Safeguarding changes come into force

Some significant changes to the safeguarding legislation come into force on 10 September 2012. These changes are the result of the government's extensive review of the vetting and barring system, and are contained in the Protection from Freedoms Act 2012 (the Act).

Background

The vetting and barring scheme for people who work with children or vulnerable adults was introduced in October 2009. Widespread adverse publicity resulted in an initial review which suggested some significant changes to the original scheme. Those changes were clearly not far reaching enough however for the coalition government, as, on 15 June 2010, it announced that the scheme was to be halted pending review. The changes highlighted in this briefing are the result of that review.

What is the current position?

Notwithstanding the review, aspects of the vetting and barring scheme which were already in place remained so. Consequently, the ISA maintains two barred lists (which replaced the POCA (Protection of Children Act) and POVA (Protection of Vulnerable Adults) lists), and accepts referrals. Those barred from regulated activity (which covers specific activities and certain situations where individuals have the opportunity to have contact with children or vulnerable adults where work is carried out on a frequent, intensive or overnight basis) must not work, or seek work, in regulated activity with that group.

For those who employ people or use volunteers, there is a duty not to knowingly employ, or use as a volunteer, a barred person in regulated activity, a duty to refer individuals to the ISA for consideration for barring in relevant circumstances and a duty to provide information to the ISA on request. The duty to refer applies if an employer dismisses a worker or a volunteer because they have harmed a child or vulnerable adult, or if the employer would have dismissed had the worker or volunteer not left.

An employer who employs, or engages as a volunteer, a person to work with children or vulnerable adults must currently check to see whether the person's name appears on the appropriate barred list. There must also be a CRB check.

A summary of the key changes from 10 September

New definition of regulated activity - children

Although regulated activity includes the teaching, training and instruction of children, it will no longer include any form of teaching, training or instruction that is, on a regular basis, subject to the day-to-day supervision of another person who is engaging in regulated activity relating to children. Consequently, a worker or a volunteer who, unsupervised, teaches, trains, instructs and so on will be performing regulated activity provided that activity is done regularly. Regularly means carried out by the same person frequently (once a week or more often), or on 4 or more days in a 30-day period (or in some cases, overnight).

Similarly, work in a "specified place" (such as a school or children's home) will be regulated if done regularly, unless it is work by supervised volunteers. Anyone providing personal care, such as washing or dressing, will be performing regulated activity, even if that function is performed as a one off. In other words there is no requirement that the activity is performed regularly for it to qualify as regulated activity.

Finally, registered childminders and foster carers will also be performing regulated activity.

Note that statutory guidance about supervision of activity is awaited.

New definition of regulated activity - vulnerable adults

The definition of vulnerable adult is amended so that vulnerable adults are defined by the activities being carried out regardless of the setting or service. For example, a worker or volunteer will be performing regulated activity if he or she:  

  • provides assistance with a person's cash, bills or shopping because of their age, illness or disability;
  • is responsible for transporting an adult, because of their age, state of health or a disability to, from or between places where they receive healthcare, personal care or social work. This would not include friends or family or taxi drivers;
  • is a regulated health care professional (doctors, nurses, health care assistants and physiotherapists) or is acting under the direction or supervision of one; or
  • is providing personal care or social work which is required in connection with any health services or social services.  

There will no longer be a requirement to do activities a certain number of times before a person is engaging in regulated activity.

Note that regulated activity (with children and vulnerable adults) excludes family arrangements and personal, non-commercial arrangements.

Controlled activity category repealed

The concept of "controlled activity", which had meant that workers such as ancillary support workers in further education and the NHS would be caught by the scheme, has been removed.

CRB checks

Those aged under 16 will not be able to apply for CRB checks regardless of the activity they are undertaking. This makes 16 the minimum age at which a CRB check can be applied for.

Those who fell within the old definition of regulated activity, but do not now, will remain eligible for enhanced checks, but not a barred list check. Indeed, employers will no longer have access to barring information on those who are not undertaking regulated activity.

Repeal of registration & monitoring

Repeal of registration and monitoring means an end to the requirement for those working or volunteering with the vulnerable to register with the Independent Safeguarding Authority ("ISA") and then be continuously monitored.

Further changes still to come

The Act also makes provision for the setting up of a new service, the Disclosure and Barring Service, which will take over the roles of the ISA and the Criminal Records Bureau. It is anticipated that this new body will be operational from December 2012. A new update service is planned from early 2013. This service will mean that, for a fee, individuals can pay for one criminal record check which can be effectively reused when future checks are needed.

Comment

The changes to the definition of regulated activity and the repeal of controlled activity mean that the scheme will affect far fewer workers than originally anticipated, which fits with the new scheme's focus of trusting employers to make rounded decisions about who they employ and reducing the bureaucracy associated with over burdensome checks. Affected employers should consider whether any posts will now fall outside the definition of regulated activity and whether any policies and procedures need reviewing in light of the forthcoming changes.

For the Home Office's guidance on the changes click here

For the draft guidance on supervision click here