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SOCIAL WORK LAW & POLICY 2011 - Wednesday 23rd February 2011

As indicated in the course outline this session will cover the following topics:
• the Scottish legal system
• human rights
• confidentiality and data protection
• discrimination
• local authority social work services and the regulatory framework for these

The first four of these are covered in the reading below, the final topic will be covered in
class. In addition, the class will discuss the answers to the questions which you have
prepared and also look at some other questions on the topics listed above.

READING & QUESTIONS

You should read this document and also the other reading set out below and in the course
document.

Questions

1. Read Savage v South Essex Partnership NHS Foundation Trust [2007] EWCA Civ
13751 (available here). In a paragraph each briefly explain:
• what the background to this case was;
• what the court decided and why; and
• what you would write if asked to explain the possible implications of this case for
social work practice.

2. Read R (Boyejo) v Barnet London Borough Council [2009] EWHC 3261 (Admin)
(available here) . In a paragraph (or less) each briefly explain:
• what the background to this case was;
• what the court decided and why;
• what you would write if asked to explain the possible implications of this case for
social work practice; and
• what influence this case might have if a similar dispute arose in Scotland.

1 The citation here is in the form explained in Chapter 7 “Social Work and the Law” in Wilson, Kate;
Ruch, Gillian; Lymbery, Mark and Cooper, Andrew et al, (2009) Social work: An introduction to
contemporary practice.

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SECTION A – THE SCOTTISH LEGAL SYSTEM

1 The distinctive character of Scots Law


The Scottish legal system had, at least until 1707, a different history from the legal
system in the rest of the UK. One of the consequences of this is that the structure of the
court system in Scotland is quite different from that in England, Wales and Northern
Ireland. There were also significant differences in substantive law, and these continued
after 1707. Despite the existence of a single parliament within the UK, separate and
different provision continued to be made for Scotland in many areas, one example being
the Social Work (Scotland) Act 1968 which, in contradistinction to the position in
England and Wales, incorporated probation services within generic social work
departments and introduced a distinctive means of dealing with the cases of children
through the system of children’s hearings. Despite this, it is not true to suggest that all
the law which applies in Scotland differs from that which applies in other parts of the
UK. At the other end of the scale there are areas of law where the law is the same
throughout the UK, obvious example are the benefits system, the law relating to rights in
employment, the law regarding discrimination and the rules about driving. There is,
finally, a third category of law. In this category there are similarities between the law in
Scotland and the law in the rest of the UK. These differences may be in the substance of
the law, in other words what the law says might be slightly different, or the law might be
the same but the source of the law is different. The creation of the (new) Scottish
Parliament in 1999 has not really changed this pattern. Some areas of law are reserved to
the UK Parliament and cannot be legislated for by the Scottish Parliament. These
include: data protection, nationality and immigration, consumer protection, social
security (excluding support provided under the Social Work (Scotland) Act 1968, the
Chronically Sick and Disabled Persons Act 1970 and the Children (Scotland) Act 1995),
employment, and equal opportunities (including anti-discrimination legislation). From
this list it should be clear that the Scottish Parliament has the power to legislate in most
areas related to social work practice and the period since 1999 has seen a large number of
Acts of the Scottish Parliament (asps) concerned with the services provided by social
work departments. Reflecting the pattern above most of these have made separate
provision, but there are also provisions which mirror developments in England and
Wales, for example in relation to the protection of vulnerable adults and the extension of
carer’s rights to assessment. In some cases, for example in relation to civil partnerships,
the Scottish Parliament has permitted the UK Parliament to legislate for Scotland in an
area within the competence of the Edinburgh parliament. Table 1 on the next page sets
out some of the areas of law relevant to social work practice where there are similarities
and differences between Scotland and England and Wales. There are also more general
areas of difference, for example the court system (both civil and criminal) and large parts
of criminal law2 are different as between Scotland and the rest of the UK and care must
be taken to ensure that you do not refer to English courts or to English criminal law based
on what you read in UK wide texts about social work law.

2 E.g. there is no crime of manslaughter in Scotland (it is culpable homicide) nor is there breaking and
entering in Scotland, this is theft by housebreaking.

2
Area Scottish Provision E & W provision Similarities/differences
Mental Mental Health (Care and Mental Health Act 1983 Significant differences in content, processes and terminology. For
Health Treatment (Scotland) Act 2003 example there is no set of principles set out in the 1983 Act,
instead these are in a Code of Practice and nearest relatives can
still make applications for detention.
Adults with Adults with Incapacity (Scotland) Mental Capacity Act Significant differences in content, processes and terminology. For
Incapacity Act 200 2005 example the 2005 Act contains safeguards relating to deprivation
of liberty not found in the 2000 Act and the appointees able to take
decisions on behalf of adults are described in the 2005 Act as
‘deputies.’
Looked after Children (Scotland) Act 1995, ss Children Act 1989, ss 22 Some similarities, but also some differences
children 16 & 17 & 23
Emergency Children (Scotland) Act 1995, s Children Act 1989, s 43 Similarities in grounds for action and making of orders, but
protection of 55 (Child Assessment Order (CAO) & s 44 differences in procedure in obtaining order and subsequent to
children (CAO)) & s 57 (Child Protection (Emergency Protection granting of order
Order) Order)
Children in Children (Scotland) Act 1995 Children Act 1989 Procedures entirely different, in E & W application made to court
need of for care order or supervision order, limited court involvement in
compulsory Scotland (aside from determining existence of grounds of referral
measures & appeals) – dealt with by children’s hearings
Children in Children(Scotland) Act 1995, s Children Act 1989, s 17 Very similar, though powers in E & W set out more fully in
need 22 schedule 2 of 1989 Act
Aftercare Children (Scotland) Act 1995, ss Children Act 1989, ss Similar, but not identical
29-30 (& regulations) 23A – 24D
Free Community Care and Health No equivalent
personal (Scotland) Act 2002
care
Community Social Work (Scotland) Act 1968 NHS & Community Care Provisions virtually identical except that statutory basis in Scotland
Care & Chronically Sick and Disabled Act 1990 & Chronically is slightly different (1990 Act inserted new provisions, e.g. section
Assessments Persons Act 1970 Sick and Disabled 12A into 1968 Act)
& services Persons Act 1970
Adult Adult Support and Protection No equivalent
Protection (Scotland) Act 2007
Vulnerable Protection of Vulnerable Groups Safeguarding Following from Bichard Report these provide for vetting and
adults (Scotland) Act 2007 Vulnerable Groups Act barring of people working with children and other vulnerable
2006 groups – procedures and administrative bodies differ between
Scotland and E & W.

