Title and commencement

Title and commencement

1.—(1) This Order may be cited as the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007.

(2) This Article and Articles 2 to 4, 58 and 61 come into operation two weeks after the day on which this Order is made.

(3) The other provisions of this Order come into operation on such day or days as the Secretary of State may by order appoint.

Interpretation

Interpretation

2.—(1) Subject to Article 22(1), the Interpretation Act (Northern Ireland) 1954 (c. 33) applies to this Order as it applies to an Act of the Assembly.

(2) In this Order—

“the 1972 Order” means the Health and Personal Social Services (Northern Ireland) Order 1972 (NI 14);

“the 2003 Order” means the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (NI 9);

“the adults' barred list” must be construed in accordance with Article 6(1)(b);

“barred list” means the children’s barred list or the adults' barred list;

“child” means a person who has not attained the age of 18;

“the Children Order” means the Children (Northern Ireland) Order 1995 (NI 2);

“the children’s barred list” must be construed in accordance with Article 6(1)(a);

“employment agency” and “employment business” must be construed in accordance with Part II of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (NI 20);

“HSS body” means any of the following within the meaning of the 1972 Order—

“IBB” must be construed in accordance with Article 5;

“institution of further education” has the same meaning as in the Further Education (Northern Ireland) Order 1997 (NI 15);

“personal social services” has the same meaning as in the 1972 Order;

“personnel supplier” means—

“prescribed” means prescribed by regulations made by the Secretary of State;

“the Regulation and Improvement Authority” means the Northern Ireland Health and Personal Social Services Regulation and Improvement Authority;

“statutory provision” must be construed in accordance with section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c,33);

“supervisory authority” must be construed in accordance with Article 47(7);

“vulnerable adult” must be construed in accordance with Article 3.

(2) A reference (however expressed) to a person being barred must be construed in accordance with Article 7.

(3) A reference to a person being subject to monitoring in relation to a regulated activity must be construed in accordance with Article 28.

(4) Nothing in this Order affects any power to provide information which exists apart from this Order.

Vulnerable adults

3.—(1) A person is a vulnerable adult if he has attained the age of 18 and—

(a) he is in residential accommodation,

(b) he is in sheltered housing,

(c) he receives domiciliary care,

(d) he receives any form of health care,

(e) he is detained in lawful custody,

(f) he is by virtue of an order of a court under supervision by a probation officer,

(g) he receives a welfare service of a prescribed description,

(h) he receives any service or participates in any activity provided specifically for persons who fall within paragraph (9),

(i) payments are made to him (or to another on his behalf) in pursuance of arrangements under section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002 (c. 6), or

(j) he requires assistance in the conduct of his own affairs.

(2) Residential accommodation is accommodation provided for a person—

(a) in connection with any care or nursing he requires, or

(b) who is or has been a pupil attending a residential special school.

(3) A residential special school is a school which provides residential accommodation for its pupils and which is—

(a) a special school within the meaning of Article 3(5) of the Education (Northern Ireland) Order 1996 (NI 1);

(b) an independent school which is approved by the Department of Education in accordance with Article 26 of that Order; or

(c) an institution of further education which provides accommodation for children.

(4) Domiciliary care is care of any description or assistance falling within paragraph (5) whether provided continuously or not which a person receives in a place where he is, for the time being, living.

(5) Assistance falls within this paragraph if it is (to any extent) provided to a person by reason of—

(a) his age;

(b) his health;

(c) any disability he has.

(6) Health care includes treatment, therapy or palliative care of any description.

(7) A person is in lawful custody if he is—

(a) detained in a prison, remand centre or young offenders centre;

(b) a detained person (within the meaning of Part 8 of the Immigration and Asylum Act 1999 (c. 33)) who is detained in a removal centre or short-term holding facility (within the meaning of that Part) or in pursuance of escort arrangements made under section 156 of that Act.

(8) The reference to a welfare service must be construed in accordance with Article 20(5).

(9) A person falls within this paragraph if—

(a) he has particular needs because of his age;

(b) he has any form of disability;

(c) he has a physical or mental problem of such description as is prescribed;

(d) she is an expectant or nursing mother in receipt of care under Article 8 of the 1972 Order;

(e) he is a person of a prescribed description not falling within sub-paragraphs (a) to (d).

