The Act narrows the definition of regulated activity, which is work that must not be done by a barred person. The changes remove from regulated activity work such as instructing or looking after children if it is supervised. In law, an organisation will have no entitlement to do a barred list check on a worker who, because they are supervised, is not in regulated activity.

A six-week consultation is underway on the guidance that organisations must have regard to when deciding whether the level of supervision they are planning meets their statutory duty. Much of this boils down to a judgement of what is ‘reasonable’ but the draft guidance lists a number of factors that should be considered.

One example given is that of a school reading volunteer. Although he is generally based in the classroom, in sight of the teacher, he sometimes takes children to a separate room to hear them read, where he is supervised by a paid classroom assistant, who is in the room for most of the time.

It is judged that the volunteer is being supervised to the statutory standard by a person in regulated activity and so is not in regulated activity himself. Consequently the school does not have a duty, or the power, to do a barred list check on him. It also has no legal duty to require an enhanced criminal records check, but is entitled to do so if it chooses.

By David Gordon