Chris Webb-Jenkins walks you through the new vetting and barring regime, which comes into effect in autumn 2008

The Safeguarding Vulnerable Groups Act 2006, which came into force in November 2006, makes significant changes to the way that people who work with children or vulnerable adults are vetted. In fact, the reforms are so substantial that the Government is going to phase them in to avoid teething problems. The new regime will come into effect in autumn 2008 — but its initial scope will be narrow, broadening only after the information technology has proved effective. This article will explore the provisions of the new Act and explain what changes schools will have to make to accommodate the new vetting and barring regime.

Roots of the Act

The roots of this Act lie in the Bichard Report. Sir Michael Bichard was critical of the current vetting and barring scheme. The Government accepted all of Sir Michael’s recommendations — therefore substantial reform was inevitable. It is not difficult to identify aspects of the current vetting and barring system that need reform: There are presently two overlapping barring lists — List 99 and the Protection of Children Act (POCA) list — a recipe for confusion. And the current Criminal Records Bureau check simply provides a snapshot of an individual, telling you what is known about him or her at the time the application is made.

The new regime will tackle these problems:

  • there will be a single barring list for children — but a separate one for vulnerable adults, as with the current Protection of Vulnerable Adults (POVA) list
  • the new system will be able to react to new information about an individual. If it works as planned, individuals will be barred from working with children as soon as information justifying this is available

Structure of the new system

Before explaining how the new system will operate, let’s have a look at its structure.

Independent Safeguarding Authority In early 2006, education secretary  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 the creation of an advisory board of child protection specialists to help civil servants make these decisions. The Vulnerable Groups Act takes this one stage further, creating an independent organisation — the Independent Safeguarding Authority. Although the ISA will be Government-funded, it will be truly independent.

Who makes the decision?

Whilst the Independent Safeguarding Authority will not do much of the legwork of processing applications, it will be this body that assesses the information to hand about an individual.

The ISA will decide whether a person should be barred, taking this potentially contentious decision out of the hands of civil servants.

Types of activity

‘Regulated 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 as any specified activity that:

  • involves contact with children or vulnerable adults
  • is frequent or intensive.

We do not yet know how ‘frequent’ will be defined, but ‘intensive’ means  more than three days in a 30-day period. In essence, regulated activity is ‘frontline’ activity, where individuals have direct contact with children or vulnerable adults. It will cover teaching, social work, healthcare, counselling, guidance, and even the moderation of internet chatrooms used by children, as well as driving school buses.

A late amendment to the Act, brought in during debate in the House of Lords, means that fostering, whether public or private, is a regulated activity.

Regulated activity is defined as any activity at a ‘specified place’. Schools are such a specified place, as are nurseries, children’s homes, and the premises of registered childcare providers.

The barring provisions in the Act cover regulated activity — the ISA considers whether an individual should be engaged in regulated activity; if an individual is barred, s/he is barred from regulated activity.

  • ‘Regulated activity providers’

The Act contains covers individuals or organisations that recruit people for regulated activity, such as employers, voluntary organisations, and employment agencies. These people are knows as ‘regulated activity providers’. Schools, local authorities and NHS Trusts will be regulated activity providers.

‘Controlled activity’ The second type of activity is controlled activity. Broadly speaking, this is activity that, although it gives some opportunity for contact with children or vulnerable adults, is more remote than regulated activity. It includes roles that give individuals access to children’s records.

The practical distinction
An important distinction between regulated activity and controlled activity is that, while it will be an offence to engage someone in regulated activity where s/he has committed one of a list

of specified offences that lead to an automatic bar, it will be lawful to engage that person in controlled activity, provided that safeguards are in place.

How will the news system operate
? Under the new system, someone who wants to work with children or vulnerable adults will need to apply for a check (making separate applications for working with children and with adults, as there will be separate barring lists). The application will require proof of identity and a fee. It is hoped that where there is no information on an individual (the position in 90 per cent of cases) the results will come through within one week. If the Independent Safeguarding Authority needs to gather and consider information, the check will take a few weeks. See box, below left, for details of the process.

Notification of barring

The Independent Safeguarding Authority will not give the regulated activity provider any warning that it is considering a bar whilst it seeks or considers representations. Notification that someone has been barred is, therefore, 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 — the school will then need to take immediate action to remove that teacher from the school.

Summary dismissal

After notification of a bar, it is likely that the school will have to summarily dismiss the teacher. This may cause practical problems, but it is hard to see an alternative. If the ISA were to tell the regulated activity provider that it was considering a bar, this would cause more problems — because the regulated activity provider would need to suspend the individual — for no good reason if the ISA later decided not to impose a bar.

Challenges to the decision

As well as the opportunity to make representations before a bar is imposed, individuals have the right to appeal a barring decision, and to have it reviewed. These rights are not, however, as far-reaching as they may appear.

  • Appeals are limited to questions of law, or to factual decisions that the ISA has made. So, for example, if the decision relied upon a dismissal by an employer, it would not be possible for an appeal to examine that dismissal decision.
  • Reviews are a barring decision can be reviewed only 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 ISA should agree to review a decision only 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 whether an individual is barred, or is ‘subject to monitoring’ (i.e. clear to work). There will be no further information. This will, in effect, be similar to the current standard-level CRB check. For recruitment into almost every regulated activity role, the regulated activity provider will need information equivalent to an enhanced CRB check, and this will only be available through an application, rather than online.

New offences The Act creates several offences. This is to ensure compliance with the new system by all organisations dealing with vulnerable adults and children — whether in the public, private or voluntary sector, and whether or not subject to any inspection regime:

  • Offences are committed by an individual who seeks or engages in regulated activity with children or vulnerable adults when s/he is barred, or has not been checked.
  • Regulated activity providers commit offences if they engage an individual
  • in regulated activity who is either barred or not subject to monitoring.
  • Where the regulated activity provider is an organisation, the above offence is committed by both the organisation, and by any manager who is complicit or reckless.
  • It is an offence for an individual to seek controlled activity if s/he has not been checked. It is also an offence to employ such an individual.

Provision of information The ISA may receive information about individuals from a variety of sources, including local authorities, inspectorates and professional bodies, and regulated activity providers. There is an obligation under the Act to provide to the ISA any evidence of inappropriate behaviour towards children or vulnerable adults.

There are also obligations to provide information to the ISA when asked to do so. Regulated activity providers (but no other type of organisation) commit a criminal offence if they refuse to provide information requested by the ISA.

Some benefits

The new system does have some obvious benefits: it combines List 99 and the POCA list, covers more organisations, and it can react to new information. The facility for online checks appears to be of limited value. It will still, however, be necessary for employers to have robust recruitment procedures, including thorough interviews and credible references.

Find out more…

You can find useful guidance on the scheme
The Independent Safeguarding Authority general website
Read about the Act’s impact on information sharing

Chris Webb-Jenkins is a partner in Browne Jacobson’s education and social care team