UK: Vetting And Barring Scheme: Where Are We Now?

The Safeguarding Vulnerable Groups Act 2006

The Safeguarding Vulnerable Groups Act 2006 (the "Act") was introduced, following the Bichard Inquiry into the Soham murders, to safeguard children and vulnerable adults by providing better checks on those who work or volunteer with them. The safeguards introduced by the Act were:

• the combination of multiple offenders lists (the Protection of Children and Vulnerable Adults Lists and List 99 amongst others) for efficiency purposes;
• the introduction of the Vetting and Barring Scheme (the "VBS"). This was created for registering and monitoring individuals. All those wishing to participate in 'regulated activities' or 'controlled activities' with children and vulnerable adults would be required to register with the newly created Independent Safeguarding Authority (the "ISA"), and if found to pose a risk then they would be barred from such work. This system was designed to enable the ISA to proactively anticipate risk rather than react after the event;
• the ISA would run the VBS and make the barring decisions to encourage better and more consistent decision making than the previous system of ministerial decisions;
• the imposition of a duty on the ISA to assess any new information on registered individuals and contact any interested parties where there are changes in status;
• the creation of a duty of referral whereby employers, regulated activity suppliers and personnel suppliers must provide the ISA with any relevant information relating to those who have harmed or who pose a risk of harming children and vulnerable adults; and
• the creation of criminal offences for individuals participating in regulated activities whilst unregistered, and for employers and service providers using unregistered individuals for regulated activities.

The VBS initially required the registration of an estimated 9 million people. It was criticised as being disproportionate and overly bureaucratic, and also seen as displacing the responsibility for monitoring recruitment away from the employer.

Regulated Activities

Both vulnerable adults and children are regularly the focus of charities. The Act distinguishes between when an activity is regulated in relation to children and in relation to vulnerable adults.

For children, there must be a prescribed activity (such as teaching, training, supervision, advice or treatment) and it must be carried out at a prescribed establishment where there is contact with children (for example a school, children's home or children's centre).

In respect of vulnerable adults, there must be a regulated activity (substantially the same as the prescribed activities detailed above) taking placing within identified settings (for example, a charitable care home).

In addition to the criteria above, these activities must be carried out either frequently, intensively or overnight in order to be regulated. These provisions mean that all staff having contact with children or vulnerable adults are likely to be affected by the VBS.

Protection of Freedoms Bill 2010-11 (the "Bill")

In June 2010, the newly elected Coalition Government halted the planned implementation of the VBS and immediately scrapped the registration requirements. The "Vetting and Barring Scheme Remodelling Review – Report and Recommendations" was later published in February 2011 in an attempt to remodel the scheme back to "common sense levels". This has resulted in the introduction of the Bill. The Bill is not yet in force as legislation but has been debated in the House of Commons and is currently at the Committee stage.

The key proposed changes to the VBS under the Bill are:

• the merger of the ISA and the Criminal Records Bureau to create a single body with sole responsibility for the pre-employment checking and barring of individuals;
• the abolition of the requirement for individuals to register with the ISA (this requirement was immediately halted by the Coalition Government in June 2010);
• a reduction in the number of positions requiring checks to just those working most closely and regularly with children and vulnerable adults;
• a narrowing of the circumstances in which an individual will be barred. Individuals who have never worked and have no intention of working in regulated activities or with children or vulnerable adults will be excluded from automatic barring. Individuals with criminal convictions or cautions which raise the presumption of a risk of harm but do not require automatic barring will be invited to make representations to the ISA before a decision is made. Referrals to the ISA on grounds of behaviour suggesting a risk will be limited to situations where the individual is, has previously been, or could in the future be engaged in a regulated activity; and
• the provision of barring information to an employer only with the individual's consent. Third parties can also register an interest in certain individuals and be notified by the Secretary of State if that individual becomes barred (the individual's consent to the barred list check will also act as consent to have information provided to third parties).

The Bill will also make some changes to the current system of Criminal Records Bureau ("CRB") checks. These will remain required for all individuals having contact with children or vulnerable adults, but under the Bill only the applicant will be provided with the CRB Certificate, providing an opportunity for them to challenge it before a third party views it. The CRB Certificates will also become "portable" by their holders through a new updating system.

The current position

The Coalition Government has confirmed that, pending the introduction of the Bill as legislation and the finalisation of necessary arrangements, with the exception of having to register, the existing responsibilities of the ISA and employers remain under the Act.

Therefore, individuals and employers should be aware of the following:

• Individuals do not have to register with the ISA (and the concept of registering with the ISA at some later date has been abolished).
• The ISA is now solely responsible for maintaining the barred list and the respective casework involved in this.
• Enhanced CRB checks are required for all individuals having contact with children or vulnerable adults or engaging in regulated activities. An enhanced check is required rather than a regular check as this will reveal relevant non-conviction information that is not part of a criminal record but is otherwise held by police forces. The individual must pass the CRB check prior to engaging in a regulated activity.
• New employees or volunteers will have to consent to the ISA checking that they are not listed as barred. The individual must be cleared prior to engaging in a regulated activity.
• Barred individuals will commit a criminal offence if they work or volunteer (or try to) with children or vulnerable adults.
• Organisations which knowingly employ a barred individual will commit a criminal offence.
• If an organisation works with children or vulnerable adults, and that organisation dismisses an employee or volunteer (or would have done so had they not left) because they have harmed or posed a risk of harm to a child or vulnerable adult, the organisation must tell the ISA.

Where a proposed employee or volunteer is a foreign national, foreign convictions and other relevant information will not be disclosed through CRB and ISA checks. In this instance the employer or other organisation should still ensure a CRB and ISA check are carried out, but will need to make further enquiries to determine the suitability of that candidate.

Practical advice on employment law implications and HR best practice guidance

HR professionals and those involved with administering current CRB and other checks should review and update employment contracts and staff handbooks to ensure that, as employers, they are able to comply with their duty of disclosure under the Act by encouraging staff to report any issues. In particular, employers should update their 'whistleblowing' policy, in order to ensure that there is a clear procedure for reporting where there is thought to be a risk of harm to children or vulnerable adults.

It would also be wise to develop a clear policy that staff, contractors and suppliers should have zero tolerance for abuse and other harmful behaviour, making them aware of what to do if they have any concerns.

Appointing a safeguarding officer to monitor and enforce these policies is highly advisable; backed up with a rigorous risk management system in place. Training should also be provided for relevant staff members on providing vulnerable groups protection.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.