Christian Webb-Jenkins, of Browne Jacobson LLP, discusses the Safeguarding Vulnerable Groups Act 2006

The Safeguarding Vulnerable Groups Act, which came into force in November 2006, heralds very significant changes in the way that people who work with children or vulnerable adults are vetted. Indeed the reforms are so substantial that the government intends to phase them in over the next two years, as it fears teething problems. Therefore the new regime will not be fully in place until 2008 at the earliest.

The roots of this act lie in the Bichard report. Sir Michael Bichard was very critical of the current vetting and barring scheme, and the government accepted all his recommendations, so substantial reform in one form or another was inevitable.

It is not difficult to identify aspects of the current vetting and barring system that need to be changed. Currently we have two overlapping barring lists that relate to children, List 99 and the Protection of Children Act (POCA) list, a recipe for confusion. Furthermore, the current CRB check is simply a snapshot, telling you what is known about an individual at the time the application is made.

The new regime will tackle these problems. There will be only a single barring list relating to children (but still a separate one for vulnerable adults, as with the current Protection of Vulnerable Adults list). Furthermore, the new system will be able to react to new information about an individual. If it works as planned, individuals will be barred as soon as information justifying this is to hand.

Before explaining how the new system will work, it is necessary to cover a couple of its features.

Independent Barring Board

In early 2006 Ruth Kelly found herself in the middle of a political storm, defending decisions by civil servants to allow individuals with convictions for sexual offences to work with children. She announced that an advisory board of child protection specialists would be created to help civil servants take these decisions. The act takes this one stage further. It creates an independent organization, the Independent Barring Board (IBB). Although this will be funded by the government, it is truly independent. While this organization will not do much of the legwork of process applications, crucially it will be this body that assesses the information to hand about an individual. It will decide whether that person should be barred, taking this potentially contentious decision out of the hands of civil servants.

Regulated activity and controlled activity

The act defines two types of activity relating to children or vulnerable adults. The type that will apply to most individuals working with children is ‘regulated activity’. This is broadly defined, and covers what might be called ‘frontline’ activity, where individuals have direct contact with the children or vulnerable adults. It will cover teaching, social work, healthcare, counselling, guidance, and even moderating internet chatrooms used by children, and driving school buses. The barring provisions provided for in the act relate to regulated activity – the IBB considers whether an individual should be engaged in regulated activity; if an individual is barred, they are barred from regulated activity. A late amendment to the act, brought in during debate in the House of Lords, means that fostering, whether public or private, is regulated activity.

The act contains many provisions relating to individuals or organizations who recruit people for regulated activity, such as employers, voluntary organizations, and employment agencies who supply individuals for regulated activity. These people are covered under the generic term ‘regulated activity providers (RAPs)’. Schools, local authorities and NHS Trusts will be RAPs in relation to the services they provide.

The other type is ‘controlled activity’. Broadly speaking, this is activity that, although it gives some opportunity for contact with children or vulnerable adults, does not fall within the definition of regulated activity. It also covers roles where individuals will have access to children’s records.

One of the features of the act is the lack of detail in key areas. The act simply says that the secretary of state will fill the gap at a later date through regulations. One of these gaps concerns controlled activity. All we have is the definition. We do not know who the secretary of state will permit to engage in controlled activity, or what steps should be taken by those responsible for allowing people to engage in controlled activity. We also do not know what criminal offences may be committed in relation to controlled activity.

How will the new system operate?

Under the new system, an individual who wishes to work with children or vulnerable adults will need to apply for a check (separate applications will be needed for children and for adults, as there will be separate barring lists). The application will require proof of identity and a fee. The check will take a few weeks, while information about that individual is gathered. So far, the new system sounds much like the current one for CRB checks.

It is envisaged that the Criminal Records Bureau will administer the application for a check. It will gather information about the individual, and pass it on to the IBB. In some circumstances (such as where an individual has been convicted of a sexual offence), the barring will be automatic. The IBB will not have to make any barring decision.

