Social Work (Scotland) Act 1968

Part IS Administration

Performance of their duties by local authoritiesS

1 Local authorities for the administration of the Act.S

(1)It shall be the duty of a local authority to enforce and execute within their area the provisions of this Act [F1, Part 2 of the Children (Scotland) Act 1995 (c.36) or Parts 5, 6, 9 to 11, 13 to 16, and 18 of the Children’s Hearings (Scotland) Act 2011 (asp 1)] with respect to which the duty is not expressly, or by necessary implication, imposed on some other authority.

(2)The local authorities for the purposes of this Act shall be [F2councils constituted under section 2 of the Local Government etc. (Scotland) Act 1994]

(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F3

(4)The functions of local health authorities in respect of their areas under the following enactments—

(a )F4 . . .

(b)[F5Mental Health (Care and Treatment) (Scotland) Act 2003] . . . F6; F7 . . .

F8(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)On the date of the commencement of Part III of this Act the functions of education authorities in relation to the establishments which immediately before that date were approved schools and the children resident therein shall be transferred to the local authorities in whose areas the said children are ordinarily resident or, in the case of children who have no ordinary residence in Scotland, such local authorities as the Secretary of State may determine.

(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F3

F92. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

[F103F10Chief social work officer.S

(1)For the purposes of their functions under this Act and the enactments mentioned in section 5(1B) of this Act, a local authority shall appoint an officer to be known as the chief social work officer.

(2)The qualifications of the chief social work officer shall be such as may be prescribed by the Secretary of State.]

4 Provisions relating to performance of functions by local authorities.S

Where a function is assigned to a local authority under this Act [F11or [F12section 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)][F13 or Part II of the Children (Scotland) Act 1995] [F14or any of Parts 5, 6, 9 to 11, 13 to 16, and 18 of the Children’s Hearings (Scotland) Act 2011 (asp 1)]] [F15 or Part 2, 3, 4, 5 or 6 of the Carers (Scotland) Act 2016], and a voluntary organisation or other person, including another local authority, is able to assist in the performance of that function, the local authority may make arrangements with such an organisation or other person for the provision of such assistance as aforesaid.

Central AuthorityS

5 Powers of Secretary of State.S

(1)Local authorities shall perform their functions under this Act [F16, Part 2 of the Children (Scotland) Act [F171995,] the Social Care (Self-directed Support) (Scotland) Act 2013 (asp 1)] [F18Part 6 (in so far as it applies to looked after children) and Parts 12 and 13 of the Children and Young People (Scotland) Act 2014 (asp 8)] [F19, Parts 5, 6, 9 to 11, 13 to 16, and 18 of the Children’s Hearings (Scotland) Act 2011 (asp 1)] [F20and the Carers (Scotland) Act 2016 ] under the general guidance of the Secretary of State.

[F21(1A)Without prejudice to subsection (1) above, the Secretary of State may issue directions to local authorities, either individually or collectively, as to the manner in which they are to exercise any of their functions under this Act or any of the enactments mentioned in [F22subsection (1B) below]; and a local authority shall comply with any direction made under this subsection.]

[F23(1B)The enactments referred to in subsection (1A) above are—

(a) this Act as read with sections 1 and 2(1) of the M1 Chronically Sick and Disabled Persons Act 1970 and the M2 Disabled Persons (Services, Consultation and Representation) Act 1986;

(b) Part IV of the M3 Children and Young Persons (Scotland) Act 1937;

(c) section 22(2) to (5A), (7) and (8), section 26(2) to (4) and sections 43, 45, 47 and 48 of the M4 National Assistance Act 1948;

(d)the Disabled Persons (Employment) Act 1958;

(e) sections 10 to 12 of the M5 Matrimonial Proceedings (Children) Act 1958, and sections 11 and 12 of the M6 Guardianship Act 1973;

[F24(f)section 51 of the Criminal Procedure (Scotland) Act 1995;]

(g)the Children Act 1975;

(h)the Adoption Act 1976;

F25(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(j) sections 21 to 23 of the M7 Health and Social Services and Social Security Adjudications Act 1983;

[F26(k)the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13);]

(l)the Foster Children (Scotland) Act 1984;

(m) sections 38(b) and 235 of the M8 Housing (Scotland) Act 1987;

(n) the Access to Personal Files Act 1987; F27 . . .

(o)F28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(p)Part II of the Children (Scotland) Act 1995.]

[F29(q)the Adoption and Children (Scotland) Act 2007 (asp 4).]

[F30(r)the Social Care (Self-directed Support) (Scotland) Act 2013 (asp 1).]

[F31(s)Parts 5, 6, 9 to 11, 13 to 16, and 18 of the Children’s Hearings (Scotland) Act 2011(asp 1).]

[F32(t)Part 6 (in so far as it applies to looked after children) of the Children and Young People (Scotland) Act 2014 (asp 8).]

[F33(u)the Carers (Scotland) Act 2016.]

[F34(1C)In subsections (1) and (1B) of this section, the references to looked after children are to be construed in accordance with section 17(6) of the Children (Scotland) Act 1995.]

