SANDY ADIRONDACK
Legal and governance training and consultancy
for the voluntary sector
OTHER CHAPTERS
I. THE ORGANISATION

Ch.1: Setting up an organisation
Ch.2: Unincorporated organisations
Ch.3: Incorporated organisations
Ch.4: Charitable status, charity law & regulation
Ch.5: The organisation's objects
Ch.6: The organisation's name
Ch.7: The governing document
Ch.8: Registering as a charity
Ch.9: Branches, subsidiaries & group structures
Ch.10: Changing legal form
Ch.11: Collaborative working, partnerships and mergers
II. GOVERNANCE
Ch.12: Members of the organisation
Ch.13: Members of the governing body
Ch.14: Officers, committees & sub-committees
Ch.15: Duties & powers of the governing body
Ch.16: Restrictions on payments & benefits
Ch.17: The registered office & other premises
Ch.18: Communication & paperwork
Ch.19: Meetings, resolutions & decision making
Ch.20: Assets & agency
Ch.21: Contracts & contract law
Ch.22: Risk & liability
Ch.23: Insurance
Ch.24: Financial difficulties & winding up
III. EMPLOYEES, WORKERS, VOLUNTEERS & OTHER STAFF
Ch.25: Employees & other workers
Ch.26: Rights, duties & the contract of employment
Ch.27: Model contract of employment
Ch.28: Equal opportunities in employment
Ch.29: Taking on new employees
Ch.30: Pay & pensions
Ch.31: Working time, time off & leave
Ch.32: Rights of parents & carers
Ch.33: Disciplinary matters, grievances & whistleblowing
Ch.34: Termination of employment
Ch.35: Redundancy
Ch.36: Employer-employee relations
Ch.37: Employment claims & settlement
Ch.38: Self employed & other contractors
Ch.39: Volunteers
IV. SERVICES & ACTIVITIES
Ch.40: Health & safety
Ch.42: Equal opportunities: goods, services & facilities
Ch.43: Data protection & use of information
Ch.44: Intellectual property
Ch.45: Publications, publicity & the internet
Ch.46: Campaigning & political activities
Ch.47: Public events, entertainment & licensing
V. FUNDING & FUNDRAISING
Ch.48: Funding & fundraising: General rules
Ch.49: Fundraising activities
Ch.50: Tax-effective giving
Ch.51: Trading & social enterprise
Ch.52: Contracts & service agreements
VI. FINANCE
Ch.53: Financial procedures & security
Ch.54: Annual accounts, reports & returns
Ch.55: Auditors & independent examiners
Ch.56: Corporation tax, income tax & capital gains tax
Ch.57: Value added tax
Ch.58: Investment & reserves
Ch.59: Borrowing
VII. PROPERTY
Ch.60: Land ownership & tenure
Ch.61: Acquiring & disposing of property
Ch.62: Business leases
Ch.63: Property management & the environment
VIII. BACKGROUND TO THE LAW
Ch.64: How the law works
Ch.65: Dispute resolution & litigation
UPDATED INFORMATION FOR CHAPTER 41:
THE RUSSELL-COOKE
VOLUNTARY SECTOR LEGAL HANDBOOK

This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.

These websites for each chapter update the 3rd edition of The Russell-Cooke Voluntary Sector Legal Handbook by James Sinclair Taylor and the Charity Team at Russell-Cooke Solicitors, edited by Sandy Adirondack (Directory of Social Change, 2009). The websites are not intended as a comprehensive update and should not be treated as such.

To order a copy of The Russell-Cooke Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking . It costs £60 for voluntary organisations or £90 for others, plus 10% p&p.

To avoid spamming, an email address is not given on screen. If you can't see the word 'here' or have trouble sending an email by clicking on it, the address is bookservice at sandy-a.co.uk, with the spaces and 'at' replaced by the @ symbol.

The information here covers the law applicable to England and Wales. It may not apply in Northern Ireland and/or Scotland. These news items are not a full or definitive statement of the law and are not intended as a substitute for professional legal advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be taken by the author.