(10) A person requires assistance in the conduct of his own affairs if—

(a) an enduring power of attorney (within the meaning of the Enduring Powers of Attorney (Northern Ireland) Order 1987 (NI 16) in respect of him is registered in accordance with that Order or an application is made under that Order for the registration of an enduring power of attorney in respect of him;

(b) an order under Article 99 or 101 of the Mental Health (Northern Ireland) Order 1986 (NI 4) has been made by the High Court in relation to him or his property or affairs, or such an order has been applied for;

(c) a representative is or is to be appointed to receive payments on his behalf in pursuance of regulations made under the Social Security Administration (Northern Ireland) Act 1992 (c. 8).

(11) The Secretary of State may by order provide that a person specified in the order or of a description so specified who falls within paragraph (1) is not to be treated as a vulnerable adult.

Family and personal relationships

4.—(1) This Order does not apply to any activity which is carried out in the course of a family relationship.

(2) This Order does not apply to any activity which is carried out—

(a) in the course of a personal relationship, and

(b) for no commercial consideration.

(3) A family relationship includes a relationship between two persons who—

(a) live in the same household, and

(b) treat each other as though they were members of the same family.

(4) A personal relationship is a relationship between or among friends.

(5) A friend of a person (A) includes a person who is a friend of a member of A’s family.

(6) The Secretary of State may by order provide that an activity carried out in specified circumstances either is or is not—

(a) carried out in the course of a family relationship;

(b) carried out in the course of a personal relationship.

Barring

The Independent Barring Board

5.  In this Order references to IBB are references to the Independent Barring Board established by section 1 of the Safeguarding Vulnerable Groups Act 2006 (c. 47).

Barred lists

6.—(1) IBB must establish and maintain—

(a) the children’s barred list;

(b) the adults' barred list.

(2) Part I of Schedule 1 applies for the purpose of determining whether an individual is included in the children’s barred list.

(3) Part II of that Schedule applies for the purpose of determining whether an individual is included in the adults' barred list.

(4) Part III of that Schedule contains supplementary provision.

(5) In respect of an individual who is included in a barred list, IBB must keep other information of such description as is prescribed.

Barred persons

7.—(1) A reference to a person being barred from regulated activity must be construed in accordance with this Article.

(2) A person is barred from regulated activity relating to children if he is—

(a) included in the children’s barred list; or

(b) included in a list maintained under the law of England and Wales or Scotland which the Secretary of State specifies by order as corresponding to the children’s barred list.

(3) A person is barred from regulated activity relating to vulnerable adults if he is—

(a) included in the adults' barred list; or

(b) included in a list maintained under the law of England and Wales or Scotland which the Secretary of State specifies by order as corresponding to the adults' barred list.

Appeals

8.—(1) An individual who is included in a barred list may appeal to the Care Tribunal against—

(a) a decision under paragraph 2 or 8 of Schedule 1 not to remove him from the list;

(b) a decision under paragraph 3, 5, 9 or 11 of that Schedule to include him in the list;

(c) a decision under paragraph 17 or 18 of that Schedule not to remove him from the list.

(2) An appeal under paragraph (1) may be made only on the grounds that IBB has made a mistake—

(a) on any point of law;

(b) in any finding of fact which it has made and on which the decision mentioned in that paragraph was based.

(3) For the purposes of paragraph (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

(4) An appeal under paragraph (1) may be made only with the leave of the Care Tribunal.

(5) Unless the Care Tribunal finds that IBB has made a mistake of law or fact, it must confirm the decision of IBB.

(6) If the Care Tribunal finds that IBB has made such a mistake it must—

(a) direct IBB to remove the person from the list, or

(b) remit the matter to IBB for a new decision.

(7) If the Care Tribunal remits a matter to IBB under paragraph (6)(b)—

(a) the Care Tribunal may set out any findings of fact which it has made (on which IBB must base its new decision); and

(b) the person must be removed from the list until IBB makes its new decision, unless the Care Tribunal directs otherwise.

(8) In this Article “the Care Tribunal” means the Tribunal established under Article 44 of the 2003 Order.

Regulated activity

Regulated activity

9.—(1) A reference to regulated activity relating to children must be construed in accordance with Part I of Schedule 2.

