Tighter Controls For Those Working With Children And Vulnerable Adults

Tighter Controls For Those Working With Children And Vulnerable Adults

The Safeguarding Vulnerable Groups Act 2006 aims to solve the failures identified by the 2004 Bichard Inquiry, arising from the Soham murders of Holly Wells and Jessica Chapman in 2002. It provides for the introduction of new arrangements, requiring those who wish to work with children or vulnerable adults to be registered.

The Safeguarding Vulnerable Groups Act 2006 aims to solve the failures identified by the 2004 Bichard Inquiry, arising from the Soham murders of Holly Wells and Jessica Chapman in 2002. It provides for the introduction of new arrangements, requiring those who wish to work with children or vulnerable adults to be registered.

Key measures of the Act include:

•	Introducing a new vetting and barring system, bringing relevant information together in one place for the first time, while still under the auspices of the Criminal Records Bureau (CRB). This will integrate the current List 99 (for teachers) and the Protection of Children Act (PoCA) list (for those working in childcare settings) into a single new “children’s barred list” and also provide for a new “adult’s barred list” of people barred from working with vulnerable adults to replace the Protection of Vulnerable Adults (PoVA) list;
•	transferring responsibility for barring decisions from Ministers to the "Independent Safeguarding Authority" (ISA), which will take decisions on whether to include someone on the barred lists;
•	making it possible for domestic employers, such as parents, to check whether private tutors, nannies, music teachers and care workers are barred;
•	enabling employers to make a ‘real-time’ instant check of whether a prospective employee is barred via secure online access, rather than the current paper-based process; and
•	updating barring decisions as soon as any new information becomes available and, where possible, notifying relevant employers if an employee becomes barred.

The ISA service will extend to England, Wales and Northern Ireland, although arrangements for application and appeals may differ slightly in Northern Ireland. Equivalent legislation is being made in Northern Ireland, under the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007, but implementation dates will vary.

A separate, but aligned, scheme is being set up in Scotland under the Protection of Vulnerable Groups (Scotland) Act 2007. Anyone included on a Barred List in Scotland will also be barred from working with children and vulnerable adults across the UK.

Implementation dates

The ISA was brought into operation on 2nd January 2008, and various Orders and Regulations made under the Act continue to be brought into force in preparation for implementation.

Referrals – On 20th January 2009 (13th March 2009 in Northern Ireland), the ISA assumed responsibility for making barring decisions on new referrals from organisations that are under a duty to refer individuals in appropriate circumstances under the current List 99, PoCA and PoVA schemes. Employers and service providers (including employment businesses) of “regulated” and “controlled” activity have a legal obligation to refer relevant information to the ISA, for example, where an employee has been dismissed (or resigns) because they harmed or may harm a child or vulnerable adult. From 12th October 2009 there will be criminal penalties for barred individuals who seek or undertake work with vulnerable groups and for employers who knowingly take them on.

Registration - the ISA Scheme will start processing applications for registration via the CRB/AccessNI from 26th July 2010 and from November 2010 all new workers or those changing jobs in regulated activity will be legally required to register with the ISA Scheme and employers will be required to check their status. Thereafter, existing workers undertaking regulated activity will be required to apply for ISA registration, starting with those who have never had a CRB check – the process will be phased in over several years. Individuals wishing to undertake paid work involving working with vulnerable groups will pay a one-off fee of £64 (£28 for ISA Registration and £36 for a CRB Enhanced Disclosure). However, there will be no cost for volunteers (although amendments are proposed to the effect that volunteers will be subject to a fee if they subsequently enter paid employment in a regulated activity). There are also proposals to enable employers to request that the CRB provide details of any known restrictions on an individual’s right to work in the UK as part of the Disclosure Certificate, subject to payment of an additional fee.

Regulated and Controlled Activity

The new scheme classifies work with vulnerable groups into two categories: regulated and controlled activities, which include both paid and unpaid (voluntary) work. For the purposes below “frequently” means once a month or more and “intensively” means on 3 or more days in a 30-day period.