Chapter 41
SAFEGUARDING CHILDREN AND VULNERABLE ADULTS


The items below formerly appeared on the legal update website for voluntary organisations and are archived here. The content may be out of date and links may not work. For current updates to the chapter, see the legal update website for voluntary organisations at www.sandy-a.co.uk/activities.htm.


SAFEGUARDING RESOURCES

Updated 26/8/12. This information updates chapter 41 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Safe Network is jointly managed by the NSPCC, Children England and Child Accident Prevention Trust (CAPT) and is at www.safenetwork.org.uk. Its core standards and guidance for safeguarding children in the voluntary and community sector, launched in February 2011, were updated in March 2012 and are available via tinyurl.com/43rxt3k. The standards are accompanied by by online self-assessment tool and a toolbox of resources.

The Children's Legal Centre, now part of the Coram group of charities and called the Coram Children's Legal Centre (CCLC), provides free legal advice factsheets, an immediate response service and webchat or telephone facilities to talk with an advisor on all areas of family, child and education law. Details of all of these services are at tinyurl.com/d5hlts5.

CCLC has set up a Child Protection Project for professionals working with children and young people, covering all aspects of child protection and safeguarding law and policy, at www.protectingchildren.org.uk. Registration via the website gives access to a free monthly e-newsletter, and access to a Child Protection Project solicitor via telephone or webchat.

For resources specifically about criminal record checks and the disclosure and barring service, see the relevant articles below.

Go back to contents
Go to archived items about safeguarding (VSLH3 chapter 41)


DBS CRIMINAL RECORD CHECKS AND UPDATE SERVICE

Updated 17/6/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Since 1 December 2012, when the Disclosure and Barring Service (DBS) took over the functions of the Criminal Records Bureau in England and Wales, criminal record checks have been called Disclosure and Barring Service (DBS) checks.

Information for both individuals and organisations about DBS checks is on the Gov.uk website via tinyurl.com/a3bluau, with detailed information for organisations on the DBS website via tinyurl.com/amdyewf. The list of registered umbrella bodies can be accessed via tinyurl.com/cron29m.

The DBS can be contacted by phone on 0870 90 90 811 for information about DBS checks.

The sections below set out various changes that have been implemented in relation to criminal record checks. To be kept up to date with DBS changes, you can register for updates at tinyurl.com/lxsmkpx.

Changes in the application process
Updated 13/6/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 17 June 2013, non-conviction information provided by police for a criminal record check will be based on the "workforce" the person is in, rather than the specific role or position.

To accommodate this change, line 1 in the position applied for field (x61) on the DBS application form must show whether the person is in the child workforce (working/volunteering with children); adult workforce (working/volunteering with adults); child and adult workforce; or other workforce (for any position, such as a security guard, that does not involve working or volunteering with children or adults).

Line 2 of x61 should include a description of the person's position, in up to 30 characters.

In addition, because of changes in the way some old convictions and cautions have been shown on criminal record certificates since 29 May 2013, question e55 on spent and unspent convictions needs to be treated differently than it was before this date. For more on this see Removal of some old convictions and cautions from DBS certificates, below.

Single (applicant-only) certificates
Updated 13/6/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 17 June 2013, DBS certificates will be sent only to the individual applicant, and no longer also to the registered person (the employer/organisation or umbrella body which submitted the application). The purpose of this change is to allow the individual to review the certificate, and to dispute and make appropriate representations about the information in the certificate [or, presumably, withdraw their application for the job or volunteering role], without the information already having been seen by the organisation.

This means that organisations will have to rely on the applicant providing their copy of the DBS certificate, rather than receiving it direct from the DBS or registered umbrella body. In the past, umbrella bodies have been responsible for examining certificates and contacting the organisation for whom they are obtaining certificates if they have any concerns. This important safety net will disappear, and each organisation will need to have someone trained in how to recognise fraudulent certificates and how to understand any conviction or other information.

Applicant-only certificates have been brought in under s.79 of the Protection of Freedoms Act 2012, which inserts a new s.120AC into the Police Act 1997.

