Consultation on Protecting Vulnerable Groups:

Scottish Vetting and Barring Scheme

A Response from the Scottish Pre-School Play Association

May 2006

About Scottish Pre-school Play Association

Scottish Pre-school Play Association (SPPA), a registered charity, is Scotland’s largest voluntary sector provider of direct support services to community led childcare organisations. It delivers essential support and guidance services to providers of pre-school education and childcare services, including all-day care groups, playgroups, parent and toddler groups and under-fives groups. It has a 40 year track record of working with children and families, encompassing many of the most disadvantaged groups in the country, including families on low income, ethnic minority families, lone parent families and families affected by social or rural isolation. It works closely with parents, early year’s providers, Scottish Executive, regulators, local authorities and Childcare Partnerships, as well as training providers and other early year’s umbrella organisations to support early education and childcare settings.

Summary

SPPA acknowledges the paramount importance of giving protection to vulnerable groups and, in our own particular sphere of work with very young children we endorse the measures that will enable parents and employers to get more robust and timely information about who is barred from working with children. The new scheme is a great opportunity to further protect children and vulnerable adults. With the proposed Barring Unit, SPPA welcomes the principle of removing the need for multiple Disclosure checks on individuals. The expected benefits of greater consistency, reduced bureaucracy, continuous updating and controlled wider access will undoubtedly assist employers and organisations strengthen procedures to protect vulnerable groups and practice safer recruitment and management practices.

Whilst we acknowledge that getting the system right is not easy and that we have to be realistic about what vetting schemes can achieve SPPA welcomes any measures to improve the current system. The aims of the proposal are laudable and they present an opportunity to improve protection for vulnerable groups. However, we do have major concerns about the availability of funding to support compliance with the legislation. Our experience with the Protection of Children (Scotland) Act 2003, has indicated that it is unrealistic to expect small voluntary sector providers to fund compliance and associated training needs from their existing and already strained budgets. The Executive must make funding available to enable employers and organisations to comply or face the risk of services closing, opting out of regulation and giving rise to a greater potential for risk of harm to vulnerable groups.

We would urge the Executive to establish a realistic and transparent time-scale before implementation begins. With regards to Section 3.1 “Timetable for Implementation”, SPPA is concerned that, in light of the difficulties experienced at a

similar stage with the POCSA legislation and the lack of detail in the consultation framework to date, no further consultation with the voluntary sector is planned once the Bill is drafted (between May – August 2006) and before the Bill is presented to Parliament for consideration (between Autumn 2006 and Spring 2007). Whilst it is imperative that those responsible for vulnerable groups do all that they can to protect children and vulnerable adults, it is important to indicate that if this important legislation is hurried in response to the Bichard recommendations, it may have a disproportionate and detrimental impact on the voluntary sector in particular. We would also suggest that any new legislation requires to be proportionate to the risks that children and vulnerable adults face; the excellent track record of Scottish voluntary organisations (especially in community-led childcare services); and taking cognisance of the relatively small number of people on the DWCL compared with the 500,000 Disclosure Scotland checks processed to date.

SPPA providers have been at the receiving end of different interpretations of the current legislation in a variety of ways. SPPA requests that clear guidance is provided to ensure local authorities and regulators act in a standardised and proportionate way in relation to this proposed legislation. The guidelines should outline what they can demand of voluntary organisations in this regard and what they cannot. For example, the issue of occasional parent volunteers who are not covered by this legislation. A clearer explanation of regular contact would be helpful.

Scottish Pre-school Play Association welcomes the opportunity to provide a response to the Scottish Executive Education Department’s consultation on the Protecting Vulnerable Groups: Scottish Vetting and Barring Scheme and offers the attached submission.

SPPA VIEWS

Part I. General

This part asks more general questions. Part II asks about the specific proposals contained in the consultation paper.

