Protection of Freedoms

Memorandum submitted by Dr Richard Fairburn

Director and Lead Counter-signatory, Care Professional Consultancy Ltd (PF 72)

My background and relevant experience are as below:

· Qualified in Medicine 1974, left the NHS in 1981.

· Spent four years in Medical Research in the pharmaceutical industry.

· Nursing home owner from 1986 to 2003

· Domiciliary care provider from 1994 to 2006.

· Legal background including Masters degree in Human Rights and Public Law.

· Consultant to care providers on regulatory issues since 2000.

· Author of articles in "This Caring Business" on regulatory and other legal issues from 2000 to 2006.

· Set up an umbrella service for Criminal Records Disclosures in 2003. Sold the domiciliary care agency in 2006 to concentrate on developing the umbrella service which has become one of the top 100 umbrella services by volume (2010 figures) with tens of thousands of applications to date.


Clause 77 of the Protection of Freedoms Bill would repeal the provisions for the registered body copies of Disclosures. The umbrella service and its registered person(s) are an integral part of the loop of protection of children and vulnerable adults. This submission argues that taking the registered person out of that loop is contrary to the interests of all parties.

1 This submission is a plea to reconsider, and either amend or remove clause 77 of the Bill, which would repeal the requirement to send a copy of Criminal Record certificates to the registered person (RP). I am aware that this section has already been the subject of representations to the Committee.

2 An application for a CRB check is made when an applicant (for a relevant post) completes an application form supplied by the umbrella service to the employer. The employer’s authorised manager verifies the ID of the applicant according to the documentary rules and sends that application, ‘tagged’ as being from that organisation, to the umbrella service for signature (by the RP) and submission to the CRB. The applicant can neither verify his own ID nor submit an application on his own behest, as a self-employed person cannot vet his own suitability for a post, nor can he submit directly to the CRB. The proposals of the Bill do not alter these requirements.

3 The relationship between the RP and the prospective employer is thus not merely a commercial transaction, but an integral and central pillar of the Disclosure process that must secure accurate and complete information in the application with a minimum of delay. The RP is, for the time being, part of the loop of protection of children and vulnerable adults.

3.1 Under Regulation 7(g)(i) Police Act 1997 (Criminal Records) (Registration) Regulations 2006, where the RP uses the services of [an authorised evidence checker] to verify the identity of applicants, he must "ensure the suitability of [the authorised evidence checker]". In my own service we will accept that verification only from the authorised nominated signatory. Where queries are raised, again they will be dealt with only directly through the nominated signatory. Doubtless other umbrella services have equivalent safeguards against the inclusion of incorrect or even false information.

3.2 The RP checks the completeness and consistency of information, e.g. excluding the use of documents containing errors or those that do not match the CRB documents list or those out of date or in a previous name. It is no criticism of the busy care home manager that a driving licence used as ID may be in the previous name, that the photocard may be out of date, that the spelling or syntax of the name may be different from the names given on the application form, that the names as at the issue date may not match the list of previous names, that the address may not have been included in the address history, that the date of birth or title may not be as given on the form, that there may be a middle initial of a name not otherwise declared in the application, and so on. If the RP fails to spot such flaws, not only might the Disclosure be flawed and unsafe, but the care provider may be liable to criticism for employment without a valid Disclosure and consequent breach of the Regulations (with the risk of a fine of up to £50,000 on summary conviction).

3.3. The RP is, similarly, the lead person in queries raised by the CRB or police during processing of an application. The thoroughness of the response may be crucial, e.g. in searches against names or addresses not initially declared in the application documentation.

3.4 The RP is the first line of defence in checking the received Disclosure for accuracy of content. The scanning of handwritten forms can result in errors and therefore in incorrect searches and unsafe or even void Disclosures.

3.5 The RP takes the lead in chasing applications delayed for a variety of reasons. The CRB has elected not to trace all outstanding applications, instead doing so only when requested by the RP.

3.6 The RP is the recipient of additional information in the rare cases where there is information that the authorities will not wish to include in the applicant’s copy, e.g. where there are serious charges pending or where the applicant does not know he is under investigation or is liable to be arrested in the near future.

3.7 The RP is the only realistic defence against forged Disclosures. The two copy system effectively precludes a black market in forged Disclosures as the employer receives the registered body copy direct from the RP, the RP having received it direct from the CRB.

4 The proposed transfer of ‘ownership’ of the Disclosure from prospective employer to applicant amounts to a dismantling of a central pillar of the application process, and may jeopardise the safety of it, and should not be undertaken lightly. If clause 77 says more about saving the (admittedly significant) cost of sending a second copy of a Disclosure then it is misconceived.

