Seventy years of service:

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1 The Protection of Vulnerable Groups (Scotland) Act 2007 Scottish Vetting and Barring Scheme: consultation on policy proposals for secondary legislation A response by WRVS February 2008 Introduction WRVS in Scotland helps older people get more out of life. Our 11,500 Scottish volunteers provide services to 14,000 older people in their neighbourhood to help them stay safe and well at home, remain active and independent in their community, and have a better experience in hospital. 150 communitybased schemes offer support to people who are facing loneliness or who have limited mobility at home. Well over 50 hospital projects provide key services, such as cafés and volunteer guides, for patients, visitors and NHS staff. 230 emergency services teams are on call night and day to assist communities affected by crises or disasters. Working with local councils, NHS Boards and other organisations, we deliver services throughout Scotland and are one of the largest charities operating here. Summary Chapter 2: Scope of regulated work and access to disclosures Definition of protected adult We advocate that Ministerial powers in the Protection of Vulnerable Groups (Scotland) Act 2007 be used to define a protected adult not in terms of receipt of a service (welfare or otherwise) but rather in terms of an adult at risk as in the Adult Support and Protection (Scotland) Act However, if a decision is made to maintain the definition of a protected adult in terms of being an individual in receipt of a service we advocate that regulations ensure that this status is conferred upon an individual for the duration of their receipt of a service from a single service provider with respect to that service provider only and not otherwise i.e. the status is not portable. Definition of welfare services If, despite our preference, such a definition is eventually required we advocate that a combination of the options offered is used. There should be a list of services that includes services or assistance provided to an adult if provided by reason of age, disability, metal disorder, illness or physical or mental infirmity followed by a catch-all that describes the nature of services that can be assumed to be covered, by reference to those that are actually listed. Coverage For-profit and commercial services must be covered if equivalent statutory, non-profit and voluntary services are to be covered. We do not see how it could be otherwise. Contracting We do not agree that a case has been made to justify third party access to disclosure information. Minimum threshold for applications We do not agree setting such a threshold. It does not appear to us to serve the ultimate aim of the scheme. Chapter 3: Referrals & listing Making Referrals The suggested information seems appropriate and, insofar as we hold it, we would be able to provide it. Automatic listing We agree with this concept overall. Listing procedure We believe the CBU ought to have discretion to extend the time within which individuals or organisations can make representations or observations on considerations for listing. Seventy years of service: WRVS is a practical charity focusing on helping older people live independently and get more out of life. One of the largest voluntary organisations in Britain, it has nearly 60,000 men and women helping older people to stay independent at home and active in their community; supporting patients and visitors in hospital; and helping people caught up in disasters.

2 Other We urge the Scottish Government to provide the resources necessary to deliver training to voluntary organisations to enable them to cope with the new regime. Chapter 4: New types of vetting information Withholding vetting information gleaned from regulatory bodies and councils We do not see that a clear case has been made for this proposal. Including previous competent referrals on scheme record disclosures We do not believe they should be included. Chapter 5: Retrospective checks and fees Natural turnover or managed retrospection We would prefer the scheme to operate through natural turnover so that we can plan our own programme of retrospective checking of our workforce, based on best use of our resources and our own decisions about the nature of that workforce and the work it is delivering. We wish clarity from the Scottish Government on whether and how a period of managed retrospection would be enforced, including whether or not sanctions would be involved and, if so, what they might be. A delay to retrospective checking If a managed process of retrospective checking is ultimately the Government s preference we would wish to see it begin after a three year period of natural turnover. This would allow us time to adequately prepare both our systems and our thousands of volunteers, many of whom may find being checked a disconcerting experience, and our staff. Options for prioritising retrospective checking We need a scheme that will phase in retrospective checking across our workforce, rather than our entire workforce comprising one phase. Therefore we consider option 3 (by random personal characteristic) to be the better of the options offered. The period of retrospective checking Provided the natural turnover period is at least three years we would prefer a five year period within which the workforce had to be checked before the offences in the Act went live. If the natural turnover period was shortened we would expect to see the retrospection period extended e.g. two years followed by six years. Impact of a quick programme of retrospective checking We would have to redirect up to 240,000 and 23,000 working hours to regulatory compliance activity from frontline service delivery. Any delays to the turnaround time for scheme record disclosures (of any kind) as a result of a high volume being requested over a short period could prevent our services from operating. In both cases there would be a consequent detrimental effect on the vulnerable people who benefit from our services. The consequence of an extended phasing in period We would have time to put in place efficient systems to meet the challenge and to prepare our people and we would be able to spread the resource burden to minimise potential damage to other services. We would not risk delays. Fees We would prefer to see a two tier system with a higher charge for joining the scheme and with subsequent checks at best free and at least much cheaper. Maximum fee levels Certainly no more than 25 for the higher tier and, if not free, no more than 10 for the lower. Effect of fee level on answers We can only prefer one fee structure over another based on the indicative figures given as, ultimately, it is the likely cost of the different models (rather than their shape) that must be our primary concern. Volunteer scheme members who become paid members of staff being required to rejoin the scheme We do not agree with this proposal. Other matters We believe, because of the overlap in service-user age and also in vetting and barring information held, that someone who is a scheme member with respect to one list ( childrens or 2