1.	Current system. Please identify what you consider to be the three greatest issues with the current system for checking those who work with children and vulnerable adults. Multiple checks leading to duplication, bureaucracy, time delays and increased costs to applicants and/or employers, many of the latter being small voluntary organisations. Any reduction in administration and bureaucracy is to be welcomed. The proposal that information is continuously updated through the new system, and can be made available to those with a legitimate interest without the need for a further full enhanced disclosure check, will undoubtedly reduce duplication and should reduce costs to applicants and/or employers. Interpreting and managing Disclosure information, at all stages of the recruitment and selection process, has added to the workload of voluntary sector employers, many of whom are volunteers serving for a year on a voluntary management committee in a small community setting. · Inconsistencies in the way legislation has been interpreted and applied has made it extremely difficult to ensure accurate compliance guidance is being given to employers and providers of service.
2.	Bichard recommendations. Do you have any comments you would like to make on the recommendations, especially recommendation 19 in respect of vetting and barring? Amending and streamlining the current systems for the protection of vulnerable groups and making them compliant with the Bichard recommendations will strengthen and enhance the vetting safeguards in place. However, it has to be emphasised that vetting is just one measure in safeguarding the welfare and wellbeing of vulnerable groups. Employers and organisations must recognise their responsibility to put in place robust recruitment and retention policies and practice to ensure vulnerable groups are protected. There will be resource implications, particularly time and money, to help them to understand and comply with the new legislation. There will be a need to train and inform staff, at all levels, of their responsibilities and obligations under the new legislation. The Executive must make finances available to provide ongoing training to voluntary organisations or run the risk of an adverse affect on voluntary sector activity, capacity and ability to comply.
3.	Interests of vulnerable groups. Do you have any concerns about the way the proposed system might adversely affect the opportunities for children and vulnerable adults to participate in education, employment, sport and leisure activities? What could be done to mitigate this?

4	Interests of employers. Do you have any concerns on the impact of the proposals on the recruitment and selection of individuals to work with children and vulnerable adults? What could be done to mitigate this? Clear and unambiguous guidance needs to be provided well in advance of implementation to avoid diverse interpretations of the legislation. We have welcomed the proportionate and reasonable approach taken by the Care Sector regulator, the Care Commission, in determining the level of risk to children under the current system. We would hope for a continuation of a proportionate approach under the new legislation. Training and an ongoing source of help and advice will be needed by voluntary sector employers, many very small organisations, in handling disclosure information (especially in determining suitability of employment with non-barring convictions), either in the selection process, or in the case of information emerging through retrospective disclosure, or it being flagged to the employer through the continuous updating process. It would help if there was more information about how adverse Disclosure information affects the rights of the applicant in respect of employment, equal opportunity and human rights legislation. The resource implication for voluntary sector employers in terms of compliance and training in the new legislation will strain their capacity to deliver. The Executive must provide additional financial support and time to enable small voluntary sector employers to work towards compliance. It also has to be realised that there are likely to be other associated costs, for example, in terms of insurance premiums.
5	Interests of applicants. Do you have any concerns on the impact of the proposals on those who might apply for disclosure to work with children and vulnerable adults? What could be done to mitigate this? The new legislation may deter some people who might otherwise have applied for a post to work with vulnerable people to be put off by what they see as an intrusion (particularly those who have spent convictions not deemed to be relevant to any application to work with vulnerable groups). However, pro-active publicising and raising awareness about the legislation and the reasons behind it would provide potential applicants with reassurance. A code of practice that clearly states how disclosure information is managed and shared, and specifies the rights of the individual concerned would again offer reassurance to potential applicants.
6	Other matters. Please make any other comments which are relevant to the Scottish Bichard Vetting and Barring Scheme.

Part II. Consultation Paper Proposals

This part asks about the specific proposals contained in the consultation paper. Part I asks more general questions.

