Background

When the coalition government came to power, it decided that the vetting and barring scheme went a little too far in terms of policing the people in our schools.

In June 2010 it was announced that the planned implementation of the scheme was to be halted, pending a review. The scheme was considered to be a disproportionate response to the risk posed by a small minority.

The Vetting and Barring Scheme Remodelling Review – Report and Recommendations (Home Office, February 2011) was the next step, giving more indication of how the rules might be relaxed.

The Protection of Freedoms Act 2012 is now in place, and the legislation is there to enable the recommended changes to take effect.

Schools can now take stock of safeguarding expectations and begin to review their policies.  

The role of the ISA

In December 2012, the CRB and the ISA will be merged into a single body, called the Disclosure and Barring Service

The original plan had been for the Independent Safeguarding Authority (ISA) to assess every person who wanted to work, or volunteer to work, with vulnerable people and children. The ISA was to hold a register, and applications would be assessed using data gathered by the Criminal Records Bureau (CRB). 

Although the introduction of this requirement was to be staggered, it would have been a colossal undertaking and an administrative nightmare.

However, from September 2012, the requirement for registration and regular monitoring has been repealed. There will be few who will regret that this part of the plan is not taking place.

In December 2012, the CRB and the ISA will be merged into a single body, called the Disclosure and Barring Service (DBS) – see below.

Schools’ safeguarding obligations

Schools continue to have two clear duties:

• to refer an employee who has been dismissed because they harmed, or may harm, a child or vulnerable adult; this requirement includes informing the ISA if an employee has left before they were sacked 
• to ensure that they do not knowingly employ a barred person into regulated activity.

These obligations will not change, although ultimately it will be the DBS (see below) – not the ISA – that schools will refer to. 

Changes to regulated and controlled activity

At present, a regulated activity is one that involves frequent, intensive and/or overnight contact with children or vulnerable adults. It can be paid or voluntary work. So, for example, teaching, training, care and supervision would all come into this category, when they take place in places such as schools and care homes. 

A controlled activity applies to those involved in frequent or intensive support work in general health settings and education, such as cleaners, caretakers and receptionists.

From 10 September 2012, these two categories are set to change, when some of the implications of the Protection of Freedoms Act will take hold.

• There will be a new definition of regulated activity.
• The controlled activity category will no longer exist.

A new definition of regulated activity

From 10 September 2012 there will be a new definition of regulated activity and the controlled activity category will no longer exist

The new definition of regulated activity relating to children is:

1. ‘unsupervised activities: teach, train, instruct, care for or supervise children, or provide advice/guidance on well-being, or drive a vehicle only for children
2. work for a limited range of establishments (‘specified places’), with opportunity for contact: for example, schools, children’s homes, childcare premises. Not work by supervised volunteers
3. relevant personal care, for example washing or dressing
4. registered childminding and foster-carers.’

In the case of (1) and (2), it is a regulated activity if it is done regularly.

‘Unsupervised’ activities

A key word here is ‘unsupervised’. The definition of regulated activity will, in some circumstances, no longer cover people who are supervised by a school member of staff. This is provided that the staff member supervising them is checked, and the level of supervision is considered ‘reasonable’.

As the supervised person is no longer considered to be in a regulated activity, they do not have to have an enhanced CRB check and cannot be checked against the barred list. However, schools can still apply for an enhanced CRB check, if they choose to do so.

This is the main difference: it is up to the school to decide whether to carry out an enhanced CRB check for a supervised individual. In most cases, where it is a regular arrangement, schools will want to have the check in place.

If schools do decide to request an enhanced CRB check, it will not include information about whether the person is on one of the ISA’s barred lists or not. This is reserved for those who are working in a regulated activity.

What is meant by supervision?

There has been some concern that there is a lack of clarity around what would constitute supervision.

Supervision must be on a regular basis and not just concentrated at the beginning of an activity

One of the requirements of the Protection of Freedoms Act 2012 is that the government should provide information about this, to help clarify expectations for various settings.

The Department for Education consultation document Statutory Guidance: Regulated Activity (Children) – Supervision of Activity with Children Which is Regulated Activity When Unsupervised (June 2012) provides some guidance on what might be considered to be reasonable supervision. However, much is left to the organisation’s own judgement and interpretation: ‘The duty means that organisations must ensure that the supervision in place is sufficient, in their judgement, to provide reasonable assurance for the protection of the children concerned’.

In order to make this decision, organisations will need to take into consideration:

• the age and number of children
• whether there are other carers/adults around
• the nature of the work
• the vulnerability of the children
• the experience of the person being supervised
• the number of people being supervised.

The guidance points out that supervision must be on a regular basis and not just concentrated at the beginning of an activity. Examples are given, but it is not an exhaustive list, and will leave many still feeling that they would prefer to have the checks done than not.

Other changes from September 2012

Other changes coming into force from September include the following.

• The plan that everyone working with children would need to register with the ISA has been repealed.
• The police will no longer be able to provide additional information about applicants to organisations that the applicant is unaware of (but they can still use common law powers to provide this).
• Someone who is under 16 will no longer be able to apply for a CRB check.
• Police will apply more rigorous tests, before deciding whether to disclose information held locally on enhanced CRB certificates.
• People other than the applicant can apply to the CRB for a decision about whether the disclosed information is accurate.

Further changes from December 2012

More changes are planned:

The plan that everyone working with children would need to register with the ISA has been repealed

• At the beginning of December 2012, the CRB and the ISA will be merged into a single body, called the Disclosure and Barring Service (DBS).
• From early 2013, it is intended to have a new Update Service. This would reduce the number of repeat applications for CRB checks that currently occur. So, rather than reapplying if a similar check is needed, an existing certificate will be updated instead.

Many of these changes and amendments make sense. The scope of the initial vetting and barring scheme was too great. However, the legacy remains, and schools will still err on the side of caution. 

Find out more

• The Home Office leaflet Changes to Disclosure and Barring: What You Need to Know (2012) sets out all the changes that the government is making to criminal records and barring arrangements from September 2012.