[F35(2)The Secretary of State may make regulations in relation to—

(a)the performance of the functions assigned to local authorities by this Act;

(b)the activities of voluntary organisations in so far as those activities are concerned with the like purposes;

[F36(c)the performance of the functions of local authorities under any of the enactments mentioned in paragraphs (b), (d), (e), (g), (h), (i), (l) [F37, (o) [F38,(p)] [F39, (q) and (s)]] of subsection (1B) above]

(d) . . ..]

[F40(3)Without prejudice to the generality of subsection (2) above, regulations under this section may make such provision as is mentioned in subsection (4) of this section as regards—

(a)the boarding out of persons other than children by local authorities and voluntary organisations, whether under any enactment or otherwise; and

(b)the placing of children under paragraph (a), or the making of arrangements in respect of children under paragraph (c), of section 26(1) of the Children (Scotland) Act 1995, by local authorities.

(4)The provision referred to in subsection (3) of this section is—

(a)for the recording—

(i)by local authorities and voluntary organisations, of information relating to those with whom persons are so boarded out, or who are willing to have persons so boarded out with them; and

(ii)by local authorities, of information relating to those with whom children are so placed or with whom such arrangements are made or who are willing to have children so placed with them or to enter into such arrangements;

(b)for securing that—

(i)persons are not so boarded out in any household unless it is for the time being approved by such local authority or voluntary organisation as may be prescribed by the regulations; and

(ii)children are not so placed or, in accordance with such arrangements, provided with accommodation, in any household unless it is for the time being approved by the local authority placing the child or as the case may be making the arrangements;

(c)for securing that, where possible, the person with whom a child is so placed or with whom such arrangements are made is either of the same religious persuasion as the child or gives an undertaking that the child shall be brought up in that persuasion;

(d)for securing—

(i)that a person who is, and the place in which he is, so boarded out by a local authority or voluntary organisation is supervised and inspected by that authority or organisation; and

(ii)that a child who is, and the place in which he is, so placed or, in accordance with such arrangements, provided with accommodation, by a local authority is supervised and inspected by that authority,

and that he shall be removed from the place in question if his welfare appears to require it.

(5) In subsections (3) and (4) of this section, “child” [F41means a person who is under the age of 18.]]

F425A Local authority plans for community care services.S

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F435B Complaints procedure.S

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F446 Supervision of establishments providing accommodation for persons and inspection of records etc.S

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[F456A Inquiries.S

[F46(1)Without prejudice to section 6B(1) of this Act, the Secretary of State may cause an inquiry to be held into—

(a)the functions of a local authority under this Act or any of the enactments mentioned in section 5(1B) of this Act;

(b)the functions of an adoption society, within the meaning of [F47section 119(1) of the Adoption and Children (Scotland) Act 2007 (asp 4)];

(c)F48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)the detention of a child under—

(i) section 57 of the M9 Children and Young Persons (Scotland) Act 1937; or

[F49(ii) section 44 [F50, 205ZC(5)] or 208 of the M10 Criminal Procedure (Scotland) Act 1995;] F51...

(e) the functions of the Principal Reporter under [F52the Children’s Hearings (Scotland) Act 2011 (asp 1)] or any other enactment][F53; or

(f) the functions conferred on the National Convener of Children’s Hearings Scotland by virtue of the Children’s Hearings (Scotland) Act 2011 (asp 1)].

(2)The Secretary of State may, before an inquiry is commenced, direct that it shall be held in private, but where no such direction has been given the person holding the inquiry may if he thinks fit hold it or any part of it in private.

(3) Subsections (2) to (8) of section 210 of the Local Government (Scotland) Act M11 1973 (powers in relation to local inquiries) shall apply in relation to an inquiry under this section as they apply in relation to a local inquiry under that section.]

F54[ 6B Local authority inquiries into matters affecting children.S

(1)Without prejudice to section 6A(1) of this Act, a local authority may cause an inquiry to be held into their functions under this Act, or any of the enactments mentioned in section 5(1B) of this Act, in so far as those functions relate to children.

[F55(1A)Where a function mentioned in subsection (1) is delegated by a local authority to a person in pursuance of an integration scheme prepared under section 1 or 2 of the Public Bodies (Joint Working) (Scotland) Act 2014, this section applies to that person as it applies to a local authority (but subject to the modification in subsection 1B).

(1B)The modification is that the reference in subsection (3) to an officer of the local authority must be construed as if it were a reference to a member of staff of the person to whom the function is delegated.]

(2)The local authority may, before an inquiry under this section is commenced, direct that it be held in private; but where no such direction is given, the person holding the inquiry may if he thinks fit hold it, or any part of it, in private.

(3) Subsections (2) to (6) of section 210 of the M12 Local Government (Scotland) Act 1973 (powers in relation to local inquiries) shall apply in relation to an inquiry under this section as they apply in relation to a local inquiry under that section, so however that, for the purposes of the application, any reference in those subsections to a Minister shall be construed as a reference to the local authority and any reference to an officer of his Department as a reference to an officer of that authority.

(4)The expenses incurred by a local authority in relation to an inquiry under this section (including such reasonable sum as the authority may determine for the services of any of their officers engaged in the inquiry) shall, unless the authority are of the opinion that those expenses should be defrayed in whole or in part by them, be paid by such party to the inquiry as they may direct; and the authority may certify the amount of the expenses so incurred.