Online update service / portability
Updated 17/6/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 17 June 2013, individuals can choose to subscribe to a new DBS online update service when they apply for their next (or first) criminal record check. A subscription can only be started when the individual applies for the check, or by using the certificate number to join the service within 14 days of the certificate being issued. If the application is made through the DBS's eBulk service (for example, if it is made through an umbrella body which uses this service) the individual will not be able to join the update service when applying for the certificate, and will have to do so within 14 days of the certificate being issued.

The DBS will keep subscribers' information up to date, and employers or volunteer-using organisations can carry out free, online, instant checks, called status checks, at any time, to see if any new information has come to light since the certificate was issued.

This creates a "portable" disclosure that can be used for multiple jobs or roles, consisting of the original certificate, plus status checks whenever the person starts working or volunteering for a new organisation, changes role within an organisation, or needs to be re-checked under the organisation's provision for regular checks.

A status check can be carried out only if the individual being checked has subscribed to the service. The organisation does not have to subscribe to the service or pay a fee to carry out the check, but it must:

  • have the applicant's consent either verbally or in writing (this can be one-off consent for a single check, or the employer can, if it wishes, ask the individual for ongoing consent);
  • see the original certificate to check it is the same type and level as the organisation is entitled to carry out (see Eligible, required, recommended?, below); make sure that the right checks have been carried out; and see what, if any information was disclosed about the applicant;
  • check the applicant's identity (see Identity checking procedures, below);
  • check the name on the DBS certificate matches this identity;
  • note the DBS certificate reference number, the person's name and date of birth;
  • comply with the DBS code of practice, which includes having a policy on the recruitment of ex-offenders and making this available to the person. The DBS has model policy in its publications section at www.gov.uk/dbs.
An online status check will give an instant result, either that no further information has been identified since its issue, or that the certificate is no longer current and a new check needs to be applied for to get the most up to date information.

If a new check is applied for and the individual does not provide their certificate, the registered body (the organisation itself, or the umbrella body it uses) can ask DBS for a copy of it. But this can be done only if the individual is subscribed to the update service; the organisation has carried out a status check which revealed a change to the certificate and as a result the individual has applied for a new certificate; the DBS issued a new certificate more than 28 days previously; and the individual has not shown this certificate to the organisation.

For employees, the annual subscription for the update service is £13. The employer can pay this directly, or can reimburse employees who pay. Such payment or reimbursement would be a taxable benefit, so legislation has been put in place to exempt the annual update payment or reimbursement from tax and national insurance, where the employee is engaged in regulated activity. Payment or reimbursement by the employer for standard and enhanced criminal record certificates is also exempt from tax and national insurance where applications for the certificate and the update service are made at the same time. Fees for criminal record checks on their own (not paid at the same time as an update subscription) paid or reimbursed by the employer do not fall within this legislation, as these payments would not be treated as taxable benefits anyway.

For volunteers, the annual update subscription is free. The definition of volunteer is the same as for free DBS checks.

A subscription lasts for 12 months from the date the certificate is issued or, if later, the date of the individual joined the subscription service. It can then be renewed annually.

The DBS recommends that organisations encourage relevant staff and volunteers to subscribe to the update service when they are due for their next criminal record check (in line with the organisation's existing re-checking procedures). It also suggests that organisations review their employment and recruitment policies, to see how status checks can form a part of these processes.

But the update service is not necessarily appropriate for everyone. It will be most useful for individuals who do, or are likely to do, similar roles over time for different organisations, or where the organisation has a policy of regularly checking that certificates are still current.

Organisations are not obliged to use the update service. Even if an individual is registered with the service and the new role or job is of the same type and at the same level as covered by the current certificate, the organisation can require a complete new check rather than doing a status check.

More importantly, the organisation should require a new check if the current certificate is for a dissimilar role or is for a different workforce (working with children rather than adults, or vice versa, or if the new role is for regulated activity and the current certificate does not include the relevant barred list check). So the DBS's publicity claim that "you may never need to do another check again" is unlikely to be accurate, and could mislead organisations and individuals into thinking that they never need to undertake a new check, or perhaps even that they don't need to do status checks.

