The Independent Safeguarding Authority registration process, which had been due to begin in late July and become a legal requirement in November, is to be put on hold while the scope of the scheme is reviewed, announced home secretary Teresa May on Tuesday 15 June 2010. Dai Durbridge looks at the current position now that the recruitment and monitoring requirements for staff and volunteers in the education sector is once again the subject of significant change.

Were there problems with the registration process?
In essence the scheme does two things: it is responsible for the registration of staff and volunteers working in the sector and for the collating of information about them, and it decides who to bar from working with children.

As the scheme became law, its scope widened to include regular visitors to a school site (such as volunteers and contractors), regardless of the fact that they may not have any contact with children. A somewhat conservative estimate of 9m people are thought to be caught by the scheme.

As the scheme widened, it also became less clear what professionals were supposed to do, making it extremely difficult to identify the circumstances in which an individual had to be registered. With severe criminal sanctions applying to both the individual and to the person allowing him to work or volunteer, this is not an area in which such ambiguity could remain.

So does the review focus only on the registration process?
Unfortunately it does. May announced the review as a result of the concerns about the number of people expected to register and a general confusion about the process. She referred to the current measures as ‘draconian’ and added that the new government aimed to cut them back to ‘common sense’ levels. Until the review is completed, the government has confirmed that the status quo will remain.

Why has the government failed to review all aspects of the scheme and instead chosen to focus on the registration process only?
There is little doubt that the registration requirements impacted upon too many people, but the management of the information held by the ISA and its role in barring individuals also requires review. A failure to automatically tell employers when their staff are barred and an extremely low threshold for when employers are under a legal obligation to refer conduct to the ISA are of serious concern to schools. If a review of the process is to be undertaken at all, then a full and thorough review of all aspects of the ISA’s role is in order. It is disappointing to note that the government’s plans do not suggest a more comprehensive review.

What is the problem with the legal duty to refer?
The duty is wide-ranging and extremely onerous. The law says that a referral should be made where a school withdraws an individual from regulated activity because they think that the individual has engaged in ‘relevant conduct’, satisfied the ‘harm test’ or received a conviction or caution for a ‘relevant offence’. Those terms are defined, but without repeating those definitions here, suffice to say that the threshold is extremely low.

The legal duty can be triggered very easily. As an example, a teacher at your school uses inappropriate restraint techniques to separate fighting pupils. A complaint from the pupil is upheld and as the headteacher you decide to send the teacher on a training course. You also withdraw the teacher from teaching a particularly difficult group until the training is undertaken (a period of one day).

In those circumstances, you have ‘withdrawn’ the teacher from regulated activity because he satisfied the harm test. Having done so, your legal duty to refer kicks in.

Are there any other concerns about the ISA’s practice?
There are. Firstly, before the ISA will tell you anything about a registered employee (assuming registration continues following the review), you need to register a ‘legitimate interest’ in them. If you did not have an interest registered, the ISA would not tell you if a member of your staff was barred. This could leave you in the position of allowing a barred person to continue working with children. This provision of information must be automatic.

Secondly, all the ISA will tell an employer about a registered individual is whether or not they are registered. If they are not, it means they have not yet registered or they are on a barred list. The ISA do not tell you about convictions or soft information about those you employ or are about to employ. This means that you will need to get an enhanced CRB check to obtain this information. If an enhanced CRB check is still required once an individual is registered, one has to ask what benefit the Vetting and Barring Scheme offers.

What about the ISA role in barring individuals?
This also requires review. The Royal College of Nursing has advised the government that it intends to have the legality of the barring scheme reviewed by the courts, and the education sector has expressed concern about the ISA’s intention to tell employers where they are ‘minded to bar’ an individual. ‘Minded to bar’ means that the ISA ‘think’ they are going to bar someone, but cannot decide until they have given the individual time to make representations.

The ISA informing a headteacher that they are ‘minded to bar’ an individual provides little evidence, in legal terms, upon which the headteacher can rely when taking action against a teacher. However, knowing that the teacher ‘might’ be barred puts the same headteacher under a duty to consider the safety and wellbeing of the children at the school. This is a very difficult conflict to manage and one which could be avoided if the government extended its review.

What will happen now?
The government has confirmed that the review will focus only on the registration process, leaving all other powers and duties in place, rather than carrying out a full review of the scheme. Having done so, it has failed to take the opportunity to address the concerns of those working in the sector. For recruitment and vetting from now on, the message is clear – the status quo remains until the review is complete.