3 adults ) should be able to request a check against the other list for the lower subsequent check fee as opposed to being obliged to pay the full joining fee again. Regulatory Impact Assessment We make a few short comments on this document. 3

4 Full Response Chapter 2: Scope of regulated work and access to disclosures 2.3 Regulated work with adults Health services Q2a Do you believe an individual should be a protected adult if they are in receipt of any health service (NHS or private)? & Q2b Are there any health services that should not be included? If so please specify them as precisely as you can and why they should not be included. WRVS does not provide health services as currently defined by Section 9 (1) (b) of the Act but the definition of a protected adult as it stands ( an individual aged 16 or over who is provided with (various services), including health services) may provide a problem for us. This concerns the portability of protected adult status. We expand on this point in our answer to Question 3. Welfare services Q3a Should the definition of welfare services be based upon: The nature of the services provided? An explicit list of prescribed services? The personal characteristic of the individual receiving care? An alternative proposal? Please explain the reason for your preferred option. The definition of a protected adult To answer question 3 fully we need to first make some points about this definition. In order to check the right people WRVS needs to know exactly who is undertaking regulated work with protected adults as opposed to regulated work with non-protected adults unregulated work with protected adults unregulated work with non-protected adults It follows that we need to be clear who is and who is not a protected adult. This is especially important as the Protection of Vulnerable Groups (Scotland) Act 2007 ( the Act ) itself makes it an offence to attempt to check people who don t need checking 1 or to offer work to a barred person 2. This is on top of restrictions on disclosure of information stemming from the Rehabilitation of Offenders Act 1974 and possible human rights and data protection concerns. It is also important for WRVS staff and volunteer recruitment and retention that no-one is checked when they do not need to be. The very requirement to be checked can put people off even if there is nothing in their record at all. The above means that a service provider cannot fall back on assuming that it is likely that the client group comprises protected adults or that the work being undertaken is probably regulated work, they must be sure. Otherwise, not only might they commit an offence, but the individual who might be checked has legitimate grounds to refuse to be checked. Unless both parties are clear as to what is and is not required and permitted there is scope for resources (time and money) to be wasted and for disputes to arise. Although it is not clearly expressed in the Act, our understanding of the Act s intention is that when a service provider provides a service of a type defined by any part of Section 94 to a service user then that service user becomes badged as a protected adult for the duration of their receipt of that service from that service provider with respect to that service provider only and not otherwise. In other words the individual does not take their protected adult status with them into any other situation, it is not portable. 1 Section 67 (1) 2 Section 35 (1) 4

5 We feel this is the only workable way the Act can operate and the regulations must make clear that it is to operate in this way. The alternative is that, once badged, a person remains a protected adult in all other situations. An invisible register of protected adults would thereby be created. With no mechanism available to access this invisible register (and the problems that trying to create such a mechanism would doubtless bring, given the information sharing considerations) how is another service provider meant to tell whether someone is a protected adult or not? The answer is that the service provider must be able to use a definition of protected adult that does not rely on knowledge of the other services the person receives. There are two ways to do this: i) Ensure a service provider need only make the judgement with respect to their own service (which requires the establishment a clear definition of health services and welfare services or ii) Redefine protected adult on the basis of personal characteristics i) Ensuring a service provider need only make the judgement with respect to their own service based on a clear definition of welfare services During the passage of the Bill, in the absence of a) clarity about the exact circumstances in which a person is a protected adult and b) a mechanism to find that out; WRVS lobbied for the inclusion in the Act of the phrase welfare services. We did this because we felt that it needed to include a term that could encompass a sufficiently wide range of services so that any given service provider whose service did not fall under another part of Section 94 (not least of all ourselves) would inevitably be able to recognise that their service should fit into the definition of welfare services. They would not need to know what other services their clients were receiving. WRVS naturally wanted and we still want - to be included in any scheme designed to protect vulnerable groups. We want this on principle and to ensure the safety, quality and continued good reputation of our services. Given we supported the use of the phrase welfare services it might be expected that we can provide a straightforward definition but - as is the case with the definition given in the Supporting Vulnerable Groups Act 2006 it is far easier to illustrate a welfare service than it is to comprehensively define the term. Option 1 The list provided in the consultation paper demonstrates the difficulty of trying to define welfare services by their nature or their possible characteristics. For example, services similar to those carried out by the statutory sector could imply comparison with almost any government activity. There is little to guide the service provider in deciding if their service fits. Issuing official guidance subsequent to the regulations simply transfers the problem to another document beyond the regulations themselves and arguably solves nothing. This is the key problem with this option if it were to be utilised in isolation. Option 2 We recognise that Option 2 owes something to the definition of a welfare service provided in the Supporting Vulnerable Groups Act 2006 (SVGA 2006). 