COMMUNITY CARE SERVICES - GUIDANCE IN RELATION TO PROTECTED ADULTS INTRODUCTION

COMMUNITY CARE SERVICES - GUIDANCE IN RELATION TO PROTECTED ADULTS

INTRODUCTION

1. This note provides supplementary guidance on community care services to local authorities implementing the Protection of Vulnerable Groups (Scotland) Act 2007 (“the 2007 Act”). The guidance is aimed at assisting local authorities to identify services that are community care services and those that are not. The guidance does not provide a definitive list of roles or positions that are classed as community care services due to the varied nature of roles within local authorities. It will be necessary to refer to the 2007 Act and secondary legislation for more information; all legal rights and obligations are contained in the legislation and this guidance is an interpretive aid only.

2. This note cannot be founded upon as providing a source of legal advice for individual cases, and it will be for the local authority to provide such legal advice, based on the facts and circumstances of each case.

THE PVG SCHEME

3. The PVG Scheme is established by the 2007 Act. There is information about the Scheme at: http://www.disclosurescotland.co.uk/pvg/pvg_index.html. In addition we have provided a self-assessment tool to assist you in reviewing individual positions. It can be found at: http://www.disclosurescotland.co.uk/pvg_training/self- assessment/.

COMMUNITY CARE SERVICES

4. The term “community care services” has a legislative definition at section 5A(4) of the Social Work (Scotland) Act 1968 (“the 1968 Act”):

“community care services” means services, other than services for

children, which a local authority are under a duty or have a power to

provide, or to secure the provision of, under Part II of the 1968 Act or

section 25 (provision of care and support services for persons who

have or have had a mental disorder), 26 (provision of services designed

to promote well-being and social development of such persons) or 27

(assistance with travel in connection with such services) of the Mental

Health (Care and Treatment) (Scotland) Act 2003 (asp 13)

PARTS I AND II, 1968 ACT

5. One of the issues that causes confusion about whether or not a service is a community care service is funding. Under section 10(3) of the 1968 Act: “A local authority may make contributions by way of grant or loan to any voluntary organisation the sole or primary object of which is to promote social welfare”. In many such cases the local authority is trying simply to encourage a certain activity.

However, section 10 is in Part I of the 1968 Act and as a result services provided through that funding do not fall within the meaning of a community care service.

6. In contrast, as section 5A(4) makes clear, services provided and funded under Part II will fall within the definition of community care services. In relation to Part II of the 1968 Act the main provisions to note are:

 Section 12 – establishes the principal duty of local authorities to promote social welfare. Examples of services which promote social welfare might be:

 care at home services – e.g. help with personal care such as washing, cleaning, cooking, using the toilet, mobility etc;

 training and respite services for people with learning difficulties;

 day care centres.

 Section 12B

– relates to direct payments in respect of community care service. Guidance was issued by Scottish Government to local authorities in July 2011 in a document entitled “Protecting Vulnerable Groups (PVG) Scheme and Self Directed Support(SDS)”. The

relevant points are:

 The individual in receipt of the direct payment is a personal employer when employing individuals related to their care.

 A personal employer can legally only ask the individual to join the PVG scheme by obtaining a Scheme Membership Statement. The Scheme Membership Statement advises an individual is not barred from regulated work with the relevant group. It will advise if an individual is under consideration for listing.

 It is not an offence for a personal employer to employ an individual who is barred but it is an offence on the individual doing regulated work if they are barred from that type of regulated work.

 Section 13A – provides for the provision of residential accommodation with nursing care; i.e. “nursing homes”.

 Section 13B – local authorities may make arrangements for the

prevention of illness, the care of persons who are suffering from illness and their after-care. (This would not cover Public Health functions such as Environmental Health Officers as those functions are not

1

Section 12B of the 1968 Act is repealed by the Social Care (Self-directed Support) (Scotland) Act 2013 (not in

force at the date of this Guidance). Direct payments will still be available under the 2013 Act and what is said

in the Guidance remains applicable.

under Part II of the 1968 Act.) These services are essentially services to help people recuperate after an illness.

 Sections 27, 27ZA, 27A and 27B – which deal with services to offenders and ex-offenders, and are dealt with separately below.

Services provided and funded under any of these sections will fall within the definition of community care service in terms of section 5A(4).

