Protection of Freedoms Bill (HL Bill 99)

(ii) washing or bathing, or

(iii) dressing,

(c) the prompting (together with supervision) of a child, who is
in need of it by reason of illness or disability, in relation to the
5performance of the activity of eating or drinking where the
child is unable to make a decision in relation to performing
such an activity without such prompting and supervision,

(d) the prompting (together with supervision) of a child, who is
in need of it by reason of age, illness or disability, in relation
10to the performance of any of the activities listed in paragraph
(b)(i) to (iii) where the child is unable to make a decision in
relation to performing such an activity without such
prompting and supervision,

(e) any form of training, instruction, advice or guidance which—

(i) 15relates to the performance of the activity of eating or
drinking,

(ii) is given to a child who is in need of it by reason of
illness or disability, and

(iii) does not fall within paragraph (c), or

(f) 20any form of training, instruction, advice or guidance which—

(i) relates to the performance of any of the activities
listed in paragraph (b)(i) to (iii),

(ii) is given to a child who is in need of it by reason of age,
illness or disability, and

(iii) 25does not fall within paragraph (d).

(1C) In this Part of this Schedule —

• “health care” includes all forms of health care provided for
  children, whether relating to physical or mental health and
  also includes palliative care for children and procedures that
  30are similar to forms of medical or surgical care but are not
  provided for children in connection with a medical condition,

• “health care professional” means a person who is a member of
  a profession regulated by a body mentioned in section 25(3)
  of the National Health Service Reform and Health Care
  35Professions Act 2002.

(1D) Any reference in this Part of this Schedule to health care provided by,
or under the direction or supervision of, a health care professional
includes a reference to first aid provided to a child by any person
acting on behalf of an organisation established for the purpose of
40providing first aid.”

(4) In paragraph 1(2)(c) (work activities at certain establishments to be regulated
activity) for “any form of work (whether or not for gain)” substitute “any work
falling within sub-paragraph (2A) or (2B)”.

(5) After paragraph 1(2) insert—

“(2A) 45Work falls within this sub-paragraph if it is any form of work for
gain, other than any such work which—

(a) is undertaken in pursuance of a contract for the provision of
occasional or temporary services, and

(b) is not an activity mentioned in paragraph 2(1) (disregarding
paragraph 2(3A) and (3B)(b)).

(2B) Work falls within this sub-paragraph if it is any form of work which
is not for gain, other than—

(a) 5any such work which—

(i) is carried out on a temporary or occasional basis, and

(ii) is not an activity mentioned in paragraph 2(1)
(disregarding paragraph 2(3A) and (3B)(b)), or

(b) any such work which is, on a regular basis, subject to the day
10to day supervision of another person who is engaging in
regulated activity relating to children”.

(6) Also in paragraph 1—

(a) in sub-paragraph (7) (meaning of “acting as a child minder”) for
“section 79A of that Act” substitute “section 19 of the Children and
15Families (Wales) Measure 2010”,

(b) omit sub-paragraph (8) (exercise of functions of certain persons to be
regulated activity),

(c) in sub-paragraph (9) (exercise of functions of persons mentioned in
paragraph 4(1) to be regulated activity) for “a person mentioned in
20paragraph 4(1)” substitute “the Children’s Commissioner for Wales or
the deputy Children’s Commissioner for Wales”,

(d) in sub-paragraph (9B) (exercise of certain inspection etc. functions to be
regulated activity)—

(i) omit paragraph (a),

(ii) 25in paragraph (b) for “section 79U(3) of the Children Act 1989”
substitute “section 41 or 42 of the Children and Families (Wales)
Measure 2010”,

(iii) in paragraph (c) after “taken” insert “in relation to Wales” and
for “that Act” substitute “the Children Act 1989”,

(iv) 30in paragraph (d) after “inspection”, where it first appears, insert
“in Wales”,

(v) in paragraph (e) after “taken” insert “in relation to Wales”,

(vi) in paragraph (f) omit “18B or”,

(vii) in paragraph (h), after “inspection”, where it first appears, insert
35“in Wales”,

(viii) in paragraph (m) omit “48 or”,

(ix) in paragraph (n) after “inspection” insert “in Wales”, and

(x) omit paragraphs (p) to (t),

(e) in sub-paragraph (10) (inspectors) omit paragraphs (a), (ba), (d) and (e),

(f) 40omit sub-paragraph (12A) (accessing certain databases to be regulated
activity),

