Part 2: Regulated Activity Relating to Vulnerable Adults

45.     This Part defines regulated activity relating vulnerable adults. Broadly speaking, the principal activities are -

a.     Certain types of activity (specified in paragraph 7(1)) carried out frequently, on three or more days in a 30-day period, or overnight. This includes teaching, training, advising, and caring for vulnerable adults.

b.     Any activity carried out frequently, or on three or more days in a 30-day period in a care home which gives a person the opportunity to have contact with vulnerable adults as a result of his duties or anything he is allowed to do there.

c.     The day-to-day management or supervision or a regular basis of any person carrying out the activities mentioned in a and b above.

d.     The inspection of establishments specified in paragraph 7(7) (e.g. a care home) by an organisation specified in paragraph 7(6) (e.g. the Healthcare Commission).

e.     The exercise of a function of the positions specified in paragraph 7(9) (e.g. the director of adult social services or a trustee of vulnerable adults' charity).

Part 3: The period condition

46.     This Part defines the period condition for the purposes of regulated activity. The requirements to check and be subject to monitoring kick in primarily when an activity is carried out frequently or the period condition is satisfied. Paragraph 10(1) defines this as activity which takes place on more than two days in a 30-day period. For certain activities, such as caring for children or providing treatment for a vulnerable adult, the requirements to check and be subject to monitoring apply also when the activity takes place overnight and the individual has the opportunity for face to face contact with children or vulnerable adults.

47.     It is important to note that section 58 of the Act prevents any activity within the context of a familial relationship and certain types of activity within the context of a friendship from being a regulated activity relating to children or vulnerable adults for the purpose of the Act.

REGULATED ACTIVITY PROVIDERS

Section 6: Regulated activity providers

48.     This section defines "regulated activity provider" for the purpose of the Act, on whom a number of obligations are imposed by its other provisions. A regulated activity provider is an individual or organisation responsible for the management or control of regulated activity, who makes arrangements for a person to engage in that activity. The effect of subsection (2)(b) is that regulated activity providers will be those with the ultimate responsibility for the regulated activity: not every individual in the management chain will be responsible for making the check of a person's status. There is no need for a contract to be in place for an individual or body to be a regulated activity provider, and the definition applies to both paid and unpaid work. A person who simply uses services provided by another (for example, a nanny who places a child in the care of a supermarket crSche) will not be a regulated activity provider because he will have no responsibility for the management or control of the regulated activity. But the supermarket in this case will be a regulated activity provider.

49.     Subsection (3) provides that a person is a regulated activity provider if section 53(4) so provides. Section 53(4) applies where a person arranges for another to foster a child as a private foster parent and has power to terminate the arrangements. The arranger in this case is a regulated activity provider even if he would not otherwise be (i.e. because he does not have control or management of the activity). Subsection (4) states that those with responsibility for adult placement schemes will also be regulated activity providers.

50.     Subsection (5) provides that a person who makes arrangements for another to engage in regulated activity for his own benefit, or for a child or vulnerable adult who is a member of his family or is a friend of his (construed in accordance with section 58), is not a "regulated activity provider". So, for example, a parent who employs a nanny to look after his child will not be a regulated activity provider for the purposes of the Act. This means that certain provisions of the Act will not apply to the parent. For example, although parents will be able to apply for vetting information about potential nannies they will not commit a criminal offence by failing to check a nanny's status or by failing to ensure that a nanny is subject to monitoring.

51.     Subsection (8) provides that a person who appoints, or participates in the appointment of, a person to a position referred to in that subsection is not a regulated activity provider merely by reason of that fact. So, for example, those who elect the trustees of a children's charity will not be regulated activity providers for the purpose of the Act or subject to the obligations imposed on regulated activity providers.

52.     Subsection (10) provides that if a regulated activity provider is an unincorporated association any requirement or liability under the Act will be the liability of the person responsible for the management and control of the association or, if there is more than one such person, all of them jointly and severally.

RESTRICTIONS ON PARTICIPATING IN REGULATED ACTIVITY

Section 7: Barred person not to engage in regulated activity

53.     This section makes it an offence for a barred person to engage in regulated activity, or seek or offer to engage in regulated activity.

54.     Subsection (3) provides a defence if the person can prove that he did not know, and could not reasonably be expected to know, that he was barred. A person who, for example, could not be contacted by IBB either when it was considering whether to include him in the list (so as to give him an opportunity to make representations) or when it made known its barring decision might benefit from this defence.

55.     Subsection (4) does specify one type of exceptional situation where a person who knows he is barred is able to engage in regulated activity. This is where he reasonably thinks that it is necessary to do so in order to prevent harm coming to a child or vulnerable adult, where he reasonably thinks that there was no-one else around who could engage in the activity for that purpose and he engages in the activity for the shortest amount of time necessary. This would cover a barred doctor providing first aid to a child who had an accident in the street.

