APSE Scottish and Northern Ireland Contacts for Information.

Transcription

1 ASSOCIATION FOR PUBLIC SERVICE EXCELLENCE 2nd floor, Washbrook House, Lancastrian Office Centre Talbot Road, Old Trafford, Manchester, M32 0FP Telephone: Fax: E:mail Web: January 2006 Briefing: 06/06 TO: ALL LOCAL AUTHORITY CHIEF EXECUTIVES, COUNCIL LEADERS AND SERVICE MANAGERS IN EDUCATION, CATERING, CLEANING, FACILITIES MANAGEMENT, SOCIAL SERVICES AND LEISURE SERVICES APSE Scottish and Northern Ireland Contacts for Information. BICHARD VETTING AND BARRING SCHEME This Briefing highlights the background to new arrangements that will be put into effect as part of the Bichard Vetting and Barring Proposals New arrangements are to be expedited as a result of the revelations that known offenders have been permitted to be employed as a Teacher following clearance by the DFES This briefing has implications for local authorities who employ staff in the areas of Education, Leisure, Building Cleaning and Caretaking Services, and Education Catering Services 1. Background Following the tragic murders of Holly Wells and Jessica Chapman at the hands of a school caretaker, who was employed within a school despite a history of cautions relating to sex offences, the Government ordered an inquiry into the vetting and barring procedures to protect children and vulnerable adults. The Inquiry was conducted by Sir Michael Bichard and recommendations were made to Government to create a new vetting and barring scheme. The Bichard Vetting

2 Scheme proposals were subject to rigorous consultation and APSE utilised its Advisory Group Forums in order to feed into the consultation process. It was clear that for many member authorities they concurred with APSE s view that the existing mechanisms, for checking employee suitability for working with children or vulnerable adults or for working in settings where there is access to children or vulnerable adults, was confusing and inadequate. As a result of the consultation exercise and the Governments acceptance of the Bichard Inquiry recommendations proposals were put into place to bring forward a new vetting and barring scheme for However, following recent revelations that known offenders / individuals who had been cautioned were cleared by the DFES to work in schools, as teachers, the Secretary of State for Education has announced that new regulations will be expedited. 2. The Current Vetting Schemes The current vetting scheme provides for standard and enhanced CRB disclosures. The general principal is that enhanced disclosures are available for those who work or wish to work in positions that involve greater or often unsupervised contact with children or vulnerable adults. However enhanced disclosures are not available to employers for all staff. There are also three main lists in operation aside from the Sex Offenders Register which is kept by the police. The main lists are the POVA list (Protection of Vulnerable Adults) the POCA list, which operates under the provisions of the Protection of Children Act and List 99 (which is the list of directions made under S142 of the Education Act 2002) which bars certain individuals from working with children. The current schemes were recognised as generally inadequate by the Bichard Inquiry for a number of reasons. The main reasons cited were that the lists were only a snapshot in time leading to an array of questions about the durability and portability of the checks. As checks are only updated on applying for a fresh disclosure there is currently little employers are

3 able to do other than regularly re-check existing members of staff. Re-checking staff is of course costly as the CRB disclosures must be paid for per check. Re-checking of staff already employed on a permanent contract of employment of itself raises concerns from a legal perspective. Where an employee has been carrying out all of the duties in relation to their post effectively and without cause for concern, a disclosure that reveals an offence (for example such as stealing or dishonesty) may not of itself provide grounds for reasonable dismissal; However if it were revealed at the time of appointment such a disclosure may have resulted in the employer arriving at a different decision in considering employing the individual. The current delays in obtaining CRB disclosures, which have decreased significantly since the initial delays, nevertheless still create problems in hard to fill posts such as in social care. The current system also raises concerns as to use of conditional job offers which may be made pending a clear disclosure and in many instances may then still depend upon an employer making a decision as to whether or not an offence is serious enough to prevent an employee being engaged in a particular post. 3. The New Vetting and Barring Scheme The DFES have stated that the purpose of the new vetting and barring scheme is to reduce the incidence of harm, to children and vulnerable adults, by helping to ensure that employers get better vetting services when recruiting people who come into contact with children and / or vulnerable adults through their work, and, that those who are known to be unsuitable are barred from working with children and / or vulnerable adults at the earliest opportunity. Key features of the new scheme include:- A barring decision on application to work with children and / or vulnerable adults Continuously updated barring decisions

4 Entry to the scheme through vetting and barring disclosures the equivalent of enhanced CRB check Employers will be able to do an instant online check of an individuals up-todate barred status More people will be eligible for disclosures than are able to apply for Enhanced Disclosures under the current scheme Self standing applications for disclosures will be made possible for domestic employers such as nannies, domestic carers, direct payment recipients Self-employed such as music teachers Those considering working with children or vulnerable adults in the future Domestic Employers will be able to check an applicants barred status online The new scheme will have a number of features that allow for better vetting and barring procedures. Aside from the ability for continuous updating the new scheme will allow for the taking into account of soft evidence that is currently available to the police but which is not necessarily currently shared between police forces or with employers who need to take sensitive decisions about the employment of individuals. Moreover the new scheme will allow for on-line access for checks reducing costs as the portability of an individuals status is clearly improved from the current snapshot clearance that is out of date from the day it is issued. The availability of up-to-date instant information, once an initial clearance has taken place, will also speed up the appointment times, particularly in hard to fill posts where applicants already have a clear check.