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2 Application of Legal Rules
Legal rules and that is that they are not self applying. In other words, legal rules have to
be put into action by individuals and organisations. This has two consequences:
• these individuals and organisations have to interpret the law; and
• they also have to interpret the world to decide whether the circumstances they see
are circumstances to which a particular legal rule applies - for example, are the
circumstances of a child’s life such as to qualify him/her as a ‘child in need’ in
terms of the Children (Scotland) Act 1995?
This means that there is discretion in applying the legal rules, individuals and
organisations can decide both how to apply the law and also when to apply it.

3 Divisions of law
Criminal law is concerned with the punishment of individuals for infringing the rules of
conduct set out for them in the criminal law, civil law covers almost everything else,
including disputes between individuals and the children’s hearing system. Public law is
largely concerned with the operation of public bodies, e.g. local authorities, whereas
private law concerns the activities of individuals (including legally constructed
‘individuals’ such as companies) and their relationships with each other.

4 The Civil Court System

Supreme Court
(appeals only)

Court of Session: Inner House


(mainly appeals, but some
original jurisdiction

Appeal Court of Session: Outer House


Routes (exclusive jurisdiction over judicial
review/status

Sheriff Principal
(appeals only)
Sheriff
deals with most of cases
exclusive jurisdiction less than £5000 and evictions

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4.1 Civil Courts
Sheriff Court
Scotland is divided into 6 geographical sheriffdoms,3 and 5 of these (the exception is
Glasgow and Strathkelvin) are subdivided into sheriff court districts in each of which
there will be a sheriff court. There is a sheriff principal in each sheriffdom who has
administrative responsibilities for the operation of the courts in the sheriffdom and also
hears appeals from the decisions of sheriffs. Almost all civil cases are dealt with in the
sheriff court. These include debt actions (which must be raised in the sheriff court where
the debt is less than £5000), divorce proceedings, adoptions, eviction actions (which also
can only take place in the sheriff court), proceedings related to children’s hearings
applications for guardianship and intervention orders under the Adults with Incapacity
(Scotland) Act 2000 and appeals against decisions of the Mental Health Tribunal.

Court of Session
The Court of Session is based in Edinburgh. It has two parts. The Outer House is what
is described as a court of first instance, in other words it is the court which first hears and
decides cases, and is presided over by a single judge. The Inner House is divided into
two divisions, the first division and the second division, and usually sits as a court of
three judges to deal with appeals from the sheriff court, the sheriff principal or the Outer
House.

Supreme Court
This operates only as a court of appeal. In cases originating in the sheriff court the
appeal must be concerned with a question of law rather than a factual dispute. It
replaced the House of Lords as the final appeal court in October 2009.

4.2 Civil Procedure


Standard of proof: In civil proceedings the standard of proof is the balance of
probabilities, in other words if you raise an action against someone you will only win if
the court considers that your version of events is what probably happened.

Small Claims Procedure


This form of court action deals mainly with claims for payment, although it can also be
used to seek delivery of moveable property or to force someone to carry out their part of
a contract. It is the only form of action appropriate where a claim is made for less than
£3000.

To start the action the pursuer (i.e. the person raising the action) completes a summons,
which in small claims is a pre-printed form. The summons is returned to the court where
it will be served on (i.e. sent to) the defender (i.e. the person against whom the action is
raised) by the sheriff clerk. The form of the summons and subsequent procedure depends
on whether the action is one for payment or not.

In the case of actions for payment, the summons will contain a return date and a hearing

3 These are: Glasgow and Strathkelvin; Edinburgh, Lothian and Borders; South Strathclyde, Dumfries and
Galloway; Grampian, Highlands and Islands; Tayside, Central and Fife; and, North Strathclyde.

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date. The return date is the date by which the defender must indicate either whether
he/she intends to defend the action raised against them or to offer to pay the debt, either
in full or in instalments. If no reply is received by the return date, the pursuer can simply
minute for decree (i.e. ask the court to grant a judgement in their favour) in his/her favour
using the appropriate form provided by the sheriff clerk, and does not require to attend
court. If an offer to make payment is received, the pursuer can minute for decree in
terms of the offer, e.g. a decree requiring the defender to pay off the amount owed at £15
per week. If a response is received indicating that the defender intends to defend the
action or to appear at the hearing, or the offer is unacceptable, the case will call in court
on the hearing date, and the parties should attend. The matter may be disposed of at the
hearing, or it may be necessary to continue the action for a full hearing at which
witnesses could be heard.

In the case of other types of action, the summons simply specifies a hearing date, and
procedure is as for payment actions at that stage.

In all cases, there is no legal aid available to pay for a solicitor to represent the parties in
court, but they may be represented by someone at all stages of the process. Where that
person is not a solicitor, the sheriff must be satisfied that the 'person is a suitable person
to represent the party'. Appeal is available on a point of law to the Sheriff Principal, but
no further.

Summary Cause Procedure


This form of action is the only form of action appropriate for claims for payment between
£3000 and £5000 and for eviction actions (technically 'actions for recovery of possession
of heritable property').

The procedure is similar to that involved in small claims actions, with five main
differences:
a) the summons, still in the nature of a pre-printed form, must be served either by a
solicitor or a sheriff officer;
b) the terminology is slightly different, the hearing date is the 'calling date', the full
hearing a 'proof';
c) legal aid is available to pay for representation;
d) a party may only be represented by someone other than a solicitor at the hearing
on the calling date; and,
e) it is possible to appeal, on a point of law, to the Sheriff Principal and then to the
Inner House of the Court of Session.

4.3 Recovery of debts


Diligence is the term used to describe the processes available to a creditor to recover
money owed to her/him. In general before using one of these methods the creditor must
have obtained a court decree in her/his favour ordering payment to her/him by the debtor.
The two main procedures are attachment and arrestment. Before looking at these in
slightly more detail, it should be noted that even after a judgement has been given against
a debtor he/she can still apply to court to be given more time to pay or to be allowed pay

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by instalments,

4.3.1 Attachment
There are two types of attachment, depending on whether the goods to be attached are
found in a dwellinghouse or not. If they are not the process involves three stages. First, a
charge (or demand for payment) will be served on the debtor, before doing this the debtor
must be provided with a debt advice and information package. Second, if payment of the
debt is still not made, an attachment will take place. This involves the listing and
valuation of the debtor's possessions. There is a short list of items excluded from
attachment (which therefore cannot be sold by a creditor) which consists mainly of tools
of the trade. The debtor can seek to have individual items removed from the attachment.
The debtor can also redeem items which have been attached by paying the value given to
them. The final stage is sale of the possessions by auction. Any goods not sold are
passed to the creditor and the debtor is credited with the value given to them when they
were listed plus the sum raised by the sale.