56.     Subsection (5) modifies the definition of regulated activity for the purposes of section 7. It disapplies the requirements about frequency and the period condition. This means that for the purposes of this section a relevant activity will be regulated activity even if it is carried out once only. So, for example, a person who is barred from regulated activity relating to children will commit an offence if he supervises children on a single occasion.

Section 8: Person not to engage in regulated activity unless subject to monitoring

57.     Subsection (1) makes it an offence for a person to engage in regulated activity with the permission of a regulated activity provider unless he is subject to monitoring. (A person may apply to become subject to monitoring under section 24.)

58.     Subsection (2) ensures that childminders who are required to be registered under the provisions of the Childcare Act 2006 or who would be required to be registered but for the fact that they do not provide childcare for a child below the age of eight will be required to be subject to monitoring. This applies even where the childminder is engaged in providing services to a person who is not a regulated activity provider (see note on section 6 for definition of regulated activity provider). This requirement also applies to childminders in Wales in similar circumstances.

59.     Subsection (3) makes it an offence for a person to act as a member of a governing body of an educational establishment whilst not subject to monitoring. A "member of a governing body" can include not only a person traditionally described as a "governor" but also one who is a member of a body which "governs" an educational establishment, for example, a director or trustee if the board of directors or trustees is the "governing body" of the relevant educational institution.

60.     Subsection (6) ensures that this offence does not apply if the individual who engages in the activity is under 16 years old. This will ensure that young people can, for example, undertake work experience in a nursery without being subject to monitoring.

61.     Subsections (7) and (11) ensure that those already in post before it becomes an offence for an individual not to be subject to monitoring will not initially be criminalised if they are not subject to monitoring. The implementation of the scheme will be phased and the intention is that, to start with, only new appointments will be subject to its requirements. After a prescribed date however (subsections (9) and (12)) those already in post at the commencement of section 8 will need also to be subject to monitoring.

62.     Subsection (8) extends the scope of subsection (7) in certain cases involving NHS employment. It deals with the situation where a person is engaged in relevant NHS employment when the section comes into force and he then engages in another form of relevant NHS employment. In this case, the first NHS employment is caught by subsection (7). The second NHS employment is not caught by subsection (7) as the permission to engage in that activity does not pre-date commencement of the section. Subsection (8) ensures that in this situation the person does not need to apply to be subject to monitoring in respect of the second NHS employment until he needs to apply to be subject to monitoring in respect of the first NHS employment.

63.     Subsection (10) ensures that a person does not commit an offence if he engages in regulated activity mentioned in section 16 and that activity is regulated activity relating to vulnerable adults. Section 16 contains miscellaneous exceptions for persons such as prison officers.

64.     Subsection (14) will require courts to consider the extent to which guidance issued by the Secretary of State on the definition of "frequently" has been followed when setting the penalty for the commission of the offence in the section. This is intended to protect those individuals who have followed the Secretary of State's guidance in the event that a court takes a different view to the Secretary of State on the interpretation of frequently.

Section 9: Use of barred person for regulated activity

65.     This section makes it an offence for any person to permit an individual to engage in regulated activity if he knows or has reason to believe that the individual is barred from that activity and the person engages in the activity. Subsection (5) makes similar modifications to the definition of regulated activity as are made by section 7(5). So even where the regulated activity is taking place occasionally or for a short period of time, the person giving permission would commit an offence. There is a similar offence in respect of a personnel supplier (defined in section 60) who supplies an individual for regulated activity.

66.     Subsection (4) provides a defence where it is necessary for an employer to permit a barred individual to engage in regulated activity to prevent harm. This will only be in rare circumstances where there was no-one else who could engage in the specific activity e.g. a school giving a barred parent who had come to pick up their child consent by phone to look after a stricken child at the school campsite where the sole teacher in charge had been taken ill.

Section 10: Use of person not subject to monitoring for regulated activity

67.     This section makes it an offence for a regulated activity provider to permit an individual whom he knows or has reason to believe is not subject to monitoring in relation to regulated activity to engage in that activity. A similar offence is created in relation to a personnel supplier who supplies an individual in these circumstances, though the regulated activity provider will commit the offence only if the individual actually engages in the activity.

68.     Subsection (3) redefines regulated activity, for the purposes of subsection (2), so that it is an offence for a personnel supplier to supply an individual to engage in regulated activity without them being subject to monitoring, even where this activity takes place only briefly or for a short period of time. Again the modifications mirror those made by section 7(5), which are explained more extensively above.

69.     Subsection (5) ensures that this offence does not apply if the individual who engages in the activity is under 16 years old. This will ensure that a person will be able to use, for example, young people who are not subject to monitoring for work experience in a nursery.