(g) omit sub-paragraph (13A) (exercise of certain functions of Care Quality
Commission to be regulated activity),

(h) in sub-paragraph (14) (day to day management or supervision of a
45person carrying out regulated activity to be regulated activity) for “(8),
(9C), (11) or (13A)” substitute “(9A), (9C) or (11)”, and

(i) after sub-paragraph (14) insert—

“(15) Any activity which consists in or involves on a regular basis
the day to day management or supervision of a person who

would be carrying out an activity mentioned in sub-
paragraph (1) or (2) but for the exclusion for supervised
activity in paragraph 2(3A) or (3B)(b) or sub-paragraph
(2B)(b) above is a regulated activity relating to children.”

(7) 5In paragraph 2 (activities referred to in paragraph 1(1))—

(a) in sub-paragraph (1) omit paragraph (d) (treatment and therapy
provided for a child),

(b) in sub-paragraph (2)—

(i) for “, (c) and (d)” substitute “and (c)”, and

(ii) 10omit paragraph (d), and

(c) after sub-paragraph (3) insert—

“(3A) Sub-paragraph (1)(a) does not include any form of teaching,
training or instruction of children which is, on a regular basis,
subject to the day to day supervision of another person who
15is engaging in regulated activity relating to children.

(3B) Sub-paragraph (1)(b)—

(a) does not include any health care provided otherwise
than by (or under the direction or supervision of) a
health care professional, and

(b) 20does not, except in the case of relevant personal care
or of health care provided by (or under the direction
or supervision of) a health care professional, include
any form of care for or supervision of children which
is, on a regular basis, subject to the day to day
25supervision of another person who is engaging in
regulated activity relating to children.

(3C) Sub-paragraph (1)(c) does not include any legal advice.”

(8) In paragraph 3(1) (list of establishments referred to in paragraph 1(2) and (9C))
omit paragraph (c).

(9) 30Omit paragraph 4 (list of persons referred to in paragraph 1(9)).

(10) In paragraph 10(2) (the period condition) for “, (c) or (d)” substitute “or (c)”.

65 Restriction of definition of vulnerable adults

(1) Omit section 59 of the Safeguarding Vulnerable Groups Act 2006 (definition of
vulnerable adults).

(2) 35In section 60(1) of that Act (interpretation of Act)—

(a) after “In this Act—” insert—

• ““adult” means a person who has attained the age of 18;”,
  and”

(b) in the definition of “vulnerable adult”, for the words “must be
40construed in accordance with section 59” substitute “means any adult
to whom an activity which is a regulated activity relating to vulnerable
adults by virtue of any paragraph of paragraph 7(1) of Schedule 4 is
provided”.

66 Restriction of scope of regulated activities: vulnerable adults

(1) Parts 2 and 3 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006
(regulated activity relating to vulnerable adults and the period condition) are
amended as follows.

(2) 5For paragraph 7(1) to (3) (main activities which are regulated activity)
substitute—

“(1) Each of the following is a regulated activity relating to vulnerable
adults—

(a) the provision to an adult of health care by, or under the
10direction or supervision of, a health care professional,

(b) the provision to an adult of relevant personal care,

(c) the provision by a social care worker of relevant social work
to an adult who is a client or potential client,

(d) the provision of assistance in relation to general household
15matters to an adult who is in need of it by reason of age,
illness or disability,

(e) any relevant assistance in the conduct of an adult’s own
affairs,

(f) the conveying by persons of a prescribed description in such
20circumstances as may be prescribed of adults who need to be
conveyed by reason of age, illness or disability,

(g) such activities—

(i) involving, or connected with, the provision of health
care or relevant personal care to adults, and

(ii) 25not falling within any of the above paragraphs,

as are of a prescribed description.

(2) Health care includes all forms of health care provided for
individuals, whether relating to physical or mental health and also
includes palliative care and procedures that are similar to forms of
30medical or surgical care but are not provided in connection with a
medical condition.

(3) A health care professional is a person who is a member of a
profession regulated by a body mentioned in section 25(3) of the
National Health Service Reform and Health Care Professions Act
352002.

(3A) Any reference in this Part of this Schedule to health care provided by,
or under the direction or supervision of, a health care professional
includes a reference to first aid provided to an adult by any person
acting on behalf of an organisation established for the purpose of
40providing first aid.