(5)Any sum certified under subsection (4) above and to be defrayed in accordance with a direction under that subsection shall be a debt due by the party directed and shall be recoverable accordingly.

(6)The local authority may make an award as to the expenses of the parties at the inquiry and as to the parties by whom such expenses shall be paid.]

7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F56S

Research, training courses and financial and other assistanceS

8 Research.S

(1)The Secretary of State may conduct or assist other persons in conducting research into any matter connected with his functions or the functions of local authorities in relation to social welfare, and with the activities of voluntary organisations connected with those functions.

(2)Any local authority may conduct or assist other persons in conducting research into any matter connected with their functions in relation to social welfare.

(3)The Secretary of State and any local authority may make financial assistance available in connection with any research which they may conduct or which they may assist other persons in conducting under the provisions of this section.

9 Training courses and grants for training in social work.S

(1)The Secretary of State may provide courses of training for persons with a view to, or in the course of, their employment or the use of their services for the purposes of this Act [F57, Part 2 of the Children (Scotland) Act 1995 (c.36) or the Children’s Hearings (Scotland) Act 2011 (asp 1)].

(2)The Secretary of State may make grants of such amounts, and subject to such conditions, as he may with the consent of the Treasury determine towards any fees or expenses incurred by persons undergoing training for any of the purposes of this Act [F57, Part 2 of the Children (Scotland) Act 1995 (c.36) or the Children’s Hearings (Scotland) Act 2011 (asp 1)] in circumstances such that it appears to the Secretary of State requisite that the grants should be made, and may defray or contribute towards the cost of maintenance of persons undergoing such training.

(3)The Secretary of State may make grants of such amounts, and subject to such conditions, as he may with the consent of the Treasury determine towards expenses incurred by any body of persons in providing training as aforesaid.

10 Financial and other assistance to voluntary organisations etc., for social work.S

(1)The Secretary of State may make grants and loans of such amounts, and subject to such conditions, as he may with the consent of the Treasury determine towards expenses incurred by voluntary organisations or other persons engaged in any activity connected

(a)his functions; [F58with—

(b)the functions of local authorities,

under this Act or under the [F59mentioned in paragraphs (b),(d),(e),(g),(h),(i), [F60(l) [F61, (p) and (u) ]] of section 5(1B) of this Act], in circumstances where it appears to the Secretary of State that such grants or loans should be made.]

[F62(1A) The Scottish Ministers may make grants and loans of such amounts, and subject to such conditions, as they may determine to a voluntary organisation engaged as is mentioned in subsection (1) above to enable that organisation (in this section referred to as the “primary organisation”) to make grants and loans (in this section referred to as “secondary grants and loans”) to other voluntary organisations, or other persons, so engaged, in circumstances where it appears to the primary organisation that the secondary grants and loans should be made; and the Scottish Ministers may require that any secondary grant be subject to such conditions (including conditions for securing the repayment in whole or in part of that grant) as they may specify.]

(2)The conditions on which any grants are paid [F63by the Scottish Ministers under subsection (1) or (1A) above] may include conditions for securing the repayment in whole or in part of such grants.

(3)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.

[F64(3A) In subsection (3) above, “voluntary organisation the sole or primary object of which is to promote social welfare” includes [F65a person providing, as mentioned in [F66paragraph 8(1)(b) of schedule 12 to the Public Services Reform (Scotland) Act 2010] (asp 8), an adoption F67... service registered under [F68Part 5] of that Act].]

(4)A local authority may also make available to such a voluntary organisation as aforesaid the use of premises belonging to the authority on such terms as may be agreed, and furniture, vehicles or equipment (whether by way of gift, loan or otherwise) and the services of any staff employed by the authority in connection with the premises or other things belonging to the local authority which the voluntary organisation is permitted to use.

(5)On the commencement of this Act, the power of the Secretary of State to give financial assistance and of local authorities to give financial and other assistance under [F69section] 65 of the M13Health Services and Public Health Act 1968 [F70and section 16B of the M14National Health Service (Scotland) Act 1978] shall cease in so far as any such assistance may be given under this section.

Acquisition of landS

11 Acquisition of land.S

(1)A local authority may be authorised by the Secretary of State to purchase compulsorily any land, whether situated in or outside their area for the purposes of any of their functions under this Act [F71, Part 2 of the Children (Scotland) Act 1995 (c.36) or the Children’s Hearings (Scotland) Act 2011 (asp 1)].

(2)The M15Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall apply in relation to the compulsory purchase of land under this section as if the last foregoing subsection had been in force immediately before the commencement of that Act.

Part IIS Promotion of Social Welfare by Local Authorities

GeneralS

12 General social welfare services of local authorities.S

(1)It shall be the duty of every local authority to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities (including the provision or arranging for the provision of residential and other establishments) as they may consider suitable and adequate, and such assistance may [F72, subject to subsections (3) to (5) of this section, be given in kind or in cash to, or in respect of, any relevant person..

(2)A person is a relevant person for the purposes of this section if, not being less than eighteen years of age, he is] in need requiring assistance in kind or, in exceptional circumstances constituting an emergency, in cash, where the giving of assistance in either form would avoid the local authority being caused greater expense in the giving of assistance in another form, or where probable aggravation of the person’s need would cause greater expense to the local authority on a later occasion.