Detailed information about the update service, including guidance for individuals and organisations, is available via www.gov.uk/dbs. The DBS has a very clear, useful PowerPoint presentation, explaining the service and how it works for individuals and employers, at tinyurl.com/pw7avmy.

The update service was brought in by s.83 of the Protection of Freedoms Act 2012, which inserted a new s.116 in the Police Act 1997.

Removing some old and minor convictions and cautions from DBS certificates
Updated 13/6/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
In a decision on 29 January 2013 relating to three cases, the court of appeal ruled that some aspects of criminal record checks, as then operating, were incompatible with the right to private life under article 8 of the European Convention on Human Rights. As a result of this decision, new rules came into effect on 29 May 2013, filtering certain old and minor convictions and cautions from DBS certificates.

One of the court cases involved T, who had received two police warnings in relation to stolen bicycles when he was 11. (Cautions for under-18s are known as reprimands or warnings.) The cautions were disclosed on his CRB check when he applied for a job six years later that would have involved working with children, and again when he applied the following year for a sports studies course.

The basis for his case was that cautions, unlike convictions, take place in private, and also that criminal record disclosures, by affecting employability, affect the person's ability to form relationships with others. Set against this are the legitimate aims of article 8 to protect employers, children and vulnerable adults, and to enable employers to assess the suitability of an individual for the work he or she will be doing. In its decision, the court of appeal said that "the statutory regime requiring the disclosure of all convictions and cautions relating to recordable offences [was] disproportionate to that legitimate aim". In relation to T, the court said it was "difficult to see the relevance of warnings received when he was a child to his suitability to be enrolled on a course and have contact with children when he was 18".

Under the filtering rules that were put in place as a result of this decision, a conviction will not be included on a criminal record certificate if:

  • it is not a conviction for a specified offence as defined in s.4 of the order, such as sexual offending, violent offending and/or safeguarding); and
  • it is the person's only offence: and
  • it did not result in a custodial sentence: and
  • the person was aged 18 or over at the time of the offence and 11 years have elapsed since the date of the conviction; or the person was under 18 at the time of the offence and 5.5 years have elapsed since the date of the conviction.
If a person has more than one offence, details of all their convictions will always be included in the criminal record certificate.

A caution will not be included on the certificate if:
  • it is not on the list of specified offences; and
  • the person was aged 18 or over at the time of the caution and six years have elapsed since the caution; or the person was under 18 and two years have elapsed since the date of the caution.
Organisations and umbrella bodies registered with DBS should ensure that applicants are aware that question e55 on the DBS application form, "Have you ever been convicted of a criminal offence or received a caution, reprimand or warning?" should be treated as if it asked "Do you have any unspent convictions, cautions, reprimands or warnings?"

DBS information about filtering is at tinyurl.com/oxs9tjj.

The filtering rules are in the Police Act 1997 (Criminal Record Certificates: Relevant Matters)(Amendment)(England and Wales) Order 2013, at www.legislation.gov.uk/uksi/2013/1200/contents/made;
and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment)(England and Wales) Order 2013 at www.legislation.gov.uk/uksi/2013/1198/contents/made.

The court of appeal case that led to the new filtering rules was T, R (on the application of) v Greater Manchester Chief Constable & others. The judgment is at www.bailii.org/ew/cases/EWCA/Civ/2013/25.html.

Types of check, and eligibility to carry them out
Updated 13/6/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
As in the past, DBS checks can be carried out only where an organisation is eligible to do so under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and subsequent orders. These orders specify the positions, professions, offices, employment, other activities and licences where an individual can be asked about spent as well as unspent convictions, and where a check on their criminal record can be carried out. To be eligible for an enhanced check, the position must also be listed in regulations made under the Police Act 1997.

Guide to eligibility, updated 14 February 2014 and available via tinyurl.com/kowmqtv, lists the positions etc which are eligible for standard and enhanced DBS checks. The organisation is legally responsible for ensuring it is eligible to ask the individual for a DBS check. It is unlawful for an organisation to carry out a check for which it is not eligible.