59 Vulnerable adults (1) A person is a vulnerable adult if he has attained the age of 18 and (g) he receives a welfare service of a prescribed description (8) The reference to a welfare service must be construed in accordance with section 16(5) Section 16(5) (5) In this section welfare services (a) includes services which provide support, assistance, advice or counselling to individuals with particular needs; (b) does not include community care services within the meaning of section 46 of the National Health Service and Community Care Act 1990 The word includes is important. The SVGA 2006 definition is illustrative rather than definitive just as the list given in option 2 is illustrative rather than definitive. What the SVGA 2006 does not do is to give an 5

6 illustrative list of services followed by an attempt at a catch-all to cover other similar services. However approaching the problem of defining potentially infinite lists in this way is a common legislative feature based on established principles. For example, in the Charities and Trustee Investment Act (Scotland) 2005 Section 7 (2) fifteen specific charitable purposes are given followed by a catch-all which reads: (p) any other purpose that may reasonably be regarded as analogous to any of the preceding purposes. It could be an option to provide a list similar to the one given in option 2 plus a catch-all. This combination could include a description of services by their nature or characteristics such as is given in option 1 (paragraph 75). Option 3 This option seeks to define a service on the basis of why a person receives that service (i.e. on the basis of age, disability, metal disorder, illness or physical or mental infirmity ). We see merit in that as we believe it is easier for service providers like ourselves to make a judgement about personal characteristics than about the nature of services. However, it continues to define protected adult in terms of receiving a service rather than directly in terms of personal characteristics. None of the options 1 to 3 represent WRVS s preferred approach. We set that out below. However, if the Scottish Government ultimately rejects our preferred approach we would support the use, not of any one option in isolation, but of a combination of the three thus: a list of services that included services or assistance provided to an adult if provided by reason of age, disability, metal disorder, illness or physical or mental infirmity followed by a catch-all. ii) Our preferred approach: Redefine protected adult on the basis of personal characteristics WRVS has worked hard to try and ensure that the Act will work best for service users and providers alike. We will continue to do so. That is why we are pleased to engage with the Scottish Government in all aspects of the consultation on its implementation. However, we still think that it was an unfortunate move to define a protected adult as an adult in receipt of a certain type of service. We continue to believe that a definition founded on the personal characteristics of an individual makes more sense. This is because this definition resides in the individual and we believe it is easier for service providers like ourselves to make a judgement about an individual s personal characteristics than about the nature of services. We note that the Act gives Ministers powers (at Section 94 (2)) to by order modify subsection (1) in order to change the definition of a protected adult as they think appropriate. We suggest this power is used to change the definition as suggested below and that this is a better approach than introducing any (or any combination) of the options 1 to 3 suggested in question 3a. We wish to note at this point that if the regulations do not make clear that protected adult status is not portable use of our approach will not prevent an invisible register from being created with all the attendant problems we touch on above. We therefore reiterate our previously stated position that the best solution would be to define a protected adult in the same way as an adult at risk is defined in Section 3 of the Adult Support and Protection (Scotland) Act 2007: (1) Adults at risk are adults who (a) are unable to safeguard their own well-being, property, rights or other interests, (b) are at risk of harm, and (c) because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected. (2) An adult is at risk of harm for the purposes of subsection (1) if (a) another person s conduct is causing (or is likely to cause) the adult to be harmed, or (b) the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm. We can see that an unscrupulous service provider could decide not to deem any service user to be a protected adult in order to escape compliance with the scheme. However, we do not think that is very likely or that there are many if any such service providers. The offences of offering regulated work to 6

