Publication - Progress report

Coronavirus Acts: seventh report to Scottish Parliament

This is the Scottish Government's seventh report on the operation and status of the provisions of the coronavirus legislation.

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203 page PDF

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Contents
Coronavirus Acts: seventh report to Scottish Parliament
7. Supplementary information

203 page PDF

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7. Supplementary information

First Scottish Act

7.1.1 Section 2 and schedule 1 - Eviction from dwelling-houses

Description of Provisions

7.1.1.1 With the exception of anti-social behaviour, criminality, abandonment and vacant property eviction grounds, the provisions, as amended by regulations[31], increase the notice period across eviction grounds. For the private rented sector, the provisions amend all the eviction grounds a landlord can use to regain possession to make them discretionary.

7.1.1.2 Before the provisions commenced, a tenant with a private residential tenancy could have been asked to leave their home within 28 days of a notice being served by the landlord, if they had been living in the property for six months or less; or if the landlord was using an eviction ground to do with the tenant’s behaviour. Where a tenant had lived in a property for six months or more and the eviction ground did not relate to the tenant’s behaviour, a landlord was required to give 84 days’ notice. With the new provisions, the tenant can stay for up to six months before an application can be made to the Tribunal to repossess a property for all grounds other than anti-social behaviour, criminality, abandonment and vacant property grounds.

Operation of Provision in Reporting Period

7.1.1.3 Section 2, schedule 1, paragraph 1, sub-paragraph 2 makes provision for all private rented sector eviction cases going before the First-tier Tribunal (Housing and Property Chamber) to be considered on a discretionary basis. As of 4 May 2021, the First-tier Tribunal (Housing and Property Chamber) confirmed that it had received 305 applications that fall within the scope of the emergency provisions.

7.1.1.4 Section 2, schedule 1, paragraph 8 provides a power for Scottish Ministers, exercisable by the negative procedure, to modify the length of any period of notice specified to apply during the relevant period. In exercising this power, the Scottish Ministers cannot specify a notice period which is longer than six months. In light of the substantial impact anti-social behaviour can have on individuals and communities, Ministers exercised these powers to ensure that where landlords have clear evidence of anti-social or criminal behaviour, which cannot be resolved by other means, then they are able to take the necessary action to end the tenancy. It should be noted that Ministers can exercise their power under section 2 (schedule 1, paragraph 8) at any time during the lifetime of the specific provisions in the emergency legislation.

7.1.1.5 The provisions which extend notice periods to - in effect - halt any eviction action under the existing legislation including the Private Housing (Tenancies) (Scotland) Act 2016 and the Housing (Scotland) Act 2001, for up to six months, have been used in the reporting period. This applies to both the social and private rented housing sectors in order to ensure that the position is absolutely clear for all landlords in Scotland.

7.1.1.6 To further support renters facing eviction during the ongoing pandemic, temporary regulations[32] extending a ban on the enforcement of eviction orders in the private and social rented sectors until 30 September 2021 came into force on 5 March, in areas subject to level 3 and 4 regulations, but are subject to review every three weeks to ensure the ban on evictions remains necessary to protect against the spread of Covid-19.

7.1.1.7 The temporary ban will continue to ensure that renters have safe homes during the pandemic – where the prevalence of the virus is at its highest - and will assist in reducing the burden on local authorities, who have a duty to rehouse people made homeless by evictions.

Factors Considered to Determine Use and Continued Necessity

7.1.1.8 In this reporting period, in order to assess the continued necessity of the provisions, the Scottish Government has considered various sources of information. Recent employment statistics show that the unemployment rate in Scotland in the latest period December 2020 to February 2021 is up by 0.6 percentage points over the year to 4.4 per cent. In March 2021, Scotland’s unemployment claimant count was 212,200, an increase of 99,100 (87.6%) over the year[33]. There has also been a substantial increase in Universal Credit claims in recent months, with around 490,000 people in Scotland now on Universal Credit as at March 2021, almost double the number in March 2020[34]. As we move towards furlough ending there are significant concerns around the potential for further job losses.

7.1.1.9 Recently published employment statistics also show the impact over the latest year of employment for young people, with the employment rate for adults aged 16 to 24 falling to 51.9% in the year January to December 2020, the lowest employment rate for this age group since the statistical series began in 2004. This is a drop of 6.0 percentage points compared with the previous year, and the largest decrease seen in a single year since 2004[35].

7.1.1.10 In addition to this, there is evidence that renting households are less likely than homeowners to have enough savings to cope with a fall in employment income. Office for National Statistics (ONS) analysis of household financial resilience shows that an estimated 28% of renting households in Scotland would be unable to cover a 20% loss of income for one month, rising to 43% if the loss were sustained for three months[36]. Separate findings from a YouGov survey of adults in the UK carried out from 30 July to 2 August 2020 showed that the coronavirus crisis has had a greater impact on employment among people who rent than those who own their own home. Findings include that employees who rent are more likely to be unable to work at all as a result of the pandemic (9% compared with 3% of employed owners), are more likely to have been furloughed (15% compared with 11% of employed owners), and are also more likely to have been made redundant (6% compared with 2% of employed owners)[37]. More recently, findings from a Resolution Foundation / Health Foundation survey of UK working-age adults undertaken in September 2020[38] showed that private and social renters are now more than twice as likely than mortgagors to have lost their job, with more than one-in-six (17%) of social renters reporting being behind on all or part of their housing costs, with nearly one-in-eight (12%) of private renters unable to cover their rent in full.

7.1.1.11 A survey commissioned by the Joseph Rowntree Foundation in June 2020 showed that in the private rented sector in Scotland, almost half of tenants (45%) had seen a drop in their income since March 2020. Of those, seven in 10 (71%) had cut back on spending, and nearly six in 10 (58%) had to borrow or use up savings, the highest proportion of any tenure. In addition, four in 10 (42%) private renters were worried about their ability to pay rent after lockdown is lifted, and 25% of private tenants had already fallen behind with a payment, most likely gas, electricity and other bills[39]. A more recent polling survey commissioned by the Joseph Rowntree Foundation in October 2020 indicated that concerns about ability to pay rent were continuing, with 35% of households in Scotland being worried about paying their rent over the next three months, an increase of 16 percentage points on the pre-COVID-19 position[40].

7.1.1.12 Recent published housing advice data from Citizens Advice Scotland (CAS) up to December 2020[41] indicates that advice relating to private sector rented properties as a proportion of all housing advice has increased from 17% in April to December 2019 up to 23% in April to December 2020. In addition, advice regarding private sector arrears as a proportion of all housing arrears advice has increased significantly from 6% in the period April to December 2019, up to 14% in the period April to December 2020. The Citizens Advice Scotland data also indicates a potential increase in issues relating to private rented sector harassment / illegal evictions, with the number of instances of advice provided in this category increasing from 166 in April to December 2019 up to 286 in April to December 2020, an increase of 120 (72%).

7.1.1.13 Monthly coronavirus information published by the Scottish Housing Regulator[42] shows that the total value of rent arrears in the social sector increased substantially from £150.0m to £165.0m in the four months between the end of April 2020 and the end of August, an increase of £15.0m (10.0%). The value of arrears has subsequently stabilised across most months since then, and has decreased in the most recent month to stand at £160.7m as at end March 2021. The number of notices of proceedings for recovery of possession issued by social landlords for rent arrears increased each month from June 2020, rising from 246 in June 2020 up to 1,514 in November 2020, after which the numbers have decreased in recent months to 699 in January 2021, 875 in February 2021 and 934 in March 2021. The number of court actions initiated for eviction increased from 30 in June 2020 up to 102 in September 2020, after which the number has since fallen to 63 in March 2021, monthly levels which are significantly lower when compared to average monthly figures for previous years.

7.1.1.14 Evidence on the scale of rent arrears and repossession proceedings in the private rented sector in Scotland is as yet relatively limited, with some mixed findings being reported so far, although this may become clearer as further evidence is gathered and reported on, including by the First-tier Tribunal (Housing and Property Chamber). In terms of rent arrears, research findings by the Joseph Rowntree Foundation[43] found that, as at June 2020, no sharp increase in rent arrears for private renters was identified, with fewer than one in ten private tenants in Scotland estimated to be in arrears as at June 2020. A separate analysis carried out by PayProp, based on the data that it holds from the processing of rent payments from tenants in Scotland, shows that the percentage of tenants in arrears increased at the start of the pandemic period from 5% in the quarter January to March 2020 up to 9% in April to June. Since then this proportion has remained relatively steady, although it has increased slightly in the latest quarter from 9% in October to December 2020 up to 10% in January to March 2021[44].

7.1.1.15 A survey of private landlords and agents by the Scottish Association of Landlords, carried out at the start of August 2020, found that many members had provided financial assistance to their tenants during the pandemic. Results showed that 44% of landlord and agent survey respondents had given a rent discount to their tenants, equating to 11% of properties having had a rent reduction in place. Established in April 2020, the Private Rented Sector Resilience Group provides a valuable mechanism for key stakeholders to discuss issues arising from the coronavirus outbreak, as well as assisting in monitoring the impact of, and continuing need for, these provisions. Meeting on a fortnightly basis, a key focus of the group’s work is on tenancy sustainment and raising tenants’ awareness of their rights, as well as the advice and financial support available, given the emerging evidence of an increase in rent arrears and a rise in those seeking housing advice. The group will increasingly focus on examining potential measures to support renters as we move towards the temporary measures being removed at the end of September, with a clear focus on tenancy sustainment and preventing homelessness.

7.1.1.16 The Scottish Government assessed the potential impact of these provisions for tenants in relation to human rights, children’s rights and equalities prior to the introduction of the legislation and continues to keep these rights under review when considering their continued necessity.

7.1.1.17 The impact on a landlord’s human rights was also considered, with regards to their ability to control their property in relation to Article 1 of Protocol No.1 to the European Convention on Human Rights (ECHR). The Scottish Government’s view is that the temporary nature of the provisions continue to strike an appropriate balance between the landlord’s rights in the property, and the rights of the tenant to be protected during the pandemic. The maximum period of notice that the landlord will have to provide will be six months and the provisions will not affect notices which have already been issued under existing notice periods.

7.1.1.18 In light of the publication of Scotland’s Strategic Framework approach to supressing the virus to the lowest level possible, consideration has been given, in the review of the proportionality and necessity of these provisions, to the detrimental impact of a landlord not being able to take action to resolve serious cases of anti-social or criminal behaviour. However, that consideration has not resulted in any changes during the reporting period to the continuing need for tenants across both the social and private rented sectors to be protected against eviction, for all other eviction grounds.

7.1.1.19 Briefing from the Joseph Rowntree Foundation[45] provides some information on the known impacts of the financial pressures related to the pandemic on people with one or more of the protected characteristics, including:

  • A majority of households in all age groups except the over-55s reported extra costs as a result of the pandemic, reflecting more people complying with lockdown rules and staying at home for longer. Four in ten (42%) reported extra costs for food and three in ten (30%) for gas and electricity. These numbers are significantly higher (63% and 45% respectively) for families with children. Around one in four households (23%) say they are not able to cover these extra costs comfortably.
  • There are indications that the pandemic has created financial pressure which is impacting on mental health and family life. Two-thirds of parents relying on Universal Credit or Child Tax Credit report money worries having either a significant (25%) or moderate (40%) impact on their mental health.

7.1.1.20 The Scottish Government considers that the temporary legislative changes to protect renters continue to have a positive impact across those with protected characteristics, including women who are more likely to have caring responsibilities and therefore be impacted more significantly - socially and financially - by the consequences of the outbreak. In the social rented sector, an estimated 54% of households have a highest income householder who is female, with the equivalent percentage for private renting households being 43%[46]. The legislative measures continue to prevent all renters across all protected characteristics from being evicted during the current crisis. Research carried out by the Resolution Foundation in May 2020[47] indicated that across the UK one-third of 18 to 24 year old employees had lost jobs or been furloughed, compared to one-in-six prime-age adults. In Scotland, over half (56%) of all highest income householders aged 16 to 24 live in the private rented sector, a total of 60,000 households[48]. In terms of disability, 59% of households in the social rented sector in Scotland have someone living with a long term physical or mental health condition or illness.

7.1.1.21 Family households are, as expected, significantly impacted by the health crisis. There is no evidence of some groups of children and young people being affected disproportionately by the provisions. Keeping the measures in place whilst we recover from the social and economic crisis will ensure both children and young people living within rented family homes continue to be protected from homelessness, with an estimated 230,000 children living in the social rented sector[49] and 120,000 children living in the private rented sector[50].

7.1.1.22 The provisions remain necessary to ensure that tenants, including those who have become unemployed, or will become unemployed as the furlough scheme ends, have time to apply for, and receive, the available support in the short term and, if necessary, to give them time to plan for the longer term as we recover from this unprecedented crisis. The provisions also continue to be necessary in order to help mitigate any further pressure on housing, health and other public services.

Section 4 and schedule 3 – Children and vulnerable adults – Part 1 – Children

Description of provisions

7.1.2.1 Child protection provisions: The provisions remove the requirement for a second working day hearing to be held following the issuing of a Child Protection Order (CPO), and to amend timescales in relation to the issuing of Child Assessment Orders (CAO).

7.1.2.2 Children’s hearings provisions: The provisions relax existing requirements for the composition of children’s hearings, as well as the administration and conduct of children’s hearings and there are extensions to the timescales for when certain legal orders must be reviewed and appeals against legal orders must be lodged.

7.1.2.3 Looked after children provisions: The provisions extend the timescales for review of children’s cases when they are placed in kinship care and enable Local Authorities to use foster carers more flexibly to look after additional children when necessary.

Operation of Provisions in Reporting Period

7.1.2.4 This section provides supplementary information on the use of children’s provisions within Part 1 of schedule 3 of the first Scottish Act. Guidance[51] on the use of provisions has been published. The provisions have been separated into three groups: child protection provisions, children’s hearings provisions and looked after children provisions, as data comes from different sources and there are separate structures to assess continued necessity of the provisions within each group.

7.1.2.5 The data in relation to the use of the powers under section 4 and schedule 3, Part 1 in relation to children covers the seventh reporting period 17th March 2021 to 11th May 2021[52] unless specified otherwise below. Information on where data has been gathered has been included along with any caveats. Data on previous reporting periods can be found in previous reports. A link to the sixth report to Parliament can be found here: https://www.gov.scot/publications/coronavirus-acts-sixth-report-scottish-parliament/

Child protection provisions

No requirement for a second working day hearing to be held following the issuing of a CPO

7.1.2.6 Under the first Scottish Act (schedule 3, paragraph 2(3) to (6)), which amends relevant provision of the Children’s Hearings (Scotland) Act 2011 (‘the 2011 Act’), the second working day children’s hearing is not required. Instead a children’s hearing to consider grounds for referral will sit on or before the eighth working day. Until the eighth working day, a child or relevant person can make an application for the CPO to be recalled or varied (ordinarily this would have been available until the second working day children’s hearing under the 2011 Act) and for two working days following the second working day children’s hearing (if the order is continued or varied by that hearing).

7.1.2.7 In the seventh reporting period there were 81 CPOs[53]. Across reporting periods 1 – 6 there were 551 CPO’s and in total there have been 632 CPO’s across all reporting periods. The use of this provision has meant that the Scottish Children’s Reporter Administration (SCRA) did not have to hold second working day children’s hearings in all these cases.

Children’s hearings provisions

Relaxation of requirement for children’s hearing to consist of three children’s panel members and relaxation of requirement to have a gender mix among panel members on each children’s hearing

7.1.2.8 The provisions (first Scottish Act, schedule 3, paragraph 1) include relaxation of the requirement for children’s hearings to consist of three members and to have a gender mix.

7.1.2.9 In the seventh reporting period, 35 hearings had fewer than 3 panel members in attendance, and 17 did not have both male and female panel members. No hearings proceeded with only one panel member in attendance. The total number of hearings making use of the relaxation provisions during the reporting period was 42. This differs from the total making use of the two provisions (35 and 17) because it is possible for both provisions to be used at the same time (for example, a hearing consisting of 2 panel members of the same gender).

7.1.2.10 Since the powers came in to force, 213 hearings have had fewer than 3 panel members in place, and 135 did not have both male and female members. As noted above, there will be instances where both provisions were used in relation to the same children’s hearing. It is not possible to provide the exact total number of individual hearings making use of the relaxation powers since they came in to force, as the recording of this was not introduced until the second reporting period. The maximum total, however, would be 298 hearings (6 from the first reporting period, 32 from the second, 27 from the third, 81 from the fourth, 31 from the fifth, 79 from the sixth and 42 from the seventh).

7.1.2.11 The National Convener continues to permit the planned use of the emergency legislation where it is known in advance that it would not be possible to convene a 3-member, mixed gender panel to a particular hearing. Relying on the flexibilities provided by the emergency legislation is deemed preferable to delaying hearings for children, when insufficient panel members are available to form a 3-member mixed-gender hearing in the normal way. Use of the emergency legislation remains, however, a last resort when all other possibilities have been exhausted.

Maximum period for which a Compulsory Supervision Order () has effect

7.1.2.12 The first Scottish Act (schedule 3, paragraph 3) provides that if a hearing has not taken place to review a before it expires, the order will not expire, unless six months have passed since the expiry date or the child has attained the age of 18 years. However, alongside this, there is a duty on the Principal Reporter to arrange a hearing before the original expiry date, and if not, to arrange the hearing as soon as practicable thereafter.

7.1.2.13 In the seventh reporting period there were 182 s where orders were extended beyond their expiry date. In reporting periods 1 – 6 there were 4,645 ’s where orders were extended beyond their expiry date and across all the reporting periods the total is 4,827 ’s extended beyond the expiry date. This provision has only been used to the extent necessary driven by the practicalities of holding children’s hearings in the current context, and the extent of use will vary as the safety and operational contexts develop. In the seventh reporting period the use of this provision has decreased significantly. Due to the severe restriction in the number of children’s hearings which could be held as a result of the current pandemic, this provision has had the effect of extending a number of orders.

7.1.2.14 Prioritisation of work has been essential to ensure continuity of protections for children and young people, while putting in place appropriate legal measures to keep children and young people safe. The SCRA has been unable to operate at anywhere near normal capacity as a result of movement restrictions, social distancing and virus prevention measures put in place and enforced. Working in concert with families and system partners, SCRA has been increasing the number of hearings as restriction measures were reducing, in line with the multi-agency children’s hearings recovery plan published in November 2020, and then further updated in March 2021. This has been by arranging face to face hearings, sometimes with some participants attending remotely (‘hybrid hearings’), but also by continuing to maintain the number of virtual hearings.

7.1.2.15 Reporters are reviewing the use of this provision on a case by case basis, and taking into consideration whether there would likely be a risk of detriment to the child’s welfare if the was not varied or terminated before the original expiry date. The Principal Reporter has applied a prioritisation framework to enable the timely consideration of individual cases and is closely monitoring the situation with a view to arranging such hearings as soon as practicable. Service user availability, views and preferences for rescheduling are some of the elements of ‘practicability’ and are considered alongside the need for a child to come to a hearing and the risk for the child. SCRA continues to make active decisions about the need to extend any existing following dialogue with social workers and families and if families indicated they would want to have their hearing it has been arranged wherever possible.

7.1.2.16 This provision has been used extensively, but expiry review hearings have also been taking place during the currency of the Coronavirus (Scotland) Act 2020. In the seventh reporting period there were 873 children’s hearings held when orders were due to expire. Across reporting periods 1 - 6 this number was 3,834 children’s hearings and the total across all the reporting periods is therefore 4,707 children’s hearings.

7.1.2.17 A multi-agency recovery plan was developed by the weekly Children’s Hearings Covid Recovery Group and agreed and published by the national strategic Children’s Hearings Improvement Partnership in November 2020[54]. The plan models review of all s where the use of the emergency legislation will gradually be reduced and will cease to be used. The progress of this recovery plan has been materially affected by the additional movement restrictions and other virus suppression measures which were in place across Scotland from 26 December 2020 and continued for the majority of the seventh reporting period. This provision in the first Scottish Act allows an expiry review of a to take place up to six months after the original expiry date.

7.1.2.18 The use of this six month period was intended to be reduced incrementally as the SCRA increases its capacity, and its ability to arrange expiry review hearings becomes more practicable. This has been impacted by the restrictions which were in place for the majority of the seventh reporting period. In order to recover, SCRA will need to arrange the expiry reviews within a given month alongside those reviews where the end date of extant orders have been extended by virtue of the legislation. This means that the operating capacity of the hearings system has to increase beyond the capacity it offered at the beginning of March 2020 prior to the pandemic.

Maximum period for which Interim Compulsory Supervision Order (ICSO) or Interim Variation of Compulsory Supervision Order (IVCSO) has effect

7.1.2.19 To allow more flexibility for agencies seeking to respond in a prioritised way to the challenges posed by the coronavirus pandemic, paragraph 4(2) and (3) of schedule 3 of the first Scottish Act amend sections 86(3) and 140(4) of the 2011 Act. This provides that the maximum period for which an ICSO or an IVCSO has effect is:

  • where the order is made by a children’s hearing, 44 days, or
  • Where the order is made by a sheriff, such other period as the sheriff may specify.

7.1.2.20 As with the existing legislation, a hearing may make an ICSO or interim variation for a shorter period than the maximum period.

7.1.2.21 Table Two below sets out the interim orders where the provision has been used (some children will have had more than one interim order issued in the period and the figures include orders which authorised secure accommodation). It is not possible to calculate how much time has been added; some orders will have had the maximum time (44 days for a hearing/ possibly longer for the Sheriff Court) and others will have had different times up to the maximum.

Table Two – Interim orders where the provision has been used
Interim Order Type Coronavirus Report 7
17th March 21 to
11th May 21
Reporting Periods 1 – 6 Reporting Periods 1 – 7
TOTALS
ICSO 492 2,599 3,091
IVCSO 151 1,039 1,190
Court ICSO / IVCSO (including following appeal) 322 1,632 1,954
Total 965 5,270 6,235

Extended timescale of interim orders with authorisation of secure accommodation

7.1.2.22 In the seventh reporting period, of the 18 interim orders authorising the use of secure accommodation, 17 used the extended timescales available under the provision (94%). In reporting periods 1 – 6 of the 122 interim orders authorising the use of secure accommodation, 71 used the extend timescales which are available under the provision (58%).

Modification of certain time limits for making and determination of appeals

7.1.2.23 Paragraph 7 of schedule 3 of the first Scottish Act extends the time limits for the making, disposal or determination of appeals or the making or lodging of applications. Disaggregated data is not available from the SCRA or the Scottish Courts and Tribunals Service (SCTS).

7.1.2.24 The SCRA has supplied data in relation to appeals which were lodged under the provisions of the first Scottish Act after 7th April 2020 and were determined before 11th May 2021. The SCRA does not record the data to distinguish appeals specifically modified by the provisions of the first Scottish Act, but it has been able to provide figures which indicate the current position in relation to appeals of decisions from the children’s hearing.

7.1.2.25 Schedule 3, paragraph 7(2) of the first Scottish Act extends the period of time available for a person with the right to appeal a decision of a children’s hearing to lodge that appeal at the Sheriff Court (from 21 to 42 days). There have been 241 appeals of decisions in relation to a that have been determined in the period 7th April 2020 to 11th May 2021, and the average time taken from the date of the children’s hearing to the determination of the appeal was 47 days.

7.1.2.26 Schedule 3, paragraph 7(3) of the first Scottish Act extends from three to seven days the time limits for the determination of certain short notice appeals. There were 191 appeals of ICSOs determined in the period 7th April 2020 to 11th May 2021, and the average time taken from the date of the children’s hearing to the determination of the appeal was 21 days (please note that appeals may not have been lodged until several days after the hearing).

7.1.2.27 Schedule 3, paragraph 7(4) of the first Scottish Act extends the time limit for making an appeal in relation to a relevant person determination from 7 to 21 days and extends the time period for determination of the appeal in relation to a relevant person determination from 3 to 7 days. There were 15 appeals of relevant person determinations (made by a children’s hearing or a pre-hearing panel) in the period 7th April 2020 to 11th May 2021 and the average time taken from the date of the children’s hearing to the determination of the appeal was 24 days for the hearing decision and 14 days for the pre-hearing panel decision (please note that appeals may not have been lodged until several days after the hearing).

7.1.2.28 Schedule 3, paragraph 7(5) of the first Scottish Act extends the time limits for lodging appeals in relation to a decision affecting a contact direction or permanence order from 21 to 42 days and extends the time for determination of the appeal from 3 to 7 days. The SCRA recorded no appeals of this type in the period 7th April 2020 to 11th May 2021.

7.1.2.29 Schedule 3, paragraph 7 sub paragraphs (6), (7) and (8) extends the time limit for lodging appeals to the Sheriff Appeal Court or Court of Session in relation to certain decisions made by sheriffs under the 2011 Act. The time limit is extended from 28 days to 56 days. There has been one appeal made against decisions to which the extended time limit applies in the period 7th April 2020 to 11th May 2021.

Dispensation with physical attendance at children’s hearings

7.1.2.30 Schedule 3, paragraph 8 of the first Scottish Act covers attendance of persons other than children or relevant persons at children’s hearings and facilitates the remote attendance of these other persons. There is existing provision in rule 19 of the children’s hearings procedural rules to enable attendance by other means which this builds on.

7.1.2.31 Many of the 18,424 children’s hearings that have taken place over the reporting periods have been ‘virtual children’s hearings’ as children, family members, professionals, reporters and the decision makers (panel members) have been unable to attend the public spaces in children’s hearings centres. Since July 2020, SCRA opened up children’s hearings centres in a safe, socially distanced manner and the number of hearings where children and families have been able to attend in person markedly increased. Between 26 December 2020 and 11 May 2021, SCRA operated a model mostly reliant on virtual / hybrid children’s hearings as a result of more extensive restrictions. If a child or family require to attend in person to participate effectively in their children’s hearing then a physical hearing was arranged. This approach will alter as restrictions across Scotland are lifted.

Authentication of children’s hearings documentation by electronic signature

7.1.2.32 Schedule 3, paragraph 9 of the first Scottish Act covers authentication of documents by electronic signature. This power has been used in all of the 18,424 children’s hearings held over the reporting periods.

Looked after children provisions

7.1.2.33 Schedule 3, paragraph 10 of the first Scottish Act extends the timescales for review of children’s cases when they are placed in kinship care and enables Local Authorities to work with foster carers more flexibly to look after additional children when necessary. Where possible, Local Authorities have adhered to the previous timescales, but the provisions have allowed additional flexibility in pressured situations which has allowed Local Authorities to take into account the views of the children and where possible keep children within their extended families.

7.1.2.34 Across Scotland, 23 Local Authorities have been able to provide data on the use of these provisions from 17 March to 11 May 2021. Use of the provisions has been relatively low, and has varied between Local Authority areas. Some Local Authorities have not needed to use any of the provisions as their social work teams had enough capacity to respond to demand.

7.1.2.35 The provisions have been used to allow more than three children to be placed with a foster carer eleven times during the reporting period. There has been one instance of a child being placed with a kinship carer, in an emergency, for a period not exceeding five working days, rather than three working days. No kinship placement has been extended in an emergency, and the timeframes for kinship reviews have not been extended during the seventh reporting period.

7.1.2.36 Whilst not all Local Authorities have needed to use the provisions, there has been a general consensus that the provisions have been helpful to allow the right decisions to be made for a child, and that they may be useful if there is a surge in referrals as restrictions are eased and which could place additional pressure on foster or kinship placements. Local Authorities have reported that the provisions provide a vital safety net, ensuring that decisions can be taken in the best interests of the child, and that despite the pandemic placing more pressure on social work resources, keeping the provisions will help to ensure that the current level of care and support can be maintained.

7.1.2.37 Responses have included comments which suggest local authorities recognise the potential longer term impacts on families economically and emotionally; and that they are planning for increased demands on their services as restrictions ease and social interactions increase.

7.1.2.38 The provisions also ensure that Local Authorities have the flexibility to ensure children and young people can be kept within their own family networks wherever possible, and to ensure that sisters and brothers stay together, in line with the recommendations of the Independent Care Review. Where necessary the provisions have given additional time to ensure that the views of both children and parents can be taken into account in decision making.

Factors Considered to Determine Use and Continued Necessity

7.1.2.39 The main factors which have been considered in the assessment of continued necessity of the provisions include: prevailing Government guidance and public health advice, an updated Health Protection Scotland-screened risk assessment of the impact of the pandemic on the health and availability of staff and volunteers, and an assessment of the impacts on vulnerable and disadvantaged children and families. In the context of this emergency, these provisions are designed to enable best use of very limited resources in Local Authorities, and the children’s hearings system, so that efforts can be focused on safeguarding the welfare of Scotland’s most vulnerable children and on supporting families and carers who need it most. The measures in the first Scottish Act are limited to those considered necessary to support and protect children’s rights and promote their welfare and wellbeing in accordance with obligations under the UN Convention on the Rights of the Child. A Children’s Rights and Wellbeing Impact Assessment for the children’s provisions can be found here: CRWIA - Coronavirus Scotland Act 2020 - Children's Provisions

7.1.2.40 The Scottish Government is in regular dialogue with the children’s services sector and children’s hearings partners to monitor the impact of the pandemic on service provision and the protections afforded to children. Significant new resources have been made available to support the delivery of the recovery plan.

7.1.2.41 In relation to the provisions covering child protection, children’s hearings and looked after children, the Scottish Government is aware that there is continued pressure on services in relation to vulnerable children and these provisions will continue to be necessary over the next two month period.

Section 4 and schedule 3 - Children and vulnerable adults – Part 2 - Vulnerable adults

Description of Provisions

7.1.3.1 Paragraphs 11(2) and 11(3) effectively ‘stop the clock’ on the duration of guardianship orders and certificates authorising medical treatment for the period the emergency legislation is in force.

Operation of Provisions in Reporting Period

7.1.3.2 The Coronavirus (Scotland) Act 2020 (Suspension: Adults with Incapacity) Regulations 2020 suspended schedule 3, Part 2, paragraphs 11(2) and 11(3) of the first Scottish Act which relate to guardianship and s.47 provisions. The suspension was effective from 30 September 2020.

Factors Considered to Determine Use and Continued Necessity

Paragraph 11(2) and (3)

7.1.3.3 The powers to ‘stop the clock’ on the duration of guardianship orders and section 47 certificates commenced on 7 April 2020. On 30 September 2020, at the beginning of the period of suspension, the time remaining on the orders and certificates resumed and applicants have to renew their guardianship or obtain another certificate as per the usual procedure.

7.1.3.4 These emergency provisions prevent the expiry of guardianships, or section 47 certificates, through want of being able to get an application through court, or to get a relevant health professional (normally a doctor) to authorise the certificate. A medical practitioner and a specialised mental health doctor are required to complete reports for guardianships as well as mental health officers.

7.1.3.5 In order to monitor the relevant factors a stakeholder group has been formed which is meeting every 3-4 weeks to consider the evidence available for continuation of the suspension of the provisions. The factors which have been taken into consideration are the availability of the courts, the Office of the Public Guardian and relevant health professionals, as well as consideration of the human rights aspects of using the provisions. Representatives from organisations that can speak to these factors are on the group. The remit of the group and the notes from their meetings are publically available[55].

7.1.3.6 In the first reporting period the courts were only processing urgent interim guardianship cases, meaning that guardianship cases were likely to expire before the renewal application could reach court. The courts are now processing guardianship cases as business as usual.

7.1.3.7 The Office of the Public Guardian have all staff available and are also processing guardianship cases as business as usual.

7.1.3.8 There remain challenges in obtaining medical and mental health officer reports to support adults with incapacity applications and renewals, however these are not pandemic related.

7.1.3.9 The stakeholder group continues to monitor the situation and there is not enough information at present to recommend reinstatement of the temporary provisions. In the most recent stakeholder group meeting on 26 April the group unanimously agreed that the temporary provisions should expire in September 2021.

Section 5 and schedule 4, Part 4 - Extension of time limits

Description of Provision

7.1.4.1 The provision suspends certain time limits contained in the Criminal Procedure (Scotland) Act 1995 for certain set periods of time i.e. the suspension of the relevant time limits are not for indefinite periods of time.

7.1.4.2 The provisions have the effect of increasing the maximum time period that an accused person can be held on remand prior to trial, together with other time limits for progressing a criminal case including the maximum wait prior to trial where the accused is not in custody. This may have an impact on the rights guaranteed by Articles 5(3) and 6(1) of the of the ECHR. However, the Scottish Government considers that these increases are compatible with the rights under Articles 5(3) and 6(1) to a trial within a reasonable time. The increases are necessary to address the disruption to the justice system that is already being caused by coronavirus.

7.1.4.3 In any individual case, where an accused is brought before the court for a custody hearing, in determining whether to grant bail, the court requires to consider the accused’s Article 5 and 6 rights in deciding whether it is appropriate to grant bail. Furthermore, an accused person can, at any time, apply to the court for a bail review under section 30 of the Criminal Procedure (Scotland) Act 1995, to enable the court to determine whether their continued detention is justified. The courts remain subject to the requirement to ensure that there is a fair and public hearing within a reasonable time. These safeguards are relevant to ensuring that these provisions are proportionate.

Operation of Provision in Reporting Period

7.1.4.4 The time limits to which the provision applies are: those under section 65 of the Criminal Procedure (Scotland) Act 1995 which sets various time limits in respect of trials under solemn procedure; section 136, which requires that proceedings in summary cases must commence within six months of the alleged offence; section 147, which makes provision for summary procedure in cases where the accused has been held on remand; and section 52T, which applies the custody time limits in sections 65 and 147, where the accused is detained in hospital because of an assessment order or a treatment order. The provision applies automatically in respect of any criminal case where one of those time limits was in effect on the date when the Act was commenced, or began after the Act commenced.

Factors Considered to Determine Use and Continued Necessity

7.1.4.5 The court system continues to be under significant pressure with a backlog of cases building. Steps are being taken to seek to address this and the move towards remote jury centres is assisting in preventing further backlogs building up in the High Court, but further work will continue to be required to address the existing backlog and the serious issues also present in Sheriff and Jury cases.

7.1.4.6 On 11 January 2021, the Lord President announced that during the lockdown period the criminal courts will focus on the most serious trials and the majority of summary trials in the Sheriff Court and Justice of the Peace Court will be adjourned. This reduced the overall number of criminal trials taking place during lockdown by up to 75%. On 19 April, Sheriff Court summary business resumed, with trial courts returning to the pre-January lockdown loadings of three programmed trials and two back-up cases with witnesses on standby.

7.1.4.7 Justice Analytical Services is working with SCTS to collect data to monitor the backlog of cases in the courts, which will help inform future assessments of the continuing need for this extension of time limits. However, with crime levels back to near pre-COVID-19 levels and the courts still operating at some way below pre-COVID-19 levels, the need for flexibility in time limits clearly remains and is likely to do so for a considerable time.

7.1.4.8 The Justice Board for Scotland, which brings together senior leaders from Scotland’s main national justice system organisations, has established a Criminal Justice Board to co-ordinate COVID-19 recovery activity across policing and justice, including in the criminal courts. The Board meets every two weeks to direct and monitor progress and ensure a whole system overview of the work underway.

7.1.4.9 The Scottish Government keeps under review the necessity for the extended time limits contained within Part 4 of schedule 4 of the first Scottish Act. It is however the case that while some courts are operating in a way they were not at the time of the legislation being passed in April 2020, there is a significant backlog of cases continuing to grow as the court system is some considerable way off returning to its normal operation. This is also within the context that crime levels are back to near pre-COVID-19 levels. Even once courts are operating more normally, a backlog of cases will exist whereby the operation of extended time limits will potentially be necessary. At this time, the Scottish Government considers the extended time limits continue to be necessary with an accused person’s rights continuing to be protected through the operation of the system of bail reviews which an accused person can seek at any time under section 30 of the Criminal Procedure (Scotland) Act 1995 if information was provided material to the decision that was not available when the accused was remanded. This can be used where, for example, the continuing impact on the operation of the courts means timings for when a case will be heard have changed.

Section 5 and schedule 4, Part 8 - Release of prisoners

Description of Provision

7.1.5.1 The provision allows that the Scottish Ministers may, by regulations, provide that a person who falls within a class of persons specified in the regulations is to be released from prison early.

Operation of Provision in Reporting Period

7.1.5.2 The provisions have not been used in the reporting period.

Factors Considered to Determine Use and Continued Necessity

7.1.5.3 It might become necessary to utilise these powers in the future to maintain safe and effective operations of prisons, and protect the health of prison staff and prisoners. The Scottish Government will therefore continue to engage with the Scottish Prison Service (SPS) in relation to the potential use of these powers, as one aspect of wider ongoing discussions of the impact of coronavirus on the prison system, and the safe management of the prison population. The Scottish Government will also liaise with other justice sector stakeholders who are most impacted by the prisoner release measures.

7.1.5.4 As with the previous use of this power, any decisions on future release of additional prisoners would be made with regard to the legislative requirements contained in the first Scottish Act, and wider public safety and human rights concerns. It would require the production of regulations specifying the eligibility criteria and handling of the process, which would be laid before Parliament for scrutiny and approval.

7.1.5.5 The first and second two-monthly reports on the Coronavirus Acts included detail on the factors considered to determine the previous use of these powers, including the engagement with wider stakeholders for the planning and delivery of the release process, and the particular consideration given to equality, human rights, and domestic abuse impacts.

Section 7 and schedule 6, Part 2 – Freedom of Information

Description of Provision

7.1.6.1 Prior to the repeal of the provisions mentioned below, the provisions extended the statutory deadlines under the Freedom of Information (Scotland) Act 2002 (FOISA) for responding to Freedom of Information (FOI) requests and reviews by an additional 40 working days; gave the Scottish Ministers the power, by direction, to specify circumstances where a Scottish public authority could extend that deadline; gave the Commissioner discretion to decide that, where failure to comply with a deadline was due to the effect of coronavirus, an authority had not failed to comply; and enabled the Commissioner and other Scottish public authorities to issue notices by electronic means.

Operation of Provision in Reporting Period

7.1.6.2 Paragraphs 3 and 4 of schedule 6 extended the deadlines for responding to FOI requests and reviews by an additional 40 working days. The extension applied to both new requests and those outstanding when the first Scottish Act came into force, but the requirement within FOISA to comply promptly with requests was otherwise unchanged. These provisions were repealed by the second Scottish Act and therefore were not in operation in this seventh reporting period.

7.1.6.3 The power of the Scottish Ministers, as conferred by paragraph 5 of schedule 6, was repealed in the first reporting period and therefore was not in operation in this seventh reporting period.

7.1.6.4 Where an appeal is made to the Commissioner in respect of a failure to comply with a relevant deadline, paragraph 6 of schedule 6 gives the Commissioner discretion to decide that a Scottish public authority has not failed to comply in certain circumstances. As passed, the Commissioner could exercise this discretion where the failure was due to the effect of coronavirus. The second Scottish Act amended paragraph 6 so that the Commissioner could also take into account the effects of repealing paragraphs 3 and 4. It also amended paragraph 6 so that the public interest in prompt compliance is the primary consideration in deciding whether a failure was reasonable in all circumstances. Information in respect of the use of this element of the provision will be held by the Commissioner.

7.1.6.5 Paragraph 7 of schedule 6 allows the Commissioner and other Scottish public authorities to issue notices by electronic means. Information in respect of the use of this element of the provision will be held by the Commissioner and by individual authorities.

Factors Considered to Determine Use and Continued Necessity

7.1.6.6 Physical distancing measures remain in place and at the present time home-working remains the default position for most office-based workers in Scotland. When circumstances do allow the reopening of more indoor office spaces, this will take place on a phased basis to ensure safety. Therefore, Scottish public authorities may continue to experience significant disruption that may impact on their ability to respond to FOI requests for some time, so the power at paragraph 6, conferring discretion on the Commissioner, remains necessary.

7.1.6.7 The Commissioner’s office is likely to require to operate a level of remote working for some time, so the power at paragraph 7, to issue notices electronically, remains necessary to enable decisions to be issued and to reduce disruption to the Commissioner’s statutory functions. Other authorities are likely to benefit in the same way.

Section 8 and schedule 7, paragraphs 1 to 5 - Social security

Description of Provision

7.1.7.1 Paragraphs 1(a), 2, 3 and 4 of schedule 7 relaxed timescales which apply to clients seeking a redetermination, and clients bringing an appeal before the First-tier Tribunal for Scotland, where normal timescales cannot be met for reasons related to coronavirus. They also modified timescales for making applications where these have not been able to be met directly as a result of coronavirus. These provisions are now expired. The provisions which remain in force are paragraphs 1(b) and 5 of schedule 7, which relax the timescales which apply for Social Security Scotland making re-determinations.

Operation of Provision in Reporting Period

7.1.7.2 During the period in which provisions have been in force, Social Security Scotland has extended the timescales for a re-determination on 38 occasions, taking an average 38 days to complete these re-determinations. This represents 1.8% of the re-determinations received. In addition, a small number of appeals have been accepted by the Tribunal, citing COVID-19 as a factor for their late appeal.

Factors Considered to Determine Use and Continued Necessity

7.1.7.3 The key factor in the considering the continuing necessity of these provisions is the disruption created by coronavirus. Where this is likely to have an impact on people’s ability to request for a redetermination or appeal, including to gather and receive supporting information, there will be a need for these provisions. Similarly, where the continued disruption created by coronavirus impacts on Social Security Scotland’s ability to process redeterminations, or on a clients’ ability to gather information requested in support of their redetermination, the extended timelines for redetermination should remain in place.

7.1.7.4 Social Security Scotland is however required to make the redetermination as soon as reasonably practicable within the extended redetermination period; this provides a safeguard to ensure that clients’ rights to receive a decision as quickly as possible and subsequently appeal rights to the First-tier Tribunal, are respected.

7.1.7.5 Evidence suggests that these provisions continue to be necessary for the Agency to be able to manage redeterminations with reduced capacity as a result of coronavirus and to allow clients additional time to provide information required for a redetermination to be made. They have therefore been of benefit to clients – for example, clients have cited delays in obtaining evidence that they wish to submit.

7.1.7.6 During the period in which provisions have been in force, Social Security Scotland has extended the timescales for a re-determination on 38 occasions, taking an average 38 days to complete these re-determinations. This represents 1.8% of the re-determinations received. Clients are citing COVID-19 as the reason for not being able to provide evidence sooner and on these occasions Social Security Scotland is working with the clients by extending and ensuring their application is determined as quickly as possible. A small number of appeals have been accepted by the Tribunal, citing COVID-19 as a factor for their late appeal. A recent Tribunal appeal decision was partially allowed for Best Start Grant Early Learning Payment but not the School Age Payment where the client cited COVID-19 as their reason for the delay in applying. The Tribunal only allowed for one element of Best Start Grant as a result of the COVID-19 delay.

7.1.7.7 Social Security Scotland’s continuing review of the operation of the provisions in the period indicates that these extensions provided some benefit to clients, in helping them access their rights despite the impact of coronavirus. They have also helped to avoid appeals by allowing more time to make the re-determination. The latitude for extending timescales is only being used when absolutely necessary as Social Security Scotland’s aim remains to process cases within target deadlines whenever possible.

7.1.7.8 Social Security Scotland is of the view that there remains a need to have these extensions in place until 30 September as a contingency against further disruption to services and clients’ circumstances, for example, if there was a resurgence of the virus.

Second Scottish Act

Section 2, schedule 1, Part 1: Student residential tenancy: termination by tenant

Description of Provision

7.2.1.1 Section 2, Schedule 1, Part 1 of the Coronavirus (Scotland) (No.2) Act 2020 makes provision in relation to tenancies for students in halls of residence and Purpose Built Student Accommodation (PBSA). This means:

  • Students who have entered into a student residential tenancy before 27 May 2020 and have occupied the property, can give seven days’ notice to their accommodation provider.
  • Students who have already entered into a student residential tenancy before 27 May 2020 but have not yet occupied the property, can give 28 days’ notice to their accommodation provider.
  • Students who enter into a student residential tenancy after 27 May 2020 can give 28 days’ notice to their accommodation provider.

7.2.1.2 At this period in the academic year, most students, therefore, can utilise the 28 day notice period. Students can only terminate tenancies for a reason relating to coronavirus.

Operation of the provision in Reporting Period

7.2.1.3 The Scottish Government understands from informal consultation with stakeholders that the seven day notice period has been utilised by students who had returned home prior to lockdown and were no longer occupying their property, and by students who wished to return home prior to the end of their contract. This provision has allowed students to end their contract earlier than existing arrangements would have allowed had these provisions not been in place. This is of particular importance given that colleges and universities adopted alternative learning models from face to face teaching in response to coronavirus.

7.2.1.4 The 28 day notice period has given students looking to find suitable accommodation in the current academic year reassurance that, should restrictions continue or more restrictive measures be re-introduced, either locally or nationally, that prevent students from taking up their accommodation as planned, they will not be held liable to pay for accommodation they are not able to use.

Factors Considered to Determine Use and Continued Necessity

7.2.1.5 In approving the Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2021, the Scottish Parliament agreed to extend the provision in relation to student tenancies in halls of residence and PBSA beyond 31 March 2021.

7.2.1.6 During the seventh reporting period, 1 April to 31 May 2021, the ‘stay local’ rule was lifted, with a more significant reopening of the economy and a relaxing of travel restrictions taking place later in the month. The Coronavirus (COVID-19): universities, colleges and student accommodation providers guidance[56] was, therefore, updated but still applicable during this period.

7.2.1.7 Despite progress on reducing infection rates and the vaccine roll out, we would still want students to be able to utilise these enhanced rights, should local restrictions be necessary over the summer. As a result, these provisions remain necessary to ensure that students prevented from taking up their accommodation as planned, were not held liable to pay for accommodation they were unable to use.

7.2.1.8 Student accommodation providers set their own contract terms within tenancy agreements with students and terms will vary across the sector. Given the nature of student residential tenancies, contracts typically run for the entire length of the contract, with no provision for early release. The continued availability of the notice to leave period ensured students were not disadvantaged as a result of coronavirus.

7.2.1.9 The Scottish Government assessed the potential impact of these provisions on human rights, children’s rights and equalities prior to the introduction of the legislation and continues to keep these rights under review when considering their continued necessity. The Scottish Government’s view is that the temporary nature of the provisions continued to strike an appropriate balance between the rights of student accommodation providers and the rights of the students during the pandemic.

7.2.1.10 The Scottish Government will continue to review the operation of these provisions, particularly in light of ‘Coronavirus (COVID-19): timetable for easing restrictions’ published in March 2021[57].

Section 2, schedule 1, Part 2: Tenancies: pre-action requirements for order for possession or eviction order on ground of rent arrears

Description of Provision

7.2.2.1 The provisions provide Scottish Ministers with the power to specify pre-action requirements for private landlords seeking to end a private tenancy due to rent arrears, where those arrears relate to the period during which paragraph 4 of schedule 1 of the second Scottish Act is in force. The First-tier Tribunal for Scotland (Housing and Property Chamber) must take account of the extent to which a landlord has complied with the pre-action requirements when deciding whether it is reasonable to grant an order for repossession.

Operation of Provision in Reporting Period

7.2.2.2 The provisions were in force during the reporting period. The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/304) came into force on 30 September 2020.

Factors Considered to Determine Use and Continued Necessity

7.2.2.3 Schedule 1 of the first Scottish Act makes all grounds for repossession in the private rented sector discretionary, including for rent arrears. This temporarily changed the original position whereby the First-tier Tribunal for Scotland (Housing and Property Chamber) must grant a repossession order if the level of arrears is in accordance with the criteria laid out in the relevant legislation. This change ensures that the Tribunal considers the reasonableness of making a repossession order during the coronavirus outbreak.

7.2.2.4 The introduction of regulations under the provision temporarily set pre-action requirements that will apply where all or part of the rent arrears have originated in the period during which paragraph 4 of schedule 1 of the second Scottish Act is in force. The extent to which a landlord has complied with these requirements must be taken into account by the First-tier Tribunal for Scotland (Housing and Property Chamber) when deciding whether it is reasonable to grant a repossession order.

7.2.2.5 The introduction of regulations formalises the steps landlords should take in relation to working with tenants to manage arrears prior to seeking repossession during the coronavirus pandemic.

7.2.2.6 The Scottish Government has assessed the potential impact of these provisions on human rights, children’s rights and equalities and considers the introduction of pre-action requirements will have a positive impact across those with protected characteristics including women and disabled people who may have been impacted by the consequences of coronavirus. The Scottish Government also considers these measures support the right to adequate housing under the International Covenant on Economic, Social and Cultural Rights by ensuring appropriate safeguards are in place to prevent unnecessary eviction.

Section 2, schedule 1, Part 7: Care homes

7.2.3.1 These provisions make changes to the Public Services Reform (Scotland) Act 2010 (the ‘2010 Act’) for a limited time period to allow for the issuing of Emergency Directions and Emergency Intervention Orders.

7.2.3.2 Emergency Directions - Health Boards can make specific asks of care home providers where they believe there is a material risk to health within the care home due to coronavirus. These asks must relate directly to reducing the risk to health. Where the Health Board believes they have not been complied with, it can, subject to the court’s approval, take steps to ensure they are carried out.

7.2.3.3 Emergency Intervention Orders - Ministers may apply to the court to appoint a nominated officer to temporarily take over the operation of a care home if there is a serious risk to life, health or wellbeing within the home. Where there is an imminent and serious risk to life or health, Ministers can exercise the powers before making an application to the court.

Operation of Provision in Reporting Period

7.2.3.4 Paragraph 16 of schedule 1 adds temporary modifications to Part 5 of the 2010 Act, adding in sections 63A and 63B.

7.2.3.5 Section 63A requires that where the Health Board considers that, for a reason relating to coronavirus, there is a material risk to the health of persons at the specified accommodation, the Health Board may issue a direction to the service provider to take specific steps. Section 63B gives Health Boards the power to act where a section 63A direction has not been complied with.

7.2.3.6 Although these powers have been commenced and are available, they have not been used in this reporting period. A Health Board has not yet been required to issue a direction to a care home using this legislation. Consequently, Health Boards have not had to use the power to act when said direction has not been complied with.

7.2.3.7 Paragraph 17 of schedule 1 inserts sections 65A and 65B into the 2010 Act.

7.2.3.8 Section 65A provides that Scottish Ministers may apply to a Sheriff Court or Court of Session for an Emergency Intervention Order in respect of a care home service provided at a care home which is stated in the application.

7.2.3.9 Section 65A subsection (2) sets out that an Emergency Intervention Order is an order which authorises the Scottish Ministers to nominate a person to act as a nominated officer. The nominated officer is authorised to (1) enter and occupy the accommodation (2) direct the provision of the care home service at the accommodation and (3) do anything that the officer considers necessary to ensure that the care home service is provided to an appropriate standard. It also requires the providers of care to comply with any direction given by the nominated officer in relation to the provision of care.

7.2.3.10 Subsection (7) provides that the court must make an Emergency Intervention Order if it appears there is, due to coronavirus, a serious risk to the life, health or wellbeing of people at the care home.

7.2.3.11 As yet, Scottish Ministers have not made an application to the courts for an Emergency Intervention Order in relation to coronavirus under these powers. The Care Inspectorate updates Ministers of any care home providers with which they have serious concerns and provide regular updates to them to enable emergency action to be taken if required.

7.2.3.12 Section 65B provides that Scottish Ministers may make further provisions to the Emergency Intervention Orders by regulations. Those regulations are subject to the ‘made affirmative’ procedure and will last for 28 days unless they are laid before Parliament and approved.

7.2.3.13 Powers under section 65B were used in the second reporting period to make, the Care Homes Emergency Intervention Orders (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/201) [58] which came into force on 3 July 2020. They make further provisions to the emergency intervention powers set out under section 65A, including: enabling the nominated officer to delegate actions to others; allowing Scottish Ministers to obtain information from relevant bodies; and limiting claims for compensation.

7.2.3.14 No further regulations have been made under powers in section 65B during this seventh reporting period.

Factors Considered to Determine Use and Continued Necessity

7.2.3.15 The availability of these powers enables Health Boards to act swiftly to make specific asks of care home providers where they believe there is a material risk to health within the care home due to coronavirus. Where necessary and following approval of the court, it allows Health Boards to take steps to ensure that any actions are carried out. Similarly the powers enable Ministers to act immediately to safeguard the life, health and wellbeing of care homes residents – provided the tests for intervening are met. The nature of the pandemic means circumstances can quickly change and these powers mean Ministers are in a position to act swiftly. If the powers were removed too soon while there are still concerns about the virus and its impact on care homes, there is a risk that any necessary swift action and additional oversight will not be forthcoming.

7.2.3.16 Care homes include persons of a variety of protected characteristics, in particular disabled persons and persons of varied ages, with the protected characteristics of age and disability being especially relevant to residents. The legislation builds on established powers and the availability of the powers ensures that immediate action can be taken if continuity of care is jeopardised. Having these powers available permits Health Boards and Scottish Ministers to take more responsive action if they consider it is justified necessary, in a sector which is more vulnerable to the virus.

7.2.3.17 There is check and balance to these powers, as any exercise of the powers to issue an emergency intervention order will be subject to the scrutiny of the courts.

7.2.3.18 The second wave of the virus, fuelled by the emergence of a new strain, had a significant impact on Scotland. Cases rose dramatically in Scotland across December (peaking at 2,622 new reported cases in the Scottish population on December 31). This rise in community prevalence was mirrored in the care home sector which saw a steep increases in cases and deaths. Where care homes had outbreaks, these were significant and often overwhelming the resources of the care home who required mutual aid and support from NHS and Local Authority partners.

7.2.3.19 We are continuing to see outbreaks in care homes, but at lower rates than seen before. As at 5 May 2021, 30 (3%) of adult care homes had a current case of suspected COVID-19.

7.2.3.20 Good progress has been made in rolling out the vaccination programme to the care home sector, with 92.3% of adult care home residents and 96.1% of staff having received their second dose of the vaccine as of 12 May 2021. This will likely protect the majority of residents from getting seriously ill with the virus. However, the evolving nature of the pandemic, particularly the potential threat posed by variants of concern, mean circumstances can and may change quickly. Until more is known about the impact on transmission and on health outcomes of existing vaccines, including against variants of concern, public health measures continue to be required, although they do continue to be reviewed to take account of new information.

7.2.3.21 While the above statements provide justification for having the powers in place during this period, the powers have not been used. Scotland’s care infrastructure and the robust inspection regime of the Care Inspectorate is such that when these measures were implemented it was considered that they would only need to be exercised in exceptional circumstances. Therefore, the fact the powers have not been used, does not mean that the rationale behind the implementation of these measures has ceased to be valid.

7.2.3.22 While the threat of the virus and emerging variants still remain, it is the opinion of the Scottish Government that these powers are still necessary and proportionate.

Section 2, schedule 1, Part 8: Power to purchase care home services and care at home providers

Description of Provision

7.2.4.1 The provisions in section 2 and paragraphs 18 to 20 of schedule 1, Part 8 set out temporary powers available to Local Authorities to purchase, by agreement, a care home or care at home services. It also sets out the powers available to Health Bodies (a Health Board, the Common Services Agency and Health Improvement Scotland) to acquire a care home, by agreement, on behalf of Scottish Ministers.

7.2.4.2 Circumstances where this can take place are where, for a reason relating to coronavirus: the provider is in serious financial difficulty; the Local Authority or health body is satisfied there is a threat to the life, health or wellbeing of people receiving the service; or where a provider has recently stopped providing the services.

7.2.4.3 These are for voluntary acquisitions only and do not grant powers for compulsory purchases.

7.2.4.4 Paragraph 19 also provides that the health body must comply with a written direction by Scottish Ministers.

Operation of Provision in Reporting Period

7.2.4.5 Paragraph 18 provides that a Local Authority may acquire, by agreement, a care home service, a care at home service and any asset or liability of those services under the circumstances outlined in paragraph 20.

7.2.4.6 Paragraph 19 provides that a health body (a Health Board, the Common Services Agency and Health Improvement Scotland) may acquire, by agreement, a care home service and any asset or liability of that provider on behalf of Scottish Ministers under the circumstances in paragraph 20.

7.2.4.7 Paragraph 19 also provides that the health body must comply with a written direction by Scottish Ministers. Directions must be published and they can be varied or revoked by a subsequent direction.

7.2.4.8 Paragraph 20 describes the circumstances in which the Local Authority can acquire the provider of a care home or care at home services (or any asset or liability of that provider) and a health body can acquire the provider of a care home service (or any asset or liability of that provider). These are set out in 7.2.4.2 above.

7.2.4.9 These powers have not been used in the reporting period. Neither a health body nor a Local Authority has acquired a care home, nor has a Local Authority acquired a care at home service, under these powers. Scottish Ministers have not directed a health body to acquire a care home under these powers.

Factors Considered to Determine Use and Continued Necessity

7.2.4.10 In addition to the factors that were considered as set out at sections 7.2.3.15 to 7.2.3.22 above, the following factors were also taken into consideration in the review.

7.2.4.11 These emergency provisions create powers in relation to the acquiring of care homes and care at home services. These types of transactions require detailed due diligence exercises to be carried out as well as practical discussions around matters such as budget, transition, employment considerations and property legalities. These matters require time. If action is required, the extension of these emergency provisions would also provide much clarity and benefit.

7.2.4.12 Additionally, the availability of these powers enables a Local Authority or a relevant health body to act to acquire a care home service or a care at home service in the circumstances set out in paragraph 7.2.4.2 above and enables a Local Authority or relevant health body to act to safeguard the interests of the residents of a care home. Equally, it also ensures a Local Authority can quickly put in place continuity of care for those who receive a care at home service.

7.2.4.13 Levels of confidence in care home preparedness have improved significantly over the past 12 months, however care homes have been seen to be significantly overwhelmed by COVID during outbreaks. As described above in sections 7.2.3.20, the evolving nature of the pandemic, particularly the potential threat posed by variants of concern, mean circumstances can and may change quickly.

7.2.4.14 It remains a possibility that some homes will need an intervention. Pending more evidence on the efficacy and longevity of the vaccine, it would be prudent for the emergency powers to stay in place as they provide a safety net and assurance. Therefore, it is the opinion of the Scottish Government that these powers are still necessary and proportionate.

Section 2 schedule 1, Part 9: Care homes: further provisions

Description of Provision

7.2.5.1 Section 2, schedule 1, Part 9 - care homes: further provisions, describes two provisions, which extend on the reporting work already undertaken by the Care Inspectorate in relation to care homes for the duration of the emergency period. The provisions introduce the publication of two reports that are laid before the Scottish Parliament: a fortnightly report on inspections of adult care homes; and a weekly report on the number of deaths notified by care home service providers.

Operation of Provision in Reporting Period – Reporting on Care Home Services Inspections

7.2.5.2 Section 53 of the Public Services Reform (Scotland) Act 2010 (‘the 2010 Act’) provides that the Care Inspectorate may inspect registered care services, and sets out the purpose of inspections. Section 2, schedule 1, Part 9 of the second Scottish Act adds section 53A to the 2010 Act, requiring that the Care Inspectorate must lay a report before Parliament every two weeks during the emergency period. These reports must set out which care home services it has inspected as well as the findings of those inspections.

7.2.5.3 This provision has been exercised from the date that the second Scottish Act came into force, with the first of the fortnightly reports being laid before Parliament on 10 June 2020. The Care Inspectorate continues to lay this report before Parliament every second Wednesday. The reports are also available on the Care Inspectorate website[59].

7.2.5.4 The report findings include indicators across three themes specific to coronavirus. These new quality indicators are now augmented in the Care Inspectorate’s quality framework for Care Homes for Adults and Older People, and are also now included in the fortnightly report on inspections as follows: people’s health and wellbeing are supported and safeguarded during the COVID-19 pandemic, infection control practices support a safe environment for both people experiencing care, and staff, and staffing arrangements are responsive to the changing needs of people experiencing care.

Factors Considered to Determine Use and Continued Necessity

7.2.5.5 In implementing this provision, the Care Inspectorate has had to develop and implement new processes to comply with the requirements. There have been clear advantages in taking a more targeted, intelligence-led and risk-based approach, working collaboratively with Health and Social Care Partnerships (HSCPs), clinical oversight teams, public health teams and Healthcare Improvement Scotland in both sharing information to prioritise services for inspection, and in undertaking the inspections themselves.

7.2.5.6 The Care Inspectorate has augmented their Quality Frameworks for inspections, including care homes for adults and older people, introducing quality indicators specific to COVID-19[60]. This provides clarity in the reporting process during this time, where it is important to proactively identify where there may be a risk to the health and wellbeing of care home residents, and to the resilience of the service itself.

7.2.5.7 Where the Care Inspectorate has identified serous concerns in services, it has returned quickly to the care home to check and report on improvements. This has provided powerful evidence of the value of robust, independent scrutiny and assurance. This process has also been helpful in getting information into the public domain more quickly to provide assurance to Ministers, Parliament and the public at a time where levels of concern about the safety and wellbeing of care home residents is understandably high. It has enabled the Care Inspectorate to highlight more quickly the valuable work it has been doing.

7.2.5.8 The reports which are provided to the Scottish Parliament present a useful overview of services inspected and their findings, providing the Care Inspectorate with the opportunity to make further enquiries if needed. The nature of reporting under the second Scottish Act requires a quick turnaround, all be it that full and complete inspection reports are now being produced in around the same time as it takes to publish the fortnightly reports. There has also been recent progress with the programme of vaccination in care homes, the reopening of visiting, and decrease in the number of deaths related to COVID-19 being reported.

7.2.5.9 Nevertheless, there continues to be an increased level of interest and scrutiny of care home issues and the potential threat from the virus and variant strains remains. The operation of the provision in the reporting period was proportionate, and the status of the provisions is appropriate. Among other factors, it may be that the roll out of the vaccine in care homes, and across Scotland, leads to a reduction in the number of care home deaths and the serious threat posed from the virus to care home residents. However, more evidence in the efficacy of the vaccine is needed over time as part of a wider consideration into whether these reporting duties remain necessary and proportionate.

Operation of Provision in Reporting Period - Reporting on Coronavirus Deaths in Care Homes

7.2.5.10 Section 2, schedule 1, Part 9 of the second Scottish Act inserts section 79B into the Public Services Reform (Scotland) Act 2010 (‘the 2010 Act’), which introduces new duties about the reporting of deaths in care homes. Section 79A of the 2010 Act requires that care home service providers must provide certain information to the Care Inspectorate each day in relation to the numbers of deaths which have occurred in a care home service, whether caused by, or attributable to, coronavirus or not. The Care Inspectorate must prepare a report setting out this information and share it with the Scottish Ministers.

7.2.5.11 This provision has been exercised from the date that the second Scottish Act came into force, with the first of the weekly reports being laid before Parliament on 10 June 2020. This contained data from 25 May 2020 onwards. The Scottish Ministers continue to lay this report before the Scottish Parliament each Wednesday and information relating to this is published on the Scottish Government website[61].

Factors Considered to Determine Use and Continued Necessity

7.2.5.12 Most care homes have continued to notify the Care Inspectorate of deaths promptly. A positive outcome of having this specifically set out in the legislation is to remind care homes of the importance of reporting during this period. The Scottish Government and the Care Inspectorate and others have depended on accurate and timely reporting from providers.

7.2.5.13 National Records of Scotland (NRS) publish official statistics on deaths in Scotland, including deaths related to coronavirus in care homes. These statistics are sourced directly from death certificates and are the most accurate record of deaths.

7.2.5.14 Although NRS data and Care Inspectorate management information data on deaths in care homes are similar, they differ mainly due to the location of death (i.e. some care home residents who die in hospital are also included in the statistics reported to the Care Inspectorate from care home services). There are also different time lags between the date of death and the date of registration, or date of notification to the Care Inspectorate.

7.2.5.15 Nevertheless, the Scottish Government’s and Care Inspectorate’s view is that these notifications of death are a key element in its ongoing monitoring for any resurgence of coronavirus.

7.2.5.16 These provisions are designed to provide assurance to Scottish Ministers, to the Scottish Parliament, the public and health and social care workforce, that the quality of care services is being properly scrutinised and supported during the emergency period. Care homes for older people are of a particular focus during the pandemic, although the provisions are relevant to all registered care home services.

7.2.5.17 The operation of the provision in the reporting period to provide for the weekly reporting has offered greater transparency on the number of deaths in these settings, and coronavirus related deaths in care homes while the threat from the virus and new variants remains. The operation of the provision has been proportionate and the status is appropriate. Among other factors, as noted above, it may be that the roll out of the vaccine in care homes, and across Scotland, leads to a reduction in the number of care home deaths and the serious threat posed from the virus to care home residents. However, more evidence in the efficacy of the vaccine is needed over time as part of a wider consideration into whether these reporting duties remain necessary and proportionate.

7.2.5.18 The Care Inspectorate, as the independent scrutiny and improvement body responsible for the regulation and inspection of care and support services in Scotland, is subject to the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012.

7.2.5.19 The Care Inspectorate has published its Equality Outcomes, Mainstreaming Report and Action Plan[62], setting out its approach to Equality Impact Assessments, obligations as corporate parents, and other duties.

7.2.5.20 The Scottish Government will continue to keep the impact of the operation of these provisions under review.

Section 5 and schedule 4, Part 4 - Care services: giving of notices by the Care Inspectorate

Description of Provision

7.2.6.1 This provides the Care Inspectorate with powers to send formal notices to registered care service providers by electronic means, in addition to normal post, for the duration of the emergency period.

7.2.6.2 This power also enables notice to be given to a person providing, or seeking to provide, a care service and covers:

  • an individual;
  • a body corporate, to a director, secretary or other similar officer of that body or to a manager (or other similar officer) of the care service provided by that body; or
  • a firm, to a partner of that firm.

7.2.6.3 Under normal circumstances, formal notices are issued via postal services or are hand delivered. Presently, this is not possible due to the Care Inspectorate following public health guidance, and staff not having access to premises to carry out this function or printing services. This provision has enabled the Care Inspectorate to issue any notice by email, or to publish more generally on a website, when required, thereby expediting the process, at a time when it is increasingly important to deliver notices in a timely, accessible and safe manner.

Operation of Provision in Reporting Period

7.2.6.4 As of 13 May 2021 this power has been used by the Care Inspectorate in relation to 2,858 matters for the issuing of notices relating to registration, variation of conditions of registration, and enforcement action.

7.2.6.5 This has been seen as an important legislative change from the point of view of the Care Inspectorate. During the coronavirus pandemic the Care Inspectorate offices have been closed (and remain so at the time of reporting).

7.2.6.6 For this reason, staff have not been able to access printers to enable hard copy correspondence to be issued. Nevertheless, the accessing of postal services would still have been difficult as would the giving of notice by hand delivery, which would have necessitated face-to-face contact. In the absence of this legislative change, the Care Inspectorate would have delivered formal notices by email and would have argued strongly that it did constitute effective delivery. The amendments that have been introduced put the position beyond doubt.

Factors Considered to Determine Use and Continued Necessity

7.2.6.7 The changes to the identities of individuals to whom a notice intended for a body corporate may be given, has been an essential change from the point of view of updating section 101 of the Public Service Reform (Scotland) Act 2010. This has made it fit for purpose in today’s environment, regardless of coronavirus.

7.2.6.8 The Scottish Government’s view is that this provision will continue to be necessary for as long as there is not as near-normal office access and similarly, as near-normal access to postal services. It seeks to support emergency action required by ensuring notices are delivered and received quickly and safely. The availability of these emergency powers better ensures oversight without delay in a sector which is more vulnerable to the virus. As the take up of vaccine increases across care homes and Scotland more widely, this will form an important consideration in helping us to evaluate whether provisions remain necessary and proportionate. Pending more evidence on the efficacy and longevity of the vaccine, it is prudent for the emergency powers to stay in place and this will continue to be kept under review.

7.2.6.9 The Care Inspectorate, as the independent scrutiny and improvement body responsible for the regulation and inspection of care and support services in Scotland, is subject to the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012. Care homes include persons of protected characteristics, in particular disabled persons and persons of varied ages, with older person making make up the majority of residents. See additional information regarding this at section 7.2.5.17 and 7.2.5.18 above.

7.2.6.10 The impact of the operation of this provision will continue to be reviewed.

UK Act

Section 10 and schedule 9 - Temporary modification of mental health legislation

Description of Provision

7.3.1.1 The provision makes temporary changes to mental health legislation and it aims to ensure that people can continue to be treated and cared for in a way which both respects their rights, and maintains safeguards. These temporary changes will continue to be compliant with human rights obligations.

Factors Considered to Determine Use and Continued Necessity

7.3.1.2 The provisions have not yet commenced.

7.3.1.3 Mental health legislation in Scotland provides for rigorous safeguards in respect of individuals’ human rights which include that any function should be carried out for the maximum benefit of the patient, with the minimum necessary restriction on the freedom of the patient. During the passage of the Bill, Ministers were clear that these temporary changes would be brought in only when absolutely necessary.

7.3.1.4 The temporary provisions aim to provide additional flexibility to enable services to cope with significant staff shortages whilst maintaining appropriate safeguards for patients and to help support the continued safe running of compulsory care and treatment services under mental health legislation.

7.3.1.5 In order for Scottish Ministers to take a view on appropriate and timely commencement of the mental health provisions, the Scottish Government has been clear that there is an ongoing need to collate and review a range of evidence including NHS workforce information showing the overall and coronavirus-related staff absence rate across NHS Boards. In addition, the Scottish Government is working closely with the Mental Welfare Commission, the Mental Health Tribunal for Scotland, the Royal College of Psychiatrists and Social Work Scotland. The Mental Welfare Commission has a statutory duty to monitor the use of the Scottish Government’s mental health legislation and it will ensure that the necessary data continues to be collected. Also, through its oversight group, the Mental Welfare Commission will be in a position to scrutinise and monitor the use of these emergency powers, if ever commenced.

7.3.1.6 At the most recent meeting of stakeholders, all participants reported that there remains a high level of demand on mental health services, both in terms of support services for those with poor mental wellbeing, and psychiatric services for people with more severe mental ill health. Stakeholders also recognised that the mental health impacts of this epidemic and associated lockdown restrictions may not be fully felt or understood for some months to come. All agreed that the data and evidence of impact on services and workforce is paramount when considering whether there is a need to commence the legislation. Therefore, it is necessary to retain these provisions overall to provide additional flexibility given the current climate while recovery is underway.

7.3.1.7 Mental health legislation in Scotland already provides for rigorous safeguards in respect of individuals’ human rights. Consideration has been given to the potential for impacting on an individual’s human rights in the event that the amendments to mental health legislation ever require to be commenced. There is a balancing exercise involved in assessing the proportionality of a measure when multiple human rights are engaged; this remains the case even during a pandemic when Article 2 (the right to life) is engaged. We acknowledge that there is a risk that the relaxing of measures required for admission, and the increase in the length of time patients can be detained could be argued to have a detrimental impact on this protected group.

7.3.1.8 However, these temporary changes to mental health legislation are intended to ensure that people can continue to be treated and cared for in a way which both respects their rights and maintains safeguards while ensuring that services can better cope with staff shortages. Careful consideration was given as to how this could be achieved and the temporary measures are not about making it easier to detain people, but to ensure those who are in need of detention under the Mental Health Act receive the care they need when they need it.

7.3.1.9 Section 3 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the ‘2003 Act’) provides that certain persons exercising functions under the Act are required to discharge the function in a manner that encourages equal opportunities and in particular the observance of the equal opportunity requirements. This section will remain in force even if the amendments are commenced.

7.3.1.10 The amending provisions, if commenced, would be time limited and restricted to use only when necessary. They are not replacing existing legislation and as they are permissive rather than prescriptive then they would provide flexibility about staffing and time limits. If commenced they would only be used when adhering to the current mental health legislation is not practicable or would involve undesirable delay. Should it become necessary to commence and rely on the amended provisions, there is still a prescribed procedure that must be followed when an individual is being assessed, treated and/or detained.

Evidence from stakeholders suggests that it is important to retain the temporary provisions at present

7.3.1.11 Throughout the last year, we have engaged with key stakeholders through the Scottish Government’s Short Life Mental Health Legislation Commencement Consideration to monitor and review the need to commence the temporary provisions on an ongoing basis. Meetings of the group are held every 3-4 weeks with group members providing real-time feedback on how well mental health services are able to operate mental health legislation from their perspectives across the system.

7.3.1.12 They report that that that this remains a challenging period however the current levels of operation of the Adults with Incapacity and Mental Health Acts merits a continued cautious approach in respect of the emergency provisions. There has been an increased level of demand on mental health services both in terms of support services for those with poor mental wellbeing, but also on psychiatric services from people with more severe mental ill health. They view the temporary provisions as a safety net only to be used as a last resort. At the most recent meeting of the group, they agreed there remains no need to commence the provisions but that it would be premature to take away that safety net at this particular moment while recovery is underway. It should also be noted that these temporary provisions, if commenced, are to be permissive rather than obligatory.

7.3.1.13 Members of the Short Life Mental Health Legislation Commencement Consideration Group have also appeared before the Equality and Human Rights Committee. During their evidence session they were clear that although the pressure on workloads remains challenging we are not at the stage where these temporary provisions should commence however it remains necessary to have these provisions available.

7.3.1.14 The Scottish Government has been and will continue to engage with stakeholders in order to gather, analyse and review all available data and evidence. This will be used to inform and shape future advice to Scottish Ministers regarding any decision to commence these temporary measures.

Section 16 - Duty of Local Authority to assess needs: Scotland, and section 17 - section 16: further provision

Description of Provision

7.3.2.1 The provisions allow for relaxation of some requirements relating to social work needs assessments.

Operation of Provision in Reporting Period

7.3.2.2 Sections 16 and 17 of the UK Act allow Local Authorities to dispense with particular social care assessment duties where it would not be practical to comply with them, or to do so would cause unnecessary delay in providing community care services to any person. The provision covers social care for adults and children and support for carers. It is intended to allow Local Authorities to provide urgent care without delay.

7.3.2.3 Scottish Ministers brought forward The Coronavirus Act 2020 (Suspension: Adult Social Care) (Scotland) Regulations 2020 under section 88 of the UK Act which partially suspends section 16 in respect of adult social care and adult carers, while leaving it in force in respect of children and young persons. This will retain the ability for the powers to be used for children’s and young person carer services. Section 16 could be brought back into effect for adult social care and adult carers by regulations to revive the operation of a provision under section 88(3) of the UK Act, should the response to the virus require this. These regulations came into force on 30 November 2020. An Equality Impact Assessment[63] was completed for the regulations and revised guidance[64] has been issued.

7.3.2.4 The provisions allow Local Authorities the flexibility to focus on prioritising the most urgent need and protecting the lives of those who are most vulnerable while ensuring effective safeguards. Local Authorities are still expected to do as much as they can to meet people’s needs. While the provisions relax assessment duties, the main duties on authorities under section 12 of the Social Work (Scotland) Act 1968 remain in place.

7.3.2.5 To introduce the powers, Scottish Ministers made the Coronavirus Act 2020 (Commencement No. 1) (Scotland) Regulations 2020 (SSI 2020/121)[65], which came into force on 5 April 2020. Statutory guidance on these powers was issued on 3 April 2020, and the Deputy First Minister and Cabinet Secretary for Health and Sport wrote jointly to key stakeholders ahead of commencement which was on 5 April 2020. These communications made clear that these powers in respect of assessment duties would remain in operation only while absolutely necessary to protect people.

7.3.2.6 Under section 17(2) (b) of the UK Act, Scottish Ministers can direct Local Authorities to comply with any guidance which is issued under section 17(1). It is intended that this power will only be used if it is considered that the guidance requires the weight of direction, and it will not be necessary to make the direction if Local Authorities demonstrate that they are exercising their functions accordingly. As such, this direction making power has not been used in the reporting period.

7.3.2.7 Following liaison with COSLA and Social Work Scotland, the Scottish Government has issued regular surveys to Chief Social Work Officers to identify use of the powers in respect of children’s services and the justification for retaining them in relation to children’s services. Information from these surveys has been used to inform each of the two-monthly reports to the Scottish Parliament on use of powers under the Coronavirus Acts. Responses to the most recent survey covering the period 9 March – 3 May found that only two Local Authorities reported they had used the powers. The Local Authorities which said they were using the powers during this period were: East Renfrewshire and South Lanarkshire. This is the same as the previous monitoring period.

7.3.2.8 Reasons given for use of the powers included: to allow staff to support front line duties, to provide flexibility to enable targeting of resources on those with most needs, and to ensure people receive appropriate care promptly.

7.3.2.9 Local Authorities that used the powers were asked about their role in managing their response to Covid-19. Responses included that the assumption of normal duties could not have been undertaken due to staffing issues.

7.3.2.10 Local Authorities using the powers were asked to explain what arrangements were in place to ensure that these powers are being used in a way that protects human rights, including the rights of children. Responses included that a harm matrix approach continued to be employed. It was noted that a social work duty system was still in place to triage and assess enquiries and weekly Adult and Child Protection Committees has oversight of data, enquiries and investigations. Enquiries are screened and if support is needed it can be escalated without delay.

Factors Considered to Determine Use and Continued Necessity

7.3.2.11 The statutory guidance referred to above, provides a reference point and framework for Local Authorities, if they choose to implement the provisions. The statutory guidance states: “all assessments other than full should be regarded as temporary. These should be reviewed as well as possible at regular intervals”.

7.3.2.12 The guidance sets out that Local Authorities are responsible for ensuring that the powers are only used for as long as is necessary. When using these provisions, all decisions made on an individual’s social care needs should be considered alongside their individual wellbeing and fundamental human rights.

7.3.2.13 As was the case for the previous reporting periods, most Local Authorities have determined that it is not operationally necessary for them to use these powers at this stage. This demonstrates that Local Authorities are carefully considering use of the powers, reviewing them, and seeking to use them only where appropriate, proportionate and necessary, and subject to their governance processes.

7.3.2.14 Significant progress has been made in tackling the virus and the Scottish Government wants to move as soon as possible to a position where all those in need of social care receive full assessments.

7.3.2.15 In relation to children’s services, child protection activity has been monitored on a weekly basis since early into the first period of lockdown. Following the easing of the second lockdown there has been an increase in child protection registrations. This was widely expected by senior professionals as contact with vulnerable children increased after lockdown. The Scottish Government will continue to monitor the rate of registrations as lockdown is eased.

7.3.2.16 Social Work Scotland and the Office of the Chief Social Work Adviser believe there is a potential for demand in children’s services to continue to be high as lockdown is eased. Any delays in response times could leave children unprotected or families without prompt support. The Scottish Government will continue to monitor the data on a weekly basis and liaise regularly with Chief Social Work Officers on the need to retain the powers in respect of children’s services.

Sections 34 and 35 - Temporary disapplication of disclosure offences: Scotland and power to reclassify certain disclosure requests: Scotland

Description of Provision

7.3.3.1 The provisions give Scottish Ministers the power to issue a direction that dis-applies or modifies the offences under section 35 (organisations not to use barred individuals for regulated work) and section 36 (personnel suppliers not to supply barred individuals for regulated work) of the Protection of Vulnerable Groups (Scotland) Act 2007 (‘the PVG Act’).

Factors Considered to Determine Use and Continued Necessity

7.3.3.2 This power has not been used in this reporting period. The use of these provisions is directly linked to the ability of Disclosure Scotland to continue to provide a service to those critical workers requiring PVG scheme membership. This provision is to ensure that employers that employ someone who is barred from regulated work are not criminalised due to the inability of Disclosure Scotland to provide this check in a timely manner.

7.3.3.3 Disclosure Scotland’s Leadership Team monitors the number of applications received on a daily basis, and the length of time that it is taking to process and issue disclosures. Throughout the reporting period, the average processing time for PVG disclosures in connection with recruitment for coronavirus work has been under one week. Disclosure Scotland’s Leadership Team also monitors staff absences daily, and these have not been at a level to impact adversely on the processing and issuing of disclosures. Scottish Ministers will make the decision to invoke this contingency if monitoring shows that there is a material risk of Disclosure Scotland being unable to continue to provide a service to critical workers requiring PVG scheme membership.

7.3.3.4 While at this time, the assessment is that the powers under sections 34 and 35 do not require to be used, the provision remains necessary overall as a contingency to ensure continuity of service.

7.3.3.5 The provisions are not considered to engage any children’s rights, human rights or equality considerations. While the disclosure and barring services operated under the PVG Act can impact on both Article 6 and Article 8 rights, sections 34 and 35 do not change the type or extent of information that may be disclosed about a person’s criminal past, nor do they affect Ministers’ ability to place an individual under consideration for listing to prevent them from working with vulnerable groups. They do not undermine safeguarding, since it would continue to be an offence for a barred individual to do regulated work with children and/or protected adults.

Section 37 and Part 2 of schedule 16 and section 38 and Part 2 of schedule 17 - Temporary closure of educational institutions and childcare premises, and temporary continuity: education, training and childcare

Description of Provision

7.3.4.1 The provisions provide Scottish Ministers with powers to direct the closure of educational establishments where it is necessary and proportionate, or give directions relating to the continuity of education, which may include directing the operator of an education establishment to take on additional functions, to close educational establishments, or reopen either partially or fully. Ministers have powers in respect of both types of direction to provide that any failure to comply with a statutory duty or time limit is to be disregarded to the extent the failure is attributable to the direction; a closure direction would have such effects automatically.

Operation of Provision in Reporting Period

7.3.4.2 The powers under section 37 and Part 2 of schedule 16 have not been used in the reporting period.

7.3.4.3 The powers under section 38 and Part 2 of schedule 17 were in use during this reporting period with Educational Continuity Direction expiring at 23:59 on 2 April 2021. No further directions have been issued following the full reopening of schools and early years and childcare settings from 12 April 2021.

Factors Considered to Determine Use and Continued Necessity

7.3.4.4 The educational continuity direction used during this reporting period was given on 11 March and was in force until 23.59 on 2 April. It was put in place following statements by the First Minister during February and March announcing a phased reopening of primary and secondary schools and early learning and childcare settings, continued in-person learning for vulnerable children and the children of key workers and for secondary school pupils high quality remote learning and some in-school teaching. It supported this position and provided a legal basis for key aspects of phase 2 of the reopening of schools.

7.3.4.5 The Education Recovery Group and the Advisory Sub-Group on Education and Children’s Issues have collectively provided the broad based overview of the effect of the current guidance and the direction, taking consideration of views from across the schools sector. The most recent guidance on reducing risks in schools[66] was published on 24 March 2021 (updated 19 April 2021). The accompanying impact assessment in relation to protected characteristics, children’s rights and wellbeing, the Fairer Scotland Duty and island communities was published on the same date. The Impact Assessment for ‘The reopening of childcare’ was published on 30 September 2020 and an Impact Assessment for the temporary restrictions on early learning and childcare in 2021 was published on 19 February.[67]

7.3.4.6 It is considered appropriate that these powers remain in force, that they are necessary to support actions in society to prevent the spread of the virus, and to ensure that educational provision is maintained for children and young people as the easing of restrictions progresses. While the transmission of the virus has reduced significantly further educational continuity or closure directions may be necessary in future periods.

7.3.4.7 Ministers’ powers to issue directions to educational establishments also include further and higher education institutions. To date, the powers have not been exercised in relation to FE or HE bodies. Nevertheless, it is considered appropriate for the powers to remain in force in full. It may become necessary in due course to issue educational continuity directions to those sectors, particularly as we move out of lockdown and face to face teaching resumes for the majority of students. Continuity directions would allow Ministers to require institutions to take appropriate health protection measures, possibly including testing facilities for staff and students. Ministers will be aware that these powers would only be used as a last resort in the FE/HE sectors. The Scottish Government’s position remains that it is working closely with universities, colleges and other organisations within the sector to mitigate any impacts on the further and higher education system arising from the pandemic while preventing the spread of the virus.

Section 49 and schedule 19 - Health Protection Regulations: Scotland

Description of Provision

7.3.5.1 Section 49 introduces schedule 19, which gives Scottish Ministers the powers to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in Scotland.

Operation of Provision in Reporting Period

7.3.5.2 Section 49 and schedule 19 commenced on Royal Assent and came into force on 25 March 2020. The powers have been used to make several sets of regulations to provide for the “lockdown”. While the full chronology of these regulations up to 24 March 2021 (SSI 2021/168[68]) can be viewed in the sixth two-monthly report to Parliament[69], the regulations made using these powers in this seventh reporting period are as follows:

7.3.5.3 Associated guidance has been regularly updated. Evidence supporting the decisions applying the Strategic Framework levels across different parts of Scotland each week since they were first introduced on 2 November 2020 is set out in the series Covid Protection Levels; Reviews and Evidence. This includes a series of State of the Epidemic reports which summarise the latest indicators on case numbers and testing, as well as evidence on prevalence of the new variant of concern (VOC).

7.3.5.4 On 11 December 2020 the Scottish Government published Assessing the Four Harms of the Crisis. This document describes how the Four Harms approach works in practice and presents evidence to illustrate its application to decisions relevant to Scotland’s Strategic Framework.

7.3.5.5 On 23 February 2021 the Scottish Government published an updated version of COVID-19 Scotland’s Strategic Framework which describes how we will prioritise moving out of lockdown.

7.3.5.6 Revised Local Protection Levels were published on 13 April 2021. These are subject to ongoing review as necessary.

7.3.5.7 In addition, the Modelling the Epidemic series provides outputs from modelling of the spread and level of the epidemic by Scottish Government, as well as results by modelling groups feeding into the SAGE consensus. These help ensure a robust, peer-tested and up to date picture informs decisions.

7.3.5.8 Public Health Scotland (“PHS”) also publish a Covid19 weekly statistical report. This presents key information on the rollout of the vaccine, volumes of tests and data on covid transmissions, prevalence of the new variant and case numbers, plus links to a range of research resources and tools.

7.3.5.9 Police Scotland is publishing weekly updates on the use of coronavirus legislation, including the number of Fixed Penalty Notices issued and other intervention activity[70]. This information is drawn from Police Scotland’s ‘Coronavirus Interventions’ application, which relies on manual input from police officers. Due to this manual input, these figures are indicative only and should not be considered Official Police Statistics. This system currently provides the broadest picture of the differing levels of co-operation experienced by police across Scotland.

7.3.5.10 In due course and as standard practice, the Official Statistics produced by the Scottish Government on Recorded Crime[71] and Criminal Proceedings[72] will ultimately provide users with information on both the number of crimes recorded in relation to the new powers, and the number of Fixed Penalty Notices issued. The Recorded Crime in Scotland, 2019-20 publication included a small number of crimes recorded under the legislation which was introduced towards the end of the reporting, in March 202071. Further updates on developments with these Official Statistics can be received by signing up to the SCOTSTAT network[73].

7.3.5.11 Information is now available on charges reported to COPFS under the various Health Protection Regulations made under schedule 19. Most charges were related to regulation 5(1), for failure to comply with the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020.

7.3.5.12 Table Three below provides additional information on the number of charges reported up to 30 April 2021 and the initial decision on how these charges will proceed.

Table Three: Action taken as a result of charges reported to COPFS under the various Health Protection Regulations – up to 30 April 2021
Action taken Number of charges reported % of total
Solemn 101 5%
Summary 645 32%
Fiscal Fine 291
Fixed Penalty 20
Diversion 85
Reporter 54
Warning 62
Work Offer 4
Direct Measure Total 516 26%
No Action/Not Separately Actioned Total 325 16%
No Decision Total 417 21%
Grand Total 2,004 100%

Source: COPFS

7.3.5.13 The table above covers the full period of the regulations being in force. A monthly breakdown of charges reported by date of offence is provided below.

Table Four: Charges reported to COPFS under the various Health Protection Regulations by date of offence – up to 30 April 2021
Month March April May June July August Sept Oct Nov Dec Jan Feb Mar Apr Total
Total charges reported 33 352 198 42 14 27 48 90 151 176 317 315 166 75 2,004

Source: COPFS

7.3.5.14 The numbers of charges reported in January and February are the highest monthly totals since the start of the Covid crisis. April 2020 remains the month in which the highest number of offences took place. Please note that the number of offences in recent months may increase as further reports are received, but it looks unlikely that they will increase to higher than the level in April 2020.

7.3.5.15 A Local Authority can also use enforcement powers in relation to the parts of the regulations that relate to restrictions on businesses.

7.3.5.16 To ensure a co-ordinated approach to coronavirus was taken nationally, the Environmental Health/Trading Standards COVID-19 Expert Group was formed by the Society of Chief Officers of Environmental Health of Scotland and the Society of Chief Officers of Trading Standards in Scotland in conjunction with COSLA. Both Environmental Health and Trading Standards staff have been designated as authorised officers by Local Authorities to enforce the relevant requirements of the various Health Protection Regulations, made under schedule 19 of the UK Act.

7.3.5.17 Each Local Authority is publishing information about enforcement activity undertaken in relation to the regulations on the respective Local Authority’s website. This information is currently published every two weeks.

Factors Considered to Determine Use and Continued Necessity

7.3.5.18 COVID-19: Scotland’s Strategic Framework sets out how the Scottish Government is working to suppress the virus and outlines the move to a strategic approach to outbreak management based on five levels of protection. The levels include graduated packages of measures designed to reduce transmission of the virus based on clinical advice and research. These levels can be applied nationally or to different areas of the country according to the evolving patterns of infection and transmission; higher levels indicate more stringent restrictions in response to higher infection rates.

7.3.5.19 The levels were designed with reference to Scotland’s Framework for Decision Making and the four harms caused by the virus – in order to achieve the targeted impact on harm 1 at each level. They also seek to mitigate as much as possible the impact on harms 2-4.

7.3.5.20 Decisions about which levels to apply in which area are taken on the basis of public health and clinical advice, and an assessment against the four harms. These decisions require judgement to be applied to all the facts and considerations relevant at the time they are made.

7.3.5.21 The Strategic Framework is clear that decisions allocating levels to areas have to be based firmly in the best available evidence and information. They are assessed through a process that is open, transparent and collaborative so that restrictions are not kept in place longer than is strictly necessary to achieve the aim of suppressing the virus.

7.3.5.22 The process for moving between the levels takes in clinical advice from the National Incident Management Team and Scottish Government clinical leads – around the Harm 1 direct health impacts from COVID. Directors of Public Health monitor data on a daily and weekly basis and SG officials update the suite of indicators weekly. The National Incident Management Team considers this information alongside local data and analysis in providing public health advice.

7.3.5.23 This is brought together with evidence and the assessment of impact on the other Harms caused by the virus – including the indirect health harms, the social harms and harms to the economy. A range of indicators, along with other evidence, is used to build up a picture of the Four Harms impacts of changes to levels. Wider considerations will also be taken into account such as the prevalence of infection elsewhere, or of the characteristics of new variants – which might suggest differential impacts.

7.3.5.24 Changes to level allocation, whether up or down, need to be justified by the data, supported by public health advice and consistent with the Framework for Decision Making. Decisions are made by Ministers, in exercise of their statutory powers in relation to public health, and implemented through regulations.

7.3.5.25 Local authority partners are engaged in the decision making process through the National Incident Management Team and are consulted ahead of decisions applying levels being taken.

7.3.5.26 The Regulations must be reviewed at least every 21 days to ensure that the measures they impose continue to be necessary and proportionate.

7.3.5.27 In between these formal reviews, the individual measures are kept under continuous review and changes are assessed through the Four Harms approach. Changes arising from the reviews are set out to the Scottish Parliament in plenary and then considered by the Parliament’s COVID-19 Committee.

7.3.5.28 Throughout the development of the regulations and guidance, the Scottish Government has always had regard to the need to protect human rights, equality considerations, the impact on business and the particular needs of island communities as part of the policy development process.

7.3.5.29 Ministers are clear that the restrictions and requirements imposed by regulations must be necessary and proportionate. Whilst measures across the levels aim to deal with a significant threat to public health, impact assessments have been, and will continue to be, carried out as required on these measures. Any proposed changes will be assessed for their impact on equality and other areas as part of the policy development. This will be reported to the Scottish Parliament in appropriate impact assessments supporting any further amending regulations. All impact assessments can be found on www.legislation.gov.uk under the appropriate instrument.

Section 51 and Part 3 of schedule 21 - Powers relating to potentially infectious persons

Description of Provision

7.3.6.1 Section 51 introduces schedule 21 which sets out powers which can be exercised by public health officers, constables and immigration officers in respect of persons where there are reasonable grounds to suspect that they are “potentially infectious”.

Operation of Provision in Reporting Period

7.3.6.2 A declaration of a serious and imminent threat to public health[74] was made on 25 March 2020 under schedule 21, and a further clarificatory declaration[75] was made on 30 March 2020. Although the schedule 21 powers have been “switched on” via this declaration made by Scottish Ministers, they have not been used in the reporting period. The views and agreement of the Chief Medical Officer were formally sought and secured prior to the issuing of the declaration to switch on the schedule 21 powers.

Factors Considered to Determine Use and Continued Necessity

7.3.6.3 The schedule 21 potentially infectious persons powers continue to be required particularly as restrictions ease and Scotland enters a covid recovery period. There is also the potential for new variants to emerge. The Test and Protect programme aims to identify those at risk of exposure in order to test for coronavirus and require self-isolation. Where individuals do not co-operate on a voluntary basis it may be necessary, where appropriate, to use the powers under schedule 21 for their own and others’ health and wellbeing.

7.3.6.4 In respect of the provisions in schedule 21, for example relating to isolation and medical screening and assessment, the requirements of ECHR were carefully considered when the Act was developed. When powers under schedule 21 are exercised, they must be exercised in a manner which strikes an appropriate balance between individuals’ rights and the public health interest. To ensure this, a number of safeguards are built into the provisions, including the pre-requisite for the use of powers being a Ministerial declaration of a “serious and imminent risk to public health”; the requirement for the person exercising powers under the schedule to have reasonable grounds to believe that the person they are dealing with is potentially infectious; and appeal rights for those subject to restrictions.

Section 52 and Part 3 of schedule 22 - Powers to issue directions in relation to events, gatherings and premises

Description of Provision

7.3.7.1 Section 52 introduces schedule 22 which gives the Scottish Ministers direction-making powers in relation to events, gatherings and premises.

Operation of Provision in Reporting Period

7.3.7.2 A declaration of serious and imminent threat to public health[76] was made on 25 March 2020 under schedule 22. This had the effect of starting a “public health response period” and switching on the schedule 22 powers (with a further clarificatory declaration[77] made on 30 March 2020).

7.3.7.3 The views and agreement of the Chief Medical Officer were formally sought and secured prior to the issuing of the declaration to switch on the schedule 22 powers.

7.3.7.4 Although the schedule 22 powers have been “switched on” via the declaration made by Scottish Ministers, they have not yet been used to make directions relating to events, gatherings and premises. Provision in that regard has instead been made to date by regulations made under schedule 19. Provision has also been made through regulations[78] made under the section 49, schedule 19 powers, to allow Local Authorities to give directions relating to specified premises, events and public outdoor places in their area.

7.3.7.5 As the requirement for the schedule 19 regulations is kept under review, based on public health grounds, so too is the ongoing requirement for the schedule 22 powers and when they might be invoked. Whilst no directions have been made under schedule 22 yet, the powers remain necessary as restrictions ease and Scotland enters a covid recovery period and could be used to take fast targeted action beyond the scope of the regulations if it appeared necessary, proportionate and justified in the circumstances. The powers may be necessary to allow Scottish Ministers to take more targeted action in local areas to close specific premises where there is a particularly significant outbreak (where premises of that type are not closed by the schedule 19 regulations), or where Ministers consider action needs to be taken quickly and premises have not yet been closed by a Local Authority or where Local Authority powers are not appropriate - for example, where there is a particularly significant outbreak spanning one or more areas but not all of Scotland.

7.3.7.6 When powers are exercised under schedule 22, they must be exercised in a manner which strikes an appropriate balance between individuals’ rights and the public health interest. Safeguards are built into the provisions, for example, the pre-requisite for the use of powers being a Ministerial declaration of a “serious and imminent risk to public health”. Decisions on issuing directions under schedule 22 will be taken in the interests of the protection of public health, will be made on the basis of medical and scientific advice, and will be proportionate to the management of risks to public health of coronavirus.


Contact

Email: covid.leg@gov.scot