Proposals 1-3	Scope of new Vetting and Barring Disclosure. Do you have any comments on the type of position for which the new scheme will apply? It is good to see the expansion in the range of positions to include those which involve indirect contact with vulnerable groups. SPPA supports the position of building on the definitions presented in the Schedule 2 definition of childcare positions in the framework of POCSA 2003. However it would be helpful if guidance were given on an ongoing basis, with examples, on the types of positions that are covered by the legislation.
Proposal 4	Costs of Vetting and Barring Disclosure. How much more would you be willing to pay upfront for the new Vetting and Barring Disclosure? Please be as specific as you can, e.g. £10. Maintain the current level for an Enhanced Disclosure, i.e. £20.00
Proposals 4-5	Funding the Vetting and Barring Scheme. Do you agree with the broad proposals for: a more expensive initial disclosure, low-cost or free subsequent checks and free disclosure for volunteers? It is to be welcomed that the status quo will remain for volunteers to be able to obtain Vetting and Barring Disclosures at no cost to themselves. For many new voluntary sector applicants for a Disclosure, an increase to the initial fee for Disclosure should be offset in the longer term by the proposal for subsequent checks to be cheaper or free of charge, particularly as they will not be required as often as under the current system. However, as the Disclosure fee has only just been increased and as the cost is often covered by employers, many of whom are small voluntary providers with limited financial capacity, it must be kept to a minimum. For example, it has been reported to us that some of the groups that SPPA represents are finding existing expenditure on Disclosure checks burdensome. The costs should not be allowed to jeopardise the financial stability of groups, nor prevent them from recruiting the best person for a position. It has to be recognised that there will be a significant increased financial burden on voluntary sector umbrella agencies, like SPPA, that are involved in processing Disclosures on behalf of clients and it is to be hoped that the Executive will make additional resources available to them. It is worth noting that many voluntary sector employers are absorbing the cost of Disclosures for their staff, which adds an additional burden on already stretched financial capacity. Some voluntary organisations have switched to using Disclosure Scotland for volunteer Disclosures because of the experience of lengthy turn around times with CRBS, thereby adding to their costs. It is also a concern that increases in fees could be levied to support the administration of the scheme because insufficient resources have not been made available by the Executive to support the infrastructure that is needed for the successful and ongoing implementation of the scheme.

Proposal 6	Retrospective Vetting and Barring Disclosure. Do you agree with the proposals for phasing the vetting and barring of the existing workforce? New entrants to working with vulnerable groups and those moving to a new employment, (paid or unpaid) when the scheme is introduced should be the first priority. A gradual phasing in of the scheme for others is a reasonable approach. It will allow those employers who cover the cost of Disclosure for employees to budget for costs more effectively and avoid overwhelming the system at Disclosure Scotland. Staff employed to work within social care services, including daycare providers, must be registered with Scottish Social Services Council. Disclosure checks are a requirement of registration and continued registration, which will need to be renewed every five years. Registration for this section of the early education and childcare workforce begins October 2006 and will not be completed for all staff until October 2008. It is highly probable that the need for retrospective Disclosures will be subsumed in the SSSC registration process for some parts of the workforce that work with vulnerable groups, i.e. children in this particular instance. In line with the aims of this scheme to improve the current system of protection for vulnerable groups and to avoid duplication, it might be judicious to consider aligning the timescale of the opening of the SSSC register for the early years workforce with the proposed timescale for implementing the Vetting and Barring scheme.
Proposals 7-8	Disqualified from Working with Vulnerable Adults List. We are not looking for comments on the DWVAL, since this has been covered by previous consultation. However, we would like to know if this new context raises any new issues. There is a potential for confusion and/or ambiguity in the legislation in the grey area of the definition of the ages of a child used by POCSA (under 18 years) and that of a vulnerable adult as proposed in the legislation (someone over 16 years). Is there scope for two separate schemes within the Barring Unit, with clear criteria given for each, that is, one for children as at present and another for vulnerable adults?
Proposal 9	Changes to the Disqualified from Working with Children List. Are there any changes, other than those outlined, which you would like to see made to the DWCL? SPPA has expressed concerns about a major loophole in the proposed system with regards to the potential for unsuitable persons to be engaged in work with vulnerable groups in services that are not regulated. In the case of voluntary day care providers, it is only those that are registered with the Care Commission that will require staff to be registered with the SSSC and hold a Disclosure. There is ambiguity about the need for Disclosure checks for people who work in this type of unregulated services. While many of these unregulated providers follow robust recruitment and selection procedures and access Disclosures voluntarily, the potential for someone unsuitable to slip through is much greater than in regulated services.