Where the debtor’s property is located in a dwellinghouse a different procedure must be


followed. An attachment can only take place if an order (an exceptional attachment
order) has been granted by the sheriff. Before granting such an order the sheriff must be
satisfied that there are exceptional circumstances (relevant factors include failed attempts
to negotiate a settlement and prior use of an arrestment) and must consider whether
money advice has been given. Thereafter the procedure is similar to that outlined above,
except that there is a longer list of excluded items including: clothing, books required for
education, medical aids or equipment, toys, and certain items of furniture. A complete
list is given in the appendix to this section. The sale must take place away from the
dwellinghouse and after attachment an application can be made to stop the auction of
goods on the grounds that it would be unduly harsh in the circumstances.

4.3.2 Arrestment
This can be either an ordinary arrestment or arrestment of earnings, where a sum is
deducted from earnings and paid over direct to the creditor. This second procedure can be
used either for ordinary debts or to ensure that maintenance payments are made to a
partner or child. An ordinary arrestment involves freezing assets belonging to the debtor
which are, at the timer of the arrestment, in the hands of a third party. An example of this
is freezing a bank account. The assets (money) belong to the debtor but are in the hands
of a third party (the bank). In order to get the money released the creditor must raise a
separate action of furthcoming.

4.3.3 Debt Arrangement


At the same time as attachments replaced poinding and sale, provision was made to allow
debtors to apply for approval of a debt payment programme. This will, in effect,
consolidate all of their debts and prevent diligence being carried out against them whilst
it is in force and whilst the debtor complies with its terms. The first stage is that the
debtor consults a money adviser. The adviser then seeks to negotiate a debt payment
programme with the creditors. This can then be presented to the Debt Arrangement
Scheme (DAS) Administrator for approval. Normally the scheme will need the

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agreement of all of the creditors (though creditors who do not respond will be treated as
having agreed), though the Administrator (who is a civil servant) has the power to
dispense with the consent of creditors in certain circumstances. Where a creditor or
creditors object to the proposed payment programme the Administrator can apply to the
sheriff, who has power to approve the programme. In general, regardless of the approval
process, the programme can only be approved if it is fair and reasonable. In deciding
this, the following factors will be relevant: the total debt, the period of repayment, the
comments of the money adviser, the extent of creditors consent and the availability of an
asset (for example a house or car) which could be sold to repay the debt.

Once the programme is approved the debtor (or the debtor’s employer) will make
payments to a payment distributor, who will then distribute the money to creditors as
provided for by the programme. Once the programme is approved creditors cannot carry
out any diligence against the debtor, nor, in general must they offer the debtor more
credit. The debtor also is subject to certain restrictions, they must:
(a) make all payments under a programme as they fall due;
(b) pay a continuing liability when due for payment, continuing liabilities include
rent/mortgage payments, utilities bills and hire purchase instalments;
(c) except for a continuing liability, make no payment to a creditor taking part in a
programme other than a payment under the programme;
(d) except under limited circumstances, not apply for or obtain credit ;
(e) notify the money adviser for a programme of a change of address or material
change of circumstances; and
(f) within 10 days after receipt by the debtor of a written request from the money
adviser for the programme, supply the adviser with such information or evidence
as the adviser may request in respect of the income, assets or liabilities of the
debtor

It is possible to apply for the programme to be amended, and once completed the money
adviser must be told by the payment distributor and must in turn inform the DAS
Administrator.

Further information on this process can be found at: http://www.moneyscotland.gov.uk.

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5 The Criminal Court System

High Court as Court of Appeal*

High Court of Justiciary


(jury of 15, exclusive power to try
murder, rape & treason)

Sheriff Solemn Court


(jury of 15)

Sheriff Summary Court


(sheriff sits alone)

Justice of the Peace (JP) Courts


(lay JP or stipendiary magistrate)

* It is possible for devolution issues raised in criminal cases to be further referred to the
Supreme Court

Justice of the Peace Court


This is the lowest rung on the criminal court ladder, but it still deals with between 40 and
50 per cent of all criminal cases prosecuted each year, though these courts cannot deal
with certain types of case such as those involving significant violence or housebreaking.
The court is usually presided over by one or more (up to three) lay justices of the peace,
that is members of the public who are appointed as justices and who have to undergo
certain training. These lay justices are provided with legal advice by a clerk to the court
or legal assessor. In Glasgow there is a number of stipendiary magistrates, these
magistrates are legally qualified, full-time judges and have the same sentencing powers
as the sheriff summary court. Lay justices can impose a sentence of up to 60 days
detention or a fine of up to £2,500. The JP court is a summary court, in other words there
is no jury. JP courts replaced the previous District Courts and are run by the Scottish
Courts Service, which runs the other courts in Scotland. Unlike District Courts, which
were based on local authority boundaries, JP Courts are based on sheriff court
boundaries.

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Sheriff Summary Court
Based on the same structure as the sheriff civil court and dealing with a similar
proportion of cases to the District Court. The sheriff sits alone and decides on both guilt
and on sentence. The maximum sentences available are imprisonment for 12 months or a
fine of up to £10,000.

Sheriff Solemn Court


Again shares the structure of the sheriff civil court. There is a jury of 15 (which makes
the procedure solemn) and the sentencing powers are three years imprisonment or an
unlimited fine.

High Court of Justiciary


The judges are the same as those in the Court of Session, though unlike that court the
High Court sits all over Scotland. It is a solemn court and the only court that can hear
cases involving murder or rape. The sentencing powers of the court are unlimited.

High Court as Court of Appeal


This sits in Edinburgh as a court of two or three judges to hear appeals against conviction
and/or sentence from all the lower criminal courts.

6 Tribunals
Tribunals differ from courts in that they are usually composed either wholly or in a
majority of people who are not legally qualified. They take place in a more informal (at
least in theory) setting than the formal setting of a court room and the procedures which
they adopt are, in most cases, more relaxed and informal than those found in a court and
(again in theory) make it easier for a member of the public to argue their case without
legal or other representation. Examples of tribunals are the Children’s Hearings system
(made up entirely of lay members), Employment Tribunals (involving employer and
employee representatives), the Mental Health Tribunal for Scotland and a large variety of
benefits tribunals (which often have a legally qualified chair). Tribunals were set up for a
number of reasons, partly to take pressure off the court system, partly to allow people
with expertise in a particular area to be brought in to take decisions and partly to provide
an arena which would be less intimidating than a court and which would allow people a
better chance to make their own case. Usually it will be possible to appeal against a
decision taken by a tribunal and, at some stage, there is usually a right of appeal to a
court, for example the right of appeal from a children’s hearing or from a Mental Health
Tribunal to the sheriff court.

