What legal issues do those working with children and vulnerable adults need to be aware of?

The Safeguarding Vulnerable Groups Act 2006

The Safeguarding Vulnerable Groups Act 2006 was first introduced following the failures of the previous system which were identified following a high profile case involving the murders of two young school girls.

One of the key requirements brought about by the act was the requirement for those wishing to work with children or vulnerable adults having to be registered.

Vetting and Barring Scheme

With the implementation of the Safeguarding Vulnerable Groups Act into the laws of England and Wales came the introduction of a new vetting and barring scheme. This new vetting and barring scheme has the purpose of bring together all relevant information into one place while still operating under the guise of the Criminal Records Bureau (CRB). This means that the previous list for teachers (List 99) and the Protection of Children Act were brought together into a single children’s barred list. Furthermore this has also created a new adults barred list which will list those individuals that are barred from working with vulnerable adults replacing the previous Protection of Vulnerable Adults list.

Under the 2006 Act the decisions taken in relation to barring individuals will be handled by one body –   the Independent Safeguarding Authority (ISA).

Regulated and Controlled Activities

Under the Safeguarding Vulnerable Groups act work with vulnerable groups is split into two distinct categories which can include both paid and unpaid voluntary work. The two categories are as follows:

  1. Regulated activities

  2. Controlled activities

Regulated activity

What is meant by a regulated activity under the act?

Under the Safeguarding Vulnerable Groups act a regulated activity will include the following:

  • Any activity of a specific nature that involves contact with children or vulnerable adults frequently, intensively and / or overnight – an example of this will be teaching, training, care, supervision, treatment and transportation

  • Any activity allowing contact with children or vulnerable adults in a specified place frequently or intensively – this will include activities in schools and care homes

  • Fostering and childcare

  • Any activity that involves people in certain defined positions of responsibility – examples of this can include school, governors and certain trustees

Following the implementation of the act into the laws of England and Wales anyone taking part in a regulated activity must ensure that they are registered with the Independent Safeguarding Authority (ISA).

Under the 2006 Act the following will be criminal offences:

  • For an individual who is barred to take part in a regulated activity

  • For an employer to take on an individual to work in a regulated activity if they fail to check that person’s status

  • For an employer to allow a barred individual to work in any regulated activity

Controlled Activity

What is meant by a controlled activity under the act?

Under the Safeguarding Vulnerable Groups act a controlled activity will include the following:

  1. Frequent or intensive support work in general health settings, the NHS and further education – this will include cleaners, caretakers, shop workers, catering staff, car park attendants and receptionists

  2. Individuals working for specified organisations such as local authorities who have frequent access to sensitive records concerning children and vulnerable adults

  3. Support work in adult social care settings – this will include those with access to records and cleaners

Under the 2006 Act the following will be criminal offences:

  • For an employer to take on an individual in a controlled activity if they fail to check that person’s status

  • However, an individual employer will be able to allow a barred individual to work in a controlled activity if there are adequate safeguards put in place.

If an employer allows a barred individual to take part in a regulated or controlled activity what criminal sanctions are they likely to face?

If an employer is found guilty of one of the above criminal offences they may be liable to a fine of £5,000. Furthermore if they are found to be guilty of collusion with that individual – i.e. employing them for a specific reason when knowing full well about the potential threat that they could pose – then they may be liable to a maximum prison sentence of £5 years.

What happens if an employee is found guilty of committing one of the above criminal offences?

If an employee is found guilty of committing one of the above criminal offences they will face the same sanctions as the employee.

If the individual employee found to be in breach of these rules commits a further offences such as a sexual offence when contravening these rules they will also be charged with a criminal offence under that act – in this case the Sexual Offences Act 2003 – and will be sentenced accordingly.

Is there anything else which I need to be aware of?

Under the new centralised system the following things will be possible:

  • Domestic employers will be able to check whether their private employees are barred under the scheme – this will be particularly useful when parents are looking to employ individuals in the capacity of nannies, music teachers and care workers

  • Employers will be able to make a real-time instant check of whether a prospective employee is barred – this can be done by secure online access rather than the previous paper-based scheme making the process much quicker

  • Due to the online nature of the scheme barring decisions can be updated as soon as any new information becomes available – this will enable prospective employers to be notified immediately

Referrals

Under the 2006 Act there is also a legal obligation placed on employers to refer relevant information to the ISA. For example if an individual has been dismissed from their job due to harming a child or vulnerable adult then this information should be referred by the employer to the ISA. This should also be the case if the employee resigns for these reasons.