(2) A reference to regulated activity relating to vulnerable adults must be construed in accordance with Part II of that Schedule.

(3) The Secretary of State may by order amend that Schedule, or any of the modifications of that Schedule in the provisions mentioned in paragraph (4), so as to vary the meaning of—

(a) regulated activity relating to children;

(b) regulated activity relating to vulnerable adults.

(4) The provisions are—

(a) Article 11(5),

(b) Article 13(5),

(c) Article 14(3),

(d) Article 23(8),

(e) paragraph 4 of Schedule 4.

Regulated activity providers

Regulated activity providers

10.—(1) A reference to a regulated activity provider must be construed in accordance with this Article.

(2) A person (P) is a regulated activity provider if—

(a) he is responsible for the management or control of regulated activity,

(b) if the regulated activity is carried out for the purposes of an organisation, his exercise of that responsibility is not subject to supervision or direction by any other person for those purposes, and

(c) he makes, or authorises the making of, arrangements (whether in connection with a contract of service or for services or otherwise) for another person to engage in that activity.

(3) A person (P) is also a regulated activity provider if Article 55(4) (fostering) so provides.

(4) A person (P) is also a regulated activity provider if he carries on a scheme—

(a) under which an individual agrees with P to provide care or support (which may include accommodation) to an adult who is in need of it, and

(b) in respect of which a requirement to register arises under Article 12 of the 2003 Order.

(5) P is not a regulated activity provider if he is an individual and the arrangements he makes are private arrangements.

(6) Arrangements are private arrangements if the regulated activity is for, or for the benefit of, P himself.

(7) Arrangements are private arrangements if the regulated activity is for, or for the benefit of, a child or vulnerable adult who is—

(a) a member of P’s family;

(b) a friend of P.

(8) A person does not make arrangements for another to engage in a regulated activity merely because he (alone or together with others) appoints that person—

(a) to a position mentioned in paragraph 4(1)(a), (b), (e), (g), (h) or (i) or 8(1)(a) or (d) of Schedule 2,

(b) as a controller under Article 101 of the Mental Health (Northern Ireland) Order 1986 (NI 4);

(c) as member or chief executive of IBB;

(d) to any position mentioned in sub-paragraph (a) or (c) of Article 3(10) or to exercise any function mentioned in that paragraph.

(9) For the purposes of paragraph (7) it is immaterial whether P is also acting in any capacity other than as a family member or friend.

(10) If a regulated activity provider is an unincorporated association any requirement of or liability (including criminal liability) under this Order must be taken to be a requirement on or liability of—

(a) the person responsible for the management and control of the association, or

(b) if there is more than one such person, all of them jointly and severally.

(11) “Family” and “friend” must be construed in accordance with Article 4.

(12) The Secretary of State may by order provide that in specified circumstances a person who makes, or authorises the making of, arrangements (of any description) for another to engage in regulated activity either is or is not a regulated activity provider.

Restrictions on participating in regulated activity

Barred person not to engage in regulated activity

11.—(1) An individual commits an offence if he—

(a) seeks to engage in regulated activity from which he is barred;

(b) offers to engage in regulated activity from which he is barred;

(c) engages in regulated activity from which he is barred.

(2) A person guilty of an offence under paragraph (1) is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding the statutory maximum, or to both.

(3) It is a defence for a person charged with an offence under paragraph (1) to prove that he did not know, and could not reasonably be expected to know, that he was barred from that activity.

(4) It is a defence for a person charged with an offence under paragraph (1) to prove—

(a) that he reasonably thought that it was necessary for him to engage in the activity for the purpose of preventing harm to a child or vulnerable adult (as the case may be),

(b) that he reasonably thought that there was no other person who could engage in the activity for that purpose, and

(c) that he engaged in the activity for no longer than was necessary for that purpose.

(5) For the purposes of this Article, Schedule 2 is modified as follows—

(a) in paragraph 1, sub-paragraphs (1)(b) and (2)(a) must be disregarded;

(b) in paragraph 7(1), the words “if it is carried out frequently by the same person or the period condition is satisfied” must be disregarded;

(c) in paragraph 7(4), paragraph (a) must be disregarded.