SECTIONS 27, 27ZA, 27A and 27B, 1968 ACT

7. Sections 27, 27ZA, 27A and 27B are in relation to the criminal justice system.

The main areas for consideration in these sections are:

 Section 27(1)(b) and (c) - Every local authority requires to provide a service for the supervision of and ‘the provision of advice, guidance and assistance’ to individuals who are under supervision of a criminal court order, have recently been released from prison under

supervision, are subject to a community pay back order or have been released from prison or other form of detention in the past 12 months.

This would not cover all offenders or ex-offenders; for example it would not cover those released from prison but not on licence or other order. Those involved in providing ‘advice, guidance and assistance’

will also have to be doing “regulated work” as defined in section 91 of, and (for adults) Schedule 3 to- the 2007 Act. This will exclude for example persons who simply help an individual fill in forms, etc; see Schedule 3, para 5 of the 2007 Act; such work is likely to be incidental.

 Section 27A provides that the Scottish Ministers may make grants in respect of community service facilities. As a section providing a grant- making power it is of limited relevance.

 Section 27B covers grants in relation to hostel accommodation for persons under supervision. Grants can be made by Scottish Ministers under s27B(1)(a) to a local authority towards its costs in providing this type of accommodation, or by Scottish Ministers under s27B(1)(b) as a contribution to a local authority grant (made under section 10(3) of the 1968 Act) securing the provision of this type of accommodation from a voluntary organisation. The latter circumstance might easily be

assumed to mean that the service is secured under Part I of the 1968 Act. That is not the case as the local authority is securing the

accommodation under section 27B(1)(b) and only for a defined class of accused, offenders and ex-offenders as per section 27B(2). A grant under section 10(3) of the 1968 Act relating to hostel accommodation in general which is not for individuals covered by the section 27B(2) provisions is clearly for a service within Part I of the 1968 Act. It is therefore not a community care service and as such individuals receiving that accommodation service are not protected adults.

 Section 27ZA makes allowances for local authorities to provide

‘advice guidance and assistance’ to any person (but especially those

with dependency issues) who is arrested and detained in police custody, or on whom sentence is deferred but only for the period of detention or deferment.

8. Decisions relating to funding are not straight-forward and care should be taken to ensure that the decision-making is robust so as to avoid submitting inappropriate Disclosure applications.

9. As services are provided by different providers dependent on service requirements there are a number of areas that local authorities should consider when reaching these decisions

 Who is providing funding for the provision of the service and under what Part of the 1968 Act is this funding provided? This addresses the issue raised above that local authorities must be clear of the section in the 1968 Act that is the source of the funding. If it is primarily the council then it may be that the service is secured by them in terms of the legislation.

 Does the council provide such a service themselves and is that service being replaced with an independent provider?

 Do people self-refer to these services or are they placed there?

 Is there a contract between the local authority and the third party organisation under which the service is provided?

 Is the local authority helping the third party organisation financially to provide the service? For example, if a local authority provides funding because it supports the work done by the third party organisation this does not make it a community care service since the funding will be through section 10 of the 1968 Act.

 Alternatively, is the local authority securing the third party

organisation’s services on its behalf by contracting for the service?

For example, by providing funding as part of a formal contractual arrangement to deliver functions within the legislative criteria set out in Part II of the 1968 Act.

SECTION 25 – 27, MENTAL HEALTH, ETC. (SCOTLAND) ACT 2003

10. Services provided under sections 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”) will fall into the definition of community care services regardless of where the funding comes from – because of the definition in section 5A(4)

11. Section 25 imposes powers and duties upon local authorities to provide care

and support services for individuals who suffer from a mental disorder; that care can

include the provision of residential accommodation, and personal care/support.

12. Section 26 imposes powers and duties upon local authorities to provide services to promote the well-being and social development of individuals who suffer from a mental disorder; those services can include the provision of social, cultural and recreational activities, training, residential accommodation, etc.

13. Section 27 provides for assistance with travel for individuals who suffer from a mental disorder; to access these services.

REGISTERED CARE SERVICES

14. Section 94(1) of the 2007 Act provided that a protected adult is an individual over 16 who is provided with:-

 a support service

 an adult placement service

 a care home service

 a housing support service

which in each case is registered under Part 5 of the Public Services Reform (Scotland) Act 2010 – i.e. registered with the Care Inspectorate.

These can be collectively referred to as ‘registered care services’.

15. It should be noted that other services that are neither community care services nor registered care services can be provided under section 94 of the 2007 Act.

These are prescribed health services, referred to in section 94(1)(b), and welfare services referred to in 94(1)(d). Once again an adult receiving either service will be a protected adult when using or receiving them.