7 European Courts

7.1 European Court of Human Rights


This court deals with claims that individual’s rights under the European Convention on
Human Rights have been infringed. The complaint is made against the state, e.g. the
United Kingdom. A recent example is the case brought by the McLibel Two who
successfully claimed that the failure of the UK to give legal aid in libel proceedings
infringed their rights under Article 6 of the ECHR.

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7.2 European Court of Justice
This is the principal judicial body of the European Union and can be referred to for
authoritative interpretation of legal rules which originate within the European Union.

8 Sources of Law

8.1 Legislation
Legislation describes the rules which are deliberately made by a body, such as the
Scottish Parliament, which has the power to make law. Proposed legislation, either in the
form of an Act of Parliament or delegated legislation, will often be preceded by a public
consultation on a draft of this legislation, one recent example is the Scottish Government
consultation on the Looked After Children Regulations. 4 In other cases legislation will
follow from a report ordered by the government to which the public have had a chance to
give evidence5 or will follow on from a report by the Scottish Law Commission which
will have included in its production public consultation.6

8.1.1 European Legislation Because of the basis of the European Union, most rules are
concerned with trade and free movement of goods. There are some exceptions, however,
for example in the field of employment law and data protection. The two most common
types of legislation are directives, which require member states to change their domestic
law in line with the terms of the directive, and regulations which directly form part of the
law of member states.

8.1.2 Pre-1707 and post-1999 Scottish Legislation (Acts of the Scottish Parliament)
There are still some pieces of legislation made by the pre-1707 Scottish parliament in
force. One example is the Leases Act 1449.

8.1.3 UK Legislation This is legislation made by the UK parliament in the form of


Acts of Parliament. With the coming into existence of the Scottish Parliament the power
of the UK parliament to legislate for Scotland is limited. It can, however, still legislate in
areas where the Scottish Parliament has competence of that parliament agrees to this by
passing a so-called Sewell motion.

8.1.4 Coming into effect of legislation Once legislation is passed by a parliament it does
not always immediately become part of the law of Scotland. This depends on when it is
brought into force, and the date on which an Act comes into force is known as the
commencement date. A recent example is the Adult Support and Protection (Scotland)

4 Which can be found here: http://www.scotland.gov.uk/Publications/2009/06/10143048/0 (last visited 17


February 2011).
5 For example the Mental Health (Care and Treatment)(Scotland) Act 2003 which followed on from the
Report on the Review of the Mental Health (Scotland) Act 1984 (SE/2001/56, otherwise known as the
Millan Report). See: http://www.scotland.gov.uk/health/mentalhealthlaw/millan/Report/rnhs-00.asp (last
visited 17 February 2011).
6 For example the Adults with Incapacity (Scotland) Act 2000 part of which was derived from the Scottish
Law Commission Report on Vulnerable Adults (Scot Law Com No 158), see:
http://www.scotlawcom.gov.uk/download_file/view/394/ (last visited 17 February 2011).

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Act 2007 which did not come fully into force until October 2008. Dates of
commencement are often fixed by ministers using delegated legislation, and different
dates can be set for different parts of the same Act, as happened with the Antisocial
Behaviour etc. (Scotland) Act 2004.

8.1.5 Amendment of legislation Acts of Parliament and other pieces of legislation rarely
stay the same. As time passes they will be added to, subtracted from and otherwise
changed by amendments contained in later legislation. For example, the Social Work
(Scotland) Act 1968 in the form in which it exists today contains virtually no provision
which has remained unchanged in the period since 1968. Legislation is, therefore, in a
state of constant change and knowledge of legislation needs to be frequently updated. As
an example compare the provisions of section 12(2) of the Social Work (Scotland) Act
1968 set out below:

As originally enacted Applicable law now


The persons specified for the purposes of the foregoing
subsection are— A person is a relevant person for the purposes of this section
(a) a person, being a child under the age of eighteen, if, not being less than eighteen years of age, he is in need
requiring assistance in kind, or in exceptional circumstances requiring assistance in kind or, in exceptional circumstances
in cash, where such assistance appears to the local authority constituting an emergency, in cash, where the giving of
likely to diminish the need— assistance in either form would avoid the local authority
(i) to receive him into, or to keep him in, care under this Part being caused greater expense in the giving of assistance in
of this Act, or another form, or where probable aggravation of the person's
(ii) of his being referred to a children’s hearing under Part III need would cause greater expense to the local authority on a
of this Act; later occasion.
(b) a person in need requiring assistance in kind or, in
exceptional circumstances constituting an emergency, in
cash, where the giving of assistance in either form would
avoid the local authority being caused greater expense in the
giving of assistance in another form, or where probable
aggravation of the person’s need would cause greater expense
to the local authority on a later occasion.

8.1.6 Delegated legislation (e.g., Looked after Children (Scotland) Regulations 2009,
SSI 2009/210). Acts of Parliament often contain provisions which delegate the power to
make rules to ministers. This is often done because the detailed rules require consultation
with interested bodies, because of the length and complexity of these rules, because of
their technical nature,7or because the matters covered by the rules might need to be
changed frequently and changing delegated legislation is usually a more straightforward
ask than amending an Act. One example of legislation which is accompanied by a large
amount of delegated legislation is the Children (Scotland) Act 1995. There are rules
made by ministers covering looked after children and their placement, procedure at
children’s hearings, and use of secure accommodation. It should be noted that although
this delegated legislation (sometimes also described as secondary legislation (with Acts
as the primary legislation)) is made by ministers it has the same legal force as other
legislation. Most delegated legislation takes the form of statutory instruments (SIs) (or,

7 For example the Purity Criteria for Colours, Sweeteners and Miscellaneous Food Additives (Scotland)
Regulations 2009 (SSI 2009/167).