7 a barred person (Section 35 (1)) and the proposed offence of failing to remove a barred individual from the existing workforce 3 should deter such action. Even if only a minority of service users of any one service were deemed to be protected adults their numerical total would almost certainly mean that all the staff/volunteers doing regulated work with the whole group of service users would need to be checked. In other words, it would not be the case that numerous workers would end up being exempt from the scheme or that people about whom there was a question mark as to whether they were a protected adult would be left unprotected. Incidentally, since the concept of a protected adult has already been introduced and since it only functions as an administrative device to enable the operation of the scheme; we do not accept that defining people by personal characteristics purely as an administrative device to enable the operation of the scheme results in the stigmatisation of any group. Q3b Should the definition of welfare services be expanded to include commercial (i.e. for profit) organisations who provide services similar to those provided by the statutory and voluntary sector. None of the definitions already used by Section 94 of the Act or suggested for any part of it (by the Scottish Government or WRVS) exclude any sector in particular. Section 94 (1) (a) uses the word person ; (b) uses health body, independent and private and (c) talks of a community care provided or secured by a Council without reference to who provides it. It would seem strange that a definition of a welfare service (if one should come to be used) should be tied to a particular sector simply because that sector apparently provides most of the provision at present. WRVS has no information about the extent to which for-profit organisations currently deliver a service likely to fall into any eventual definition of welfare services but even if not many do at present, it does not mean they will not do so in future. We do not want to see a situation where the voluntary /not-for-profit sector is obliged to comply with a regime which the private /for-profit sector is not obliged to comply with. We do not understand why such an uneven playing-field would protect vulnerable groups and we do not understand (noting the word expanded ) why the Act as it stands, or the definitions in the regulations as proposed, can somehow be taken to inherently exclude for-profit organisations but inherently include non-profit organisations. Surely the idea is to protect vulnerable adults and the definition must include anyone who provides those groups with a welfare service ; outwith friends and family (who are, of course, accommodated by Section 95). If there is a concern that a private sector operator might accidentally fall under the purview of the scheme because of the breadth of a definition (e.g. transport services could include every bus operator in the land) then surely that s an argument to tighten the definition (and ensure very clear guidance about what is and what is not regulated work ) not exempt a particular sector either by design or default. 2.4 Contractors and disclosure Q4a Do you believe that disclosure information should be shared with third parties? Absolutely not: the party to a contract offering payment for a service (the contractor) has the right to include terms of contract to make sure the party providing the service (the contractee) has proper PVG procedures in place. The contractor can judge in the case of each contract whether this is necessary. There is no need to make statutory (and thereby possibly a universal and mandatory) provision for this. We are especially concerned that this question appears to have arisen on the basis of a handful of submitted examples which in themselves do not create the need for a principle to be established in law and which all seem to be driven by only one type of contracting party: local authorities. We would ask whether local authorities would wish this provision to be statutorily reciprocal and, if placed in statute, how it could be otherwise? If a voluntary organisation contracted with a local authority to work with in partnership with them to support vulnerable adults in, for example, a community school setting (where many services for adults and children co-reside) and the local authority wished to have sight of the vetting information for all the staff of the voluntary organisation on what equitable basis could they refuse the voluntary organisation the right to have sight of information pertaining to all the local authority staff 3 noted in para.192 of the consultation document and presumably to be established by regulations made under Section 35 (2) 7

8 involved in the work as well? Depending on the nature of the work - and indeed the age of the participants in it - the voluntary organisation may feel it needed to see the vetting information related to the full teaching staff. Would that be acceptable to the local authority? This is quite apart from the inevitable and unwarranted interference in employment decisions by a third party, which, while they may not (by virtue of PVG regulations) be illegal, would be unhelpful and impractical. If disclosure information had been obtained by the contractee it must mean the individual concerned is a scheme member and may well mean the contractee is a registered body. It is not therefore obvious why the contractor (be it a local authority or a health board or any other body or person) is inherently better able to make judgements about suitability for employment than the actual employers. If, as paragraph 87 suggests, it is a question of expertise; surely this can be offered by the contractor to the contractee informally as a shield, rather than being wielded formally as a sword. If a contracter wished to involve itself in the employment decisions of contractees, it would have to consider the implications for itself in terms of resources (for example, there are hundreds of WRVS volunteers in any given Scottish local authority area). It would also have to deal with any challenge to its decisions either by the contractee or by an individual who may be accepted for employment by the contractee but vetoed by the contractor, especially as this would almost certainly be done on the basis of a subjective judgement call over vetting information. Q4b If so, in which of the following circumstances should disclosure information be shared with a third party? Clearly we do not agree it should be so shared but we repeat that these examples all appear to be offthe-top-of-someone s-head. Furthermore we are not convinced that all of them are sound. For example; it is our understanding that a council does not - or at least should not - provide direct payments in return for the delivery of care to a protected adult as the policy intention behind direct payments is that they are to go to the individual or their representative to purchase the service direct, not straight to the service provider from the council. 