16. Separately, section 94(1)(a)(iv) refers to the provision of a housing support service – so there might well be circumstances in which an individual is in receipt of community care services and housing support services, and is a protected adult on both these grounds, while others might be protected adults on one ground but not the other. This can impact on the posts that can be considered for PVG because such individuals are only protected adults when in receipt of such services.

CRIMINAL JUSTICE ISSUES

17. These functions have led to some questions from local authorities in relation to individuals within the criminal justice system. Being an offender or ex offender does not in itself make an individual a protected adult and consequently people providing services to him/her will not necessarily be eligible to join the PVG Scheme

18. In addition to their criminal backgrounds many of this group have mental health

issues and/or may be monitored under the umbrella of The Multi Agency Public

Protection Arrangements (MAPPA) The local authority criminal justice social work

department have a significant role in the co-ordination and management of these offenders and each case is managed on an individual basis. Many of the roles within criminal justice such as the MAPPA Co-Ordinator do not involve regulated work. This is because despite the fact that they may have access to sensitive information and police records accessing sensitive information does not in itself qualify as regulated work. Where individuals access police data the police may carry out their own checks on these individuals.

19. Members of a MAPPA group are not in regulated work purely by their status within this group. However for example a criminal justice social worker who is a member of the MAPPA group may be in regulated work due to the activities they carry out as a social worker but not because role they undertake in MAPPA.

20. Further guidance published by Scottish Government can be found at http://www.scotland.gov.uk/Publications/2012/01/12094716/0

21. However, many such individuals, coming from a mental health or criminal justice background, may need to access services, such as treatment for an addiction, which potentially make that individual a protected adult but only when in receipt of such services.

22. Not all services provided by a local authority are community care services.

Other services which involve staff in doing regulated work may be provided by local authorities. For example, if a person with an addiction is in receipt of certain services, it is possible that these are circumstances where the service provided is a welfare service as defined in regulations made under the 2007 Act. Prescribed welfare services are defined in SSI 2010/161 at regulation 5.

23. Regulation 5 says this: For the purposes of section 94(1)(d) of the 2007 Act a prescribed welfare service is a welfare service that—

(a) Is provided in the course of work to one or more persons over the age of 16;

(b) is delivered on behalf of an organisation;

(c) requires training to be undertaken by the person delivering the service;

(d) has a frequency and formality attached to the service; and (e) either—

(i) requires a contract to be agreed between the service provider and the recipient of the service prior to the services being carried out; or

(ii) is personalised to an individual’s needs.

24. What this means is that the service being provided must include each of the

mandatory elements at (a) to (d) in paragraph 20 above and also one or other of the

elements at (e). The assessment of whether or not a welfare service is being

provided must also have regard to section 94(1)(d) of the 2007 Act read with section

94(5) which contains a definition of “welfare service”. There, it is stated that welfare

service includes any service which provides support, assistance, advice or counselling to individuals with particular needs.

25. For the 2007 Act, “a particular need” is a specific requirement an individual may have arising from either physical or mental illness, or physical or mental disability, which may disadvantage that person when compared to the rest of society.

In light of that, the support, assistance, advice or counselling provided should directly impact on the particular needs of individuals for it to be a welfare service.

26. Only when the local authority has established that an individual is a protected adult because of the service being received, and that the person providing the service is doing regulated work, can the local authority go on to consider whether the person providing the service must apply to join the PVG Scheme.

27. It must also be established if there are any exceptions, such as the incidental test (namely, whether or not the work being done is incidental to providing support to individuals who are not protected adults). If a service is targeted at the general population including both children and adults, then the role may be incidental and so not regulated work with protected adults. As such the role may not qualify for the PVG Scheme.

EXAMPLES

28. The following examples may assist.

29. Individual A is a male sex offender who was convicted of a serious sexual offence several years ago and placed in the mental health system on a Compulsion Order and Restriction Order. He suffers from a learning disability, a defined mental disorder in terms of the 2003 Act. He is now on conditional discharge from hospital and about to be re-housed into the community. He has had an assessment of his needs under section 12A of the 1968 Act. He has a substantial support package round him. Individual A is a protected adult in terms of the PVG legislation because he is in receipt of a community care service in terms of meeting the legislative criteria laid out in sections 25 and 26 of the 2003 Act and the services provided to him under section 12A of the 1968 Act.

