Vetting and barring scheme: overview
Sue Nickson of Hammonds LLP begins a series of articles on the vetting and barring scheme with an overview of the scheme and the timetable for full implementation. Employers must obtain enhanced CRB checks to ensure that individuals working with children or vulnerable adults in a regulated activity are not on either of the barred lists held by the Independent Safeguarding Authority.
Background
The legislative framework for the vetting and barring scheme - the first phase of which was implemented on 12 October 2009 - is set out in the Safeguarding Vulnerable Groups Act 2006 and associated secondary legislation.
The Act was passed as a direct result of the Bichard
Inquiry (on the Home Office website), which was launched following
the Soham murders in 2002. The Inquiry questioned the way in which employers
recruit people to work with vulnerable groups and, in particular, the way that
background checks are carried out. One of the Inquiry's recommendations
highlighted the need for a single agency to vet all individuals who want to work
or volunteer with children or vulnerable adults and to bar unsuitable
individuals from doing so. The Act established the Independent Barring Board,
which is now the Independent Safeguarding Authority (ISA), to fulfil this role
across
Broadly, an entity will fall within the scope of the vetting and barring scheme if it is an employer or voluntary organisation that is responsible for the control or management of a regulated or controlled activity (see Regulated and controlled activity), in relation to children (defined in the Act as persons under 18) or vulnerable adults. This is the case whether or not the individual carrying out the activity is paid.
Vetting and barring scheme and the Criminal Records Bureau
The ISA does not replace the Criminal Records Bureau (CRB) as a means by which employers and other interested parties can establish whether or not an individual is barred from working with vulnerable groups. The CRB provides the administrative arm that supports the ISA's primary function of making barring decisions in relation to individuals who are a threat to children and vulnerable adults. However, the implementation of the first phase of the vetting and barring scheme has changed the way that this information is obtained.
Under the CRB regime, "standard" disclosure, which is used where there is likely to be regular contact with a vulnerable group, provides details of spent and unspent convictions, cautions, reprimands and final warnings held on the police national computer. "Enhanced" disclosure, which is used when more frequent contact is likely to occur, provides the same information as standard disclosure together with information from local police records that is thought to be relevant to the position for which the employee or volunteer has applied.
Prior to 12 October 2009 both levels of disclosure included searches of the former barred lists. However, from 12 October, standard disclosure is no longer adequate for posts involving regulated activities with children or vulnerable adults because the new ISA barred lists (see below) will not be searched. Employers or voluntary organisations recruiting for these posts or moving existing staff into new posts must make an enhanced disclosure request, including an ISA barred list check. There is no requirement to make a request for existing staff as they will not fall within the vetting and barring scheme until 2011.
An advantage of the vetting and barring scheme compared with pre-12 October CRB disclosure, which provided only "snapshot" information, is that once individuals are ISA-registered, they will be subject to continuous monitoring and their status assessed against new information received by the ISA. From July 2010, when employers and voluntary organisations will be able to access the ISA system online, an employer or voluntary organisation that registers an interest in an individual's ISA status will automatically be notified of any status changes while that person is in its employment or is acting as a volunteer. To register an interest in an individual the employer or organisation must have a legitimate interest in him or her for employment or volunteering purposes and have his or her consent.
The vetting and barring scheme is being introduced in stages and will not be fully implemented until July 2015 (see implementation timetable). The first phase took effect on 12 October 2009 and introduced the changes set out below.
Extended scope of the barring scheme - Additional "regulated" activities are covered by the new scheme. This has significantly extended the scope of activities and workplaces for which the requirement to check whether or not individuals are barred applies. For example, most NHS jobs and jobs in the prison service, are now included.
New offences - It is an offence under the vetting and barring scheme for a barred person to offer to, seek to, or actually engage in a regulated activity. An individual charged with the offence can use the defence that: he or she had to engage in a regulated activity to prevent harm to a child or vulnerable adult; no one else was available; and he or she did what was necessary only to prevent harm. The individual can also use the defence that he or she did not know and could not reasonably be expected to know that he or she was barred from that activity.
It is also an offence under the scheme for an employer or voluntary organisation to allow a person who it knows, or has reason to believe, is barred to engage in a regulated activity (regardless of the frequency of the activity and whether or not the person is paid). This offence also applies to personnel suppliers, for example employment agencies and agencies that introduce temporary workers. An employer, voluntary organisation or personnel supplier charged with the offence can also make a defence that: it thought that it was necessary to engage the individual in a regulated activity to prevent harm to a child or vulnerable adult; no one else was available; and the individual did only the minimum necessary to prevent harm. The offending person for this offence can be the employer (or the agency), its directors or the manager or managers directly responsible for hiring the barred individual.