(3B) Relevant personal care means—

(a) physical assistance, given to a person who is in need of it by
reason of age, illness or disability, in connection with—

(i) eating or drinking (including the administration of
45parenteral nutrition),

(ii) toileting (including in relation to the process of
menstruation),

(iii) washing or bathing,

(iv) dressing,

(v) oral care, or

(vi) the care of skin, hair or nails (other than nail care
provided by a chiropodist or podiatrist),

(b) 5the prompting, together with supervision, of a person who is
in need of it by reason of age, illness or disability in relation
to the performance of any of the activities listed in paragraph
(a) where the person is unable to make a decision in relation
to performing such an activity without such prompting and
10supervision, or

(c) any form of training, instruction, advice or guidance which—

(i) relates to the performance of any of the activities
listed in paragraph (a),

(ii) is given to a person who is in need of it by reason of
15age, illness or disability, and

(iii) does not fall within paragraph (b).

(3C) Relevant social work has the meaning given by section 55(4) of the
Care Standards Act 2000 and social care worker means a person who
is a social care worker by virtue of section 55(2)(a) of that Act.

(3D) 20Assistance in relation to general household matters is day to day
assistance in relation to the running of the household of the person
concerned where the assistance is the carrying out of one or more of
the following activities on behalf of that person—

(a) managing the person’s cash,

(b) 25paying the person’s bills,

(c) shopping.

(3E) Relevant assistance in the conduct of a person’s own affairs is
anything done on behalf of the person by virtue of—

(a) a lasting power of attorney created in respect of the person in
30accordance with section 9 of the Mental Capacity Act 2005,

(b) an enduring power of attorney (within the meaning of
Schedule 4 to that Act) in respect of the person which is—

(i) registered in accordance with that Schedule, or

(ii) the subject of an application to be so registered,

(c) 35an order made under section 16 of that Act by the Court of
Protection in relation to the making of decisions on the
person’s behalf,

(d) the appointment of an independent mental health advocate
or (as the case may be) an independent mental capacity
40advocate in respect of the person in pursuance of
arrangements under section 130A of the Mental Health Act
1983 or section 35 of the Mental Capacity Act 2005,

(e) the provision of independent advocacy services (within the
meaning of section 248 of the National Health Service Act
452006 or section 187 of the National Health Service (Wales) Act
2006) in respect of the person, or

(f) the appointment of a representative to receive payments on
behalf of the person in pursuance of regulations made under
the Social Security Administration Act 1992.”

(3) Omit paragraph 7(4) (certain activities in care homes to be regulated activity).

(4) In paragraph 7(5) (day to day management or supervision of certain activities
to be regulated activity) omit “or (4)”.

(5) In paragraph 7(7)(f) (inspection functions) omit “English local authority social
5services or”.

(6) Omit paragraph 7(8A) (certain functions of Care Quality Commission to be
regulated activity).

(7) In paragraph 7(9) (functions of certain persons to be regulated activity) for “a
person mentioned in paragraph 8(1)” substitute “the Commissioner for older
10people in Wales or the deputy Commissioner for older people in Wales”.

(8) Omit paragraph 8 (the persons referred to in paragraph 7(9) whose functions
are to be regulated activity).

(9) In paragraph 10(2) (the period condition)—

(a) omit “or 7(1)(a), (b), (c), (d) or (g)”, and

(b) 15in paragraph (b), omit “or vulnerable adults (as the case may be)”.

67 Alteration of test for barring decisions

(1) For sub-paragraphs (2) and (3) of paragraph 1 of Schedule 3 to the
Safeguarding Vulnerable Groups Act 2006 (automatic inclusion of person to
whom paragraph applies in children’s barred list) substitute—

“(2) 20If the Secretary of State has reason to believe that—

(a) this paragraph might apply to a person, and

(b) the person is or has been, or might in future be, engaged in
regulated activity relating to children,

the Secretary of State must refer the matter to ISA.

(3) 25If (whether or not on a reference under sub-paragraph (2)) ISA—

(a) is satisfied that this paragraph applies to a person, and

(b) has reason to believe that the person is or has been, or might
in future be, engaged in regulated activity relating to
children,

30it must include the person in the children’s barred list.”

