UK Offence Report

Requirements on providers and offences

regulation 3(4) of The Registration of Social Workers and Social Service Workers in Care Services (Scotland) Regulations 2013

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

4 It is an offence to fail to comply with the requirements of this regulation without reasonable excuse.

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 This is the text as originally made; later amendments are not shown here.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
failing to comply with a notice or direction
Fault element
Strict liability
Burden of proof
An element of the offence, for the prosecution to prove

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.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

to fail to comply with the requirements of this regulation without reasonable excuse.

What would breach regulation 3(4)?

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.

  1. On these words it is an offence to fail to comply with the requirements of this regulation without reasonable excuse.
  2. Being served with a notice under the Registration of Social Workers and Social Service Workers in Care Services (Scotland) Regulations 2013 and doing nothing by the date it specifies.
  3. Doing part of what the notice requires, where it required all of it.
  4. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

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.

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
Status not determined
Made
3 July 2013
In force from
1 August 2013
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations amend and consolidate the Regulation of Care (Fitness of Employees in Relation to Care Services) (Scotland) (No. 2) Regulations 2009 (“the 2009 Regulations”). These Regulations impose requirements on care service providers and Social Care and Social Work Improvement Scotland (“SCSWIS”) as regards the social workers and social service workers they employ. Regulation 3 places duties, enforced by offences, on providers to ensure that their care service workforce is appropriately registered with the Scottish Social Services Council (“the SSSC”). Subject to exceptions, both social workers and social service workers may only work in a care service (as defined in section 47(1) of the Public Services Reform (Scotland) Act 2010) if they are registered with the SSSC. Social workers may only work in a care service if they are registered with the SSSC. On starting as a social worker for the first time, such a worker must apply for registration as soon as is practicable. Regulation 4(3) creates a 6 month grace period whereby a social worker starting work in a care service for the first time has 6 months to register (but must still apply as soon as is practicable). By virtue of regulation 4(4) a social worker need not register with the SSSC if that worker is already obliged to register with another person or body to provide a care service (for example, with the Nursing and Midwifery Council). That exception does not apply to a social worker registered in an equivalent register applicable to the other parts of the UK. Such social workers also require to register with the SSSC and have the same 6 month grace period as any other social worker. Social service workers are defined in section 77 of the Regulation of Care (Scotland) Act 2001 and different types of social service worker are prescribed by the Regulation of Care (Social Service Workers) (Scotland) Order 2005. Each type of social service worker is registered in a different part of the register by the SSSC. Again the general principle is that social service workers must be registered to provide care services or to inspect care services for SCSWIS. Any social service worker entering a care service, or changing the type of social service they provide, will have to be registered (regulation 5). Like social workers, they will have to apply for registration as soon as is practicable on starting work, which includes starting work as a different type of social service worker (regulations 5(2) and (8)). Similarly, if not already registered they will have a six month grace period in which to register (regulation 5(3)). This is a change from the 2009 Regulations where only certain social service workers were given this grace period. Mandatory registration of those social service workers already in post is, however, being phased in. Mandatory registration will only apply to those social service workers named in the Schedule from the dates set out in that Schedule; all other social service workers currently in post must be registered (regulation 5(7)). As with social workers, a social service worker need not register with the SSSC if they are already obliged to register with another person or body to provide or inspect a care service and they are so registered (regulation 5(4)). There is no provision equivalent to that provided, for social workers, by regulation 4(7). A further change to the 2009 Regulations is that a partial exemption is made to mandatory registration for social service workers in regulation 6. Regulation 6 applies to practitioners and support workers in a seasonal day care of children services (as defined in regulation 6(4)). This would include, for example, a day care of children service provided during school holidays only. This rule only applies from 2015 onwards. Once this rule is engaged, that seasonal worker may not provide a seasonal day care service unless registered. Such employees must register with the SSSC if they have worked in such a position in any two preceding calendar years; otherwise they need not be registered. Regulation 7 provides a further exemption for certain persons engaged by SCSWIS as inspectors (known legislatively as “authorised persons”). Regulation 7 exempts inspectors who are engaged on a short term basis to provide specialist advice for a particular inspection or inspections. This could, for example, apply to an architect or accountant. Regulation 8 revokes the 2009 Regulations, and regulation 9 provides transitional and savings provisions such that workers who started work prior to the coming into force of these Regulations will be subject to the requirement to achieve registration and will continue to benefit from the periods of grace for registration set out in the relevant provision of the 2009 Regulations.

Read the full note and every offence in this instrument

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 0.90.

Basis
the provision says “it is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.90 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