70.     Subsections (6), (8), (11) and (12) have a similar purpose to section 8(7), (9), (11) and (12) (see above).

71.     Again, similarly to section 8 for employees and volunteers, subsections (7) and (9) exempt certain providers of regulated activity mentioned in sections 16 and 17 (where certain conditions are met), from the offence of employing someone whom he knows or has reason to believe is not subject to monitoring.

72.     Subsection (10) will require courts to consider the extent to which guidance issued by the Secretary of State on the definition of "frequently" has been followed when setting the penalty for the commission of the offence in the section. This is intended to protect employers who have followed the Secretary of State's guidance in the event that a court takes a different view to the Secretary of State on the interpretation of "frequently".

Section 11: Regulated activity provider: failure to check

73.     This section makes it an offence for a regulated activity provider to permit an individual to engage in regulated activity without first ascertaining that they are subject to monitoring in relation to the activity (the offence only applies if the individual actually engages in the activity). The regulated activity provider must ascertain whether the individual is subject to monitoring in accordance with the relevant Part of Schedule 5 (see below). It is also an offence to knowingly or recklessly provide false written confirmation that is required by Schedule 5 (subsection (8)).

74.     Subsection (2) defines what it means to check whether a person is subject to monitoring. The various methods of checking whether a person is subject to monitoring are set out in Schedule 5.

75.     This section lists defences which apply in specific circumstances. Subsections (3) and (4) exempt certain providers of regulated activity mentioned in sections 16 and 17 (where certain conditions are met), from the requirement to check that an individual is subject to monitoring.

76.     Subsection (5) ensures that this offence does not apply if the individual is under 16 years old. This will ensure that, for example, a care home could give work experience to young people without having to check that they are subject to monitoring.

77.     Provision equivalent to that in section 8(7) (see above) is made in subsection (6) for regulated activity providers and covers permission to carry out an activity that was given before commencement of section 11.

78.     Subsection (10) will require courts to consider the extent to which guidance issued by the Secretary of State on the definition of "frequently" has been followed when setting the penalty for the commission of the offence in the section. This is intended to protect employers who have followed the Secretary of State's guidance in the event that a court takes a different view to the Secretary of State on the interpretation of "frequently".

Schedule 5 - Appropriate verification

79.     Schedule 5 sets out how a regulated activity provider fulfils the duty to check that a person is subject to monitoring.

80.     The default position is that a regulated activity provider must obtain an appropriate verification in accordance with one of the methods set out in Part 1 of the Schedule. In summary the methods are:

a.     making a check through an application under section 30 (see paragraph 1(1)(a)) that the person is subject to monitoring, and whether he is undergoing assessment (as defined in section 31(4));

b.     obtaining an enhanced criminal record certificate under the Police Act 1997 in relation to the person (see paragraph 1(1)(b)) containing "suitability information" including whether the person is subject to monitoring, and whether he is being considered for barring (other than automatic barring) (see paragraph 11 of Schedule 5 and paragraph 14 of Schedule 9), or obtaining information derived from such a certificate (see paragraph 2);

c.     obtaining written confirmation from another regulated activity provider who is also permitting the person to engage in the activity concerned that the other regulated activity provider:

i.     has no reason to believe that the person is barred or not subject to monitoring in relation to the activity; and

ii.     is registered to be notified by the Secretary of State if the person ceases to be subject to monitoring in relation to the activity.

d.     obtaining written confirmation from a personnel supplier who is supplying the person to engage in the activity concerned that the personnel supplier:

i.     has no reason to believe that the person is barred or not subject to monitoring in relation to the activity; and

ii.     is registered to be notified by the Secretary of State if the person ceases to be subject to monitoring in relation to the activity.

81.     For example where a school hires a building contractor to carry out maintenance work on the school, the school may rely on written confirmation from the contractor. And where an employment agency supplies carers for a care home, the care home may rely on written confirmation from the employment agency.

82.     Section 11(8) makes it an offence to provide written confirmation that is false.

83.     Part 2 of the Schedule applies only in prescribed cases (see section 11(2)). To make a check under part 2 a regulated activity provider must both check a person is subject to monitoring and have taken prescribed steps to obtain an enhanced criminal record certificate. A regulated activity provider may rely on a check carried out by another regulated activity provider or by a personnel supplier in the same circumstances set out for part 1. But under part 2 the regulated activity provider must obtain from the other regulated activity provider or personnel supplier a copy of an enhanced criminal record certificate in addition to written confirmation. The written confirmation must include that the regulated activity provider or personnel supplier:

a.     has no reason to believe that the person is barred or not subject to monitoring in relation to the activity;

b.     is registered to be notified by the Secretary of State if the person ceases to be subject to monitoring in relation to the activity; and

c.     has not had disclosed to him, in connection with the criminal record certificate, information from the Secretary of State in pursuance of section 113B(6)(b) of the Police Act 1997. This is information which, in the interests of the prevention or detection of crime, the chief officer of a relevant police force did not consider could be included on the criminal record certificate, but could nonetheless be provided to the registered person who countersigned the application for the criminal record certificate.

