New protections ahead

The Independent Safeguarding Authority and the new Vetting and Barring Scheme: Jean Tsang asks are you ready?

Established by the Safeguarding Vulnerable Groups Act 2006, the little known Vetting and Barring Scheme, which launches in October, heralds very significant changes in the way that people who work with vulnerable groups will be vetted. The new compulsory scheme will be overseen by a new body called the Independent Safeguarding Authority (ISA), and it will apply to both paid workers and volunteers and cover a much wider workforce than under the current statutory schemes.

This article considers how the new Scheme will operate, the implications for charities working with vulnerable groups (the introduction of legal duties and criminal offences) and what charities need to do to prepare for the impending changes.  

Background

The ISA was created in response to recommendations made in the Bichard Inquiry arising from the Soham murders in 2002. The Inquiry highlighted the need for a single agency to vet all individuals who want to work or volunteer with children and vulnerable adults, and to bar unsuitable people from doing so.      

How will it work?

Under the new scheme, the ISA will administer two new barring lists (the Children's Barred List and the Adults' Barred List) which will replace the three current lists under the Protection of Children Act (POCA), Protection of Vulnerable Adults Act (POVA) and section 142 of the Education Act 2002 (formerly List 99).

Inclusion on the new barred lists will be as a result of either an automatic bar (following a conviction or police caution for a prescribed offence) or as a result of a decision made by the ISA. The ISA will take all discretionary decisions on who should be barred both prior to an individual's employment and, if necessary, following a referral of information from a variety of sources including the police and employers.      

The new scheme will require all those engaged in or seeking to work closely with children and vulnerable adults ("regulated activities") to first be vetted (by the Criminal Records Bureau) and registered with the ISA. Those successful in the application process will be registered for life (unless they are subsequently barred) and those unsuitable will be barred so that they are prevented from even entering the workplace in the first place. Once registered, the individual will be subject to continuous monitoring to ensure their suitability to work with vulnerable groups. The cost of registration will be £64 per person except for volunteers for whom it will be free of charge. 

An important change is that the new scheme will cover a much wider workforce than under the current schemes: it will apply equally to both paid and unpaid workers who are seeking to work with children or vulnerable adults, and in a much wider range of settings. In particular, the new scheme will be a marked improvement for vulnerable adults as the current POVA scheme only covers regulated social care settings.

Employers must first check if an individual who is going to work in a "regulated activity" or "controlled activity" is ISA-registered and, in many cases, must not recruit them if they are not. The individual cannot be in post, even supervised, before the employer knows the outcome of check. This check can be done instantly online, or via a CRB check (with the individual's consent). The employer can be kept informed if the individual is removed from the register.

The new scheme will cover England, Wales and Northern Ireland (there will be a separate but aligned scheme in Scotland). 

The new scheme also introduces a duty on employers working with vulnerable groups to refer relevant information to the ISA (broadly where there is a concern that an individual has harmed or risked harm to a child or vulnerable adult), even if the individual has left the organisation. This is so that those who pose a threat to vulnerable groups can be identified and barred from working with these groups.

Regulated and controlled activities?

The Act defines two types of activity relating to children or vulnerable adults which will be affected by the new scheme: "regulated activity" and "controlled activity". 

A "regulated activity" includes:

• Any activity of a specified nature that involves contact with children or vulnerable adults and takes place frequently, intensively and/or overnight (e.g. teaching, training, care, supervision, advice, treatment, transportation and even moderating an internet chat room).
• Any activity allowing contact with children or vulnerable adults that is in a specified place and which takes place frequently or intensively (e.g. schools and care homes).
• Fostering and childcare.
• Certain defined positions of responsibility e.g. school governor, and trustees of children and vulnerable adults' charities.

A "controlled activity" includes:

• Frequent or intensive support work in general health settings, the NHS and further education (e.g. cleaners, caretakers, shop workers, catering staff and receptionists);
• Those working for specific organisations with frequent access to sensitive records about children or vulnerable adults.
• Support work in adult social care settings (e.g. day centre cleaners).

"Frequently" means once a month or more and "intensively" means on three or more days in a thirty-day period.  

Anyone providing a regulated activity must first be registered with the ISA. It will be a criminal offence for a barred or unregistered individual to undertake a regulated activity. For an employer, it will be a criminal offence to take on an individual for a regulated activity without checking their ISA-status and/or to allow a barred or unregistered individual to work in such an activity.  

It will be a criminal offence for an employer to take on an individual in a controlled activity if they fail to check that individual's status. However, provided sufficient safeguards are in place, an employer can permit a barred individual to work in a controlled activity.    

When will the Scheme be implemented?

The current timetable for implementation is as follows:

From 12 October 2009:

• The creation of two new ISA barred lists (administered by the ISA) which will replace the existing List 99, POCA List and POVA Lists administered by several government departments.
• Checks of these new lists can be made as part of an Enhanced CRB check.
• Standard CRB checks will no longer be available for those working with children or vulnerable adults. These will be replaced by Enhanced CRB checks.
• There is no change to the current application form or application process.
• Employers will have a duty to refer relevant information to the ISA.

From July 2010:

• New entrants to the workforce, those who are changing roles to take on regulated activity and those changing jobs whilst working in regulated activity may apply for ISA-registration. Those who currently work with vulnerable groups but who are staying in their current role will not have to register until later in the 5-year phasing in period. The ISA will provide further details on this at a later stage.    
• Once an individual is registered, they will become "subject to monitoring" and their registration status re-assessed if any new information about them comes to light.
• Employers will be able to carry out free, online checks of an individual's ISA-registration status (with the individual's consent) and be informed of any changes to that individual's status.
• Individuals will be able to apply for ISA-registration and a CRB check (including an ISA check) on one new application form.

From November 2010:

• It will be a legal requirement for individuals to register with the ISA if they intend to work with vulnerable groups.

ISA checks v CRB checks

It is important to stress that ISA checks do not replace CRB checks. All an ISA check will reveal is if an individual is ISA-registered, which means that the ISA has found no known reason why the applicant should not work with children or vulnerable adults. To gain a fuller picture of an individual's criminal history, employers will need to obtain an Enhanced CRB check so that they can assess an individual's suitability for a particular role or position.

To illustrate this, take a bus driver who transports children. If you only carry out an ISA check you will know that that individual is registered to work with children, but that individual may have a conviction for dangerous driving which would only show up if you also requested a CRB check.

What does this mean for you or your organisation?

The Act introduces new duties and criminal offences for employers so it is vital to prepare for the impending changes. You can do this by:

• Reviewing (and, if necessary, updating) your organisation's child and/or vulnerable adult protection policies in line with the new requirements, as well as any policies on recruiting ex-offenders. This will involve developing procedures for identifying activities covered by the new scheme, and identifying when to make checks and referrals.
• Nominating an individual to take responsibility for ensuring your organisation complies with the new legal requirements.
• Working on plans to phase your existing workforce through the ISA-registration process over the 5-year period. Workers who have not been CRB checked should apply for ISA registration first, followed by workers with very old CRB disclosures. ISA-registration costs £64 per individual and is free for volunteers. If your organisation decides to pay for the registration, obviously you will need to budget for this.  

You should also ensure, as with the current CRB system, that other risk assessments and safeguards (such as checking references) are in place - being on the ISA register may not be enough of a safeguard on its own to recruit someone.

For further information visit the ISA's website http://www.isa-gov.org.uk/. 

Jean Tsang is a solicitor at Bates Wells and Braithwaite