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in the Scottish context, Scottish statutory instruments (SSIs). In general statutory
instruments do not require parliamentary approval before becoming law, though they may
be subject to annulment by resolution of Parliament (for example SSIs made under the
Social Work (Scotland) Act 1968). In some cases, however, parliamentary approval is
required, examples are regulations on charging for personal care8 and certain regulations
made under the Mental Health (Care and Treatment)(Scotland) Act 2003, for example
regulations adding to the list of measure which may form part of a Compulsory
Treatment Order.9

8.1.7 Problems of interpretation Because legislation uses written language it can give
rise to ambiguity or problems of interpretation. In some cases the ambiguity will be
deliberate in order to to allow individuals and organizations to exercise a judgement, for
example there might be a reference to what is ‘reasonably practicable’ or to having
‘reasonable grounds to believe’. In other cases the ambiguity or vagueness will simply
be a byproduct of language. One example is the dispute over whether Jaffa Cakes fell
into the legal category of cakes or of biscuits.10 Another example is from the Children
(Scotland) Act 1995 which refers to a child who is a member of the same household as
another child. Clearly this could have a variety of meanings, for example it might be
argued that for two children to be in the same household they must live in the same place.
Alternatively it could be suggested that children will be in the same household if they
would normally be expected to live together, even if that is not the current position, e.g.
because one child is in foster care. Finally, it might be argued that membership of the
same household simply involves the sharing of siblings and parents and that it is not
actually necessary for the two children sharing the same household in this sense to be
alive at the same time.

8.2 Case law (precedent)


The doctrine of precedent (stare decisis) essentially requires that a previous decision
must be followed:
a) if it is binding (this depends on the respective positions of the court
taking the previous decision and the later court considering it in the court
hierarchy)
b) if it is in point (i.e. dealing with the same legal issue).

What is it that is binding? - the ratio decidendi, in other words the reason or principle
underlying the decision of the earlier court.

Historically precedent was an important source of law in its own right, and many areas of
law are still based on the rules developed by courts with very little statutory intervention,
one example is the law relating to liability for negligence. Perhaps more importantly
today, certainly in the area of law relating to social work practice, is the role of courts in
providing authoritative interpretations of statutes and delegated legislation. This extends
beyond UK legislation to the European Convention on Human Rights, where the courts

8 Community Care and Health (Scotland) Act 2002, s 23(3)(1).


9 Mental Health (Care and Treatment)(Scotland) Act 2003, s 326(3) & (4).
10 United Biscuits (UK) Ltd (1991) VAT decision 6344.

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have played a significant role in developing and putting detail on the general rights
conferred by the Convention.

8.3 Circulars/Guidance
The Scottish Executive frequently issues guidance to local authorities on a wide range of
issues, recent examples relevant to social work include guidance on the operation of
Child Protection Committees, Single Shared Assessments, Pathway Planning and on
Local Authority Accountability under the Antisocial Behaviour etc. (Scotland) Act 2004.
Unlike delegated legislation, this guidance does not have the force of law, though
whether a local authority has complied with guidance may be a relevant issue if its
decision-making is challenged by judicial review.11

9 Legal Personnel

9.1 Solicitors and advocates


The basic division within the legal profession is between solicitors and advocates (the
latter are sometimes referred to as counsel).Solicitors are the most numerous. They
have direct contact with their clients and may practice in all areas of the law, as is
common in smaller towns, or specialise in a particular area of law. The Law Society of
Scotland, the solicitors' professional body, publishes an online directory of firms
indicating the areas of work which they will undertake. Often social workers develop a
local knowledge of solicitors who have a particular interest in social welfare, mental
health law family law, and/or criminal law which can prove useful to service users.

Advocates specialise in court appearance and in giving advice on complex matters of law.
Advocates have no direct contact or relationship with their ultimate client: the
relationship is managed by the client's solicitors. Historically, advocates had an exclusive
right to appear in the higher courts (that is the High Court, the Court of Session and
the Supreme Court) but there are now provisions to allow solicitors to appear in these
courts. Solicitor-advocates, as these are described, are solicitors who have passed a test
of competence and fulfilled certain other requirements to allow them to represent
people in the High Court or in the Court of Session. Complaints about members of the
legal profession in Scotland are dealt with through the Scottish Legal Complaints
Commission.

9.2 Procurators fiscal and the system of public prosecution


Prosecutions for crimes and offences in Scotland have for a long time been
undertaken by a public prosecutor, this is now carried out by the Crown Office
Procurator Fiscal Service. The system is headed by the Lord Advocate who advises
the Scottish government on matters of law generally, as well as being the head of the
system of prosecution. The Lord Advocate is assisted by the Solicitor General.
Together they are known as 'the Law Officers'. Below these two are a number of
Advocates Depute, also referred to as Crown Counsel, though this term also includes

11 For example, a challenge was successful in R v North Yorkshire Council, ex p Hargreaves ((1994) 26
BMLR 121) on the grounds that the social worker carrying out a community care assessment had failed to
involve the service user fully enough as required by the relevant guidance.

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the Law Officers. Advocates Depute are advocates who are appointed to the position
usually for a relatively short period of time. Solicitor-advocates and senior members of
the fiscal service may now also be appointed to act as Crown Counsel. In practice, most
of the work in the prosecution system is done by procurators fiscal and procurators
fiscal depute who are the local representatives of the public prosecution service. These
are full-time permanent civil servants and there will be a procurator fiscal in each
sheriff court. The administration of the system of prosecution is the responsibility of the
Crown Office Procurator Fiscal Service.

As well as being a prosecutor the fiscal is also responsible for investigating all sudden and
suspicious deaths and suicides.

9.3 Judges
Justice of the Peace (JP) courts are presided over by one or more lay justices. They will be
guided as to the law by a legal assessor or by the clerk to the court. The practice as to the
number of justices sitting to hear a case and the source of legal guidance varies between
different areas. There are also, in Glasgow, a number of stipendiary magistrates. These
magistrates are legally qualified and sit alone to hear cases. They have greater sentencing
powers than JPs. Sheriff courts are staffed by sheriffs who are legally qualified, most having
been advocates. Finally, there are the judges who preside both in the Court of Session and
in the High Court. They are all legally qualified and are variously described as Lords of
Session, Lord Commissioners of Justiciary and Senators of the College of Justice. How
they are described depends on which role they are fulfilling.

9.4 Clerks of court


The most numerous of these are sheriff clerks. They are responsible for the running of
sheriff courts, recording of proceedings (though not shorthand note-taking), arranging for
reports, arranging (in consultation with the procurator fiscal) the court timetable,
maintenance of records, collection of fines, and the organisation and distribution of social
enquiry reports. This last task will involve co-operation with the social worker(s) attached
to the court, who will make arrangements with the appropriate social work area office for the
report to be provided. Each sheriff court will have a sheriff clerk who will be assisted by
deputes. The JP and High courts have clerks who broadly perform the same function for
them as sheriff clerks do for the sheriff court.

