There are currently two live consultations that will impact upon your safeguarding duties, the most important of which is the long-awaited sector-specific guidance for the Vetting and Barring Scheme. Dai Durbridge explains how they will affect your safeguarding responsibilities in the new academic year

What do the two consultations cover?
Actually, they are all linked to safeguarding and recruitment, but cover distinct areas.

The first and most significant in my view is the sector-specific guidance for the Vetting and Barring Scheme (VBS). This has been drafted into the current Safeguarding Children and Safer Recruitment in Education guidance, which has been the key guidance since the beginning of January 2007. The consultation proposes a new 2010 version reflecting the significant changes brought about by the new VBS and the creation of the Independent Safeguarding Authority (ISA).

The second is a consultation about the ongoing need to carry out further CRB checks once staff and volunteers are registered with the ISA.

Apart from amending the recruitment section of the 2007 guidance, does the draft Safeguarding Children and Safer Recruitment in Education 2010 guidance make any other significant changes?
Unfortunately it does not. One of the areas in need of a more detailed review is the management of allegations against staff, the guidance for which is set out in chapter five of the draft 2010 guidance. Save for some minor amendments to reflect your legal duty to refer conduct to the ISA, there has been no real change.

This is disappointing. As recently as July 2009 the House of Commons Children, Schools and Families Committee provided a 132-page report setting out its view on the current position of how allegations are handled and how should be improved. As a result of that report, it was anticipated that the 2010 draft guidance would provide schools with more power to investigate and manage some allegations without having to involve the local authority designated officer.

Nor did they take the opportunity to revisit the position regarding malicious and false allegations made against staff. This issue requires a review from the point of view of the sanctions available to the school and the information will then appear on the enhanced CRB check of the innocent teacher.

However, as the consultation remains open until 9 July, you still have the opportunity to make your views known on these issues.

What changes are made to the recruitment guidance in the 2010 draft?
The most significant changes are in chapter four and relate to the recruitment and vetting checks required when the ISA registration process begins late next month. This chapter has been completely redrafted as a result of the significant changes brought about by the VBS. However, further changes are required to the 2010 draft in order to reflect the outcome of the consultation on the need to carry out CRB checks on staff who are ISA-registered.

Does the wide scope of the ISA VBS mean that the need for continued CRB checks is removed?
It is exactly that point upon which the government is consulting and the obvious answer would seem to be yes. However, it is not that straightforward.

The new VBS adds in a further safeguarding layer by making it a legal requirement for an individual to register with the ISA before beginning work or volunteering in a school (from November 2010 onwards). However, all registration guarantees is that the individual is deemed suitable to work in the children and/or vulnerable adults sector. The continuous updating of information on the individual by the ISA then ensures that throughout their career they remain suitable to work in the sectors. What the new scheme does not do is make sure the individual is suitable to work in your school in the role for which you are recruiting them.

How would carrying out an enhanced CRB check change this?
Let us assume an individual has a couple of drink-driving convictions, a conviction for driving while disqualified and for driving with no insurance or MOT. This is unlikely to be enough for the ISA to bar the individual from working with children or vulnerable adults and so upon application they will be registered with the ISA. If this individual then applies to work at your school (and remember they are already registered with the ISA) then the only way you can know of their convictions is to obtain an enhanced CRB check. If the role for which you were recruiting specifically included driving the school minibus, surely it is imperative that you know of their convictions?

As there is no mechanism allowing the ISA to share the conviction information with a prospective employer, the only way you could find it out is through an enhanced CRB check.

When does this consultation close and when will we see the new guidance?
Friday 9 July, so there is still plenty of time to make your views known.

No date has been provided for when the draft Safeguarding Children and Safer Recruitment in Education guidance will come into effect, but it is anticipated that it will be in force from September 2010. With the consultations closing in early July, this allows the Department for Education around eight weeks to finalise and release the guidance in time for the new academic year.

What will schools need to do when the guidance is released?
The changes are significant, impacting upon many areas including advertising and recruiting, vetting and barring, handling allegations against staff and work placements. Schools will need to review and redraft their policies in these areas and ensure governors and the senior leadership team are fully trained in these areas early in the new academic year.

Want to find out more?
Gain further top legal guidance from Dai Durbridge at the Annual Child Protection in Education Conferences this September, where he will show you how to update your recruitment procedures in line with the Vetting and Barring Scheme and provide further guidance on referrals to the ISA.

Also, don’t miss your chance to hear from Sir Roger Singleton, chief adviser on the safety of children and Adrian McAllister, CEO, Independent Safeguarding Authority. Click here for more information.

This e-bulletin issue was first published in June 2010

About the author: Dai Durbridge is a lawyer at Browne Jacobson. To find out more about the legal services Browne Jacobson provides in the education sector and to visit their website, please follow this link