With the Independent Safeguarding Authority (ISA) due to launch at the end of 2009, Chris Webb-Jenkins takes a look at the practical implications of the complete overhaul of our vetting and barring system

The new vetting and barring scheme, involving the Independent Safeguarding Authority (ISA), replaces the current List 99, PoCA, PoVA and Disqualification Orders regimes. Legal Expertise discusses.

Why do we need a new vetting and barring scheme?

There are a number of reasons. For starters, at the moment we have two overlapping lists of people who are barred from working with children – List 99 and the Protection of Vulnerable Children (POCA) list. There is a third list relating to adults – the POVA (Protection of Vulnerable Adults) list. Further, an individual can be barred if a court makes a barring order. This is a recipe for confusion. Furthermore, the current Criminal Records Bureau (CRB) check is simply a snapshot, telling you what is known about an individual at the time the application is made. If the check is carried out on a Monday, and the individual is convicted of an offence on the Tuesday, the CRB check will not pick that up.

How will the new system be an improvement?

There will be only one barring list relating to children, and another for vulnerable adults, and these lists will capture those barred by court order. Furthermore, the new system will involve continuous updating and so will be able to react to new information about an individual – thus, someone initially cleared to work with children or vulnerable adults can be subsequently barred. This is seen as an improvement on the current ‘snapshot’ position.

Who will make these barring decisions?

The new Independent Safeguarding Authority (ISA). The ISA will not do much of the legwork of processing applications – that will continue to be handled by the CRB. Instead, this body will assess the information to hand about an individual, and decide whether that person should be barred.

Who will be covered by the new scheme?

You are covered if your activity falls within the definition under the Act of two types of activity – regulated activity or controlled activity.

The precise definition of regulated activity is complex at the margins, but that need not concern education professionals, because the definition includes any position at a school, whether teaching or non-teaching.

Controlled activity tends not to involve direct contact with children or vulnerable adults, but may involve access to information about them (such as hospital records).

The barring provisions provided for in the Act relate only to regulated activity. The ISA considers whether an individual should be engaged in regulated activity; so, if an individual is barred, they are barred from regulated activity only. They can still be involved in controlled activity, provided safeguards are in place.

How will the new system operate?

This is the major change. At the moment, anyone is allowed to work with children unless they are told they cannot (for instance, because of an appearance on one of the lists, or CRB information). When the ISA launches in October 2009, a person will only be able to work with children if he or she is first cleared to do so by the ISA.

An application to the ISA will require proof of identity and a fee. It is hoped that where there is no information on an individual (the position on 90% of applications), the results will come through within one week. If there is information to be gathered and considered by the ISA, the check will take longer.

Who handles the application?

The Criminal Records Bureau will administer the application and gather information about the individual. Sometimes there will be information on an individual that will need to be passed to the ISA for it to consider before deciding whether to include the applicant on the banned list.
If the ISA considers that it may be necessary to bar an individual, it must give that individual the right to make representations. In some instances, the individual will be barred initially, and subsequently removed from the barring list if the representations persuade the ISA to do so. In other circumstances, people will not be placed on the barring list at all until after the ISA receives and assesses their representations.

If the ISA bars someone, whom does it inform?

If an individual is not barred, he and his employer (or equivalent for volunteers) will be told that the individual is cleared to work with children or vulnerable adults. If a decision to bar is made, again both the individual and their employer are told.

During any period when the ISA is considering a bar and representations are sought, the employer will not be told. Therefore, notifications that someone has been barred are likely to come out of the blue. A school may receive a phone call from the ISA saying that a particular teacher has been barred, and the school will then need to take immediate action to remove that individual from the school, as it is a criminal offence to allow that person to continue in regulated activity. It is likely that the individual will have to be dismissed summarily.

How does the continuous updating work?

Once a person applies for a check, effectively a file is opened on them. While this file is open, the ISA may receive information about that individual from a variety of sources, such as the police, local authorities, employers, professional bodies or Inspectorates. Furthermore, the CRB will periodically request any new information about the individual from these organisations. The ISA will then consider whether this information should lead to a decision to bar, with representations being sought when appropriate. The idea is that as soon as there is evidence to hand that an individual has behaved inappropriately towards children or vulnerable adults, that information will be passed to the ISA, which will give it due consideration and, where appropriate, bar the individual.

Can you check if someone is already cleared to work?

Yes. Under the new scheme there is the ability to make online checks. This will tell you instantaneously whether an individual is barred, or is cleared to work. However it will not give any further information. It will, in effect, be similar to the current standard-level CRB check. However, for recruitment into almost every regulated activity role, the potential employer will need information equivalent to an enhanced CRB check, and this will be available only through an application, rather than online.

What sanctions are there under the new system?

The Act creates several criminal offences for non-compliance. Offences are committed by an individual who seeks or engages in regulated activity when either he is barred, or he has not been checked. Employers also commit offences if they engage an individual in regulated activity, and that individual is either barred or not subject to monitoring. Where the employer is an organisation, this offence is committed by both the organisation, and by any manager who is either complicit or reckless in engaging the individual in those circumstances.

This e-bulletin issue was first published in October 2008

About the author: Chris Webb-Jenkins