F73 [( 2A )A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies is not to receive assistance under subsection (1) of this section (whether by way of residential accommodation or otherwise) if his need for assistance has arisen solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

F73( 2B )Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (2A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.]

(3)Before giving assistance to, or in respect of, a person in cash under subsection (1) of this section a local authority shall have regard to his eligibility for receiving assistance from any other statutory body and, if he is so eligible, to the availability to him of that assistance in his time of need.

[F74(3A)In determining, for the purposes of this section, whether to make available assistance by providing, or securing the provision of, residential accommodation to a person, a local authority shall disregard so much of the person’s resources—

(a)as may be prescribed; or

(b)as is determined by them in such a way as may be prescribed,

and any order made by virtue of this subsection may make different provision for different cases and for different persons.

(3B)An order made by virtue of paragraph (a) of subsection (3A) of this section may prescribe circumstances in which assistance such as is mentioned in that subsection is to be made available disregarding entirely a person’s resources.

(3C)In subsections (3A) and (3B) of this section, references to a person’s resources are to resources within the meaning of the order prescribing the amount, or as the case may be the way, in question.

(3D)A statutory instrument made in exercise of the power conferred by paragraph (a) or (b) of subsection (3A) of this section shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.]

(4)Assistance given in kind or in cash to, or in respect of, persons under this section may be given unconditionally or subject to such conditions as to the repayment of the assistance, or of its value, whether in whole or in part, as the local authority may consider reasonable having regard to the means of the person receiving the assistance and to the eligibility of the person for assistance from any other statutory body.

(5)Nothing in the provisions of this section shall affect the performance by a local authority of their functions under any other enactment.

[F75(6)For the purposes of subsection (2) of this section “person in need” includes a person who is in need of care and attention arising out of drug or alcohol dependency or release from prison or other form of detention.]

[F7612A Duty of local authority to assess needs.S

(1)Subject to the provisions of this section, where it appears to a local authority that any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services may be in need of any such services, the authority—

(a)shall make an assessment of the needs of that person for those services; and

[F77(b)shall then decide, having regard to the results of that assessment, and taking account—

[F78(i)if an adult carer provides, or intends to provide, care for that person, of the care provided by that carer,

(ia)if a young carer provides, or intends to provide, care for that person, of the care provided by that carer,]

(ii)in so far as it is reasonable and practicable to do so, F79... of the views of the person whose needs are being assessed F80... (provided that F81... there is a wish, or as the case may be a capacity, to express a view),

whether the needs of the person being assessed call for the provision of any such services.]

[F82(1A)In subsection (1)(b)(i) and (ia), the reference to the care provided by a carer means—

(a)in the case of an adult carer who has an adult carer support plan, the information about that care set out in that plan,

(b)in the case of a young carer who has a young carer statement, the information about that care set out in that statement.

(1B)In—

(a)assessing the needs of a person for services under subsection (1)(a),

(b)deciding under subsection (1)(b) whether those needs call for the provision of any services, and

(c)deciding how any such services are to be provided,

a local authority must take account of the views of the carer, in so far as it is reasonable and practicable to do so.]

(2)Before deciding, under subsection (1)(b) of this section, that the needs of any person call for the provision of nursing care, a local authority shall consult a medical practitioner.

(3)If, while they are carrying out their duty under subsection (1) of this section, it appears to a local authority that there may be a need for the provision to any person to whom that subsection applies—

(a)of any services under the National Health Service (Scotland) Act 1978 by the Health Board—

(i)in whose area he is ordinarily resident; or

(ii)in whose area the services to be supplied by the local authority are, or are likely, to be provided; or

(b)of any services which fall within the functions of a housing authority (within the meaning of section 130 (housing) of the Local Government (Scotland) Act 1973) which is not the local authority carrying out the assessment,

the local authority shall so notify that Health Board or housing authority, and shall request information from them as to what services are likely to be made available to that person by that Health Board or housing authority; and, thereafter, in carrying out their said duty, the local authority shall take into account any information received by them in response to that request.

F83(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F84(3B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F85(3C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Where a local authority are making an assessment under this section and it appears to them that the person concerned is a disabled person, they shall–

(a) proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services Consultation and Representation) Act M16 1986 without his requesting them to do so under that section; and

(b)inform him that they will be doing so and of his rights under that Act.

(5)Nothing in this section shall prevent a local authority from providing or arranging for the provision of community care services for any person without carrying out a prior assessment of his needs in accordance with the preceding provisions of this section if, in the opinion of the authority, the condition of that person is such that he requires those services as a matter of urgency.

(6)If, by virtue of subsection (5) of this section, community care services have been provided for any person as a matter of urgency, then, as soon as practicable thereafter, an assessment of his needs shall be made in accordance with the preceding provisions of this section.

(7)This section is without prejudice to section 3 of the said Act of 1986.