(2) For sub-paragraphs (2) to (4) of paragraph 2 of that Schedule to that Act
(inclusion of person to whom paragraph applies in children’s barred list with
right to make representation afterwards) substitute—

“(2) If the Secretary of State has reason to believe that—

(a) 35this paragraph might apply to a person, and

(b) the person is or has been, or might in future be, engaged in
regulated activity relating to children,

the Secretary of State must refer the matter to ISA.

(3) Sub-paragraph (4) applies if (whether or not on a reference under
40sub-paragraph (2)) it appears to ISA that—

(a) this paragraph applies to a person, and

(b) the person is or has been, or might in future be, engaged in
regulated activity relating to children.

(4) ISA must give the person the opportunity to make representations as
to why the person should not be included in the children’s barred
list.

(5) Sub-paragraph (6) applies if—

(a) 5the person does not make representations before the end of
any time prescribed for the purpose, or

(b) the duty in sub-paragraph (4) does not apply by virtue of
paragraph 16(2).

(6) If ISA—

(a) 10is satisfied that this paragraph applies to the person, and

(b) has reason to believe that the person is or has been, or might
in future be, engaged in regulated activity relating to
children,

it must include the person in the list.

(7) 15Sub-paragraph (8) applies if the person makes representations before
the end of any time prescribed for the purpose.

(8) If ISA—

(a) is satisfied that this paragraph applies to the person,

(b) has reason to believe that the person is or has been, or might
20in future be, engaged in regulated activity relating to
children, and

(c) is satisfied that it is appropriate to include the person in the
children’s barred list,

it must include the person in the list.”

(3) 25In paragraph 3 of that Schedule to that Act (inclusion in children’s barred list
on behaviour grounds)—

(a) in sub-paragraph (1)(a) for the words from “has” to “conduct,”
substitute “—

(i) has (at any time) engaged in relevant conduct,
30and

(ii) is or has been, or might in future be, engaged
in regulated activity relating to children,”,

(b) in sub-paragraph (3), after paragraph (a) (and before the word “and” at
the end of the paragraph), insert—

“(aa) 35it has reason to believe that the person is or has been,
or might in future be, engaged in regulated activity
relating to children,”, and

(c) in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

(4) In paragraph 5 of that Schedule to that Act (inclusion in children’s barred list
40because of risk of harm)—

(a) in sub-paragraph (1)(a) for “falls within sub-paragraph (4)” substitute
“—

“(i) falls within sub-paragraph (4), and

(ii) is or has been, or might in future be, engaged
45in regulated activity relating to children”,

(b) in sub-paragraph (3), after paragraph (a) (and before the word “and” at

the end of the paragraph), insert—

“(aa) it has reason to believe that the person is or has been,
or might in future be, engaged in regulated activity
relating to children,”, and

(c) 5in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

(5) For sub-paragraphs (2) and (3) of paragraph 7 of that Schedule to that Act
(automatic inclusion of person to whom paragraph applies in adults’ barred
list) substitute—

“(2) If the Secretary of State has reason to believe that—

(a) 10this paragraph might apply to a person, and

(b) the person is or has been, or might in future be, engaged in
regulated activity relating to vulnerable adults,

the Secretary of State must refer the matter to ISA.

(3) If (whether or not on a reference under sub-paragraph (2)) ISA—

(a) 15is satisfied that this paragraph applies to a person, and

(b) has reason to believe that the person is or has been, or might
in future be, engaged in regulated activity relating to
vulnerable adults,

it must include the person in the adults’ barred list.”

(6) 20For sub-paragraphs (2) to (4) of paragraph 8 of that Schedule to that Act
(inclusion of person to whom paragraph applies in adults’ barred list with
right to make representation afterwards) substitute—

“(2) If the Secretary of State has reason to believe that—

(a) this paragraph might apply to a person, and

(b) 25the person is or has been, or might in future be, engaged in
regulated activity relating to vulnerable adults,

the Secretary of State must refer the matter to ISA.

(3) Sub-paragraph (4) applies if (whether or not on a reference under
sub-paragraph (2)) it appears to ISA that—

(a) 30this paragraph applies to a person, and

(b) the person is or has been, or might in future be, engaged in
regulated activity relating to vulnerable adults.

(4) ISA must give the person the opportunity to make representations as
to why the person should not be included in the adults’ barred list.