5 The following flow charts, replicated from the DFES, provides a useful point of reference as to how the new scheme will work and how soft evidence will in future be collated and taken into account:-

6 4. Scope of the New Scheme The scope of the new scheme is intended to be much broader both in the range of employees who will be subjected to checks and the information that will be captured. The new scheme would also help to implement Article 19 of the UN Convention on the Rights of the Child to be protected from all forms of physical or mental violence. In addition the Committee of Ministers of the Council of Europe on the 2 nd February 2005 adopted a resolution [Res AP (2005) ] on safeguarding adults and children with disabilities against abuse. The new scheme would support the implementation of this resolution. There are two major changes proposed under the new scheme to existing legislation that extends the scope of current practice. Firstly all disclosures for work with children and vulnerable adults are to be at enhanced level (i.e. will include soft information, such as allegations from the local police force). Secondly, entitlement to Enhanced Disclosures will be extended and will include:-

7 As now all those who work primarily and directly with children and young people and their managers Those in other jobs whose work offers them the opportunity for regular contact ( including indirect contact by phone or internet such as child-line operators or chat room moderators) or places them in a position of trust with children (priests or police officers) Those who have substantial access to personal and sensitive information about children and young people (e.g. Information Sharing or Assessment database operators) Similarly the Vulnerable Adult provisions will cover As now all those who work primarily and directly with vulnerable adults and their managers Those in other jobs whose work offers them the opportunity for regular contact with vulnerable adults ( including indirect contact by phone or internet such as NHS direct staff ) or places them in a position of trust in relation to vulnerable adults ) and Those who have substantial access to information about vulnerable adults ( such as social services information or medical records) 5. APSE COMMENT There has been in recent days much media speculation about how safe children are within schools in terms of being protected from those who might seek to abuse them. However vetting and barring systems are complicated and generally imperfect matter and from a local authority perspective are not just about children but also about the protection of vulnerable adults. There are a range of employees / posts that may be captured under the new vetting and barring scheme (which the Government has already agreed to adopt in response to the Bichard Inquiry): The following list is not exhaustive but APSE would advise local authorities to review these areas and the procedures for recruitment and selection and on-going checking of staff (in addition to the checks that are currently carried out for teachers). Whilst this list is not intended to be exhaustive it highlights some of the obvious areas where the scope

8 for checking requirements may in the near future be extended and act as a reassurance to parents, guardians and other carers of vulnerable groups:- Education Catering Education Cleaning and Caretaking Leisure / Pool Attendants / Coaches Library Staff who run home work clubs or other work with direct contact with children Residential Home Staff Social Services Staff in relevant employment (as should be currently the case) and also support staff who have access to sensitive data Employees with access to personal and sensitive information about individual children or vulnerable adults (for example social care database operators or school secretaries) Voluntary Organisations that have individuals supporting pupils or vulnerable adults in both formal and informal positions within the local authority. Local authorities tend to be risk averse and the outcome of initial consultation with member authorities appears to be that many have already adopted stringent and rigorous checking requirements. However it is of concern that where services have been outsourced unless contracts have specified requirements for contractors to check and verify their own staff there may be inconsistencies, for example in approaches to checking catering and cleaning staff employed directly by schools with delegated budgets. Equally however it is necessary to be proportionate in the risks that face the vulnerable client groups. It will be tempting for local authorities to flood the CRB with requests for Enhanced Disclosures for existing staff in all areas of work in response to the media interest in this topic. This could lead to significant delays in achieving disclosures for staff in the most high risk areas creating further problems for local authorities and individual employees. In addition local authorities need to have clear processes in place, preferable agreed with Trade Unions, for dealing with disclosures and grounds for removing staff from

9 particular areas of work or indeed dismissal procedures. It is important to remember that the ability for employers to dismiss individual employees will still be governed by the usual employment rights and a fair hearing. The revelation of an offence where the individual is in existing employment will not of itself necessarily provide grounds for a fair dismissal. Local authorities ought to seek appropriate employment law advice to enable support to be available to managers in the relevant areas. The outcomes of the Bichard Inquiry an proposed vetting and barring scheme will be the subject of a main plenary debate at APSE's Healthy Communities Seminar in Oxford on the 26 th and 27 th January 2006 designed for Leisure, Cleaning, Caretaking and Catering Managers and Elected Members and Trade Unions from local authorities. Mo Baines Principal Advisor