In this article...

• The new regulator - Independent Safeguarding Authority
• Key concepts under the Act
• Implications for Independent Schools
• New process when appointing a worker
• Duty to refer workers to the ISA
• Conclusion

The new regulator - Independent Safeguarding Authority

All barring decisions will be taken by a new independent organisation, the Independent Safeguarding Authority (“the ISA”). The ISA will work closely with the CRB which will, on behalf of the Secretary of State, perform the functions of monitoring workers and providing vetting information.

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Key concepts under the Act

The system of regulation is based around the definitions of ‘regulated activity’ and ‘controlled activity’. The highest level of protection under the Act relates to ‘regulated activity’ which includes:

		‘close contact’ activities where individuals have direct contact with children which in addition to teaching could cover other less obvious instances such as driving the school minibus, if carried out frequently or ‘intensively’ by the same person. An activity is considered to be carried out ‘intensively’ if the person carries it out for more than two days in any 30 day period, or if the activity is carried out at night time (between 2.00am and 6.00am) and gives the person the opportunity to have face to face contact with children (as the case may be)
		responsibility for the regular day to day management or supervision of people carrying out the above activities
		the holders of certain positions including governors of schools

‘Controlled activities’ are in general terms those that give an individual contact with a child to a degree not sufficient to be a regulated activity or where an individual has access to health, educational or social services records relating to children. An individual who is barred from ‘regulated activities’ may still be able to work in ‘controlled activities’.

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Implications for Independent Schools

The Act will affect independent schools in two key ways:

		new obligations when appointing a worker who will be carrying out a regulated or controlled activity
		obligations to refer information to the ISA for consideration of barring of workers

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New Process When Appointing a Worker

An individual wanting to carry out regulated activities will be under a legal obligation to apply to be subject to monitoring by the ISA which will require proof of identity and a fee. Depending on the initial assessment of the ISA the individual could be automatically barred from working with children or the ISA could decide to bar that individual from regulated activities. Where the ISA has used its discretion to bar an individual there must be an opportunity for representations to be made to the ISA. It will be an offence for a school to engage an individual in a regulated activity where that individual is barred or not subject to monitoring.

The key difference with the new system is that the vetting process does not end when an individual passes the check. Instead, individuals cleared to carry out regulated or controlled activities will become ‘subject to monitoring’. This means that the ISA will open a file on the individual and may receive information from various sources including the police, local authorities, professional bodies and employers all of whom are under various duties to supply relevant information. Upon receiving any new information the ISA will make a fresh decision as to whether it is now suitable for the individual to be barred. If individuals do become barred their employers will be notified and it will be an offence for any employer to then continue to allow the individual to work in a regulated activity.

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Duty to refer workers to the ISA

Independent schools will also be under a duty to refer workers to the ISA if, in certain circumstances, they dismiss the worker from work in a regulated or controlled activity, or transfer the worker to another role which no longer comprises regulated or controlled activity. The duty arises if the grounds for dismissing/transferring the worker are for a reason which correlates to one of the grounds for barring under the Act.

It must be borne in mind that the grounds for barring under the Act have been considerably extended, compared to those under the POCA. In addition to convictions or cautions for certain offences and conduct which presents a risk to a child, the grounds for barring now include circumstances where it is felt that a worker may present a risk of harm to a child in the future, even if no actual misconduct has yet occurred.

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Conclusion

The new system does seem to address some of the obvious weaknesses of the current arrangements, namely having a single list rather than List 99 and the POCA list and establishing a system of on-going monitoring. The effectiveness of the system will depend on whether the theory works in practice and whether the ISA proves to be a competent regulator. Schools should consider what revised processes will need to be put in place in anticipation of the proposed enforcement date of Autumn 2008. It is also important to remember that, in the same way as CRB checks, the new system should only be one part of a wider system of scrutiny and checks used in the recruitment process.

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