Protection of Freedoms Bill (HL Bill 121)

(3) After paragraph 1(1) insert—

“(1A) The following activities fall within this sub-paragraph—

(a) relevant personal care, and

(b) health care provided by, or under the direction or
5supervision of, a health care professional.

(1B) In this Part of this Schedule “relevant personal care” means—

(a) physical assistance which is given to a child who is in need of
it by reason of illness or disability and is given in connection
with eating or drinking (including the administration of
10parenteral nutrition),

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

(i) toileting (including in relation to the process of
15menstruation),

(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
20performance 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
25to 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) 30relates 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) 35any 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) 40does 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
  45are 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
  50Professions 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
5providing 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) 10Work 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
15paragraph 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) any such work which—

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

(ii) 20is 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
to day supervision of another person who is engaging in
regulated activity relating to children”.

(6) 25Also 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
Families (Wales) Measure 2010”,

(b) omit sub-paragraph (8) (exercise of functions of certain persons to be
30regulated 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
paragraph 4(1)” substitute “the Children’s Commissioner for Wales or
the deputy Children’s Commissioner for Wales”,

(d) 35in sub-paragraph (9B) (exercise of certain inspection etc. functions to be
regulated activity)—

(i) omit paragraph (a),

(ii) in paragraph (b) for “section 79U(3) of the Children Act 1989”
substitute “section 41 or 42 of the Children and Families (Wales)
40Measure 2010”,

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

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

(v) 45in 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
“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) omit sub-paragraph (12A) (accessing certain databases to be regulated
5activity),

(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
person carrying out regulated activity to be regulated activity) for “(8),
10(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-
15paragraph (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) In paragraph 2 (activities referred to in paragraph 1(1))—

(a) in sub-paragraph (1) omit paragraph (d) (treatment and therapy
20provided for a child),

(b) in sub-paragraph (2)—

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

(ii) omit paragraph (d), and

(c) after sub-paragraph (3) insert—

“(3A) 25Sub-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
is engaging in regulated activity relating to children.

(3B) Sub-paragraph (1)(b)—

(a) 30does not include any health care provided otherwise
than by (or under the direction or supervision of) a
health care professional, and

(b) does not, except in the case of relevant personal care
or of health care provided by (or under the direction
35or 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
supervision of another person who is engaging in
regulated activity relating to children.

(3C) 40Sub-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) Omit 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) In section 60(1) of that Act (interpretation of Act)—

(a) 5after “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
construed in accordance with section 59” substitute “means any adult
10to 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
15(regulated activity relating to vulnerable adults and the period condition) are
amended as follows.

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

“(1) Each of the following is a regulated activity relating to vulnerable
20adults—

(a) the provision to an adult of health care by, or under the
direction 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
25to an adult who is a client or potential client,

(d) the provision of assistance in relation to general household
matters 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
30affairs,

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

(g) such activities—

(i) 35involving, or connected with, the provision of health
care or relevant personal care to adults, and

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

as are of a prescribed description.

(2) Health care includes all forms of health care provided for
40individuals, whether relating to physical or mental health and also
includes palliative care and procedures that are similar to forms of
medical 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
45profession regulated by a body mentioned in section 25(3) of the
National Health Service Reform and Health Care Professions Act
2002.

(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
5providing 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
10parenteral nutrition),

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

(iii) washing or bathing,

(iv) dressing,

(v) 15oral care, or

(vi) the care of skin, hair or nails,

(b) the 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
20(a) where the person is unable to make a decision in relation
to performing such an activity without such prompting and
supervision, or

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

(i) relates to the performance of any of the activities
25listed in paragraph (a),

(ii) is given to a person who is in need of it by reason of
age, 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
30Care 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) Assistance 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
35the following activities on behalf of that person—

(a) managing the person’s cash,

(b) paying the person’s bills,

(c) shopping.

(3E) Relevant assistance in the conduct of a person’s own affairs is
40anything done on behalf of the person by virtue of—

(a) a lasting power of attorney created in respect of the person in
accordance 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) 45registered in accordance with that Schedule, or

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

(c) an 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
advocate in respect of the person in pursuance of
arrangements under section 130A of the Mental Health Act
51983 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
2006 or section 187 of the National Health Service (Wales) Act
2006) in respect of the person, or

(f) 10the 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
15to be regulated activity) omit “or (4)”.

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

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

(7) 20In paragraph 7(9) (functions of certain persons to be regulated activity) for “a
person mentioned in paragraph 8(1)” substitute “the Commissioner for older
people 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) 25In paragraph 10(2) (the period condition)—

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

(b) in 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
30Safeguarding Vulnerable Groups Act 2006 (automatic inclusion of person to
whom paragraph applies in children’s barred list) substitute—

“(2) If 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
35regulated activity relating to children,

the Secretary of State must refer the matter to ISA.

(3) If (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
40in future be, engaged in regulated activity relating to
children,

it 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) this paragraph might apply to a person, and

(b) the person is or has been, or might in future be, engaged in
5regulated 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
sub-paragraph (2)) it appears to ISA that—

(a) this paragraph applies to a person, and

(b) 10the 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) 15Sub-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) 20If 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
children,

25it 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) 30has reason to believe that the person is or has been, or might
in 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,

35it must include the person in the list.”

(3) In 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) 40has (at any time) engaged in relevant conduct,
and

(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) 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”.

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

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

“(i) 10falls within sub-paragraph (4), and

(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) 15it 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”.

(5) For sub-paragraphs (2) and (3) of paragraph 7 of that Schedule to that Act
20(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) this paragraph might apply to a person, and

(b) the person is or has been, or might in future be, engaged in
25regulated 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) is satisfied that this paragraph applies to a person, and

(b) has reason to believe that the person is or has been, or might
30in future be, engaged in regulated activity relating to
vulnerable adults,

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

(6) For 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
35right 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) the person is or has been, or might in future be, engaged in
regulated activity relating to vulnerable adults,

40the 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) this paragraph applies to a person, and

(b) the person is or has been, or might in future be, engaged in
45regulated 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) Sub-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
5paragraph 16(2).

(6) If 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
10vulnerable adults,

it 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) 15is satisfied that this paragraph applies to the person,

(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, and

(c) is satisfied that it is appropriate to include the person in the
20adults’ barred list,

it 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,”
25substitute “—

(i) has (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
30adults,”,

(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
35relating to vulnerable adults,”, and

(c) in 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
40“—

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

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

(b) 45in 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) 5in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

Abolition 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 10Abolition 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 Information for purposes of making barring decisions

(1) 15In 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) in paragraph (a) after “applies” insert “or appears to apply”,

(ii) 20in 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
believes to”, and

(c) 25in 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
Secretary of State to ISA) for sub-paragraph (2) substitute—

“(2) 30Where 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
has been made available to the Secretary of State for the purposes of
35Part 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) Sub-paragraph (2) applies if a person’s inclusion in a barred list is not
40subject to—