9.5 Sheriff officers and messengers-at-arms


Sheriff officers are officers of court who must fulfil certain requirements and hold a
warrant from the sheriff to act. They are not directly employed by the court system but
rather are court officers in the sense that they are authorised to do certain things by virtue of
their warrant and are accountable to court for their actions. Sheriff officers are used to serve
summonses and citations in civil cases, to carry out the enforcement of civil judgments,
such as evictions and warrant sales, and to serve witness citations for the defence in criminal
cases. Messengers-at-arms perform similar functions in relation to actions in the Court of
Session.

9.6 Miscellaneous

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As well as those noted above there is a variety of other people involved in the operation of
the court system. These include ushers and bar officers who assist in the actual
functioning of the courts, directing people to the right court and maintaining order in
court.

SECTION B - HUMAN RIGHTS


The European Convention on Human Rights was signed shortly after the Second World
War. In form it prevents states from undertaking certain types of activity, though, as we
will see it may require positive action by the state and/or local authorities. It also grants
individuals certain rights, for example the right to respect for family life. Until 2000
complaints that rights under the Convention had been violated in the UK involved taking
a case to the European Court of Human Rights in Strasbourg, a process which could be
time consuming.12 The Human Rights Act 1998 which came into effect in 2000 however
provided the possibility of direct action being taken against local authorities (and other
public authorities) for failing to act consistently with the rights provided for in the
Convention. More specifically, section 6 provides: ‘It is unlawful for a public authority
to act in a way which is incompatible with a Convention right’ and section 7 allows
individuals to take proceedings against public authorities13 and also to rely on their
Convention Rights in any proceedings brought against them. The right conferred by
these sections would allow an individual to seek damages from a local authority or to
seek an interdict ordering it to stop any action which is incompatible with a Convention
right. In addition to the direct rights conferred by the 1998 Act, convention rights are can
now also form the basis for seeking judicial review.

The rights conferred by the European Convention will be considered more fully in the
context of consideration of substantive law later in this course, but there are some general
points which set the context for consideration of individual rights. Rights conferred by
the Convention may be absolute or qualified. An example of an absolute provision is the
prohibition on torture contained in Article 3 of the Convention. In contrast, other
provisions envisage a balancing of rights. For example Article 8 provides that everyone
has the right to ‘respect for his private and family life, his home and his correspondence’.
It then goes on to provide, however, that these rights may be interfered with provided that
this interference is in accordance with the law and is necessary in a democratic society to
achieve one of a number of objectives, for example the protection of the rights and
freedoms of others. In addition, some of the rights are expressed in such a way as to
prohibit certain types of behaviour. For example, Article 3 mentioned above provides
that; ‘[n]o one shall be subjected to torture or to inhuman or degrading treatment or
punishment.’ On the face of it this would seem to impose only a negative obligation on
12 One example is McMichael v United Kingdom ((1995) 20 E.H.R.R. 205) which concerned procedures
relating to children’s hearings. The complaint was made in 1989 and a decision made by the court in 1995.
13 A public authority includes, as well as courts and tribunals, ‘any person certain of whose functions are
functions of a public nature’, Human Rights Act 1998, s 6(3)(b). The definition has been extended to
include private sector providers of accommodation of accommodation, together with nursing, personal care
or personal support, as a care home service where this accommodation is provided by arrangement with a
local authority, Health and Social Care Act 2008, s 145. This extension was to avoid perceived unfairness
in that decisions of local authorities about care homes (for example closure) could be challenged under the
Human Rights Act, but those of private providers could not, se L v Birmingham City Council [2007] UKHL
27.

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public bodies not to subject people to such forms of treatment. However, the Court has
taken the view that such obligations go beyond this and impose a positive obligation on
public bodies to act when they are (or should be) aware that people are being subjected
by others to such treatment, with the objective of such intervention being to bring the
treatment to an end.14

Finally, the main convention rights which are likely to be relevant to social work practice
are those set out in Articles 2, 3, 5, 6 and 8. These articles and examples of cases where
they have been applied are set out in the table on the next page.15

SECTION C - CONFIDENTIALITY AND ACCESS TO INFORMATION

1 Introduction
Ethical and practice16 principles requiring the maintenance of confidentiality are
supplemented by a Code on Confidentiality of Social Work Records17 and by legal
requirements. The rights of access to information enjoyed by service users also include
limits which restrict what can be disclosed to them by the social work department.

The law imposes an obligation on an individual not to disclose information which was
passed on to him or her in confidence. This is the classic example of what is protected by
the legal action for breach of confidence and falls within the definition of breach of
confidence offered in Coco v A N Clark (Engineering) Ltd18 as involving information
which is of a confidential nature (in essence being private rather than public knowledge)
which is disclosed in circumstances importing an obligation of confidence. In many
instances information communicated to social workers by their clients will fall clearly
under this description, it must then be kept confidential subject to limits discussed below.
The law of confidentiality has now, however, gone beyond this, influenced in part by the
domestication of the European Convention on Human Rights by the Human Rights Act
1998. It now will protect information even in cases where it has not been disclosed in a
relationship of confidence, and it now appears to be the case that an individual is entitled
to prevent disclosure of certain information about him or herself regardless of the way in
which the person disclosing, or threatening to disclose, the information obtained it. The
scope of the information which can be protected is not, at the moment well defined. It
has been suggested that it covers information which is personal and private or in respect
of which there is a reasonable expectation of privacy.19

14 See, for example, Z v United Kingdom (2002) 34 E.H.R.R. 3.


15 There is an overlap with the standards which social workers are supposed to respect in practice.
Compare, for example, Art. 8 with para 1.4 of the SSSC Codes of Practice for Social Service Workers and
Employers which refers to: ‘Respecting and maintaining the dignity and privacy of service users.’
16 See SSSC Codes of Practice for Social Service Workers and Employers, para 2.3 which refers to:
‘Respecting confidential information and clearly explaining agency policies about confidentiality to
services users and carers.’
17 Circular SWSG1/89.
18 [1968] FSR 415.
19 Campbell v Mirror Group Newspapers [2004] 2 AC 457; Mosley v News Group Newspapers Ltd [2008]
EWHC 687 (QB).