Individual A may also be subject to MAPPA supervision. Members of the MAPPA group are not in regulated work on the role they perform within this group. Neither Individual A’s MAPPA Co-Ordinator or their Criminal Justice Social Worker are in regulated work as members of this group. The criminal justice social worker will undertake regulated work due to the activities they carry out as a social worker but unrelated to MAPPA activity.

30. Individual B is a male sex offender who was convicted of serious sexual

offences several years ago and sentenced to imprisonment. He has recently been

released on licence. He does not suffer from any mental or physical disabilities,

though he is now elderly. He has been re-housed into the community. He is receiving money and budgeting advice from a Citizens Advice Bureau, which is part- funded by the Council under section 10 of the 1968 Act. He receives help with literacy from an adult literacy project, which is supported by private fund-raising. In this example, neither of the services he receives is funded under Part II of the 1968 Act nor do they fall within sections 25 to 27 of the 2003 Act. Thus neither is a community care service in terms of the PVG Act. Individual B will not be a protected adult in terms of the PVG Act and staff delivering the services will not be doing regulated work.

31. Individual C is a female ex-offender, released from prison on licence. She is being housed privately, by her parents. She suffers from alcohol addiction. She attends a local authority addiction counselling scheme, funded by the Council under section 10 of the 1968 Act. In this example, that service is not a community care service in terms of the PVG legislation. Whether or not individual C is receiving a service that would make her a protected adult depends upon an assessment of whether the service being provided is a welfare service. See paragraphs 20 - 22 above.

32. Individual D is a Tutor who is teaching English to individuals who do not have English as their first language. Some of these individuals may be classed as vulnerable in respect that they do not fully understand the English language.

Although some of these people may have other issues such as being asylum seekers and may be in receipt of other services that makes them protected adults whilst in receipt of those services, being taught English is not a care service (nor in any of the other categories of service in section 94(1)) and so Individual D, the Tutor, is not in regulated work.

33. Individual E is a homeless person. This person lives on the street and occasionally goes into temporary accommodation which is being funded by the local authority but which forms part of its general accommodation stock. In this example the individual may be homeless which, may make the individual vulnerable.

However, in terms of the 2007 Act being homeless does not of itself make an individual a protected adult and so whilst receiving some local authority service in relation to receiving accommodation individual E is not in receipt of a community care service. The staff delivering the service are not doing regulated work.

34. Individual F is a homeless person. This person is homeless but Social Work

decides that due to the fact that the individual has learning difficulties he should be

placed in a housing support service. The housing support service is a registered

care service specifically targeted at providing housing support for specific groups. In

this example individual F is a protected adult because he is in receipt of a

registered care service. People involved in providing the service could

therefore be doing regulated work, subject to any exceptions that might apply.

IN SUMMARY

35. Community care services consist of a wide range of services which cannot be described simply and comprehensively. We have therefore offered some general thoughts about the points that you should consider. An analysis of the services being provided, by reference to the definition in section 5A(4) of the 1968 Act and section 94 of the 2007 Act is always important. Doing that should enable a local authority to decide whether what is being provided is a community care service, or a registered care service. If so, then in terms of section 94(1)(a) or (c) of the 2007 Act the recipient of that service, if over 16, is a protected adult.

36. What is important is how services are provided under the 1968 Act. If the services are being provided under Part II of the 1968 Act then a community care service is being provided. On the other hand they could be provided with a grant under section 10(3) of the 1968 Act, which would ordinarily mean that the service was not a community care service unless providing hostel accommodation with the specific conditions defined in Section 27B(2) of the 1968 Act.

37. The definition of community care service is not so complex in relation to the three relevant sections of the 2003 Act because the community care service is being provided irrespective of the source of the funding.

38. It is important to be clear there are different types of services for the purposes of the 2007 Act. The distinction between a community care service, a welfare service and a registered care service should not be overlooked.

39. It is important to remember that an individual must be in receipt of a service as defined in the 2007 Act to be a protected adult. Just being in a position that may be classed as vulnerable, such as homelessness, or being an offender or ex-offender does not necessarily mean that the person is a protected adult.

40. It must be remembered that there are two parts to the test, both of which must be met when making a decision about whether or not a person is doing regulated work. So even when we have established that an individual is a protected adult this does not mean that everyone who interacts with this person is in regulated work. We must consider whether the work is part of the normal duties of that individual and whether it is of such a kind as to enable the holder to be providing a service to the individual.

41. Finally it must be established whether an exception applies to the activity being considered. If an exception does apply, for example, the ‘incidental activity’

test, then the person performing the activity will not be doing regulated work.

Disclosure Scotland

September 2013