The new Vetting and Barring System introduced under the Safeguarding Vulnerable Groups Act 2006 aims to solve the failures identified by the 2004 Bichard Inquiry, arising from the Soham murders of Holly Wells and Jessica Chapman in 2002.

The Vetting and Barring Scheme, is being delivered in partnership between the Independent Safeguarding Authority (ISA), the Criminal Records Bureau (CRB) and Access Northern Ireland. The ISA makes the barring decisions and the CRB administers the scheme

The first phase of the system came into operation on 12th October 2009.

The next phase, which will allow individuals to start applying for ISA-registration, will be introduced on 26th July 2010.

Once the system is fully implemented, it will mean that anyone who wants to work or volunteer with children or vulnerable adults in ‘Regulated Activity’ will be required to be registered with the ISA.

Concerns have been growing about the scope of the scheme, its potential effect on volunteer numbers and the relationship between adults and children. Even Sir Michael Bichard, who carried out the Soham inquiry, has said some parts of the plan “need to be looked at again”.

Scope

The ISA service will extend to England, Wales and Northern Ireland, although arrangements for application and appeals may differ slightly in Northern Ireland. Equivalent legislation has been made in Northern Ireland, under the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007, but implementation dates may vary.

A separate, but aligned, scheme will be set up in Scotland under the Protection of Vulnerable Groups (Scotland) Act 2007. Anyone included on a Barred List in Scotland will also be barred from working with children and vulnerable adults across the UK.

Implementation dates:

2nd January 2008 – The ISA was brought into operation.

20th January 2009 – Referrals – the ISA assumed responsibility for making barring decisions on new referrals from organisations that are under a duty to refer individuals in appropriate circumstances under the current List 99, PoCA and PoVA schemes. Employers and service providers (including employment businesses) of “regulated” and “controlled” activity have a legal obligation to refer relevant information to the ISA, for example, where an employee has been dismissed (or resigns) because they harmed or may harm a child or vulnerable adult.

12th October 2009 –

  • The three current barred lists (POCA, POVA and List 99) will be replaced by two new barred lists administered by the ISA, the ‘ChildrenÂ’s ListÂ’ and the ‘Vulnerable Adults List;
  • Employers, employment agencies, social services and professional regulators will have a duty to refer information about individuals who may pose a risk to children and vulnerable adults to the ISA. This will ensure that any potential threats to vulnerable groups can be identified and dealt with effectively.
  • There will be criminal penalties introduced for barred individuals who seek to undertake work with vulnerable groups and for any employers who knowingly take them on.
  • The eligibility criteria for Enhanced CRB checks will be extended to include anyone working in a regulated activity. From 12th October 2009, if you are currently entitled to apply for a Standard CRB check for those working with children and/or vulnerable adults, you should in future apply for an Enhanced CRB check. Standard CRB checks will no longer reveal information held on the old or new barred lists. A Standard CRB check will continue to be available for all other positions covered by the Exceptions Order 1975 to the Rehabilitation of Offenders Act 1974 for example positions within the security industry and financial services.
  • The current POVAFirst will be renamed ‘ISA Adult FirstÂ’ to reflect the replacement of the POVA list.

26th July 2010 – Registration – the ISA Scheme will start processing applications for registration via the CRB/AccessNI. Individuals will be able to apply for ISA registration and/or a CRB check on one new application form. Old Disclosure application forms will no longer be accepted by the CRB. When a person becomes ISA-registered they will be continuously monitored and their status reassessed against any new relevant information which becomes available. Employers can also ‘subscribe toÂ’ an individualÂ’s ISA-registration status and be informed if that status changes

November 2010 – all new workers or those changing jobs in regulated activity will be legally required to register with the ISA Scheme and employers will be required to check their status.

Thereafter, existing workers undertaking regulated activity will be required to apply for ISA registration, starting with those who have never had a CRB check – the process will be phased in over several years.

Individuals in controlled activity will not be required to register with the ISA until 2014 at the earliest. As with regulated activity, controlled activity will qualify for an enhanced CRB check.

Individuals wishing to undertake paid work involving working with vulnerable groups will pay a one-off fee of £64 (£28 for ISA Registration and £36 for a CRB Enhanced Disclosure). However, there will be no cost for volunteers (although volunteers will be subject to a fee if they subsequently enter paid employment in a regulated activity). There are also proposals to enable employers to request that the CRB provide details of any known restrictions on an individual’s right to work in the UK as part of the Disclosure Certificate, subject to payment of an additional fee.