2.5 Changes to registration of registered bodies Q5a Should there be a minimum threshold number of applications per annum from a registered body as a condition of registration? Because of our size it is extremely unlikely that WRVS would have any problem with meeting any threshold of requested disclosures in any one year and we are currently a registered body in our own right. Nevertheless, we do have the following comments to make: It is not clear what the consultation paper means by umbrella body. If it is a reference to the Central Registered Body in Scotland (CRBS), we accept that it currently provides an important and apposite route by which smaller organisations (or indeed any organisation) may access disclosure checks rather than being registered bodies themselves. However, there doesn t appear to be any evidence from smaller organisations that are currently registered bodies but who make few referrals to suggest that they would wish to have the choice taken away from them. We believe it should remain their choice. If umbrella body refers to any other type of body for example, a representative body for a part of the voluntary sector such as Voluntary Health Scotland or Voluntary Arts Scotland we don t think the proposal is appropriate as it assumes that a suitable umbrella body exists the umbrella body is/can be registered and is quite happy with the onerous burden involved - including the costs of processing requests and acquiring expertise - despite the likelihood that it does no direct regulated work with children or protected adults itself the umbrella body can be sure it will be able to garner enough requests not to fall below any threshold In either case then, we would not support the proposal regarding minimum numbers of checks. 8

9 Chapter 3: Referrals & listing 3.2 Making Referrals Q6a & b The suggested information seems appropriate and, insofar as we hold it, we would be able to provide it. 3.4 Automatic Listing We have no detailed comment to make on this section as the topic is outwith our area of expertise. However, we agree with the concept of automatic listing overall and agree that there should be offences that bar an individual from working with either group even if the criminal act itself was directed at members of one or the other group. 3.7 Listing procedure We believe that the CBU ought to be able to extend the 28 day periods noted in section 3.7 (paragraphs 141 to 143) as they see fit if either individuals or organisations have a good enough reason why they are unable to submit material etc within the standard timescale. Other matters to do with referrals & listing Penalties resulting from committing an offence under Section 9 in particular (for failure to refer) plus other offences in the Act; as well as realities like those noted in paragraph 138 (whereby CBU decisions will be dependent on information provided by referring organisations) all add up to mean that voluntary organisations, including WRVS, are going to want to ensure their staff and volunteers have adequate training to cope with the new regime. WRVS has both volunteers and paid staff in positions of responsibility who are likely to need to make PVG-related decisions. Training them would represent a considerable cost to us as an organisation but we can hardly afford to get it wrong or miss it out. We recall that one-off training funds were made available to the voluntary sector to enable it to cope with the implementation of the Protection of Children (Scotland) Act 2003 (POCSA) (approx. 360,000) and with the Charities and Trustee Investment Act (Scotland) 2005 (approx. 150,000) by the then Scottish Executive. We strongly urge the Scottish Government to provide funds to enable voluntary organisations to cope. This kind of outlay is exactly the type of thing that most funders of the sector will not pay for; understandably reluctant as they are to see their funds or donations spent on compliance with statutory regulations, however necessary those regulations may be. If Government does not provide some funding, the hit will be taken primarily by frontline services as resources are necessarily redirected. If the system operates inefficiently for lack of training in how to use it, it will affect both the quality of service on offer and the willingness of people to volunteer or be employed to deliver that service. In WRVS s case that would be a disaster, as we are completely dependent on volunteers. Chapter 4: New types of vetting information We are not familiar enough with the type of information held by regulatory bodies and councils to be able to make much specific comment on most of this section but we wish to give answer the following questions: Q14a Should it be possible for vetting information from regulatory bodies and councils to be withheld from disclosure certificates? It seems incongruent that there should be regulatory body and council information that is de facto more sensitive or relevant than that obtained from the usual listing or vetting information sources noted in Section 49. From an employers point of view WRVS is uncertain why it would serve PVG purposes to exclude certain vetting information from a Scheme Record Disclosure based on the information s source or type. This would seem to suggest that, as long as an individual is not barred from working with whichever group they are applying to work with, the CBU can decide what vetting information the potential employer needs to see. This begs the question: why does anyone other than the CBU need to see any of it if the CBU is better able to make these decisions; why not just leave it at barred or not barred? WRVS had assumed that it was about encouraging informed and reasonable employment decisions. The retention of one part of any vetting information but not of another part compromises this aspiration. 9