(5) 35Sub-paragraph (6) applies if—

(a) the person does not make representations before the end of
any time prescribed for the purpose, or

(b) the duty in sub-paragraph (4) does not apply by virtue of
paragraph 16(2).

(6) 40If ISA—

(a) is satisfied that this paragraph applies to the person, and

(b) has reason to believe that the person is or has been, or might
in future be, engaged in regulated activity relating to
vulnerable adults,

45it must include the person in the list.

(7) Sub-paragraph (8) applies if the person makes representations before
the end of any time prescribed for the purpose.

(8) If ISA—

(a) is satisfied that this paragraph applies to the person,

(b) 5has reason to believe that the person is or has been, or might
in future be, engaged in regulated activity relating to
vulnerable adults, and

(c) is satisfied that it is appropriate to include the person in the
adults’ barred list,

10it must include the person in the list.”

(7) In paragraph 9 of that Schedule to that Act (inclusion in adults’ barred list on
behaviour grounds)—

(a) in sub-paragraph (1)(a) for the words from “has” to “conduct,”
substitute “—

(i) 15has (at any time) engaged in relevant conduct,
and

(ii) is or has been, or might in future be, engaged
in regulated activity relating to vulnerable
adults,”,

(b) 20in sub-paragraph (3), after paragraph (a) (and before the word “and” at
the end of the paragraph), insert—

“(aa) it has reason to believe that the person is or has been,
or might in future be, engaged in regulated activity
relating to vulnerable adults,”, and

(c) 25in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

(8) In paragraph 11 of that Schedule to that Act (inclusion in adults’ barred list
because of risk of harm)—

(a) in sub-paragraph (1)(a) for “falls within sub-paragraph (4)” substitute
“—

“(i) 30falls within sub-paragraph (4), and

(ii) is or has been, or might in future be, engaged
in regulated activity relating to vulnerable
adults”,

(b) in sub-paragraph (3), after paragraph (a) (and before the word “and” at
35the end of the paragraph), insert—

“(aa) it has reason to believe that the person is or has been,
or might in future be, engaged in regulated activity
relating to vulnerable adults,”, and

(c) in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

40Abolition of other areas of regulation: England and Wales

68 Abolition of controlled activity

Omit sections 21 to 23 of the Safeguarding Vulnerable Groups Act 2006
(controlled activity).

69 Abolition of monitoring

Omit sections 24 to 27 of the Safeguarding Vulnerable Groups Act 2006
(monitoring).

Main amendments relating to new arrangements: England and Wales

70 5Information for purposes of making barring decisions

(1) In paragraph 19 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006
(information required by ISA about persons to whom grounds for barring
apply)—

(a) in sub-paragraph (1)—

(i) 10in paragraph (a) after “applies” insert “or appears to apply”,

(ii) in paragraph (b) for “apply” substitute “applies or appears to
apply”, and

(iii) omit paragraph (d),

(b) in sub-paragraphs (2) and (3) for “thinks might” substitute “reasonably
15believes to”, and

(c) in sub-paragraph (6)—

(i) omit the words from “which” to “it is”, and

(ii) omit “or paragraph 20(2)”.

(2) In paragraph 20 of that Schedule to that Act (provision of information by
20Secretary of State to ISA) for sub-paragraph (2) substitute—

“(2) Where the Secretary of State is under a duty under paragraph 1, 2, 7
or 8 to refer a matter to ISA, the Secretary of State must provide to
ISA any prescribed details of relevant matter (within the meaning of
section 113A of the Police Act 1997) of a prescribed description which
25has been made available to the Secretary of State for the purposes of
Part 5 of that Act.”

71 Review of barring decisions

After paragraph 18 of Schedule 3 to the Safeguarding Vulnerable Groups Act
2006 (power to apply for review of a person’s inclusion in a barred list) insert—

“18A (1) 30Sub-paragraph (2) applies if a person’s inclusion in a barred list is not
subject to—

(a) a review under paragraph 18, or

(b) an application under that paragraph,

which has not yet been determined.

(2) 35ISA may, at any time, review the person’s inclusion in the list.

(3) On any such review, ISA may remove the person from the list if, and
only if, it is satisfied that, in the light of—

(a) information which it did not have at the time of the person’s
inclusion in the list,

(b) 40any change of circumstances relating to the person
concerned, or

(c) any error by ISA,

it is not appropriate for the person to be included in the list.”