Proposal 10	Decisions on barred lists by new Central Barring Unit. Do you think decisions on barring should be made by a special panel, a case conference or administrators? SPPA would have preferred more detail on this proposal. In principle SPPA would expect decisions to be taken by experts in the field who have a wide knowledge and understanding of working with vulnerable groups. How these experts come together to make decisions for example, as a panel, through a case conference is a matter of detail which is not explored in the consultation.
Proposals 11-13	Central Barring Unit. Do you have any comments on the status and governance arrangements for the Central Barring Unit? What degree of separation is needed from the Scottish Ministers? In the interests of accountability, transparency, effectiveness and efficiency in the process a single point of reference for all Disclosure checks would be a preferred option. This would certainly facilitate the sharing of information and simplify accountability. It would also make it easier and quicker for users and stakeholders in the scheme to deal with Disclosure matters as they arise. SPPA uses Disclosure Scotland and CRBS to process Disclosures but it is aware that many voluntary organisations only use CRBS. Consideration therefore needs to be given to CRBS’s “precise relationship” with the Central Barring Unit, as well as its relationship with Disclosure Scotland. If any changes are to be made, the voluntary sector must be allowed to input and be consulted on the changes and given enough time and resources to adapt to any changes that may arise. The continuous updating of information is a welcome move. Updating of offences/conviction information will be flagged fairly quickly through the link to the criminal history system. How will other non-criminal information that is relevant to working with vulnerable groups be gathered and communicated to employers? Is it only through referral? Notification to employers of barred status is supported although guidance is needed by employers on how this is managed in relation to employee rights, employment and human rights legislation.
Proposal 14	Provisional listing. What should the criteria be for provisional listing? Do you agree that the individual should be able to continue to work during the determination process? We would suggest that this depends on individual circumstances. A blanket decision cannot be made without infringing the rights of the vulnerable groups or the workers. How long would a provisional listing last? There needs to be a time limit.

Proposal 15	Appeals against listing. Do you agree that the right of appeal should be to the sheriff court with a three-month time-limit? Yes, to notice of an appeal but the individual has to be given adequate time to prepare their case. The system must comply with human rights legislation. No information should be made available to a third party until after an appeal.
Proposal 16	Access to barred status. Who has a legitimate interest in the barred status of an individual and how should "fishing trips" be prevented? Only those individuals or organisations to which the individual concerned has applied for work, paid or unpaid should have access to barred status. SPPA assumes that applications for initial Vetting and Barring Disclosures will be similar to current practice, where the applicant agrees to an application being made. For subsequent checks, SPPA would expect that written permission to access barred status information is obtained from the individual concerned. The widening of access to barred status information to parents and personal employers has capacity and resource implications if the suggested access via a registered body is adopted.
Proposal 17	Information released to applicant. How much information passed on to the Central Barring Unit should be released to the applicant and employer? What criteria should there be for not releasing information? Employer – When the employer has the discretion to appoint they will require all relevant information (including non-barred information) to allow them to make an informed and safe decision about whether to employ the individual. However, if the Central Barring Unit makes a decision to bar an individual from working with vulnerable groups it serves no useful purpose to release information to the employer. Applicant- barred applicants must be able to access all of the information on which their case was decided to enable them to be confident in the accuracy of the information held about them and to enable them to mount an appeal against any decision made about them. While it is understandable that the police can withhold information from an application it does limit the applicant’s ability to mount a robust and fair appeal.

Proposals 18-20	Information sharing between the Central Barring Unit, public authorities, employers, police and regulatory bodies etc. Do you have any comments on who should be required to pass what information on to whom? Anyone should be able to provide relevant information to the Central Barring Unit (CBU) within a robust framework that protects the rights of the person concerned. Guidance needs to be given on how such information is given to the CBU. There should be sanctions against individuals and/or organisations that submit information for “ mischievous purposes”. The new power to require details of occupation given to the police will assist the timely updating of an individual’s barred status as well as the notification of convictions to employers, where it is appropriate. Information about the new power and the reasons for it needs to be made known to the public.
Proposal 21	Role of regulatory bodies. Which regulatory bodies should receive information through disclosure? What information should they receive? SPPA would expect that the SSSC which is responsible for the registration of the social care workforce, which includes early years, to receive information about Disclosure. The SSSC will require information about an applicants barred status. SPPA understands that unless the applicant is barred the final decision to employ remains with the employer on the basis of robust recruitment and selection procedures. If this is the case, the regulatory body, the SSSC in this instance, will not require other information as it would serve no useful purpose to release it to them. The Care Commission is another regulatory body that will require information through Disclosure. It is responsible for the registration of day care service providers. The Commission will require information about barred status and any other information that has a bearing on being suitable to being a provider of day care services.
Proposal 22	Disclosure of civil orders. Which civil orders should be disclosed?