Both of the above offences are punishable on conviction in the Crown Court by up to five years' imprisonment or a fine at a level decided by the Court, or both. Conviction in a magistrates' court for either offence could result in up to six months' imprisonment or a fine of up to £5,000, or both.
New barred lists - The three former barred lists (the Protection of Children Act (POCA) list, Protection of Vulnerable Adults (POVA) list and List 99) have been replaced with two ISA barred lists: the adults barred list and the children barred list. Individuals who were already barred prior to 12 October have either been automatically included on one or both of the new ISA lists or had their case reviewed where it relates to offences that, although serious, still allow scope for the individual concerned to make representations as to why the bar should be removed. The individual is placed on the relevant list(s) while those representations are made.
Mandatory referral process - Employers and service providers of regulated and controlled activities, personnel suppliers, local authorities, professional regulators and other bodies now have a duty to refer to the ISA information that they hold about individuals working with children or vulnerable adults in a regulated or controlled activity where they consider them to have caused harm or to pose a risk of harm to children and/or vulnerable adults. In particular, if a body removes someone that it employs, or for whom it is responsible, from a regulated or controlled activity, or if the person leaves while under investigation for allegedly causing harm or posing a risk of harm, it must refer this information to the ISA. Failure to provide the information to the ISA, without a reasonable excuse, renders that body liable on conviction in a magistrates' court to a fine of up to £5,000. All other employers of those working with children and/or vulnerable adults may refer relevant information to the ISA (but do not have a statutory obligation to do so). The ISA has published guidance on the referral process and a referral form (on its website).
Regulated and controlled activity
"Regulated activity" covers anyone working closely with children or vulnerable adults (whether paid or unpaid) on a frequent (ie once a month or more) or intensive (ie on three days or more in a single 30-day period) basis. Examples of regulated activity include: the teaching, training, care or transportation of children or vulnerable adults; specified positions such as directors of children's services or adult social services of a local authority; and activity undertaken in specified establishments such as childcare premises (for example nurseries) or adult care homes.
"Controlled activity" is work that is arranged by an employer or voluntary organisation that does not constitute regulated activity but that provides opportunities for any form of contact with children or vulnerable adults. It includes:
- frequent or intensive activity (defined as for regulated activity) that is in connection with (ie ancillary to) healthcare in hospitals or primary care establishments (for example cleaning and catering staff);
- frequent or intensive activity in connection with adult social care settings and further education settings (for example caretakers and receptionists); and
- people working for specified organisations (for example local authorities and health authorities) with access to health, education or social service records.
Controlled activity currently applies only in the context of the mandatory referral duty.
The Vetting and barring scheme guidance - October 2009 (PDF format, 1.45MB) (on the ISA website) includes details of the key dates for the roll-out of the scheme, set out below.
April 2010 - English and Welsh employers or voluntary organisations that do not know whether or not a new entrant or mover into a controlled activity is barred from regulated activity will have to apply to the CRB for enhanced disclosure with a barred list check on that individual.
26 July 2010 - Individuals may apply for ISA registration if moving into a new role, whether paid or voluntary, in a regulated activity. This includes existing employees and volunteers who are changing roles. Employers will be given free online access to an individual's ISA status from this date.
1 November 2010 - Mandatory registration for all new entrants and existing employees and volunteers changing roles in a regulated activity. Employers and voluntary organisations will have a legal obligation to check that potential new employees and volunteers are ISA-registered before allowing them to engage in a regulated activity.
1 April 2011 - Individuals already working in a regulated activity and who have not moved into a new role with a new employer or voluntary organisation can apply for ISA registration.
1 January 2014 - Individuals working in a controlled activity should apply for ISA registration.
31 July 2015 - Everyone working in both regulated and controlled activities must be ISA-registered (other than barred people in a controlled activity, who are not entitled to register).
Next week's article will be a case study on the vetting and barring scheme and will be published on 9 November.
Sue Nickson is Chief Operating Officer, Partner (Employment) and International Head of Human Capital at Hammonds LLP (sue.nickson@hammonds.com).
Further information on Hammonds LLP can be accessed at www.hammonds.com.
