The Safeguarding Vulnerable Groups Act 2006 was enacted by Parliament in the wake of the Bichard Inquiry. It investigated child protection procedures arising from the murders of Jessica Chapman and Holly Wells by their school caretaker, Ian Huntley, in Soham. As a result of the Act, which will be implemented in phases, the Independent Safeguarding Authority has been established to help prevent unsuitable people from working with children and vulnerable adults. Employers caught by the Act will be required to carry out pre-employment vetting before an individual is allowed to start work for them. Julian Yew discusses the implications of the Act for employers and employees.
The role of the ISA
Under the Act, the Independent Safeguarding Authority will work in partnership with the Criminal Records Bureau to gather relevant information on any person who wants to work or volunteer with vulnerable people. Such workers will be assessed using data gathered by the CRB, including relevant criminal convictions, cautions, police intelligence and information previously found in the Protection of Vulnerable Adults list, the Protection of Children Act list and List 99 (a list of people considered unsuitable for working with children, held by the Department for Children, Schools and Families). The PoCA and PoVA lists, introduced by the Care Standards Act 2000 and Protection of Children Act 1999, were recently declared to be incompatible with articles 6 and 8 of the European Convention on Human Rights (R v Secretary of State for Health ex parte Wright & ors). From 12 October, the ISA will administer two barring lists under the new Act.
The Vetting and Barring Scheme will be phased in over time. From 26 July 2010, all new entrants to roles working with vulnerable groups and those switching jobs within these sectors may register with the ISA and be checked by them. From November 2010, all employees carrying out a regulated activity must register with the scheme.
The scheme will extend to England, Wales and Northern Ireland, although arrangements may differ slightly in Northern Ireland and Scotland. Once it has been rolled out, employers who provide services to vulnerable people will only be allowed to recruit people who are ISA-registered.
One of the failings identified in the Bichard Inquiry was that information held by a number of different agencies was never shared. With the new scheme, the Act provides for circumstances where employers must and may refer information to the ISA from 12 October 2009 (see box below). Employers and service providers must refer information to the ISA when an employee resigns or has been dismissed because they harmed or may harm a child or vulnerable adult, or would or could have been dismissed on grounds that could lead to them being barred under the scheme. Local authorities (in their social services capacity), professional bodies and supervisory authorities are also under obligations to refer information to the ISA where an individual employed by them poses a risk of harm. Information must be referred to the ISA as soon as it becomes available to the employer. What type of employees will be caught?
The scheme will affect employees carrying out a `controlled activity' or `regulated activity' in relation to children and vulnerable adults. `Vulnerable adult' is defined as someone who is aged 18 and above and who meets one of the other conditions; for example, someone who is in residential accommodation, sheltered housing, domiciliary care, in receipt of any form of health care or requires assistance in the conduct of his own affairs (s.59). S.59(6) defines `health care' as including treatment, therapy or palliative care of any description.
A `controlled activity' as defined in s.22 of the Act affects those involved in frequent or intensive support work in:
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- general health settings, the NHS and further education such as cleaners, caretakers, shop workers, catering staff and receptionists
- those in support work in adult social care settings such as day centre cleaners, day care providers and those with access to social care records
- and people who work for specified organisations (such as a local authority) who have frequent access to sensitive records about children and vulnerable adults.
A `regulated activity' is defined in paragraphs 2 and 7, schedule 4 to the Act, and includes teaching, training, care, supervision, advice or treatment and transportation. It also captures fostering and childcare and people in certain defined positions of responsibility such as a school governor, director of social services and trustee of certain charities. For the Act to apply, their contact with vulnerable groups must either be frequent (ie one day in a 30-day period) or take place at any time during three or more days in any period of 30 days or occur at any time between 2 am and 6 am where the employee has the opportunity to have personal contact with children or vulnerable adults.
Vetting employees and job applicants
When the scheme is operational, employers and personnel suppliers that recruit employees or place candidates to work with children or vulnerable adults will need to check their ISA status (s.9(1) and schedule 6) to determine whether or not they can employ them.
It will be a criminal offence for an employer to take on a person in a `regulated activity' if they fail to check their status and for an employer or personnel supplier to allow a barred person, or a person who is not yet registered with the ISA, to work for any length of time in any `regulated activity' (s.9(1) and (2)).
The punishment is imprisonment of up to five years or a fine of up to £5,000 (s.9(3)).
It will also be a criminal offence for an employer to take on an individual in a `controlled activity' if they fail to check that individual's status (s.23). There will be no charge for employers to check someone's ISA status.
Once they have registered their interest in an individual as their employer, the ISA will automatically contact the employer should their status change.
An employee's duty to register with the ISA
An individual taking part in a `controlled activity' or `regulated activity' must be registered with the ISA (s.7(1)). This includes participation in any regulated activity in domestic circumstances such as working as a home tutor, nanny or carer. It will be a criminal offence for a barred person to carry out a protected activity for any length of time (s.7(2)).
The barred list
The ISA states that allegations regarding a person will never lead to automatic inclusion on their barred lists. Before such a decision is made, the individual will be given the information on which it is based and will be given the opportunity to explain his or her case. Further, anyone who makes a malicious referral with an intention to mislead the ISA could be sued for defamation or be prosecuted for offences related to wasting police time, perverting or attempting to pervert the course of justice, conspiracy and perjury.
If an individual is included on the barred list, he or she may, under schedule 3 to the Act, appeal to the Independent. Barring Board. The Act also allows individuals to opt out of the Vetting and Barring Scheme should they no longer wish to work or volunteer in a regulated capacity.
Budgeting for vetting costs
The fee for an application to the ISA will be £64 (£28 plus the £36 CRB disclosure fee). Companies will have to decide if the pre-recruitment costs should be the sole responsibility of their job applicants and existing employees, or if these will be borne by the employer.
Practical implications of the Act
The Act will affect many types of employer, including hospitals, schools, prison service, care homes, leisure, hospitality, sports clubs and charities. In the run up to 26 July 2010, all employers should:
- audit their operational areas to identify risk groups;
- budget early for the vetting costs;
- consider registering existing employees and volunteers from 26 July 2010;
- ensure all new job applicants and employees are registered with the ISA by November 2010.
Case referred to:
R v Secretary of State for Health ex parte Wright & ors  UKHL
Employment Lawyers Association