In other circumstances, the bar will not be automatic, and the IBB will need to assess the information. If the IBB considers 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 IBB not to bar. In other circumstances, people will not be placed onto the barring list at all until after the IBB receives and assesses the representations.

An individual who is barred will be told. Usually the application will be made jointly by the individual and the RAP who wishes to engage that individual, and both will be told that the individual is barred.

If an individual is not barred, he (and the RAP if the application is joint) will be told that the individual is ‘subject to monitoring’.  This rather strange phrase means that the individual is cleared to work with children or vulnerable adults.

However, it hints at a major change in the new system. Once a person applies for a check, effectively a file is opened on them. While this file is open, the IBB may receive information about that individual from a variety of sources, such as the police, local authorities, employers, professional bodies or inspectorates. Furthermore, periodically the CRB will request any new information about the individual. Whenever such new information is received, it is passed to the IBB, who then consider whether it should lead to a decision to bar, with representations being sought when appropriate. Therefore it is hoped that as soon as there is evidence to hand that an individual has behaved inappropriately towards children or vulnerable adults (such as a conviction of a relevant offence, a dismissal from employment, or removal from a professional register), then that information will be passed to the IBB, who will give it due consideration and, where appropriate, bar the individual. The barring decision will then be communicated to the individual and to the RAP engaged with that individual (provided they have registered their interest with the IBB).

So a school may receive a phone call from the IBB saying that a particular member of staff has been barred. The school will then need to take immediate action to remove that individual from regulated activity, and it is likely that the individual will have to be dismissed summarily. While the individual may know that the IBB is considering a bar, because representations were sought, the RAP will not be given any advanced warning of the barring decision. This, inevitably, will cause some practical problems, but it is difficult to see a sensible alternative.

As well as the opportunity to make representations before a bar is imposed, individuals also have the right to appeal a barring decision and to have it reviewed. However these rights are not as far reaching as they might sound.

Appeals are limited only to questions of law, or to factual decisions that the IBB has made. So, for example, if the IBB relied upon a dismissal by an employer, it would not be possible for an appeal to open up that dismissal decision.

A barring decision can only be reviewed after a certain period of time (yet to be specified, but likely to be a matter of years rather than months), and even then the IBB should only agree to review a decision if there are reasons to believe that circumstances have changed.

Online checks

One aspect of the new system that the government is keen to highlight is the ability to make online checks on an individual, but in truth these are of limited use.  The only information that will be available online is simply whether an individual is barred, or is ‘subject to monitoring’ (ie clear to work). 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 RAP will need information equivalent to an enhanced CRB check and this will only be available through an application, rather than online.

Offences

In order to give the new system a degree of compulsion, the Act creates several offences. So, for example, offences are committed by an individual who seeks or engages in regulated activity with children or vulnerable adults when either he is barred, or not subject to monitoring (ie. he has not applied for a check).

However, RAPs also commit offences if they engage an individual in regulated activity who is either barred or not subject to monitoring. Where the RAP is an organization, this offence is committed by both the organization, and by any manager who is complicit or reckless.

As mentioned above, the IBB may receive information about individuals from a variety of sources including local authorities, inspectorates, professional bodies and RAPs. Indeed there are positive obligations under the act to provide proactively to the IBB any evidence of inappropriate behavior towards children or vulnerable adults. There are also obligations to provide information to the IBB when asked to do so, and RAPs (but no other type of organization) commit a criminal offence if they refuse to provide information requested by the IBB.

Summary

Overall, the new system does have some obvious benefits. It combines List 99 and the POCA list, and it can react to new information. However, the facility for online checks appears to be of limited value.

Importantly, the government is keen to stress that the new regime is not a silver bullet for all recruitment issues. It will still be necessary for employers to have robust recruitment procedures, involving interviews and references.

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