and the 1938 Act referred to above. Section 63B(3) requires that the certificate of registration under the 1968 Act be in respect of the whole of the establishment except that part relating to nursing functions; and section 63B(4) requires the local authority to inform the Health Board if it intends to cancel the registration of a jointly registered establishment.

28. Section 63B(5) gives existing establishments which are jointly registrable 3 months to apply for such registration from commencement of the subsection and Section 63B(6) exempts from the fee provisions in Section 6 of the Act applications for registration under section 63B(5).

29. Section 5(2) of the new Act inserts a new section 2A in the 1938 Act to make parallel provision for joint registration under that Act in respect of establishments which are registered as nursing homes or may require to be so registered in relation to some part of them. These provisions correspond in each particular case to those relating to local authorities under section 5(1) above.

Section 6: Registration Fees

30. Section 6 inserts new provisions in the main Act and the Registration of Nursing Homes (Scotland) Act 1938 on charging of fees in respect of the discharge of registration functions by local authorities and health boards respectively.

31. Section 6(1) inserts a new section 64A in the main Act to permit local authorities to charge for the exercise of their registration functions. Section 64A(1) identifies the 4 categories of fee chargeable by the local authority. These are:-

1. for initial applications for registration;

2. for the annual continuation of registration;

3. for applications by the registered person to vary conditions;

4. and for issuing of a new certificate of registration following a change to the information required to form part of that certificate on the behest of the registered person.

32. Section 64A(2) applies the provisions on charging of fees to all establishments registrable under section 61(1) of the 1968 Act save for those providing day care, for children or for those applying under the new section 61A as grant-aided or independent schools whose primary purpose is to provide education. Section 64(3) gives the Secretary of State powers to prescribe maximum fees and the times at which fees may be charged. This power has now been exercised through the Registered Establishments (Scotland) (Fees) order 1988.

33. Section 64A(4) gives local authorities general discretion to set fees having regard to their reasonable expenses within the limits prescribed as above; it also gives them powers to charge a nominal fee or not to charge at all if they so wish.

34. Section 64A(5) exempts from the fee for application for registration both establishments which are in existence when the power to charge fees takes effect and those for which application has been made prior to this power coming into force.

35. Section 6(2) of the new Act is a consequential amendment to section 94(1) of the main Act (definitions) required on account of the Secretary of State’s new powers to prescribe fees under section 6(1).

36. Section 6(3) amends the 1938 Act to extend the range of charges health boards may levy to correspond to those provided for local authorities as at paragraph 31 above.

Section 7: Re-Occupation of Premises following Previous Removal or Residents

37. Section 7 makes it an offence to re-occupy an establishment following use by a local authority of the powers under section 65(1) to remove residents where the establishment has been operating illegally or the local authority has given notice of its intention to cancel the registration.

ANNEX B

(Paragraph 52)

FORM OF APPLICATION FOR REGISTRATION OF A SOCIAL WORK ESTABLISHMENT

1. A form of application, appropriate to all registrable establishments, was prescribed in 1969 as part of wider arrangements for commencing the registration provisions contained in sections 61-68 of the 1968 Act, and section 62(2) in particular. The Secretary of State has now made the Registration of Establishments (Application Form) (Scotland) Order 1988 which adjusts the present form to include matters requiring to be included by provisions in the 1987 Act and other desirable changes that are seen as meeting the current needs of local authorities.

2. The new elements included in the revised form comprise:

2.1 Details of the manager or intended manager.

2.2 Whether the application is for voluntary registration of an independent or grant-aided school.

2.3 Whether the establishment provides, or is intended to provide, nursing care and thus requires to be registered under the Nursing Homes Registration (Scotland) Act 1938.

2.4 Details of the applicant’s age, professional or technical qualifications, experience, other similar establishments in which he/she has a business interest and of any previous occasions on which his or her application to run a residential or nursing home has been refused or registration cancelled.

2.5 A statement of the aims and objectives of the establishment.

2.6 Details of 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, building control or other approval have been obtained.

2.7 Details of the distinction between accommodation for residents and staff, and of residents and non-resident staff, and the hours for which each member of staff is employed.