The three levels of checks are:

  • Standard check: for specified licences, occupations and professions. The certificate contains details of spent and unspent convictions, cautions, reprimands and final warnings from the police national computer (PNC). Some information about old and minor convictions and cautions will not be included.

  • Enhanced check: for individuals carrying out certain activities or working in regulated activity with children or adults, applicants for gaming and lottery licences, and judicial appointments. The certificate contains the same information as a standard check, plus relevant information from police records held locally. Regulated activity in this context means activities currently defined as regulated activity, as well as activities which were previously defined as regulated under the Safeguarding Vulnerable Groups Act 2006, but have not been regulated since the act was amended from 10 September 2012 (such as being a trustee of a children's or vulnerable adults' charity).

  • Enhanced check with a children's and/or adults' barred list check: only available for individuals engaged in regulated activity with children or adults, and a small number of positions listed in Police Act regulations, such as prospective adoptive parents. The certificate contains the same information as an enhanced check, plus a check against the lists of people barred from work with children and/or adults. Regulated activity in this context means only activities currently defined as regulated.
The clearest information I have seen about eligibility is the Volunteering England/NCVO information sheet on DBS checks, available via tinyurl.com/bc2jpc2. Although this is phrased in terms of volunteers, it applies in the same way to employees and other workers.

The Protection of Freedoms Act 2012 is at www.legislation.gov.uk/ukpga/2012/9/enacted.
The Police Act 1997 is at www.legislation.gov.uk/ukpga/1997/50/contents.

The provision in s.112 of the Police Act 1997 for criminal conviction certificates (often called basic checks), providing information only about convictions that are "unspent" under the Rehabilitation of Offenders Act 1974, has never been implemented for England and Wales and continues to apply only in Scotland and Northern Ireland.

Eligible, required, recommended?. The fact that an organisation is eligible to carry out a standard or enhanced DBS check for a particular position, activity etc does not necessarily mean that it is required to do so. At present, there is a statutory duty to carry out a check only if this is specified in legislation for specific sectors.

Even for regulated activity with children or adults, where it is an offence for an organisation to offer such work to a person or allow them to undertake it if they are barred, there is no general statutory obligation to obtain an enhanced DBS check in order to find out whether the person is barred. However, this will change if a statutory duty to check that any person starting regulated activity is not barred is introduced.

Clearly it is advisable to carry out an enhanced check with barred list check for any person who will be involved in regulated activity, to avoid the risk of engaging someone who is barred from such work.

Where a person is not engaged in regulated activity and the organisation is eligible (but not required) to carry out a standard or enhanced (without barred lists) check, and the organisation does not do so, the organisation could be found to be negligent (in breach of its duty of care) if the individual subsequently causes harm and it turns out they had a criminal record that could have been relevant in appointing them. This is why funders and/or an organisation's safeguarding policy often require checks whenever it is possible to undertake them.

In some sectors there is also a government or official recommendation (not requirement) that checks be carried out if the organisation is eligible to do so; for example the Charity Commission's recommendation that enhanced checks be carried out for trustees of children's and vulnerable adults' charities.

But there is another view, that organisations should not automatically carry out a check on everyone who is eligible for one, and that carrying out checks unnecessarily can be a deterrent to volunteering. Advocates of this view say it should be up to the organisation to decide, based on a relevant risk assessment, whether there is adequate reason to carry out a check where it is eligible but not required to do so. It is important always to remember that many offenders of all types never come to the attention of the police, and DBS checks generally only reveal information about those who do. Other elements of good management — a good recruitment process, taking up references, proper induction, ongoing training, supervision, risk assessment — are ultimately more important than DBS checks.

There is more about DBS checks, regulated activity and when checks are and are not required in the Home Office's Disclosure and barring supporting information pack (2nd edition), published on 16 October 2012 and available via tinyurl.com/atbsvhd, and in the resources listed under Regulated activity, below.

