Bursars and finance managers responsible for recruitment in schools will already be familiar with the need for recruitment procedures which give high priority to safeguarding. The Safeguarding Vulnerable Groups Act 2006 (SVGA) set up the most stringent safeguarding requirement yet, the Vetting and Barring Scheme (VBS), applying to all forms of work with children and vulnerable adults. It has been expected to have a major impact on the recruitment and monitoring practices of schools.

The act imposes new duties on both employers and employees. Failure to comply will result in criminal offences. It is therefore more important than ever that schools have the appropriate safeguarding procedures in place to ensure that they meet their obligations.

But what is happening to the Vetting and Barring Scheme? On 15 June, the home secretary, Theresa May, announced that registration with the VBS, due to begin on a voluntary basis on 26 July this year, was to be halted to allow the government to ‘remodel the scheme back to proportionate, common sense levels.’ In this article we look at the current framework of the scheme, including the elements that are already in force and will continue for the foreseeable future, and consider where the review might result in amendments.

Vetting and Barring Scheme
The SVGA introduced a new system for banning individuals from working with children and vulnerable adults. Its key aims were to provide employers with a consolidated vetting service for those who work with children or vulnerable people and to ensure that individuals known to be unsuitable to work with children and vulnerable people are prevented from doing so at the earliest opportunity. The new Children’s Barred List replaces both List 99 and the Protection of Children Act list (POCA).

The task of administering the VBS was given to the Independent Safeguarding Authority (ISA), established as part of the VBS under the SVGA. Under the VBS, people wishing to work (paid or unpaid) with children or vulnerable adults would need to register with the ISA. People who are known to be unsuitable for such work are recorded as being barred on the Children’s Barred List or the Adults’ Barred List, as appropriate. Relevant employers would be required to check an individual’s status in the VBS before offering them employment and it would be an offence to employ someone who had been barred or who had not been checked against the VBS.

Once registered, an individual would become ‘subject to monitoring’. This means that if the ISA were to receive any information which raised doubts about that person’s suitability to work with children or vulnerable adults, they would consider whether the person’s registration should be withdrawn. Information may include criminal convictions or ‘soft information’ from various sources which might indicate a concern. Relevant employers would be able to register an interest in an employee and would then receive an update if that person’s ISA registration status had changed. This was seen by many as an improvement on the current system of Criminal Records Bureau (CRB) checks, which are snapshots in time that become out of date almost as soon as they are completed.

In response to criticisms, the last government commissioned a review of the scheme last year resulting in a report by Sir Roger Singleton, Drawing the Line, published in December 2009. The report’s recommendations were all accepted by the government and incorporated into new guidance which was published in March.

Regulated activity
The concept of regulated activity introduced in the VBS is likely to result in people being barred from a wider range of activities than may previously have been the case. Regulated activity includes supervision, instruction and advice provided for children. All work in schools will be regulated activity if it is carried out ‘frequently’ or ‘intensively’.

The intention was that ‘frequent’ or ‘intensive’ contact would trigger the application of the VBS and those carrying out the work would be required to register with the ISA (note the requirement on governing bodies to register below). Further to Sir Roger Singleton’s report, these thresholds were amended so that an activity would be ‘frequent’ where the work takes place at least once a week and ‘intensive’ if it is carried out four times in one month or overnight.

Schools should note that volunteers or visitors (eg visiting specialist speakers or authors) who take part in regulated activity in a number of different schools would not need to be ISA registered unless they visit the same school once a week, four days in one month or overnight. Schools should have adequate security arrangements to ensure that non-registered visitors are signed in and out of the school and are properly supervised while on the premises.

There has been speculation that people who volunteer to help in schools will all be exempt from registration under the VBS. This may be based on the statement by the Children’s Minister, Tim Loughton, who has said: ‘We shouldn’t be driving a wedge between children and well-meaning adults including people coming forward to volunteer with young people. Such individuals should be welcomed, encouraged and helped as much as possible, unless it can be shown that children would not be safe in their care.’

This rather begs the question of how it can be shown that children would not be safe in the care of such an individual if vetting requirements are cut back. However, many heads may feel that they are capable of assessing the risk posed by an individual based on their personal knowledge of the family and the type of work involved.

The definition of regulated activity is still in force and regulations that were introduced in October 2009 will remain in place. These include:

  • If a person is barred from working with children or vulnerable adults he or she will commit a criminal offence if they work or volunteer, or try to work or volunteer with those groups.
  • It is also a criminal offence to employ someone who is known to be barred to work with those groups.
  • If an organisation that works with children or vulnerable adults dismisses a member of staff or a volunteer because they have harmed a child or vulnerable adult, or would have dismissed them if they had not left, the organisation must report the matter to the ISA. Again it is a criminal offence not to make such report.

A timetable and details of the remodelling process for the scheme have not yet been released although an announcement is expected shortly.

Safer recruitment
Under the new scheme, employers retained their responsibilities for safer recruitment practice. The DCSF guidance Safeguarding Children and Safer Recruitment in Education provides detailed guidance covering child protection systems in schools and recruitment procedures for all staff and volunteers. A draft revised version of this guidance, incorporating a number of important changes, including reference to the new VBS and the role of the ISA in recruitment procedures, has undergone consultation but the Department for Education have confirmed that no further action will be taken on this until after the review of the VBS. Uncertainty over the future of the VBS confirms the importance of following best practice in all aspects of recruitment.

