Passing the check point

Following the objections to the new rules on criminal record checks voiced by several children's authors, including Philip Pullman, the spotlight has been firmly fixed on the Independent Safeguarding Authority (ISA) and the Vetting and Barring Scheme (VBS).

Pullman criticised the regime as going too far and as assuming the guilt of the applicant. Despite not having a criminal record, he has taken a stand against the position and will no longer give lectures and talks in schools about his books. The press reported Pullman's objections as a stance against the 'surveillance state'.

However, the measures are in place to safeguard children and vulnerable adults and recent developments have reinforced this message. The current regime, under the Safeguarding Vulnerable Groups Act 2006 (SVGA), implements several of the recommendations arising from the Bichard inquiry into the murder of Holly Wells and Jessica Chapman by school caretaker, Ian Huntley. The SVGA established the Independent Barring Board, now the ISA and the VBS.

Sir Roger Singleton's '›Review of Safeguarding Arrangements in Independent Schools, Non-Maintained Special Schools and Boarding Schools in England' in March 2009 added impetus to the safeguarding agenda this year. Further, in October 2009, a tranche of the provisions from the SVGA were brought into effect.

Regulated and controlled activities

The VBS was introduced on 12 October 2009 and is administered by the ISA. Criminal Records Bureau (CRB) checks will continue to be administered by the CRB. Now, checks must be conducted on anyone who carries out a 'regulated' or 'controlled' activity. These definitions extend considerably the number of people who must submit to the new regime. A regulated activity is an activity which:

• is carried out frequently, intensively (more than two days in any 30-day period) or overnight;
• is carried out in specified places (such as nurseries, schools and care homes); and
• involves contact with children and vulnerable adults.

Controlled activities are those which are carried out in connection with regulated activities and involve either contact with children or vulnerable adults or access to their records. These definitions will catch not only paid staff but also volunteers and school support staff such as caterers and cleaners.

The wider definition also means that many of those who have ad hoc contact with vulnerable groups (e.g. visitors to schools) will have to undergo checks where previously they would not have been subjected to any scrutiny. However, this will not include parents visiting schools or one-off tradesmen's visits to specified places.

This provision has been widely criticised and in response, the government has reverted back to Roger Singleton, chairman of the ISA. Singleton is to look again at the definitions and is due to report to ministers in December 2009.

The checks that are to be carried out on those undertaking regulated and controlled activities involve both CRB checks and checks of the barred lists.

The ISA is now responsible for maintaining the barred lists and determining who will be barred from working with children and vulnerable adults. Formerly, the barred lists were known as List 99, the PoCA (Protection of Children Act) list and the PoVA (Protection of Vulnerable Adults) list. The lists have been consolidated, and from October 2009 are known as the Vulnerable Adults' Barred List and the Childrens' Barred List.

Enhanced checks

From October 2009, the requirement for organisations in the sector is now to undertake enhanced CRB checks, whereas previously a standard check was acceptable in some cases. The level of check necessary was dependent on the extent to which the applicant had worked with children and vulnerable adults in the past. The checks cover criminal warnings, reprimands and convictions and the barred lists. The standard check will no longer reveal information held on the barred lists.

Employers working with children and vulnerable adults must also undertake other checks to scrutinise the applicant's background, e.g. thorough checks on the applicant's references, employment history and medical background.

From October 2009, employers are also under a duty to report to the ISA any employee who is considered to have caused harm or pose a risk of harm to the protected groups.

As part of the VBS framework the ISA will maintain a register of all those carrying out regulated and controlled activities. Voluntary registration will open in July 2010 to those entering a job with children or vulnerable adults for the first time and those moving between jobs in the sector. November 2010 will see this option becoming a mandatory requirement. This will be followed in April 2011 with the requirement that all those currently working with children and vulnerable adults to become registered with the ISA.

The VBS also has teeth. October 2009 saw the introduction of three new criminal offences. It is now an offence for a barred person to apply for a posting working with children and vulnerable adults.

It is also an offence for an employer to employ a barred person and it is an offence for employers not to conduct checks of the barred lists when recruiting.

Effect on institutions and individuals

In practice, little has changed for institutions. Schools and similar education institutions will continue to conduct rigorous pre-recruitment checks. The formalised duty to make referrals to the ISA is a reflection of current best practice, which most schools already adhere to.

However, additionally schools must now conduct checks on volunteers. In addition to facing more red tape, schools may also see a reduction in the number of volunteers. Many potential volunteers may object on principle, as Philip Pullman has done.

But what does this mean for individuals? Philip Pullman's view was that the checks were disproportionate given that he visited schools occasionally and was always escorted by adults. He also raised the issue of 'soft intelligence', which has also been raised before the Supreme Court this month. The case of R (on the application of L) (FC) v Commissioner of Police of the Metropolis [2009] UKSC 3 (see 'Supreme Court criticises criminal record checks', Solicitors Journal 153/41, 3 November 2009) involved a claim by a playground assistant who was dismissed after details of her son's placement on the child protection register were disclosed as part of an enhanced CRB check. In dismissing the appeal, the Supreme Court held that the information disclosed was relevant to the question of whether the claimant was a person who could be entrusted with supervising children.

However, it was also recognised that there is a need for proportionality, given the intrusive nature of the checks. The court concluded that in cases of doubt, where it was unclear whether the disclosure of sensitive information was required, an applicant should be afforded the opportunity to comment on it before disclosure '’ there should be no 'presumption for disclosure' of such information.

Appeals against barring decisions

In circumstances where individuals believe that the ISA should not have placed them on the barring lists, a right of appeal exists to the Care Standards Tribunal, now constituted under the Health Education and Social Care (First Tier) Tribunal. This right of appeal previously existed in respect of Secretary of State barring decisions. The wider application of the new scheme is likely to lead to an increase in this area of litigation over the next few years.