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Article

Qualified?
Text of Article Examples

2 Everyone’s right to life shall be protected by law. No one shall be Y Osman20: ‘…article 2 of the Convention may also imply in certain well-defined
deprived of his life intentionally save in the execution of a circumstances a positive obligation on the authorities to take preventive operational
sentence of a court following his conviction of a crime for which measures to protect an individual whose life is at risk from the criminal acts of another
this penalty is provided by law. individual.’
Savage:21 Duty to take steps to avoid risk of harm to suicidal detained patient because of
knowledge of immediate risk to her life.
3 No one shall be subjected to torture or to inhuman or degrading N Z:22 Duty to take action where local authority knew or should have known that treatment of
treatment or punishment. children amounted to inhuman and degrading treatment.
5 Everyone has the right to liberty and security of person. No one N JE:23 Placement of incapable adult in care home which not permitted to leave to stay
shall be deprived of his liberty save in the following cases and in elsewhere amounted to deprivation of liberty
accordance with a procedure prescribed by law: Koniarska:24 Placement of child in secure accommodation where she received (some)
(a) the lawful detention of a person after conviction by a education fell within paragraph (d) as being for the ‘purpose of educational supervision’ –
competent court;..... not restricted to school attendance
(d) the detention of a minor by lawful order for the purpose of
educational supervision or his lawful detention for the purpose of
bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the
spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;
6 In the determination of his civil rights and obligations or of any Y25 S:26Lack of provision of legal aid for children’s hearings breached Art. 6.
criminal charge against him, everyone is entitled to a fair and McMichael:27Failure to provide parents with social background reports for children’s
public hearing within a reasonable time by an independent and hearing breached Art. 6.
impartial tribunal established by law.
8 Everyone has the right to respect for his private and family life, Y Bernard:28 Failure to provide suitable accommodation which meant that mobility impaired
his home and his correspondence. woman could not access toilet or leave room in which she slept breached Art. 8 rights.

20 Osman v United Kingdom (1998) 29 EHRR 245.


21 [2007] EWCA Civ 1375.
22 Z v United Kingdom (2002) 34 E.H.R.R. 3.
23 [2006] EWHC 3459 (Fam).
24 Available here.
25 In relation to publicity of hearing.
26 2001 SLT 485.
27 (1995) 20 EHRR 205.
28 [2002] EWHC 2282 (Admin).

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Regardless of the information covered, or of the basis for confidentiality, is clear that the
obligation not to disclose confidential information is not absolute. There is a number of
circumstances in which it will be permissible to disclose to others information which has
been disclosed in confidence. There are also circumstances in which there are obligations
to disclose information to appropriate individuals and authorities, examples of this
include the obligation to disclose information to a court if called as a witness29 and
information gathered in the course of preparation of a social enquiry report. Sometimes
there may be an expectation that information is shared between agencies, for example in
the context of child protection.30 In some circumstances, though they are likely to be
limited, there may be a positive legal duty to warn or take steps to protect an individual
who, on the basis of information disclosed in confidence, there is reason to believe is
likely to be harmed.31 The possibility that disclosure of confidential information may
take place is discussed in the SSSC Codes of Practice.32 In the BASW Code of Ethics it
is noted that information may be disclosed without the consent of the service user or of
the person providing the information where there is clear evidence of serious risk to the
service user, to a worker or to another person in the community or in other cases which
are judged on the basis of professional considerations and consultation to be
exceptional.33 Because of this possibility that the worker may determine that information
will be passed on to others (other than in the normal course of providing or arranging the
provision of services for a service user) it is important that there is clarity as between the
social worker and the service user as to the limits to confidentiality.

2 Data Protection Act 1998.


This replaced a number of earlier pieces of legislation which both regulated what holders
of information about individuals could do with that information and rights of access to
that information. It covers personal data (essentially information relating to a living
individual)34 whether this is held electronically or manually (i.e. in paper files), and
specifically includes ‘accessible records’ which include records held by social work
departments. Individuals who are the subject of these records have certain rights. These
are the rights to access the information, the right to seek to have changes made to the
information and the right to seek damages if they suffer because of misuse of the
information. The focus below is on the first of these rights, the right of access. There is
also an overarching requirement that personal data must be processed in accordance with
a set of principles.35

29 There is no professional privilege which covers communication between a social worker and his or her
client.
30 For example, City of Edinburgh Council. Report of the Death of Caleb Ness (2003), para 9.1.17. For a
discussion of information sharing see HM Government, Information sharing: Guidance for practitioners
and managers (2008).
31 See the discussion in Mitchell v Glasgow City Council [2009] UKHL 11, though no such duty was held
to arise in the circumstances of that case.
32 E.g. para 4.4: ‘Taking necessary steps to minimise the risks of service users from doing actual or
potential harm to themselves or other people.’
33 Para 4.1.1. See also the Code on Confidentiality, para 13.
34 Data Protection Act 1998, s 1.
35 Data Protection Act 1998, s 4 and Schs 1- 4.

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The person who is the subject of the information has the right to apply for access to it.
This includes children under 16, provided that they ‘have a general understanding of what
it means to exercise’ the access right.36 Children aged 12 or over are to be presumed to
have this understanding,37 otherwise it will be up to the person to whom the application is
made to make an assessment of the child’s understanding. Where a child is under 16 a
person who has parental responsibilities for the child can apply for access, but their rights
of access are limited as set out below. In general a request for access must be dealt with
within 40 days of the request being made.38

3 Access Rights
The access rights39 entitle the applicant to be told whether the organisation to which an
application is made holds any information on the applicant. If it does hold information
the applicant has a right to a description of the data, the purposes for which it is held, and
information as to people to whom it may be disclosed. Finally, the applicant has a right
to a copy of the information held in an intelligible form, as well as details of the source of
the information. If the social work department fails to comply with the requirements for
disclosure, or for non-disclosure on the grounds set out below, the individual affected by
this can take court action to enforce the local authority’s obligations.40

The right of access to social work records is not entirely unrestricted, and a number of
limits on the right of access apply.

3.1 Information affecting third parties.41


Where disclosure of information held in respect of an applicant would also disclose
information relating to another individual who can be identified from this information,
disclosure is restricted. The information may be about the other person, e.g. something
that they have done, or it may identify him or her as the source of information about the
person who is the subject of the information. This identification of an individual as the
source of information may be direct or indirect, for example where the third party is the
only possible source of the information. Such information can only be disclosed where
the third party agrees or where it would be reasonable in the circumstances to release it
without consent.42 Factors to be considered in deciding whether it is reasonable to
disclose without consent include any duty of confidentiality owed to the third party, any
steps taken to obtain his or her consent and any express refusal of consent.43 This
restriction is modified in respect of access to social work records, information about a
social work department employee is not covered by this exclusion from disclosure.44

3.2 Other restrictions on access to social work records.45


36 Data Protection Act 1998, s 66.
37 Data Protection Act 1998, s 66(2).
38 Data Protection Act 1998, s 7 (8) & (10).
39 Data Protection Act 1998, s 7.
40 Data Protection Act 1998, s 7(9).
41 Data Protection Act 1998, s 7(4).
42 Data Protection Act 1998, s 7(5).
43 Data Protection Act 1998, s 7(6).
44 Data Protection (Subject Access Modification)(Social Work) Order 2000, SI 2000/415, art 7.
45 Data Protection (Subject Access Modification)(Social Work) Order 2000, SI 2000/415.