(8)In this section—

• [F86“adult carer” and “adult carer support plan” have the meanings given by the Carers (Scotland) Act 2016,]

• [F87“community care services” means services, other than services for children, which a local authority is under a duty or has a power to provide, or to secure the provision of, under—

  (a)

  Part 2 of this Act; or

  (b)

  any of the following provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003—

  (i)

  section 25 (care and support services etc. );

  (ii)

  section 26 (services designed to promote well-being and social development);

  (iii)

  section 27 (assistance with travel);]

• “disabled person” has the same meaning as in the said Act of 1986; and

• “medical practitioner” means a fully registered person within the meaning of section 55 (interpretation) of the Medical Act 1983.

• [F88 “person” means a natural person.]

• [F89“young carer” and “young carer statement” have the meanings given by the Carers (Scotland) Act 2016.]]

[F9012AZAAssessments under section 12A: assistanceS

(1)Subsection (4) applies where—

(a)a local authority is required by section 12A(1)(a) to carry out an assessment of the needs of a person (the “supported person”) for community care services,

(b)it appears to the authority that the supported person falls within subsection (2), and

(c)the conditions in subsection (3) are satisfied.

(2)A supported person falls within this subsection if—

(a)because of mental disorder, the supported person would benefit from receiving assistance from another person in relation to the carrying out of the assessment,

(b)because of difficulties in communicating due to physical disability, the supported person would benefit from receiving assistance from another person to communicate in relation to the carrying out of the assessment.

(3)The conditions are—

(a)there is no guardian, continuing attorney or welfare attorney with powers as respects the provision of assistance in relation to the carrying out of the assessment, and

(b)an intervention order has not been granted as respects the provision of assistance in relation to the carrying out of the assessment.

(4)The authority must take reasonable steps—

(a)to identify persons who are able to assist the supported person, and

(b)if the supported person agrees, to involve them in assisting the supported person in relation to the carrying out of the assessment or, as the case may be, communicating in relation to the carrying out of the assessment.

(5)In this section—

• “the 2000 Act” means the Adults with Incapacity (Scotland) Act 2000 (asp 4),

• “continuing attorney”—

  (a)

  means a continuing attorney within the meaning of section 15 of the 2000 Act, and

  (b)

  includes a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter's property or financial affairs and having continuing effect despite the granter's incapacity,

• “guardian”—

  (a)

  means a guardian appointed under the 2000 Act, and

  (b)

  includes a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during the adult's incapacity, if the guardianship is recognised under the law of Scotland,

• “intervention order” is to be construed in accordance with section 53 of the 2000 Act,

• “mental disorder” has the meaning given by section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13),

• “welfare attorney”—

  (a)

  means a welfare attorney within the meaning of section 16 of the 2000 Act, and

  (b)

  includes a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter's personal welfare and having effect during the granter's incapacity.]

F9112AA Assessment of ability to provide careS

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F9212AB Duty of local authority to provide information to carerS

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F93 12B Direct payments in respect of community care services.S

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F9412C Further provisions relating to direct payments.S

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13 Power of local authorities to assist persons in need in disposal of produce of their work.S

Where, by virtue of [F95section 12 of this Act], a local authority make arrangements or provide or secure the provision of facilities for the engagement of persons in need (whether under a contract of service or otherwise) in suitable work, that local authority may assist such persons in disposing of the produce of their work.

[F9613ZAProvision of services to incapable adultsS

(1)Where—

(a)a local authority have decided under section 12A of this Act that an adult's needs call for the provision of a community care service; and

(b)it appears to the local authority that the adult is incapable in relation to decisions about the service,

the local authority may take any steps which they consider would help the adult to benefit from the service.

(2)Without prejudice to the generality of subsection (1) above, steps that may be taken by the local authority include moving the adult to residential accommodation provided in pursuance of this Part.

(3)The principles set out in subsection (2) to (4) of section 1 of the 2000 Act apply in relation to any steps taken under subsection (1) above as they apply to interventions in the affairs of an adult under or in pursuance of that Act.

(4)Subsection (1) does not authorise a local authority to take steps if they are aware that—

(a)there is a guardian or welfare attorney with powers relating to the proposed steps;

(b)an intervention order has been granted relating to the proposed steps; or

(c)an application has been made (but not yet determined) for an intervention order or guardianship order under Part 6 of the 2000 Act relating to the proposed steps.

(5)In this section—

(a) “ the 2000 Act ” means the Adults with Incapacity (Scotland) Act 2000 (asp 4);

(b) “ adult ” has the meaning given in section 1(6) of the 2000 Act;

(c) “ community care service ” has the meaning given in section 5A of this Act;

(d) “ incapable ” has the meaning given in section 1(6) of the 2000 Act;

(e) “ intervention order ” is to be construed in accordance with section 53 of the 2000 Act”;

(f)the reference to a guardian includes a reference to—

(i)a guardian appointed under the 2000 Act; and

(ii)a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during his incapacity, if the guardianship is recognised by the law of Scotland;

(g)the reference to a welfare attorney includes a reference to—

(i)a welfare attorney within the meaning of section 16 of the 2000 Act; and

(ii)a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter's personal welfare and having effect during the granter's incapacity.]