It is good practice to obtain references from the previous employer of all shortlisted candidates before interview. Qualifications can be verified by telephoning the previous employer and asking for written confirmation. If references do not answer all questions satisfactorily or are vague, the referee should be contacted to verify the information as appropriate. Safeguarding issues aside, it is important for schools to insist on references and to establish exactly why a person has left previous employment so that standards of performance, honesty and integrity can be maintained.

When recruited, new staff should have safeguarding training as part of the induction process.

Each school must have a senior member of staff designated to take the lead on child protection. This person should have training, which includes training on inter-agency procedures to ensure effective working between the various agencies that may be involved with children. Staff not having a lead role should have refresher training every three years, with those who do have designated lead responsibility having training every two years. In addition, temporary staff (including supply teachers) and volunteers must have child protection briefings and all staff should receive a written statement about the school’s policy and procedures.

Schools should note that enhanced CRB disclosures from the CRB still need to be obtained for any post in the school. A significant part of the consultation on Safeguarding Children and Safer Recruitment in Education raised the question whether a further CRB check would be necessary once a person has been registered with the ISA and was subject to continuous monitoring. This issue is likely to form part of the review of the VBS.

Single central register
Regulations issued in 2007 required all schools to set up and maintain a single central register of pre-employment checks for all staff. It must be complete for all staff recruited since 1 May 2007. For staff appointed before that date there must still be evidence of the most important checks, including where appropriate, CRB and List 99. The registers are receiving particularly detailed attention from Ofsted inspectors and some schools have been criticised where deficiencies have been found.

The school governors’ role
It is the responsibility of the governing body to ensure that the school operates safe recruitment procedures and that all of the appropriate checks are carried out on new staff and volunteers who will work with children.

In addition to this, the governing body is accountable for ensuring effective policies and procedures are in place in accordance with the relevant guidance. This applies to a school’s child protection policy and its procedures for implementation, taking into account local inter-agency procedures. Such policies and procedures must be kept under review and the governors must ensure that they remedy without delay any weaknesses or deficiencies in the school’s child protection arrangements.

While the members of the governing body may not meet the ‘frequent’ or ‘intensive’ criteria in relation to their contact with the children at the school described above, it is proposed that all governors would be required to register with the ISA regardless.

School exchanges and host families
It is not only the school staff that schools would need to consider in relation to the new VBS and registration requirements. The ISA’s guidance confirmed that where host families provide care and accommodation for children from abroad, this is a form of private fostering falling within regulated activity. Such arrangements would therefore be subject to the VBS and in some circumstances it could be necessary for such families to be ISA registered.

There is, however, an exception to the requirement to register with the ISA. Where the visit lasts less than 28 days, the host family is not paid and the overseas parents accept the responsibility for the selection of the host family, this will be regarded as a private arrangement and will not be subject to the VBS. Schools should note, however, that they may be able to ask host families to register on a voluntary basis following a risk assessment. It would still be an offence for an adult who is on the Children’s Barred List to act as a host.

Extended schools
Schools will also need to consider circumstances where the school’s premises are used outside of school hours. Where breakfast and after-school clubs and other services are offered and are provided by a third party, it is essential that appropriate arrangements are in place in relation to safeguarding and child protection. The school’s usual policies and procedures will apply where the governing body provides services or activities which are directly under the supervision or management of school staff. Any additional staff employed specifically for such services will be subject to the school’s existing arrangements for safer recruitment and child protection.

Where the services are provided separately by a third party, the governing body should ensure that the third-party service provider has appropriate policies and procedures in place in relation to safeguarding and child protection. The accountability of the parties should be clear and the governing body should seek assurance that the third party will carry out appropriate recruitment and vetting checks on staff and volunteers.

It is advisable to have written agreements setting out the responsibilities of both the governing body and the third-party service provider. These should include arrangements for liaison between the school and the third party on these matters , specifying the circumstances when such contact would be appropriate (eg requirement for the service provider to pass on any child protection concerns to the school).

This will also apply in the case of Sure Start children’s centres that are situated on school sites, and schools should ensure that appropriate arrangements are in place with written agreements as necessary.

Impact on inspection
Ofsted places significant importance on schools’ safeguarding procedures. Schools must ensure that their policies and procedures meet the standards that are required by law or that are strongly recommended in government guidance.

Failing to demonstrate adequate safeguarding practices has the potential to limit the outcome of an inspection. Where a judgement of ‘inadequate’ is given for safeguarding, it is likely that the overall effectiveness of the school will be judged ‘inadequate’. So, regardless of how successful a school is in other areas of the inspection, safeguarding matters will contribute to and could limit the school’s overall rating.

Ofsted inspects to government legislation and statutory guidance. The specific obligations on schools to satisfy inspections with regard to safeguarding and safer recruitment under the VBS will therefore depend on the requirements in the final version of the Scheme and the revised Safeguarding Children and Safer Recruitment in Education following consultation.

Ensuring that safeguarding procedures are adequate is not only undoubtedly fundamental to successful Ofsted inspections, it is also central to the role of schools in safeguarding and promoting the welfare of our children. The remodelling of the VBS is therefore awaited with interest.

Yvonne Spencer is a partner and Christine Betts a senior lawyer at Veale Wasbrough Vizards law firm.