Protection of Freedoms Bill

Memorandum submitted by the Independent Safeguarding Authority (ISA) (PF 16)

Board Statement

The ISA welcomes the broad direction of the Government’s amendments to the Safeguarding Vulnerable Groups Act particularly given the complexities in ‘scaling back’ state intervention in an area as sensitive as the protection of children and vulnerable adults.

The ISA has identified three areas that it considers are worthy of further consideration and makes a submission to the Committee accordingly.

1. Employers not being made aware of ‘barring information’ for people they employ to work with children or vulnerable adults in non Regulated Activity

The narrowing of the definition of Regulated Activity reduces the range of posts to which a bar applies. Employers providing ‘non Regulated Activity’ where people work with the vulnerable and are therefore entitled to an enhanced disclosure will not be made aware of the existence of a bar.

The ISA considers that by not supplying such information, unnecessary risks are created and employers will be required to make employment decisions without the fullest relevant information being made.

A proportion of ISA barring decisions are made on the basis of information which would not otherwise appear on the disclosure. This is particularly the case in respect of ‘vulnerable adults’ where independent research has shown that the police are not involved in 50% of cases that are referred to the ISA.

In approximately 20% of barred cases there is no criminality information or soft intelligence that could be made available to the employer. The ISA may also hold ‘non police’ information which when collated and assessed alongside what might be seemingly ‘low level’ criminality information has resulted in a bar.

The ISA would support the inclusion of barring information on enhanced disclosures for posts with children or vulnerable adults which lie outside Regulated Activity. The provision of this information would enable the employer to make a considered judgement whether to engage the person in a post with children or vulnerable adults outside Regulated Activity and impose appropriate safeguards should they choose to employ a person who is included on a barred list.

2. Referrals from employers where the employee is not engaged in Regulated Activity and the limitation of the barring body’s powers to bar

The ISA considers that there should be statutory duty (as opposed to a power) on those employers who are able to obtain an enhanced disclosure to refer safeguarding concerns to the barring body. The conditions for referral would be as for Regulated Activity and we anticipate the number of referrals would be relatively low.

The ISA takes the view that it should not be left to the employer’s discretion that safeguarding information is referred to the barring body. We should seek to minimise the chances of people (who pose a risk) finding their way into Regulated Activity having been removed from roles because they have harmed the vulnerable.

The key issue within the Bill as drafted is that a person who causes harm to the vulnerable whilst working in non Regulated Activity, where this information is not referred to the barring body, could subsequently apply for Regulated Activity without the assessment (of the risk they present) being informed by previous behaviour.

In circumstances where the barring body receives a referral in relation to non Regulated Activity, without evidence that the person has worked (or is working or likely to work) in Regulated Activity, the barring body will not be able to take action to bar the person regardless of the seriousness of the reported behaviour.

In such circumstances the barring process would be ‘stayed’ unless/until the person seeks to work in Regulated Activity. This could of course be a significant period of time and the quality and availability of data may well have been compromised by the passage of time (and the Data Protection Legislation).

The ISA takes the view that if a person commits an act of such significance in respect of a child or vulnerable adult, then they should be barred if it is appropriate to do so. This will act as a clear preventative measure should they seek to work in Regulated Activity in the future and allows for timely and fully informed process.

3. Barring body not being updated on relevant criminality information

Unless a person has paid for the ‘updated disclosure service’, the barring body will rely solely on the employer to make a referral both in relation to relevant criminality information or ‘something in the workplace’ (other than autobar offences which will be referred).

This is a cause for concern and creates some clear safeguarding risks – the employer may well not discover the ‘new’ relevant information, may choose to ignore it (potentially oblivious to previous information held by the barring body). Moreover, the barring body will previously have made a decision not to bar based on the information which was then available. It seems appropriate that when further relevant information is known it should be referred to the barring body for that decision to be reconsidered.

March 2011