Regulated Activity:

•	any activity of a specified nature that involves contact with children or vulnerable adults frequently, intensively and/or overnight (for example, teaching, training, care, supervision, advice, treatment and transportation);
•	any activity allowing contact with children or vulnerable adults that is in a specified place frequently or intensively (for example, schools and care homes);
•	fostering and childcare; and
•	any activity that involves people in certain defined positions of responsibility (for example, school governors and trustees of certain charities)

Upon implementation of the Act, an individual taking part in a regulated activity must be registered with the ISA and it will be a criminal offence:

•	for a barred individual to take part in a regulated activity;
•	for an employer to take on an individual in regulated activity if they fail to check that person’s status (domestic employers do not have to check an individual they wish to employ but they will be able to do if they so wish – with the consent of the individual); and
•	For an employer to allow a barred individual to work in any regulated activity.

Controlled Activity:

•	Frequent or intensive support work in general health settings, the NHS and further education (for example, cleaners, caretakers, shop workers, catering staff, car park attendants and receptionists);
•	Individuals working for specified organisations (for example, local authorities) who have frequent access to sensitive records about children and vulnerable adults; and
•	Support work in adult social care settings (for example, day centre cleaners and those with access to social care records).

Upon implementation of the Act:

•	it will be a criminal offence for an employer to take on an individual in controlled activity if they fail to check that person’s status; but
•	an employer will be allowed to permit a barred individual to work in a controlled activity provided sufficient safeguards are put in place.

People wishing to take up posts in regulated or controlled activity will need to be “subject to monitoring”, which means that they must be a member of the new Vetting and Barring Scheme.

It is important to note that the ISA will not provisionally bar a person while considering a referral. Consequently, it is important for employers of those who work with children or vulnerable adults to ensure that other pre-recruitment safeguards are undertaken, such as CRB checks, taking up references and scrutinising employment history. 

	Bar will apply (Duty on individual)	Individual must be checked (Duty on employers)	Barred individual can be employed
Regulated activities Employment and volunteer settings	Yes	Yes	No
Regulated activities Domestic employment settings	Yes	No	No
Controlled Activities Employers	No	Yes	Yes with safeguards

 Under 16s in the workplace

In light of responses to consultation documents, the government has decided that where young people under the age of 16 work, the adults who teach, train or instruct them in the workplace will not be required to register with the ISA scheme. However, it will be an offence for a barred adult to do this work or for an employer knowingly to use a barred person for this work.

This means that managers of newsagents and other shops will not have to register before they can employ newspaper delivery boys and girls or under 16s in Saturday jobs.

Employees who train or supervise other employees aged under 16 will be able to register with the ISA scheme and their employers will be able to check them if they wish. Decisions to register and to check should be taken in the light of the circumstances and a commonsense assessment of risk.

Work experience organisers will want – as they do now – to agree appropriate safeguarding measures with the employer which may include ISA checks.

Offences and sanctions

Employers will be committing an offence and will face penalties if they employ people to work with children and vulnerable adults that they know are barred. The most serious cases, where there is evidence of serious collusion, could result in a maximum penalty of 5 years in prison.

In addition, for the first time, they would also face a fine of up to £5,000 if they employ someone who has not been through the new central vetting system or fail to make a check of the system. These same penalties – fines and sentences - will also be applied to employees.

Terms and conditions of employment

These forthcoming changes should not, of themselves, necessitate any changes to contracts of employment or employee handbooks, as the provisions relate to statutory obligations. However, some employers may include specific references to the current barred lists in employment documentation, such as application forms, personnel specifications etc. which they may wish to update to reflect the new terminology in due course.

For more information or to find out how we can help your organisation, please call Peter Titchener from Peninsula Business Services Ltd on 07817319741 or via email   peter.titchener@peninsula-uk.com