10 It strikes us that, if the information held by regulatory bodies or councils is generally of a similar nature to that contained in the Civil Orders mentioned in section 4.4, as a responsible employer, we would wish to know about it. As a corollary to this, we would support the idea that information on Civil Orders should be available. For example, in the case of all four Civil Orders mentioned in question 15, quite apart from the incongruity of employing a sex offender to work (or volunteer) with vulnerable groups, how could an employer possibly deploy such a person legally and safely if there were restrictions on that individual of which the employer was unaware? We are also unclear as to how vetting information from regulatory bodies or councils would be treated in terms of the Short Scheme Record Disclosure. Would it be completely withheld or would its existence be noted but its detail unobtainable? Again, this undermines the principle that information that doesn t warrant a barring can be made available to inform employment decisions. Q16a Should the fact of previous competent referrals be included on scheme record disclosures? Please give reasons for your response. No; mainly for the reasons given in paragraph 189. If the CBU has not seen fit to deem the referral to constitute either vetting information or reason to bar (both of which would appear on the Scheme Record Disclosure) - and bears the responsibility for its own decision - why should frontline organisations be placed in the position of acting as the second opinion to the expert? We distinguish our stance here from that above because information from regulatory bodies or councils (if used) will be vetting information. In the case of referrals; rejection of the referral as not competent by the CBU should be sufficient. It is enough that employers will be required to make decisions based on vetting information without being obliged to consider information that may be even less provable, particularly since they may lack adequate resources to defend themselves if challenged. Chapter 5: Retrospective checks and fees 5.2 Retrospective checking: whether and how? In paragraphs 192 and 193 the consultation paper makes reference to an organisation being in the position of unknowingly employing a barred individual in their existing workforce. The paper points out that this problem cannot be resolved until retrospective checking is implemented. However, an individual cannot be barred until the scheme has gone live. Let us imagine the following situation: An individual is currently in employment with organisation A when the scheme goes live but before retrospection has been made a priority by virtue of the imminent commencement of section 35 (1) 4. Because of vetting information submitted to the CBU / Disclosure Scotland by someone other than organisation A, the individual is barred from working with vulnerable groups. In this person s case Section 30 of the Act obliges Ministers (presumably in the shape of the CBU / Disclosure Scotland) to tell any organisation for which they know the individual is doing regulated work with children (or) adults that the individual is now listed (i.e. barred). We accept that trying to discover an individual s employer after the individual has been referred to the CBU by another party is less secure than being able to identify the employer by virtue of them being the referrer but, nevertheless, we think that the operation of Section 30 provides a limited safeguard in lieu of retrospection and acts as a support to any argument to delay retrospection for other reasons. We also wish to gain some clarity on the issue of retrospection. Our understanding of the concept as it relates to the Act itself is that any retrospection period simply refers to the time before which section 35 (1) is commenced. Paragraph 192 of the consultation seems to support this view. The Act itself does not provide for the Scottish Government to enforce checking for members of the workforce per se. Unlike the SVGA 2006, there are no direct sanctions for not checking a person doing regulated work with either children or protected adults. Decisions to join the scheme or to require checking are voluntary decisions on the part of individuals and organisations. The fear of committing the offence in section 35 may drive organisations to require their employees to be checked but that is all 5. 4 It is an offence for an organisation to offer regulated work to an individual barred from that work. 5 We appreciate that individual contractual terms and public opinion will nevertheless be drivers for organisations to check their workforce. 10

11 Consequently, we are not clear how a managed period of retrospective checking is to be implemented. If it is to effectively oblige individuals and organisations to obtain retrospective checks then surely it will have to include sanctions for not doing so? Is it the intention that secondary legislation will impose this obligation backed by sanctions? What might those sanctions be? The consultation does not address this issue directly and, while it would be WRVS s intention to ensure we have our staff and volunteers checked, we urge Scottish Government to make its intention clear. In the absence of this clarity we answer the following relevant questions on the assumption that we may indeed be obliged to retrospectively check our workforce and possibly suffer sanctions if we do not. Q17a Should scheme membership be phased in through: natural turnover a managed process of retrospective checking? Please explain your preference. & Q17b If natural turnover was selected as the most appropriate option would your organisation: make arrangements to expedite scheme membership for your staff allow turnover to complete this process over time? Ideally, we would prefer to see the scheme introduced through natural turnover and apply thereby to i) those changing position with their current employer and ii) those accepting a post with a new employer. WRVS has 11,500 volunteers in Scotland as well as over 160 staff. Our referrals are handled centrally for the UK by an office in Wales and, while we understand that not every volunteer or staff member would require a check, the burden for Scotland alone would still be sizeable. We also face the imminent retrospective checking of a very high proportion of our 45,000 volunteers and over 2,000 employees across England and Wales under the SVGA While we understand that the disclosure fees for volunteers in Scotland would be paid by the Scottish Government, this would operate for us as a salve, not a salvation. Any process of retrospection in Scotland would mean a significant cost burden for us quite apart from any fees, of around 240,000 (based on two hours administration per application at 8 per hour plus stationery, postage and overheads). Most of our volunteers are older people, a number are disabled people. Indeed, in some cases WRVS volunteers may themselves be protected adults in other contexts. We do not consider that there is any significant number of high risk individuals working with WRVS (if any) and use of current disclosure procedures has not demonstrated otherwise. In our case the whole issue of checking - particularly retrospective checking of long serving individuals - will have to be handled extremely sensitively as we cannot afford to lose any volunteers