Contact: Nick Huffer; Clarkslegal (Reading, England)
Changes are soon to be made to the present system of criminal records checks, including the merger of the Criminal Records Bureau and the Independent Safeguarding Authority
to form the “Disclosure and Barring Service”. The changes, made under the Protection of Freedoms Act 2012, were first set in motion two years ago when the government put an immediate halt to the requirement for individuals working with children or vulnerable adults to register with the Independent Safeguarding Authority, insisting that the Vetting and Barring Scheme ( the “VBS”) needed to be scaled back to "common-sense levels".
The current position
Under the current system in place since October 2009, employers need to check the ISA status of all individuals working or volunteering with children and vulnerable adults in either a “regulated” or a “controlled” activity. The ISA are responsible for administering two lists, the children’s barred list and the adult`s barred list, containing the names of individuals who are barred from working in a regulated activity. Checks against these lists are made by the Criminal Records Bureau as part of the enhanced disclosure process. It is an offence to permit a barred individual to be engaged in a regulated activity. It is also an offence to engage a barred individual in a controlled activity without the necessary safeguards in place.
The mandatory requirement for individuals working in a regulated or controlled activity to register with the ISA, enabling employers to monitor their ISA status, would have been phased in from November 2010 had the government not intervened just months earlier and launched a thorough review of the scheme. The outcome of the review was published in February 2011 and its recommendations are given effect by the Protection of Freedoms Act 2012. The government estimates that the changes being introduced will scale back the VBS reducing the number individuals subject to the scheme from 9 million to a more proportionate 5 million.
For employers, the key changes to note are that, from 10 September 2012, the definition of controlled activity will be repealed and the definition of regulated activity will be amended to cover only those working closely and regularly with children and vulnerable adults. There are a number of changes but, broadly speaking, regulated activities will no longer include supervised roles, which if unsupervised would be regulated activity. Statutory guidance is to be issued to help employers decide what level of supervision is needed to take the activity out of regulated activity. Only individuals engaged in a regulated activity will be eligible for a for barred list check. Individuals engaged in non-regulated activity, will still be eligible for an enhanced CRB check without a barred list check depending on the nature of the role.
The proposed compulsory registration and monitoring provisions will not come into force. Instead, a new Update Service is to be introduced, possibly from April 2013, which aims to improve the transferability of CRB checks and reduce the burden of carrying out unnecessary repeat checks. The new service will allow an organisation, with the individual’s consent, to carry out an online status check to establish if further relevant criminal information has been identified since a CRB check was last carried out. The Update Service will be subject to an annual subscription fee and will be entirely voluntary.
The CRB and the ISA are to be merged to form the Disclosure and Barring Service (“DBS”), a new non-departmental public body, which is due to become operational from the start of December 2012. The DBS will be responsible for bringing in other reforms to the vetting process as provided for by the Protection of Freedoms Act 2012. This will include changing the current system so that the certificate is sent only to the individual to give them the opportunity to challenge its content before it is disclosed to the interested third party.
A Home office a leaflet “Changes to disclosure and barring: What you need to know” explains these and other changes and sets out in more specific detail the new definition of regulated activity. A copy can be downloaded from here.