5 The first effect is likely to be that those employers who currently pay the cost of the application will call for applicants to pay for their Disclosures, given that they are not even guaranteed a copy of it. In passing, it should be appreciated that the proposal for updating carries no interest for the employer as it only assists the applicant in his search for the next job.

6 If the applicant does not progress his application for the post with the employer whose form he has completed what will become of the application in process where the applicant still wishes it to be submitted (and may already have made payment to the employer)?

6.1 If the application has not yet been submitted to the CRB then why should the employer not charge for his unproductive time?

6.2 If the application has been submitted but is subject to later queries then there is no statutory duty on the former prospective employer to assist in checking and submitting the information required to complete the Disclosure (i.e. in underwriting it with all the legal connotations for employment elsewhere). The applicant may indeed have "ownership", but of what? If the employer ‘drops out’ of the process then umbrella services such as mine that will only use information verified by the authorised signatory may have difficulty handling late queries without costly submission and return of original documents.

6.3 The current relationship between prospective employer and RP lends impetus to tracking, tracing and chasing of delayed applications. That will be lost.

6.4 If the RP is taken out of the loop then this will force the CRB to increase its contacts directly with the applicant where queries arise. Some time back the CRB decided that safety precluded direct contact of this kind (and in my view both employers and RPs should be informed when there is a defect in information requiring further enquiry, especially if the applicant is already working in care on the basis of an ISA First check). The CRB later resiled from that position on the grounds that direct contact was easier and quicker. Such contacts are fraught with difficulty and there is no safeguard against false information that has not been verified being mixed in with independently verified data.

7 The opportunity for the RP to check the Disclosure for accuracy of spelling of names will no longer exist. In seven years we have had just a single instance of an applicant who challenged the Disclosure on the basis of the spelling of a previous name. The RP can also detect obvious errors, such as the occasional information on a person with the same name but different date of birth, before it is sent to the employer.

8 A single copy system opens up the possibility of a new black market in forgeries of Disclosures.

9 The informed RP is well-placed to advise on the application of information in Disclosures, in the balanced judgement that is often needed. The RP can alert the employer when the information clearly militates against employment although many RPs (including my service) will not offer to make, or even give definitive advice on, employment decisions. The choice between employment of an applicant who poses a risk, and dismissal on grounds that may not stand up to challenge, can be complex and difficult, but the experienced RP can assist by offering pointers to the decision. How serious is ‘battery’ or ‘actual bodily harm’? What was the sentence? How old is the information? How long without conviction? Did the applicant declare the conviction, how is the question on your application form worded? and so on. If the RP does not receive a copy, can he legally (and without the possibility of challenge by the applicant on Data Protection grounds) be given that information by the employer such that the RP’s expertise can still be put to good use?

10 There is no obvious replacement for the RP copy where there is additional information outside the Disclosure (which will invariably be serious in nature) and where the authorities would not wish the applicant to know of its nature or even its existence. The incentive for a black market in forged Disclosures could arise from this position alone.

11 What reason is there to expect a teacher who has new and perhaps significant offences to promptly hand over his repeat Disclosure to the school that is carrying out routine re-checking of staff?

12 With the introduction of updating, and with the desire of all to make a single Disclosure forever portable, it becomes ever more important that the first application was safe. If the dishonest applicant can successfully ‘cleanse’ his Disclosure of significant information by withholding relevant personal history, and then maintain it by the updating facility, the potential consequences are quite appalling.


That clause 77 is either removed in its entirety or replaced with a system that will still retain both the prospective employer and the RP in the loop.

One possible alternative to clause 77 is that the applicant would be invited to give consent to the Disclosure being sent to the RP and then to the employer as soon as it is printed. The application form will have to be redrafted in any case to cover the updating requests. A box could be added that would allow the applicant to give that consent (perhaps by signature rather than a cross in a box to avoid difficulties). The default without consent should be issue of the Disclosure to the RP in any case but, say, seven days later. The applicant would then be able to challenge the content and block the issue of the RP copy if he so wished. In practice this would be uncommon and in practice may amount only to an attempt to ‘cleanse’ a Disclosure of correct information. The vast majority of applicants know either that their Disclosure is clear or that the Disclosure will only confirm what is already declared on the job application form. Applicants could be given notice at the time of application as to the inclusive nature of the searches. May I further suggest that the detail of such a system might best be included in regulations after consultation with stakeholders.

May 2011