[F97 Residential accommodation with nursing.]S

13AF98 Residential accommodation with nursing.S

(1)Without prejudice to section 12 of this Act, a local authority shall

[F99(a)provide and maintain;][F100 or]

[F101(b)make such arrangements as they consider appropriate and adequate for the provision of]

suitable residential accommodation where nursing is provided for persons who appear to them to be in need of such accommodation by reason of infirmity, age, illness or mental disorder, dependency on drugs or alcohol or being substantially handicapped by any deformity or disability.

[F102(2)F103 . . . Arrangements made by virtue of subsection (1) above shall be made with a voluntary or other organisation or other person, being an organisation or person providing—

(a)an independent health care service which is a private psychiatric hospital; or

(b)a care home service.

[F104(2A) In subsection (2)(a) above, “independent health care service” and “private psychiatric hospital” have the same meanings as in section 10F of the National Health Service (Scotland) Act 1978 (c.29).]]

[F105(2B) In subsection (2)(b) above, “care home service” has the same meaning as in paragraph   2 of schedule   12 to the Public Services Reform (Scotland) Act 2010 (asp 8).]

(3)The provisions of section 6 of this Act apply in relation to premises where accommodation is provided for the purposes of this section as they apply in relation to establishments provided for the purposes of this Act.

F106[(4)No arrangements under subsection (1) above may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

F106(5)Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (4) above as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.]

F107 Provision of care and after-careS

[13B F108 Provision of care and after-care S

(1)Subject to subsection (2) below, a local authority may, with the approval of the Secretary of State, and shall, if and to the extent that the Secretary of State so directs, make arrangements for the purpose of the prevention of illness, the care of persons suffering from illness and the after-care of such persons.

(2)The arrangements which may be made under subsection (1) above do not include arrangements in respect of medical, dental or nursing care, or health visiting.]

[F109(3)No arrangements under subsection (1) above may be given effect to in relation to a person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies solely—

(a)because he is destitute; or

(b)because of the physical effects, or anticipated physical effects, of his being destitute.

F109( 4 )Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (3) above as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.]

Home helpS

14 Home help and laundry facilities.S

(1)It shall be the duty of every local authority to provide on such scale as is adequate for the needs of their area, or to arrange for the provision on such a scale as is so adequate of, [F110home help][F110domiciliary services] for households where such [F111help is][F111services are] required owing to the presence, or the proposed presence, of a person in need or a person who is an expectant mother or lying-in, and every such authority shall have power to provide or arrange for the provision of laundry facilities for households for which [F112home help is][F112domiciliary services are] being, or can be, provided under this subsection.

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F113

(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F114

(4)On the coming into operation of the provisions of this and the last two foregoing sections, the provisions of sections 13, 44 and 45 of the Health Services and Public Health Act 1968 M17 shall cease to have effect.

Special provisions as to the care of children in needS

F11515. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F11616. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F11716A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F11817. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F11917A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F12017B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F12117C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F12217D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F12317E. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F12418. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F12518A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F126S

F12720. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F12820A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F12921. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F13022. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F13123. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F13224. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F13325. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F13425A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F13526. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

Supervision and care of persons put on probation or released from prisons etc.S

27 Supervision and care of persons put on probation or released from prisons etc.S

(1)[F136It] shall be a function of every local authority under this Part of this Act to provide a service for the following purposes, that is to say—

(a)making available to any court such social background reports and other reports relating to persons appearing berfore the court which the court may require for the disposal of a case

[F137(aa)making available to any children’s hearing such reports relating to persons aged 16 and 17 years in relation to the commission of an offence, as the hearing may require for the disposal of a case;]

[F138(ab)making available to any procurator fiscal or the Lord Advocate such reports as the procurator fiscal or the Lord Advocate may request in relation to persons who are charged with an offence;]

[F139(ac)the provision of advice, guidance and assistance for persons who are in prison or subject to any other form of detention and who—

(i)resided in their area immediately prior to such imprisonment or detention; or

(ii)intend to reside in their area on release from such imprisonment or detention,

and who on release from such imprisonment or detention, it appears to the local authority, will be required to be under supervision under any enactment or by the terms of an order or licence of the Scottish Ministers or of a condition or requirement imposed in pursuance of an enactment;]

[F140(ad) making available, for the purposes of parenting orders under section 13 or 102 of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), such services as are required to enable requirements imposed by or under such orders to be carried out in respect of persons in their area;]

[F141(ae)making available to the Scottish Ministers such background and other reports as the Scottish Ministers may request in relation to the exercise of their functions under Part 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9);]

(b)the supervision of, and the provision of advice, guidance and assistance for—

(i)persons in their area who are under supervision by order of a court made in exercise of its criminal jurisdiction by virtue of any enactment, and

(ii)persons in their area who, following on release from prison or any other form of detention, are required to be under supervision under any enactment or by the terms of an order or licence of the Secretary of State or of a condition or requirement imposed in pursuance of any enactment [F142and]

[F142(iii)without prejudice to sub-paragraphs (i) and (ii) above, persons in the area who are subject to a [F143community payback order imposed under section 227A or 227M of the Criminal Procedure (Scotland) Act 1995 imposing an unpaid work or other activity requirement]].