84.     Part 3 of the Schedule also applies only in prescribed cases (see section 11(2)). To make a check under part 3 a regulated activity provider must obtain a copy of an enhanced criminal record certificate. As throughout Schedule 5, the certificate must provide the suitability information referred to in paragraph 11 including, amongst other things, information as to whether the person is barred, being considered for barring (other than automatic barring) and/or is subject to monitoring in relation to the activity. The regulated activity provider may also rely on written confirmation and an enhanced criminal record certificate from another regulated activity provider or a personnel supplier as set out, above, for part 2.

Section 12: Personnel suppliers: failure to check

85.     This section refers to Schedule 6 - see below.

86.     Subsection (2) enables the Secretary of State to extend the requirement on employment businesses to check an individual's status to other types of personnel supplier (as defined in the Act) by order (subject to the negative resolution procedure).

Schedule 6 - Employment businesses: failure to check

87.     This Schedule provides that an employment business will commit an offence if they fail to register an interest in an individual (see section 32) prior to supplying the individual to engage in regulated activity. Registering an interest will ensure that the employment business is informed if the individual ceases to be subject to monitoring. The Schedule also allows the Secretary of State to prescribe circumstances in which it will be an offence for such a business to supply an individual without having obtained an enhanced criminal record certificate in relation to that individual. Moreover, Paragraph 4 has the effect that employment businesses are placed under the requirements of this Schedule even if an individual will only be engaged in regulated activity infrequently, or on fewer that three days in a 30 day period.

Section 13: Educational establishments: checks on members of governing body

88.     This section provides that an appropriate officer commits an offence if he fails within a prescribed period to make a check in accordance with section 15 in relation to a person who is appointed to the governing body of an educational establishment mentioned in section 8(5). The "appropriate officer" for each type of educational establishment, e.g. maintained schools, academies, etc. will be prescribed in regulations.

89.     Provision is made in subsection (3) not to apply the requirements to appointments made before commencement of section 13. Subsection (4) enables this exemption to be switched off.

Section 14 Office holders: offences

90.     Subsection (1) enables the Secretary of State by regulations to provide that a person commits an offence if he engages in regulated activity by holding a specified office and he is not subject to monitoring.

91.     Subsection (2) enables the Secretary of State by regulations to provide that a specified person commits an offence if he fails to carry out a check under section 15 in relation to a person appointed to such an office.

Section 15 - sections 13 and 14: checks

92.     This section sets out how checks of governors of educational institutions and other officers prescribed by section 14 are to be made. Any of the methods mentioned in subsections (2) and (3) may be used.

EXCEPTIONS

Section 16: Exception to requirement to make monitoring check

93.     This section lists regulated activity (in relation to vulnerable adults) in relation to which regulated activity providers are exempted from the obligation to make an appropriate check under section 11, and from the offence under section 10 of employing an individual who is known or suspected not to be subject to monitoring. Subsection (1) sets out the activities in respect of which the exemption applies. These include activities carried out for the purposes of prisons and certain activities targeted at individuals because of their age, health or disability. In cases where the exemptions apply checks may still be made but are not mandatory. The section contains a provision which allows for this list to be amended in the future. A sun-setting subsection provides that the exemptions in relation to recreational, social, sporting or educational activity, housing and prescribed welfare services will only apply for three years after commencement of any provision of the section, or at such later date as the Secretary of State may specify by order.

Section 17: NHS employment

94.     This section relates specifically to those regulated activity providers who employ people in relevant NHS employment which is defined as employment with one of the NHS bodies listed in subsection (3). Where a person is employed in relevant NHS employment, and provided that employment continues, he can undertake other such employment without the need for a monitoring check to be made in relation to that other employment. This provision is aimed, for example, at the situation where a person who is employed with the NHS as his main employment, is then supplied by NHS Professionals (the NHS's in-house supplier of staff) or by another agency to work for the NHS on a temporary basis to cover staff absences and holiday etc. The main NHS employment acts as an "umbrella" for any other NHS employment undertaken whilst the main NHS employment continues. This modification of the normal requirements applies to employment (which is relevant NHS employment) with an NHS body, or with a person who provides healthcare for an NHS body.

OFFENCES: SUPPLEMENTARY

Section 18: Offences: companies etc.

95.     This section provides that mangers, directors, etc of bodies corporate and partners of partnerships can in certain circumstances be liable for specified offences that are committed by the body corporate or partnership. This is intended to ensure that senior people in these organisations take responsibility for the actions of the organisation.