because of a perception (however mistaken) that neither we nor the Scottish Government trusts them. It is this low risk, highly sensitive environment plus the costs of retrospection that determines our ideal preference. Nevertheless, we recognise that 1) an issue with utilising only natural turnover to expedite scheme membership is that is that it has no natural endpoint (leaving organisations more exposed to committing the offence of offering regulated work to a barred person, which Government might choose to introduce before natural turnover has enabled everyone to be checked) 2) should compulsory retrospective checking be introduced in Scotland we have a responsibility to indicate a timetable that would suit us (see answers to questions 18 & 19) We wish to state that using natural turnover - whether or not in combination with an imposed timetable for retrospection - would not prevent WRVS from undertaking retrospective checking on our own initiative. In 11

12 fact, the length of service of many of our volunteers means that using natural turnover alone would not expedite a sufficient number of them for WRVS, as a responsible service provider, to be satisfied. The key point is that using natural turnover would allow us the flexibility to set our own timetable for checking; taking into account available resources and based on an appraisal of what roles constituted regulated work with protected adults. It is important that we are enabled to do this in a way that does not detrimentally affect the health and well being of our service users. We fear that diverting limited resources from the frontline to administration could have a serious impact on our ability to deliver services to the vulnerable people whom we exist to serve. Q18a Should the period of retrospective checking be delayed until such time as a proportion of the workforce has joined by natural turnover? & Q18b If yes, how long should this delay last and why? We agree that if retrospection is introduced it should be after a period during which natural turnover has enabled a proportion of the workforce to have joined the scheme. We suggest this should be for a minimum period of three years (and see our answers to questions 19 & 20 below). This is the minimum time we feel we need to adequately prepare both our systems and our thousands of volunteers, many of whom may find being checked a disconcerting experience, and our staff. Q19 If retrospective checking is to be undertaken, which of the options for prioritising retrospective checking of individuals do you prefer? 1) by date of last disclosure 2) by sector 3) by random personal characteristic 4) other (please specify) Please explain your preference. WRVS wishes to see a scheme that will provide phases of disclosure within our workforce rather than phases which address the budgetary and capacity constraints of the CBU or Disclosure Scotland. Option 1 In a volunteer workforce as large as ours and with such a distinct age demographic this option could hit us particularly hard as many of our volunteers will have either not been checked because they started volunteering some time ago or it will be very difficult to ascertain whether they have had a check. We do not think, given our unique circumstances, that this absence of checking poses a higher risk to vulnerable groups. We are not aware that there is any hard evidence (as opposed to a common sense assumption) to suggest that individuals who had a check a longer time ago pose a greater risk. We know this is the Government s approach in England and Wales but we do not favour this option. We would prefer to be enabled to check our staff and volunteers based on our own calculation of risk. Option 2 This approach might be more useful to us but, as noted above, we really need to make sure our own workforce can be brought into the scheme in phases. So, for example, dividing the workforce by local authority or health board area would split it for us more usefully than dividing the public sector from the voluntary sector, as the voluntary sector - and WRVS - would then face being brought in all at once. Option 3 However, we consider this option to be the most pragmatic in terms of balancing the needs of service providers and service users. Q20a If there is to be a period of retrospective registration of the regulated workforce onto the scheme which of the following options would you prefer. 1) retrospective checking over three years 2) retrospective checking over four years 3) retrospective checking over five years 4) retrospective checking over six years 5) three years delay followed by three years retrospective checking 12

13 6) four years delay followed by two years retrospective checking Please explain your preference If the principle of a phased introduction is accepted, then there is surely merit in setting a longer time before everyone in the workforce will need to have had a disclosure check under the new scheme. We therefore feel that option 3 would best work for us provided it was preceded by a three year period of natural turnover, for the reasons set out in our answers to questions 17 & 18. We feel that it would be unfortunate for the Government to choose a shorter period of natural turnover (e.g. two years) but if that did happen we would wish to see the period of retrospective checking extended to six years, so either way a total of eight years is reached. Q20b What would be the impact of a quick programme of retrospective checking on your organisation? It is impossible to put a numerical value on compliance with every constituent part of this process or, at this stage, to gauge exactly how many of our 11,500 volunteers and over 160 staff will need checking. But if they all did, based on our calculation of two administrative hours per volunteer (see our answer to question 17b), we arrive at a figure of 240,000 utilising 23,000 working hours (657 working weeks or approximately 12 working years for one full time person based on a thirty five hour week). So even in the unlikely event that as few as half required checking, we would still face 6 years worth of work! It does not take a mathematician to calculate the potential damage that taking up such a huge amount of staff time could do to frontline services. Any possible delays to the turnaround time for the issuing of scheme record disclosures (of any kind) as a result of a high volume being requested over a short period could prevent our services from operating, again with a consequent