F144[F145(iv)]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F146(v)without prejudice to sub-paragraphs (i) to (iv) above, persons in their area who are subject to a supervision and treatment order made under section 57(2)(d) of the Criminal Procedure (Scotland) Act 1995;]

F147[F148(va). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(vb)without prejudice to sub-paragraph (i) above, persons in their area who are under 16 years of age and subject to restriction of liberty orders under section 245A of the said Act of 1995;]

F149(vi) persons in their area aged 16 and 17 years who are subject to a [F150 compulsory supervision order made by virtue of the ground mentioned in section 67(2)(j) of the Children’s Hearings (Scotland) Act 2011 (asp 1);]

F151(vii) persons in their area who are charged with, but not prosecuted for, any offence and are referred to the local authority by the procurator fiscal or the Lord Advocate; F152 ...

[F153(viii)persons in their area who are subject to work orders under section 303ZA(6) of the said Act of 1995;]

[F154(c)the provision of advice, guidance and assistance for persons in their area who, within 12 months of their release from prison or any other form of detention, request such advice, guidance or assistance.]

[F155(1A)A local authority may provide advice, guidance or assistance for any person who—

(a)would fall to be provided for under paragraph (ac) of subsection (1) above but for the fact that it appears to the local authority that he will not be required to be under any form of supervision on release as mentioned in that paragraph; and

(b)requests such advice, guidance or assistance.

(1B)Where as respects any person more than one local authority is required by paragraph (ac) of subsection (1) to make such provision as is mentioned in that paragraph, they may agree between themselves that only one of them shall do so; and where there is such agreement the paragraph shall apply accordingly.]

[F156(1C) In paragraphs (ac) and (b)(i) and (ii) of subsection (1) above, “enactment” includes an Act of the Scottish Parliament.

(1D)The Scottish Ministers may by order amend subsection (1) above so as (any or all)—

(a)to add to the functions for the time being described;

(b)to omit any of those functions;

(c)to alter any of those functions.]

(2) For the purposes of [F157 subsection (1) above] every local authority shall, F158 ..., prepare a scheme (hereinafter referred to as a [F159 community justice] [F160 scheme]) and submit it by such date, as he may require, to the Secretary of State for his approval.

(3)A [F161community justice] [F160scheme] shall make provision with regard to the following matters—

(a)the manner in which any report requested by the court from the local authority is to be prepared and submitted to the court;

[F162(aa) the matters to be included in such a report;]

(b)arrangements for the attendance of officers of the local authority at the court;

(c)arrangements for the co-operation of the local authorities with the courts, and such arrangements may include the appointment of one or more sheriffs having jurisdiction in their areas to [F163a committee or sub-committee of such authorities];

(d)arrangements for the keeping of adequate records and statistics regarding the performance of functions under this section; and

(e)such other matters as the local authority considers relevant to the service to be provided.

(4)The Secretary of State may approve a [F164community justice] [F160scheme] with or without modifications.

(5)A local authority may apply to the Secretary of State for the revision of a [F165community justice] [F160scheme] and, if the Secretary of State so requires, shall prepare and submit to the Secretary of State for his approval a revised scheme or a modification of an existing scheme.

[F166(5A)Before including in a community justice scheme which is made, revised or modified under this section provision for the purposes of subsection (1)(b)(va) [F167or (viii)], a local authority shall consult such persons or class or classes of person as the Scottish Ministers may by regulations prescribe.

(5B)The Scottish Ministers may give local authorities directions in writing as to the content of community justice schemes; and authorities shall comply with any such directions.

(5C)The power conferred by subsection (5B) above to give a direction shall include power to vary or revoke the direction.]

(6)Any function required by any enactment to be performed by a probation officer shall, after the coming into operation of this Part of this Act, be performed by an officer of the appropriate local authority.

(7) Section 11 of and Schedule 3 to the M18 Criminal Justice (Scotland) Act 1949 (administrative provisions as to probation) shall cease to have effect.

[F16827ZAAdvice, guidance and assistance to persons arrested or on whom sentence deferredS

(1)It shall be a function of a local authority, if and to such extent as the Scottish Ministers so direct and in accordance with the direction, to provide, directly or indirectly, advice, guidance and assistance to any person (and in particular to any person who appears to the local authority to have dependency problems)—

(a)who is arrested and detained in police custody in their area, but only during the period of such detention; or

(b)on whom sentence is deferred under section 202(1) of the 1995 Act, but only during the period of deferment and while that person is in their area.

(2)The function mentioned in subsection (1)(a) above may continue to be exercised by the local authority while the person is in their area for a period not exceeding 12 months from the date of his release from police custody.

(3) In subsection (1) above, “ dependency problems ” means problems relating to a dependency on drugs, alcohol or some other substance. ]

[F16927A Grants in respect of community service facilitiesS

[F170(1)[F171The Scottish Ministers may make a grant to a local authority of such amount as the Scottish Ministers may determine in respect of expenditure incurred by that local authority in providing a relevant service.]

(1A) In subsection (1) above, a “relevant service” means a service—

(a)for the purposes mentioned in section 27(1) [F172or 27ZA] of this Act;

F173(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)for such other similar purposes as the Scottish Ministers may prescribe.

(1B)Any grant made under, or paid by virtue of, subsection (1) above is subject to such conditions as the Scottish Ministers may determine.]