Proposal 23	Cross-referencing with offender registers and other lists. How do you think the DWCL and DWVAL should relate to other registers and lists, e.g. the Sex Offenders Register or Protection of Children Act List in England and Wales? It is imperative that there be as few loopholes as possible in order to avoid unsuitable people slipping through the net and working with vulnerable groups. Cross referencing with other registers and lists is essential to vetting and barring decision making, although it is accepted that inclusion on a register may not lead to an individual being barred. In Scotland there will be two separate disqualification lists, possibly with different inclusion criteria: one for those barred from working with children, the other for those barred from working with adults at risk. SPPA understands that Vetting and Barring Disclosure will only check the list relevant to post being applied for. This is a concern as, depending on the circumstances, the fact that an adult is barred from the other list could be relevant to the employer’s decision to recruit. This could be perceived as a weakness in the system although SPPA acknowledges the implications for the human rights of the individual concerned. SPPA therefore recommends that both lists should be referenced. One of the stated objectives of the new system is to “improve consistency of decision making” by creating a Central Barring Unit (CBU) that will make decisions about whether an individual should be barred from one or both workforces. However, Courts will be able to add an individual to the lists as part of sentencing; it is difficult to see how consistency will be achieved, if the CBU is not part of the decision making process for these cases.
Proposals 24-25	Referrals. Do you agree with the proposals for who can make a referral? Should parents and personal employers be able to make a referral? Anyone with relevant information, including parents and personal employers, should be able to make a referral within a robust framework that protects the rights of the person concerned and offers sanctions against “ mischievous information”. Further guidance is required on who makes referrals. Before commenting further, it would be helpful to have more detail on what level of offence that the Barring Unit will set that will trigger a referral to the CBU,
Proposal 26	Lifetime of certificates and checks. Do you agree that the vetting and barring disclosure certificate should have a finite lifetime, after which a new application for full disclosure needs to be made? SPPA is in two minds about putting a lifetime on the Vetting and Barring Disclosure. If adopted the suggested period of ten years for the life of the certificate appears reasonable and would provide reassurance to employers that individuals are still suitable to work with vulnerable groups. However, does an arbitrary period of 10 years afford better protection to the vulnerable groups? The Vetting and Barring Scheme is intended to provide a continuous process of updating the barred lists with subsequent notification to employers, when/if issues of concern arise. If such is the case, then it would appear that the original disclosure information remains valid and accurate indefinitely, or until such a time that the employer is notified otherwise. Therefore it should remove the need for having a lifetime for the Disclosure certificate. This new process is more consistent with providing improved protection to vulnerable groups than repeating the process at arbitrary intervals at a cost to individuals and employers. In the social services sector, which includes day care, there is a regulatory requirement for registration with the SSSC. One of the requirements for registration will be a Disclosure check. Registration is renewable, for example, for early education and childcare workers it will be every 5 years once the register opens later this year. Therefore, for some applicants there will be a lifetime already placed on their certificate because of registration requirements. SPPA providers have been at the receiving end of different interpretations of the current legislation in a variety of ways. SPPA requests that clear guidance is provided to ensure local authorities and regulators act in a standardised and proportionate way in relation to this proposed legislation. The guidelines should outline what they can demand of voluntary organisations in this regard and what they cannot. For example, the issue of occasional parent volunteers who are not covered by this legislation. A clearer explanation of regular contact would be helpful.

Margaret Brunton

Senior Development Officer

SPPA Centre

45 Finnieston Street

Glasgow

G3 8JU

Tel: 0141 221 4148

margaret.brunton@sppa.org.uk