The Regulation of Care (Scotland) Act 2001 (Commencement No. 5 and Transitional Provisions) Order 2004

Explanatory Note

(This note is not part of the Order)

This Order brings certain provisions of the Regulation of Care (Scotland) Act 2001 (“the Act”) into force on 1st April 2004 and makes transitional provisions.

Article 2(a) brings into force the definitions of those care services to which the Act will apply from that date, namely adoption services, fostering services and, in so far as not already commenced, offender accommodation services. The Act requires, in particular, persons providing such services to be registered under Part 1 of the Act with the Scottish Commission for the Regulation of Care (“the Commission”) (section 7) and those adopting and fostering services which are provided by a local authority to be registered under Part 2 of that Act (section 33).

Article 2(b) to (g) brings into force related provisions in the Act. Article 2(b) of the Order also has the effect of bringing into force section 5(4) of the Act in relation to other care services provided by a local authority and registered under Part 2 of the Act. Section 5(4) requires the national care standards and the Scottish Social Services Council’s codes of practice to be taken into account in various circumstances.

Articles 3 and 4 contain transitional provisions.

Article 3 deals with the case where, immediately before 1st April 2004, a person has provided a service mentioned in article 3(3) and continues to do so on and after that date. The services mentioned in article 3(3) are any adoption service maintained by a local authority under section 1(1) of the Adoption (Scotland) Act 1978 (?OQ?the 1978 Act) or by an approved adoption society, a fostering service or an offender accommodation service (other than one already within the definition of a care service). The person providing such a service is deemed to have registered that service under Part I, or as the case may be, Part 2, of the Act on 1st April 2004. Article 3(2) provides the circumstances in which a service will cease to be deemed to be registered. Deemed registration is to last until 1st October 2004 or, where the provider has applied to the Commission for registration before that date, for a further six months until 1st April 2005.

Article 4 deals with the case where, before 1st April 2004, a body has applied to the Scottish Ministers for approval as an approved adoption society under section 3 of the 1978 Act but the application has not been determined by that date. Article 4(a) provides that sections 3 and 5 of that Act shall, notwithstanding their repeal by virtue of this Order, continue to apply for the purpose of enabling the Scottish Ministers to determine that application. If the application is approved, the body is deemed to have registered that service under Part I on the date that the approval becomes operative. There is a similar provision as in Article 3 providing that deemed registration is to last until 1st October 2004 or, where the provider has applied to the Commission for registration before that date, for a further six months until 1st April 2005.