[F174(1A)In a case where two or more local authorities are discharging any function mentioned in section 27(1) or 27ZA of this Act jointly, whether or not in accordance with arrangements made under section 56(5) of the Local Government (Scotland) Act 1973 (c. 65), the power of the Scottish Ministers to make grants under subsection (1) above in respect of expenditure incurred for the purposes mentioned in paragraph (a) of that subsection includes a power to make such grants, on such conditions as are mentioned in that subsection, to a local authority nominated by the local authorities from among their number.]

[F175(2)Before exercising his power under subsection [F176(1A)(c)] above the Secretary of State shall consult local authorities and such other bodies as he considers appropriate.]]

[F17727B Grants in respect of hostel accommodation for persons under supervision.S

[F178[F179(1)The Scottish Ministers may make a grant to a local authority of such amount as the Scottish Ministers may determine in respect of relevant expenditure.]

(1A) In subsection (1) above, “relevant expenditure” means expenditure incurred by, F180... that local authority in—

(a)providing; or

(b)contributing by way of grant under section 10(3) of this Act to the provision by a voluntary organisation of,

residential accommodation wholly or mainly for the persons mentioned in subsection (2) below.

(1B)Any grant made under, or paid by virtue of, subsection (1) above is subject to such conditions as the Scottish Ministers may determine.]

[F181(2)The persons referred to in [F182subsection (1A)] above are–

(a)persons mentioned in section 27(1)(b)(i) and (ii) of this Act;

(b)persons who have been charged with an offence and are on bail;

(c)persons who have been released from prison or any other form of detention but do not fall within section 27(1)(b)(ii) of this Act; and

(d)such other classes of persons as the Secretary of State may prescribe.

(3)Before exercising his power under subsection (2)(d) above the Secretary of State shall consult local authorities and such other persons as he considers appropriate.]]

AncillaryS

F18328 Burial or cremation of the dead. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

29 Power of local authority to defray [F184certain travelling expenses]. S

(1)A local authority may make payments to any parent, relative or other person connected with [F185—

(a)a person, other than a child, in the care of the authority or receiving assistance from the authority; or

(b)a child who is being looked after by the authority,

in respect] of travelling, subsistence or other expenses incurred by the parent, relative or other person in visiting the person [F186or child], if it appears to the authority that the parent, relative or other person would not otherwise be able to visit [F187him] without undue hardship and that the circumstances warrant the making of the payments.

[F188(1A)In subsection (1), “child” has the meaning given by section 93(2)(a) of the Children (Scotland) Act 1995.

(1B)In subsection (1), the reference to a child who is “looked after” by a local authority is to be construed in accordance with section 17(6) of that Act of 1995.]

F189(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F189(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F190Part III S Children in need of Compulsory Measures of Care]

F19130. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

31 Restriction on prosecution of children for offences.S

F192(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F193

(3)Part IV of the M19Children and Young Persons (Scotland) Act 1937 shall have effect subject to the amendments set out in Schedule 2 to this Act.

F19432. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F19533. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F19634. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F19734A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F19835. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F19936. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F20036A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F20137. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F20238. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F20339. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F20440. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F20541. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F20642. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F20743. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F20844. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F20945. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F21046. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F21147. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F21248. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F21349. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F21450. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F21551. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F21652. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F217S

F21854. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F21955. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F22056. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F22157. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F22258. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F22358A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F22458B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F22558C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F22658D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F22758E. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F22858F. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

F22958G. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .S

Part IVS Residential and other Establishments

Provision of residential and other establishmentsS

59 Provision of residential and other establishments by local authorities, and maximum period for repayment of sums borrowed for such provision.S

(1)[F230[F231Without prejudice to their duties under] [F232sections 12 and 13A] of this Act,] it shall be the duty of a local authority to provide and maintain such residential and other establishments as may be required for their functions under this Act [F233sections 25 and 26 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)] [F234, Part 2 of the Children (Scotland) Act 1995 (c.36) or the Children’s Hearings (Scotland) Act 2011 (asp 1)], or arrange for the provision of such establishments.

(2)For the purpose of discharging their duty under the foregoing subsection a local authority may—

(a)themselves provide such establishments as aforesaid; or

(b)join with another local authority in providing those establishments; or

(c)secure the provision of such establishments by voluntary organisations or other persons including other local authorities.

(3)The maximum period for the repayment of sums borrowed by a local authority for the purposes of this section shall be such period not exceeding sixty years as may be sanctioned by the Secretary of State; and accordingly in Schedule 6 to the M20Local Government (Scotland) Act 1947, at the end, there shall be added the following entry, that is to say—

[F23559A Grants in respect of secure accommodation for children.S

(1)The Secretary of State may make to a local authority grants of such amount and subject to such conditions as he may with the consent of the Treasury determine in respect of expenditure incurred by the authority in—

(a)providing;

(b)joining with another local authority in providing; or

(c)contributing by way of grant under section 10(3) of this Act to the provision by a voluntary organisation of

secure accommodation . . . F236]

(2)The conditions subject to which grants are made under subsection (1)

of this section may include conditions for securing the repayment in whole or in part of such grants.

(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F237

60 Control of residential and other establishments.S

F238. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Registration of certain residential and other establishmentsS

61 Restriction on carrying on of establishments.S

F239. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .