Fitness of employees

regulation 9(2)(a) of The Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011

Revoked
Strict liability
Education, social security, pensions and public services

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

a any person who has been convicted whether in the United Kingdom or elsewhere of any offence which is punishable by
a period of imprisonment of not less than 3months and has been sentenced to imprisonment (whether or not suspended or deferred) for any period without the option of
a fine and who, in the reasonable opinion of the manager of the care service having regard to the circumstances of the conviction, is unsuitable to work in
a care service;

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds: a person
Conduct: breaching the provision
Fault element: Strict liability
Burden of proof: No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 9(2)(a)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

Doing what the provision prohibits, or failing to do what it requires under the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011.

Penalty

Mode of trial: Not determined
Maximum fine: Not determined
Maximum prison (summary): Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Reduction in sentence for a guilty plea: definitive guideline All courts in England and Wales · in force from 1 June 2017
The sliding scale of credit for pleading guilty, from one third at the first stage of proceedings downwards.
General guideline: overarching principles All courts in England and Wales · in force from 1 October 2019
The guideline a court uses when there is no offence-specific guideline, which is the position for the overwhelming majority of offences created by statutory instrument. It sets out how culpability and harm are assessed from first principles.
Totality: definitive guideline All courts in England and Wales
How to sentence more than one offence at once so that the total is just and proportionate - frequently in point here, because regulatory prosecutions commonly charge several breaches of the same instrument.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status: Revoked
Revoked by: Health and Care (Staffing) (Scotland) Act 2019
Made: 15 March 2011
In force from: 1 April 2011
Extent: Not stated

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

These Regulations set out requirements which must be complied with by providers of care services under Part5 of the Public Services Reform (Scotland) Act 2010. A care service must be provided in accordance with the general principles set out in regulation3. Regulation4 imposes requirements on providers which relate to the welfare of service users. In accordance with regulation5, the provider is required to prepare a personal plan for each service user setting out how the service user’s health, welfare and safety needs will be met. The Regulations specify persons who are not fit to provide (regulation6), manage (regulation7) or be employed in a care service (regulation9). They also make provision as to fitness of premises (regulation10) and fitness in relation to adult placement services (regulation11). A provider of child minding is required by regulation12 not to allow persons unfit to be in the proximity of children to live on the premises and requires notification to SCSWIS of certain changes to persons living at the premises. Regulation13 concerns the impact of a listing in the children’s or adults’ list in the Protection of Vulnerable Groups Act 2007. Regulation14 makes provision as to the facilities required in care homes and regulation15 concerns the staffing in care services. Regulation16 imposes a prohibition on any person having a financial interest in a care home from acting as a medical practitioner for any user of that service. Regulation17 makes provision as to the appointment of a manager of a care service and regulation18 obliges a care service to establish and operate a complaints procedure. Regulation19 provides that contravening or failing to comply with certain provisions of the Regulations is an offence. A person who commits an offence under these Regulations is liable on summary conviction to a fine not exceeding level5 on the standard scale.

Read the full note and every offence in this instrument

Other offences in the same instrument

Subject to paragraph2 it is an offence to contravene or fail to comply with regulations4(3), 6(1), 7(1),…regulation 19(1)
Failure to comply with regulation6(2)(a) does not constitute an offenceregulation 19(2)
Fitness of providersregulation 6(2)
Fitness of providersregulation 6(2)(b)
Fitness of managersregulation 7(2)
Fitness of managersregulation 7(2)(b)
Fitness of employeesregulation 9(2)

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.60.

Basis: the provision says the conduct is “punishable”
Confidence: 0.60 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source

This provision on legislation.gov.uk The authoritative text. Check it before relying on anything here.
The Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011 Every offence this instrument creates, and its explanatory note
Education, social security, pensions and public servicesOther offences on the same subject
Offences created in 2011