detrimental effect on the vulnerable people who benefit from them. Q20c What difference would it make if the phasing in period was significantly extended? WRVS would be able to put in place efficient and person-centred processes to make entry into the scheme as easy as possible for our volunteers and employees, thereby ensuring better buy-in amongst our people. It would also mean that the resource burden would be spread over a significant period of time ensuring there is less direct affect on frontline services, and enabling us to continue to develop the impact we have in Scottish communities. There is a resource burden whichever way we approach this, but a short period of time to check our entire workforce would lead to reduction or even closure of some of our services as resources and management time are redirected onto this task. We would also not risk the potential delays and damage to service delivery noted in answer to question 20b. 5.3 Fees level and charging regime Q21a Which of the charging regimes do you prefer? Two tier All subsequent check at lower tier Annual subscription Other (please specify) Please explain your preference. Because of the number of volunteers that we have, WRVS will benefit substantially from the payment of volunteer fees by the Scottish Government and we do recognise how valuable this arrangement is. Even so, because we face consequent administrative costs of complying with the new scheme (approx 240,000 as noted above) and because monies to fund a state agency (the CBU), rather than coming solely from taxation revenues, will come in part out of charitable resources such as ours (i.e. money raised to fund frontline services which will have to be redirected) we feel we have a responsibility to comment. 13

14 WRVS would prefer a system whereby a higher fee (but not one that is in itself very expensive) is charged for joining the scheme (i.e. for the first Scheme Record Disclosure) and subsequent checks are charged at a lower price. We would prefer that subsequent checks were free but we understand from paragraph 226 that this has already been rejected as an option. Option 1b as per paragraph 225 is therefore closest to our preference. In paragraph 225, the consultation paper mentions the risk of generating additional demand for full Scheme Record Disclosures. It implies that the scheme could falter or collapse under the weight of them all and it further implies that this would be the fault of those requesting checks rather than a fault with the system. We are uneasy with this line of reasoning. It is being used (as it is used elsewhere in the consultation for example in paragraph 226; excessive requests ), to suggest that fees are an equitable way of discouraging a group of unidentified time wasters from requesting unnecessary checks. We do not think that finding a solution to this problem, if it can be proven to even exist, is a sound premise on which to base a fee structure. If the primary purpose of the scheme is to protect vulnerable groups (as opposed to financial self-sustainability, although the third bullet point of paragraph 226 makes a clear plea with respect to the scheme s income) then surely it is preferable to have a small number of possibly unnecessary full Scheme Record Disclosures made than necessary ones not made and the scheme should be able to deal with this small scale extra demand. Paragraph 227 recognises that the cost of the scheme is front loaded, including the establishment of a scheme record. Thus if a scheme record already exists, we can t see that physically providing it to a person requesting it is inherently more expensive (with the exception of printing and postage) than providing a Short Scheme Record Disclosure; particularly since for the vast majority of scheme members there will never be any new vetting information. It is for that reason we prefer option 1b to option 1a. We do not consider the annual subscription model to be financially viable in our case; particularly because of the relatively low turnover of volunteers we have i.e. if they are not likely to move position we would be paying an annual subscription for checks we won t (or are, at least, unlikely to) request. Q21b What do you feel the maximum acceptable level for the higher tier fee should be (to keep the lower tier as low as possible of free)? We understand the driver for fee-charging is the CBU / Disclosure Scotland budget but WRVS s driver is to retain as much of our charitable resources for frontline delivery as possible. In light of our imperative we think it is realistic to suggest certainly no more than 25 for the higher tier fee and, if subsequent checks are not to be free, no more than 10 for the lower tier. Q21c To what extent does the level of fee affect your answer? (E.g. you prefer a subscription model if it s less than x / year). Despite Q21b; paragraph 211 notes this consultation is not about how much revenue should be raised but the way it is collected but inevitably any comment on the fee structure is heavily dependent on the estimated costs as provided by the Scottish Government. If they were to veer too wildly from those proposed then it would simply increase the amount of financial resources being redirected to administration from frontline service delivery. There is an unfortunate assumption in some circles that the voluntary sector will soldier on no matter how much of its time is increasingly spent tackling regulatory burdens or how much it is obliged to pay for it. It is true the sector will always seek to comply with the law but, in having to comply with ever more of it, the sector is struggling, and will continue to struggle, to maintain appropriate levels of service. In an organisation like WRVS where a limited number of staff support a vast number of volunteers (the ratio is almost 1:100) we feel this pressure acutely. We therefore urge the Scottish Government to keep fees low as a matter of principle put a cap on fees that will keep them at their initial level until at least such time as the agreed natural turnover /retrospection time has elapsed and preferably longer agree that fees will never rise by any more than the cost of inflation We know from their own figures that Disclosure Scotland s income rose from 8.5 million in 2005/06 to 13.5 million in 2006/07. Of that, fees comprised 6.5 and 12.8 million respectively. In large part this is money originally either raised or earmarked for other purposes, whether charitable activity or public sector 14