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Legislation

The National Assistance Act 1948
Social Work (Scotland) Act 1968
NHS and Community Care Act 1990
The National Assistance (Assessment of Resources) Regulations 1992
Human Rights Act 1998
Adults with Incapacity (Scotland) Act 2000
The Regulation of Care (Scotland) Act 2001
Community Care and Health (Scotland) Act 2002
Mental Health (Care and Treatment)(Scotland) Act 2003
Adult Support and Protection (Scotland) Act 2007

The following gives a brief introduction to some of the important pieces of legislation affecting the provision of community care.  

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The National Assistance Act 1948

The National Assistance Act 1948 founded the National Assistance Board, which was responsible for public assistance in the form of means-tested supplements derived from national insurance contributions.  This establishment of the system of welfare benefits encouraged the move from institutional to community-based care.

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Social Work (Scotland) Act 1968

Local authorities have a duty under the Social Work (Scotland) Act 1968 to assess a persons community care needs and decide in light of that assessment, whether to arrange any services and if so which services. Any provision of assistance should be based on a detailed assessment of the individual's care needs and should take account of their preferences.

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NHS and Community Care Act 1990

The NHS and Community Care Act 1990 was the first major reform of the NHS since its inception in 1948.  Based on the two white papers 'Working for Patients' (1989) and 'Caring for People' (1991), this was the first legislation to try to bridge the gap between health boards and local authority social services.  Under the Act, Social Work Departments were given the responsibility for community care for older people, and services were to be provided on the basis of what the older person needed rather than what was actually available.  These needs were ascertained by means of a community care assessment.  Home Care, Day Care and Respite Care were to be developed to enable people to live in their own homes wherever possible.  This legislation was also the first time that the needs of Carers were taken into account. 

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The National Assistance (Assessment of Resources) Regulations 1992

These regulations and the associated Charging for Residential Accommodation Guidance (CRAG) published by the Scottish Government, provide the framework for local authorities to charge for the residential care that they provide or arrange. The regulations set out how a care home residents' income and capital should be treated during the financial assessment.

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Human Rights Act 1998

The Human Rights Act incorporated the European Convention on Human Rights (ECHR) into United Kingdom Law.  This Act has been used to challenge the workings of the care system, for example, in the closure or transfer in ownership of residential care homes, following the deaths of care home residents after a forced move.  A series of cases were brought against UK Local Authorities on the basis that closures and changes in ownership threaten residents' physical and social well-being, in breach of the protocols governing the right to life, to protection against degrading or inhuman treatment and respect for family life.  Despite rulings which confirmed the need to establish procedures for consultation with residents, no consensus has emerged on whether Local Authorities are required to assess the impact on residents before or after the decision to close or transfer a home (Age Scotland, 2005).  The ruling that independent sector providers were not subject to the terms of the European Convention on Human Rights, placed significant limits on the use of the Human Rights Act (Age Scotland, 2005).  In addition, the rights conferred by the Human Rights Act can be suspended by the terms of mental health legislation.

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Adults with Incapacity (Scotland) Act 2000

The Adults with Incapacity (Scotland) Act 2000 creates provisions for protecting the welfare of adults who are unable to take decisions for themselves because of a mental disorder or inability to communicate.  It allows other people to make decisions on behalf of these adults about things like arranging services, managing finances and property and medical treatment.  People who are most likely to use the provisions of the Act include those with a learning disability, dementia, mental ill health, head injury or a physical disability that prevents a person from communicating.

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The Regulation of Care (Scotland) Act 2001

The main aim of the Regulation of Care (Scotland) Act 2001 is to improve standards of social care services.  The Act meant that far more care services and people who work in them came under scrutiny and had to conform to established standards.  Failure of a care service or an individual to comply with the Act and associated regulations means that they are de-registered and unable to continue providing services.

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Community Care and Health (Scotland) Act 2002

The Community Care and Health (Scotland) Act introduced two new changes. 

  1. The introduction of Free Personal Care for older people, regardless of income or whether they live at home or in residential care. 
  2. The creation of rights for informal or unpaid carers, with the intention of providing adequate support services to ensure the continuation of care-giving in the community.  The Act created rights to a separate Carers Assessment, and the responsibility of Health Boards to produce 'Carer Information Strategies' which must be submitted free of charge to carers.

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Mental Health (Care and Treatment)(Scotland) Act 2003

This Act came into force at the beginning of October 2005.  It increases the rights and protection of people with mental disorders - a term than encompasses mental illness, learning disability and personality disorder.  Part 4 of the Act places additional duties on Local Authorities to provide care and support services for people with mental disorders.  The Act introduced changes to develop community based mental health services, involvement of service users and unpaid carers in decisions concerning treatment and respect for the human rights of people with mental disorders.  The provisions of this Act are intended to ensure that care and compulsory measures of detention can be used only when there is a significant risk to the safety or welfare of the patient or other persons.

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Adult Support and Protection (Scotland) Act 2007

The Adult Support and Protection (Scotland) Act provides ways to offer support and protection to certain adults who may be at risk of harm or neglect due to disability, mental disorder, illness, or physical or mental infirmity.  It confers a duty on Local Authorities to inquire and investigate in cases where harm is known or suspected.  They have powers to visit and interview people, to arrange medical examinations and to examine records, and issue protection orders. They must also consider whether there is any need for advocacy and other services, such as help with medication, or support services.

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last updated 08/10/2012