Independent Safeguarding Authority - Vetting and Barring Scheme, The Original Structure and Design

Vetting and Barring Scheme, The Original Structure and Design

The ISA was to have functioned as the decision making element of the new Vetting and Barring Scheme, with the application process and monitoring functions being run by the Criminal Records Bureau. It largely retains these functions but from 2012 will be entirely merged with the CRB. Once operational the Vetting and Barring Scheme as originally designed would have required all those engaged in regulated or controlled activity to register and have their registration status checked. It would not have been possible to 'opt-out' of the Scheme and there would have been criminal offences for non-compliance on both the employer and employee. These now only apply in the case where a barred individual seeks or attains work.

Those successful in the original application process would have been provided with a unique reference number and employers would have had to verify potential employee's membership before allowing them to commence their duties; via a free online check,. Estimates at the time stated that the number who would have been required to register would have been approximately 11.3 million people (or a quarter of the adult population). This was criticised in the press in 2009 as a proposal to create the most intrusive database ever created in a democracy. As described later these initial proposals were then withdrawn after this press hostility, led to the government creation of the Singleton Review (2009) and a subsequent review led by Eileen Munro (2010).

The cost of registration was originally set at £64 per person except for volunteers for whom it would have been free of charge. These fees were also withdrawn when the requirement to register was abandoned in 2010. At this point the ISA barred list was reshaped to be simply a list of those barred, accessible to employers and certain others, more akin to its predecessor 'list 99'.

The definition of volunteer remains that used by the CRB: "a volunteer is a person who is engaged in any activity which involves spending time, unpaid (except for travelling and other approved out-of-pocket expenses), doing something which aims to benefit someone (individuals or groups) other than or in addition to close relatives" -.

Other aspects of the original design have been retained since the Singleton Review. The ISA owns and maintains two lists (one covering the children's sector and one to cover the adults') of those barred from working with vulnerable groups, which replaced previous barred lists (List 99, the Protection of Children Act 1999 (PoCA), the scheme relating to the Protection of Vulnerable Adults (PoVA) and Disqualification Orders). Inclusion on these barred lists is as a result of either an automatic bar (following a police caution or conviction or following a discretionary bar, typically following dismissal, or resignation where dismissal was possible, following an act of gross misconduct at work, although there are other potential reasons. secondary legislation). These decisions are taken by the ISA.

The ISA base their decisions upon information from a range of sources including, but not limited to, that held by the police (both locally and that on the Police National Computer), local authorities, social services, regulatory organisations (such as the General Medical Council or the General Teaching Council for England) and supervisory authorities (such as Ofsted). They also receive cases directly from employers. Employer referrals constitute the largest number of cases considered for discretionary barring. They do not receive cases directly from individuals. Where cases are not clear, decisions are escalated within the ISA with final decisions being made by the board, which is chaired by former Chief Executive for Barnardo's, Roger Singleton.

The ISA are able to consider information other than that which has led to cautions or convictions. These can include unproven allegations from former employers, professional bodies, members of the public or stories in the press. However referral information, such as allegations, does not lead to automatic inclusion on the ISA Barred Lists; before a barring decision is made, the individual is given the information on which the decision is based and the opportunity to explain their case. However, there is no hearing process. This has caused some controversy see below. Case workers will be allowed to "undertake appropriate research" on "internet chatrooms or social networking websites", although the published guidance on the ISA's Decision Making Process and the Safeguarding Vulnerable Groups Act 2006 state that the ISA has to be satisfied that "relevant conduct" has occurred before being able to consider any other factor. The Safeguarding Vulnerable Groups Act 2006 defines relevant conduct as:

• conduct which endangers a child or is likely to endanger a child;
• conduct which, if repeated against or in relation to a child, would endanger that child or would be likely to endanger him;
• conduct involving sexual material relating to children (including possession of such material);
• conduct involving sexually explicit images depicting violence against human beings (including possession of such images), if it appears to the ISA that the conduct is inappropriate; or
• conduct of a sexual nature involving a child, if it appears to the ISA that the conduct is inappropriate.

The philosophic burden of proof to whether an event occurred is "on a balance of probability", as used in civil trials, rather than "beyond reasonable doubt" as required in criminal trials. Case assessment within which risk factors such as obsession with sex or violence, "presence of severe emotional loneliness and/or the inability to manage/sustain emotionally intimate relationships with age-appropriate adults", "links with anti-social peers", "presence of impulsive, chaotic, unstable lifestyle" or "using substances or sex to cope with stress" will only be considered in relation to the "relevant conduct".

Appeal against inclusion is by means of the Administrative Court (Judicial Review). A recent case demonstrates that that Court is minded to de-register an individual when the bar is not lawful or disproportionate: SB v Independent Safeguarding Authority UKUT 404 (AAC) (04 October 2011) This decision reflects similar decisions in family and criminal law regarding risk assessment after conviction for sexual offences.