Care Standards Bill - continued        House of Commons
PART VII, PROTECTION OF CHILDREN AND VULNERABLE ADULTS - continued
Protection of vulnerable adults - continued

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Appeals against inclusion in list.     85. - (1) An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under section 80 may appeal to the Tribunal against-
 
 
    (a) the decision to include him in the list; or
 
    (b) with the leave of the Tribunal, any decision of the Secretary of State not to remove him from the list under section 80(3).
      (2) Subject to subsection (5), an individual who has been provisionally included for a period of more than nine months in the list kept by the Secretary of State under section 80 may, with the leave of the Tribunal, have the issue of his inclusion in the list determined by the Tribunal instead of by the Secretary of State.
 
      (3) If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely-
 
 
    (a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm a vulnerable adult; and
 
    (b) that the individual is unsuitable to work with vulnerable adults,
       the Tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list.
 
      (4) Where an individual has been convicted of an offence involving misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal or determination under this section.
 
      (5) Where the misconduct of which the individual is alleged to have been guilty is the subject of any civil or criminal proceedings, an application for leave under subsection (2) may not be made before the end of the period of six months immediately following the final determination of the proceedings.
 
      (6) For the purposes of subsection (5), proceedings are finally determined when-
 
 
    (a) the proceedings are terminated without a decision being made;
 
    (b) a decision is made against which no appeal lies;
 
    (c) in a case where an appeal lies with leave against a decision, the time limited for applications for leave expires without leave being granted; or
 
    (d) in a case where leave to appeal against a decision is granted or is not required, the time limited for appeal expires without an appeal being brought.
Applications for removal from list.     86. - (1) Subject to section 87, an individual who is included in the list kept by the Secretary of State under section 80 may make an application to the Tribunal under this section.
 
      (2) On an application under this section the Tribunal shall determine whether or not the individual should continue to be included in the list.
 
      (3) If the Tribunal is satisfied that the individual is no longer unsuitable to work with vulnerable adults it shall direct his removal from the list; otherwise it shall dismiss the application.
 
Conditions for application under section 86.     87. - (1) An individual may only make an application under section 86 with the leave of the Tribunal.
 
      (2) An application for leave under this section may not be made unless the appropriate conditions are satisfied in the individual's case.
 
      (3) In the case of an individual who was a child when he was included (otherwise than provisionally) in the list, the appropriate conditions are satisfied if-
 
 
    (a) he has been so included for a continuous period of at least five years; and
 
    (b) in the period of five years ending with the time when he makes the application under this section, he has made no other such application.
      (4) In the case of any other individual, the appropriate conditions are satisfied if-
 
 
    (a) he has been included (otherwise than provisionally) in the list for a continuous period of at least ten years; and
 
    (b) in the period of ten years ending with the time when he makes the application under this section, he has made no other such application.
      (5) The Tribunal shall not grant an application under this section unless it considers-
 
 
    (a) that the individual's circumstances have changed since he was included (otherwise than provisionally) in the list, or, as the case may be, since he last made an application under this section; and
 
    (b) that the change is such that leave should be granted.
Effect of inclusion in list.     88. - (1) Where a person who provides care to vulnerable adults proposes to offer an individual employment in a care position that person-
 
 
    (a) shall ascertain whether the individual is included in the list kept under section 80; and
 
    (b) if he is included in that list, shall not offer him employment in such a position.
      (2) Where a person who provides care to vulnerable adults discovers that an individual employed by him in a care position is included in that list, he shall cease to employ him in a care position.
 
  For the purposes of this subsection an individual is not employed in a care position if he has been suspended or provisionally transferred to a position which is not a care position.
 
      (3) Where a person who provides care to vulnerable adults ("the provider") proposes to offer employment in a care position to an individual who has been supplied by a person who carries on an employment agency or employment business, there is a sufficient compliance with subsection (1) if the provider-
 
 
    (a) satisfies himself that, on a date within the last 12 months, the other person ascertained whether the individual was included in the list kept under section 80;
 
    (b) obtains written confirmation of the facts as ascertained by that person; and
 
    (c) if the individual was included in the list on that date, does not offer him employment in a care position.
      (4) It is immaterial for the purposes of subsection (1) or (3) whether the individual is already employed by the provider.
 
      (5) An individual who is included (otherwise than provisionally) in the list kept by the Secretary of State under section 80 shall be guilty of an offence if he knowingly applies for, offers to do, accepts or does any work in a care position.
 
      (6) It shall be a defence for an individual charged with an offence under subsection (5) to prove that he did not know, and could not reasonably be expected to know, that he was so included in that list.
 
      (7) An individual who is guilty of an offence under this section shall be liable-
 
 
    (a) on summary conviction, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both;
 
    (b) on conviction on indictment, to imprisonment for a term not exceeding five years, or to a fine, or to both.
Searches of list under Part V of Police Act 1997.     89. - (1) After subsection (3B) of section 113 of the Police Act 1997 (criminal record certificates) there shall be inserted-
 
 
    "(3C) If an application under this section is accompanied by a statement by the registered person that the certificate is required for the purpose of considering the applicant's suitability to be employed, supplied to work, found work or given work in a position (whether paid or unpaid) within subsection (3D), the criminal record certificate shall also state-
 
 
    (a) whether the applicant is included in the list kept under section 80 of the Care Standards Act 2000; and
 
    (b) if he is included in that list, such details of his inclusion as may be prescribed.
      (3D) A position is within this subsection if it is-
 
 
    (a) a care position within the meaning of Part VI of the Care Standards Act 2000; or
 
    (b) a position of such other description as may be prescribed."
      (2) After subsection (6A) of section 115 of that Act (enhanced criminal record certificates) there shall be inserted-
 
 
    "(6B) If an application under this section is accompanied by a statement by the registered person that the certificate is required for the purpose of considering the applicant's suitability to be employed, supplied to work, found work or given work in a position (whether paid or unpaid) falling within subsection (3D) of section 113, the enhanced criminal record certificate shall also state-
 
 
    (a) whether the applicant is included in the list kept under section 80 of the Care Standards Act 2000; and
 
    (b) if he is included in that list, such details of his inclusion as may be prescribed."
Access to list before commencement of section 89.     90. - (1) In relation to any time before the commencement of section 89, any person seeking to ascertain whether a relevant individual is included in the list kept under section 80 shall be entitled to that information on making application for the purpose to the Secretary of State.
 
      (2) For the purposes of subsection (1) a relevant individual is-
 
 
    (a) an individual to whom the person proposes to offer employment in a care position;
 
    (b) an individual for whom the person proposes to find employment, or whom he proposes to supply for employment, in a care position; or
 
    (c) an individual of a prescribed description who does not fall within paragraph (a) or (b).
 
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