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The Safeguarding Vulnerable Groups Act 2006
17 November 2009
This Act brought in a new vetting and barring scheme for people
working with children and vulnerable adults. It includes
volunteers. The first key milestone was on 12 October 2009. From
that date:-
- Individuals who are on the barred lists are prevented from
undertaking a much broader range of activities. They are barred
from any activity which falls within the statutory definition of
“Regulated Activity”.
- New criminal offences are created. It is now a criminal offence
for;
- A barred individual to seek work, or undertake work with
children or vulnerable adults
- An employer to knowingly engage a barred person, whether as a
paid employee or as a volunteer.
- The Independent Safeguarding Authority (ISA), the new agency
created by the Act, will administer the two barring lists which are
operational going forward. In place of the POVA, POCA and List 99
barring lists, there will simply be one list for those barred from
working with children, and one for those barred from working with
vulnerable adults.
- A new legal duty has been placed upon all employers whose
business involves children or vulnerable adults to give full
details to the ISA if someone within their business acts in a way
that suggests they should not be working with children or
vulnerable adults. Typically an employer will have dismissed this
individual following an investigation, and it will need to pass on
much of the information generated by that investigation to the
ISA.
The next critical date is July 2010. Staff changing jobs or
entering this job market will be able to (but not required to)
register from that date. However, registration for those workers
will become mandatory from November 2010 and from that date there
will be tough penalties for those employers who fail in their
responsibility to carry out the necessary checks or recruit people
who are not ISA-registered. Employers who knowingly permit a barred
individual to engage in regulated activity face a maximum penalty
of up to six months in prison plus a fine.
It is expected that all employees and volunteers working in this
sector, even those who do not move to a new employer, will be
registered by 2015 and this process will start in 2011.
Improved scheme
There are currently 2 overlapping lists of people who are barred
from working with children, and a third list relating to the social
care of adults. This is a recipe for confusion. Furthermore the
current CRB check is simply a snapshot; frozen in time. If the
check is carried out on a Monday, and the individual is convicted
of an offence on the Tuesday, the CRB check will not pick that
up.
There will be one barring list relating to children, and another
for vulnerable adults. Importantly, the new system will be able to
react to new information, and so someone initially cleared to work
with children or vulnerable adults can be subsequently barred.
The ISA will assess the information to hand about an individual
including the results of the CRB check, and decide whether that
person should be barred.
Types of activity
The Act identifies two types of activity – regulated activity or
controlled activity.
The precise definition of regulated activity is complex but it
includes any position which involves providing education training,
care, assistance, therapy and the provision of transport for
children and vulnerable adults. It also includes any position that
involves the management of people carrying out these functions.
Controlled activity tends not to involve direct contact with
children or vulnerable adults, but may involve access to
information about them.
The barring provisions provided for in the Act relate to
regulated activity – if the ISA bars an individual they may not
engage in regulated activity. They can still be involved in
controlled activity, provided safeguards are in place.
Scheme operation
Under the new system, an individual who wishes to work with
children or vulnerable adults will need to apply for a check. The
application will require proof of identity and a fee. It is hoped
that where there is no information on an individual (the position
on 90% of applications) the results will come through within one
week. Otherwise, the check will take longer.
CRB will gather information about the individual. Occasionally
there will be information that needs to be passed to the ISA for
consideration before deciding whether to include the applicant on
the barred list. Even more occasionally the information shows an
individual has convicted a specified offence which leads to an
automatic ban.
A barred individual will have the right to make
representations.
Whether the ISA decide an individual is barred or not barred
both the individual and their employer are told.
Once a person applies for a check an ISA file is opened on them.
Throughout their career, the ISA may receive information about that
individual from a variety of sources such as the police, local
authorities, employers, professional bodies or Inspectorates.
Whenever such new information is received, the ISA will then
consider whether it should lead to a decision to bar, with
representations being sought when appropriate. It is hoped that as
soon as there is evidence that an individual has behaved
inappropriately towards children or vulnerable adults, that
information will be passed to the ISA, who will give it due
consideration and, where appropriate, bar the individual.
Notifications that someone has been barred are likely to come
out of the blue. A children’s home may receive a phone call from
the ISA saying that a particular staff member has been barred, and
the home will then need to take immediate action to remove that
individual, as it is a criminal offence to allow that person to
continue in regulated activity. It is likely that the individual
will have to be dismissed summarily.
Online checks
Under the new scheme there is the ability to make online checks
on an individual. This will tell you instantaneously whether an
individual is barred, or is cleared to work. It will be similar to
the current standard level CRB check. However for recruitment into
almost every regulated activity role, the potential employer will
need information equivalent to an enhanced CRB check, and this will
only be available through an application, rather than online.
New criminal offence
The Act creates several criminal offences for non-compliance.
Employers commit offences if they engage an individual in regulated
activity that is either barred or not subject to monitoring. This
offence is committed by both the organisation, and by any manager
who is either complicit or reckless.
It is an offence for an individual to seek controlled activity
if he has not been checked, and it is also an offence to engage
such an individual.
This article was first published on Local Government
Lawyer
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