28 December 2007

A radical shake-up of the rules governing those who work with children and vulnerable adults will have a dramatic effect on the responsibilities of employers and voluntary organisations, once the Safeguarding Vulnerable Groups Act 2006 comes into force.  In particular:

• The current Protection of Children Act (POCA) and Protection of Vulnerable Adults (POVA) lists will be replaced by a children’s barred list and an adults’ barred list, administered by the Independent Barring Board (IBB).
• There will be a new, positive duty for anyone involved in a “regulated activity” to register with the Independent Safeguarding Authority (ISA), which comes into being in January 2008.
• It will be an offence for a barred person even to apply for a job or voluntary position which involves undertaking a regulated activity, as well as actually taking up such a position.
• Anyone who provides a regulated activity has a duty to check that those involved with their vulnerable group(s) is registered with ISA, and is not on the relevant barred list. 

It is estimated that around 11 million people will eventually be required to register under the new scheme.

A “regulated activity” is virtually any activity which brings a person into regular or frequent contact with children or vulnerable adults, or even involves them being in a place where vulnerable groups are to be found.  For example, a taxi driver who regularly drives a child to school or a vulnerable adult to a day centre, the bus driver who takes the local youth team to football fixtures, the cook at the luncheon club for disabled adults, and even a builder who regularly works on school premises, will all have to register with ISA.

The maximum penalty for a barred person who applies for a position, or actually takes up a position, undertaking a regulated activity will be 5 years imprisonment and/or a fine of up to £5,000.  There is a defence if the person concerned did not know, and could not reasonably have been expected to know, that they had been barred.  A barred person not generally working in a regulated activity will still be guilty of an offence if they undertake such an activity on a one-off basis; for example, if a bus driver who usually transports adults is asked to drive the school bus one morning because the regular driver is absent.  This may cause difficulty for employees who have not previously needed to disclose their barred status to their employers.

Failure by an organisation to carry out the above checks on its workers/volunteers may result in a fine of up to £5,000. Actually permitting a barred person to engage in a regulated activity carries a maximum penalty of 5 years imprisonment and/or a fine of up to £5,000.  A similar fine may also be imposed for failure, without reasonable excuse, to notify the IBB of any information relevant to a person's suitability to work with vulnerable people.   Individuals, partners, directors, company secretaries and managers may all be held personally liable, as well as companies and partnerships having liability as legal entities.  This will have serious implications for the many charitable organisations which are incorporated as companies limited by guarantee.
 
One overlooked consequence of the new legislation is likely to be the virtual collapse of the work experience scheme for year 10 and 11 students.  Any employer supervising an under-16-year-old work placement student would have to be registered under the scheme, as would any person within the employer's organisation who has direct supervisory responsibility for that student.  Given the expense involved in applications to ISA, and the length of time they will take to be processed, it is likely that only large employers with a structured work placement scheme will be able to continue offering this opportunity to young people.  Small employers and charities, who until now have responded positively to ad hoc requests from young people under 16 for work placements, may have to refuse in future.

However, one piece of good news for voluntary organisations is that they will apparently not have to pay for ISA registration.  However, enhanced CRB checks will still need to be applied for, and these will continue to be charged as at present.

This article is a very truncated overview of a lengthy and complex piece of legislation, whose finer workings are still in consultation until 20th February 2008.  For more information, see the consultation document at www.dfes.gov.uk/consultations.