Legal Eyes: Vetting and Barring Scheme Halted

The much publicised Vetting and Barring Scheme was introduced under the Safeguarding Vulnerable Groups Act 2006 as a response to the Soham murders in 2002.  It had the aim of preventing unsuitable people from working in paid or voluntary roles with children or vulnerable adults.  

The Scheme, which came into force in part in October 2009, would have required most individuals wanting to work closely with children or vulnerable adults in roles known as “Regulated Activity” to be vetted to ensure suitability.  If suitable, they would be put on the Independent Safeguarding Authority (ISA) Register and remain subject to continuous monitoring.  If deemed unsuitable, they would be barred and placed on the Children’s Barred List or the Adults’ Barred List.     

There are a number of exceptions but broadly, Regulated Activities are activities of a specified kind (e.g. advice, healthcare, transport, care) or in a specified setting (e.g. care home, children’s home, school) which involve contact with children or vulnerable adults, and are carried out frequently (at least once a week in most cases), intensively (on 4 or more days in any 30 day period) or overnight.  It also covers managers/supervisors of people in Regulated Activity and some positions of responsibility e.g. school governors, trustees of a children’s or vulnerable adults’ charity.  

The Scheme applies to both paid and voluntary activities.  It doesn’t apply to activities within the family or to unpaid activities in the course of a personal relationship.

The ISA registration requirements were due to be introduced on 1 November 2010 (with voluntary registration from 26 July 2010) and phased in over a period of 5 years.  A number of other legal duties were introduced in October 2009; these are set out below.  

The Coalition Government announced on 15 June 2010 that it was halting the Scheme with immediate effect in order to ‘review the criminal records and vetting and barring regime and scale it back to common sense levels’.  The Government has stressed the importance of safeguarding vulnerable groups and has therefore decided, until the remodelling has taken place, to maintain those aspects of the Scheme which are already in place, but not to introduce further elements.  

This means that ISA registration, which was due to commence on 26 July, will be shelved pending the Government’s review.

However, those aspects of the Scheme still in force pending the review include the following:

• An individual who is barred from engaging in Regulated Activity with children or vulnerable adults will be breaking the law if they work or volunteer, or try to work or volunteer with these groups.   
• An employer who knowingly allows a barred individual to engage in Regulated Activity will also be committing an offence.  An employer could check if an individual was barred by carrying out an Enhanced CRB check.
• Duty to refer - an employer must still refer certain information to the ISA where he/she has withdrawn permission for the individual to engage in Regulated Activity (ie by dismissal, suspension or transfer) or would or might have done so had the individual not ceased the activity because he thinks that individual has harmed or may harm a child or a vulnerable adult.  
• CRB checks – those who engage workers in Regulated Activity with children or vulnerable adults still have the right to ask for an Enhanced CRB check on those individuals.  In some cases (e.g. in the case of schools and care homes) this might be required by law.  

Whilst it is not currently clear what the remodelled Scheme will look like or when the review will be concluded, it seems likely that the requirement to register with the ISA will remain.  There has been talk that the volunteers may be exempted from registering with the ISA but this remains to be seen.  

In the meantime, therefore, charities are advised to continue safe recruitment practices e.g. by carrying out Enhanced CRB checks (which may in some cases be required by law), ID and reference checks and ensuring compliance with aspects of the Scheme still in force (e.g. making referrals to the ISA in certain circumstances).  Charities should also ensure that they are ready to act when the remodelled Scheme is announced by the Government.

by Jean Tsang, solicitor at Bates Wells & Braithwaite solicitors. www.bateswells.co.uk