Regulated and Controlled Activity

The new scheme classifies work with vulnerable groups into two categories: regulated and controlled activities, which include both paid and unpaid (voluntary) work. For the purposes below “frequently” means once a month or more and “intensively” means on 3 or more days in a 30-day period. In brief:

Regulated Activity:

  • any activity of a specified nature that involves contact with children or vulnerable adults frequently, intensively and/or overnight (for example, teaching, training, care, supervision, advice, treatment and transportation);
  • any activity allowing contact with children or vulnerable adults that is in a specified place frequently or intensively (for example, schools and care homes);
  • fostering and childcare; and
  • any activity that involves people in certain defined positions of responsibility (for example, school governors and trustees of certain charities).

Upon implementation of the Act, an individual taking part in a regulated activity must be registered with the ISA and it will be a criminal offence:

  • for a barred individual to take part in a regulated activity;
  • for an employer to take on an individual in regulated activity if they fail to check that personÂ’s status (domestic employers do not have to check an individual they wish to employ but they will be able to do if they so wish – with the consent of the individual); and
  • for an employer to allow a barred individual to work in any regulated activity.

Controlled Activity:

  • Frequent or intensive support work in general health settings, the NHS and further education (for example, cleaners, caretakers, shop workers, catering staff, car park attendants and receptionists);
  • Individuals working for specified organisations (for example, local authorities) who have frequent access to sensitive records about children and vulnerable adults; and
  • Support work in adult social care settings (for example, day centre cleaners and those with access to social care records).

Upon full implementation of the Act:

  • it will be a criminal offence for an employer to take on an individual in controlled activity if they fail to check that personÂ’s status; but
  • an employer will be allowed to permit a barred individual to work in a controlled activity provided sufficient safeguards are put in place.

People wishing to take up posts in regulated or controlled activity will need to be “subject to monitoring”, which means that they must be a member of the new Vetting and Barring Scheme.

It is important to note that the ISA will not provisionally bar a person while considering a referral. Consequently, it is important for employers of those who work with children or vulnerable adults to ensure that other pre-recruitment safeguards are undertaken, such as CRB checks, taking up references and scrutinising employment history.

Bar will apply
(Duty on individual)
Individual must be checked
(Duty on employers)
Barred individual can be employed
Regulated activities
Employment and volunteer settings
Yes Yes No
Regulated activities
Domestic employment settings

Yes No No
Controlled Activities
Employers

No Yes Yes (with Safeguards)

Under 16s in the workplace

In light of responses to consultation documents, the government has decided that where young people under the age of 16 work, the adults who teach, train or instruct them in the workplace will not be required to register with the ISA scheme. However, it will be an offence for a barred adult to do this work or for an employer knowingly to use a barred person for this work.

This means that managers of newsagents and other shops will not have to register before they can employ newspaper delivery boys and girls or under 16s in Saturday jobs.

Employees who train or supervise other employees aged under 16 will be able to register with the ISA scheme and their employers will be able to check them if they wish. Decisions to register and to check should be taken in the light of the circumstances and a commonsense assessment of risk.

Work experience organisers will want – as they do now – to agree appropriate safeguarding measures with the employer which may include ISA checks.

Volunteers

There has been extensive negative media coverage regarding the new Vetting & Barring Scheme, particularly in respect of parental volunteers. The CRB is liaising with the Home Office and the ISA to address some of the issues raised. In the meantime, the CRB have clarified that:

  • parents who make their own arrangement to transport their children to activities will not need to register with the ISA;
  • however, if parents are transporting children in an official capacity (i.e. at the request of activity provider), they will be required by law to register with the ISA but only if they do this regularly each month or on 3 or more occasions in any one month.
  • the activity provider will be required by law to ensure that these helpers are not barred from working with children.

Offences and sanctions

Employers will be committing an offence and will face penalties if they employ people to work with children and vulnerable adults that they know are barred. The most serious cases, where there is evidence of serious collusion, could result in a maximum penalty of 5 years in prison.

In addition, for the first time, they would also face a fine of up to £5,000 if they employ someone who has not been through the new central vetting system or fail to make a check of the system. These same penalties – fines and sentences – will also be applied to employees.

Terms and conditions of employment

These forthcoming changes should not, of themselves, necessitate any changes to contracts of employment or employee handbooks, as the provisions relate to statutory obligations. However, some employers may include specific references to the current barred lists in employment documentation, such as application forms, personnel specifications etc. which they may wish to update to reflect the new terminology in due course.


If you are a Peninsula client and you would like to discuss the scheme, call through to the Advice Service now on 0844 892 2772 and one of our dedicated team will be able to help advise you.