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The second and third access rights set out above are restricted in certain circumstances
when the information to which access is sought is found in social work records.
Although these two access rights may not apply in a particular case, the first of these will
always apply and the applicant will be entitled to be told if the social work department
hold any information about him or her. The other two rights are restricted in that social
work records are not to be disclosed:
(a) Where disclosure would be likely to prejudice the carrying out of social work by
reason of the fact that serious harm to the physical or mental health or condition of
the applicant for access or any other person would be likely to be caused.46
(b) Where information is supplied to court by a social work department, the court may,
under a variety of statutory provisions, be entitled to withhold the information in
whole or in part, the effect of this is that the decision of a court to withhold
information cannot be bypassed by seeking direct access to the social work
record.47
(c) Information provided to the social work department by the Reporter can only be
disclosed if the Reporter certifies that the exception set out in (a) above does not
apply to the information.48
(d) Where an individual having parental responsibilities for someone under the age of
16 applies to see that person’s record, there are certain restrictions on the
information that can be disclosed to them. In particular information is not to be
disclosed where it was provided by the person under 16 in the expectation that it
would not be disclosed to the person making the request; where it resulted from an
examination or investigation of the person aged under 16 and he or she consented
to this in the expectation that the outcome would not be disclosed to the person
making the request; and, where the person aged under 16 has specifically indicated
that the information should not be disclosed. Examples of this would be where a
pregnancy test was agreed to in the expectation that the result would not be
communicated to a parent, or where a person aged under 16 specifically stated that
he or she did not want the whole or any part of the information about him or her
kept by the social work department to be disclosed to his or her mother.49 Similar
restrictions apply where an application is made by a guardian in respect of
information held about an adult with incapacity.50

Where information held by the social work department derives from a health professional
then it is not to be disclosed unless the appropriate health professional has been consulted
as to whether disclosure would be likely to cause serious harm to the physical or mental
health or condition of the person to whom the information elates or another person. 51 If
the health professional certifies that this is the case then the information is not to be
disclosed.52

46 Data Protection (Subject Access Modification)(Social Work) Order 2000, SI 2000/415, art 5(1).
47 Data Protection (Subject Access Modification)(Social Work) Order 2000, SI 2000/415, art 4 and Sch 1,
pt 2.
48 Data Protection (Subject Access Modification)(Social Work) Order 2000, SI 2000/415, art 6.
49 Data Protection (Subject Access Modification)(Social Work) Order 2000, SI 2000/415, art 5(3), (4).
50 DataProtection (Subject Access Modification)(Social Work) Order 2000, SI 2000/415, art 5(3), (4).
51 Data Protection (Subject Access Modification)(Health) Order 2000, SI 2000/413, art 6.
52 Data Protection (Subject Access Modification)(Health) Order 2000, SI 2000/413, art 7.

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4 Freedom of Information.
Application may also be made for access to information held by the social work
department under the Freedom of Information (Scotland) Act 2002. However, access to
social work records is likely to be limited by two of the exceptions to the right of access
created under the Act. The first exception is that the information which is being sought is
personal data. Such information will be exempt from disclosure either if the person
making the application for access is the subject of this personal data53 or, where the
applicant is not the subject of the data, if disclosure would either contravene the data
protection principles set out in the Data Protection Act 1998 or would be likely to cause
damage or distress or if the information is exempted from disclosure under the 1998
Act.54 A further exemption arises in respect of confidential information.55 Information
will be exempt if it was obtained from another person and its disclosure would constitute
an actionable breach of confidence. In two cases the Scottish Information Commissioner
has taken the view that relatives are not entitled to access to the social work records of a
deceased on this ground. The rationale for these decisions was that the reports in these
records were written using information from third parties, that the nature of the
information would give rise to an action for breach of confidence if it was disclosed and
that, in these cases, there was no public interest in disclosure.56

53 Who will, in any case, have a right of access under the Data Protection Act 1998. Freedom of
Information (Scotland) Act 2002, s 38(1)(a).
54 Freedom of Information (Scotland) Act 2002, ss 38(1)(b) & 38(2) & (3).
55 Freedom of Information (Scotland) Act 2002, s 36.
56 Decisions 165/2007 and 029/2008. In both cases the Commissioner seemed to make use of an outdated
analysis of breach of confidence (though this analysis is arguably implicit in the Act).

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APPENDIX

Articles excluded from attachment

1 The following articles-


(a) clothing reasonably required for the use of the debtor or any member of the debtor's
household;
(b) implements, tools of trade, books or other equipment reasonably required for the use of
any member of the debtor's household in the practice of such member's profession, trade or
business, not exceeding in aggregate value £1,000 or such other amount as may be prescribed
in regulations made by the Scottish Ministers;
(c) medical aids or medical equipment reasonably required for the use of the debtor or any
member of the debtor's household;
(d) books or other articles reasonably required for the education or training of the debtor or
any member of the debtor's household not exceeding in aggregate value £1,000 or such other
amount as may be prescribed in regulations made by the Scottish Ministers;
(e) articles reasonably required for the care or upbringing of a child who is a member of the
debtor's household;
(f) toys for the use of any child who is a member of the debtor's household.

2 The following articles so far as they are reasonably required, at the time of the attachment, for
the use of the debtor or a member of the debtor's household-
(a) beds or bedding;
(b) household linen;
(c) chairs or settees;
(d) tables;
(e) food;
(f) lights or light fittings;
(g) heating appliances;
(h) curtains;
(i) floor coverings;
(j) furniture, equipment or utensils used for storing, cooking or eating food;
(k) refrigerators;
(l) articles used for cleaning, drying, mending, or pressing clothes;
(m) articles used for cleaning the dwellinghouse;
(n) furniture used for storing-
(i) clothing, bedding or household linen;
(ii) articles used for cleaning the dwellinghouse; or
(iii) utensils used for cooking or eating food;
(o) articles used for safety in the dwellinghouse;
(p) tools used for maintenance or repair of the dwellinghouse or of household articles;
(q) computers and accessory equipment;
(r) microwave ovens;
(s) radios;
(t) telephones;
(u) televisions.

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