Charge for DBS checks
Updated 22/1/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The charge for standard checks remains £26, and £44 for enhanced checks with or without barred list checks.

Checks for volunteers remain free of charge. "Volunteer" is defined in the Police Act 1997 (Criminal Records) Regulations 2002 as "any person engaged in an activity which involves spending time, unpaid (except for travel and other approved out of pocket expenses), doing something which aims to benefit some third party and not a close relative."

To qualify for a free DBS check, the applicant must not benefit directly from the position the DBS application is being submitted for. The applicant must not receive any payment (except for travel and other approved out of pocket expenses), and must not be on a work placement, on a course that requires them to do this job role, or in a trainee position that will lead to a full time role or qualification.

Identity checking procedures
Updated 22/1/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 31 August 2012, all bodies registered with the DBS must comply with revised identity checking procedures for England and Wales. The new procedures do not apply in Scotland, and Access NI's list of identity checking documents required in Northern Ireland, at tinyurl.com/anblhyo has been reviewed and is slightly different from the DBS list.

The DBS's revised and enhanced identification checking guidelines can be accessed via tinyurl.com/ajcobbs.

For DBS identity checking there are three routes, and three groups of documents that can be provided. The routes and groups are explained below. More detailed information, such as about external identity validation, is available in the ID checking guidelines, or from the DBS helpline or from DBS-registered umbrella bodies that carry out DBS checks on behalf of organisations which are not themselves registered with the DBS.

The three routes are, briefly, route 1 for applicants who can provide a 'group 1' document such as a passport or UK photo driving licence plus two other specified documents; route 2 for UK or EEA applicants who cannot provide a group 1 document but can provide three other specified documents and have their identity confirmed by an external validation service; route 3 for UK nationals only where routes 1 and 2 have not proved successful.

  • Route 1 must be the starting point for all applicants.

    UK nationals, and EEA nationals resident in the UK for more than five years. If the applicant provides a group 1 document, they must then provide two further documents from any of the groups. (Details of the groups are below.) One of the documents must confirm the applicant's current address. If a group 1 document cannot be provided, use route 2.

    EEA nationals (other than UK nationals) resident in the UK for five years or less. The only acceptable group 1 documents are a current passport, or current UK photo driving card. If one of these is provided, two more documents from any group are required. One of the documents must confirm the applicant's current address. If a group 1 document cannot be provided, route 2 can be used if the registered body is satisfied there is a valid reason for doing so.

    Non-UK/non-EEA nationals can be validated only through route 1. They must provide one group 1 document plus two documents from any group, with one of the three documents confirming current address. There is considerable concern within the voluntary sector about the implications of this for refugees and asylum seekers who might not have these documents and thus will not be able to volunteer or be employed in roles which require CRB checks.

  • Route 2 can be used only if a UK/EEA applicant cannot produce a group 1 document. They must provide one document from group 2a and two further documents from group 2a or 2b, one of which must verify their current address. The registered body conducting the ID check must then use an external identity validation service to check the applicant against their records to establish the applicant's name and "living history footprint". An applicant who fails the external validation check must be fingerprinted [see below].

    For registered bodies that have not yet identified an external validation service, the DBS suggests doing an internet search, and also says it is aware that Call Credit Group, Equifax, Experian and GB Group are working towards the provision of ID validation services tailored for DBS purposes. Some major voluntary sector umbrella bodies, such as the CCPAS disclosure service (via www.ccpas.co.uk/disclosure.html), have also set up ID verification services which can be used even by organisations which do not carry out DBS checks through them.

  • Route 3 can be used only if route 1 has been exhausted and the registered body has tried to have an external validation check. Route 3 involves an in-depth discussion with the applicant about their situation, plus provision of a UK or Channel Islands birth certificate, plus one document from group 2a, plus three further documents from group 2a or 2b, one of which must verify their current address.

  • Fingerprinting. If an applicant provides the route 2 documents but fails the external validation check, or if they are unable to provide the route 3 documents, question W59 on the disclosure application form should be marked 'no', and the applicant will be asked to give consent to have their fingerprints taken. This will require attendance at a police station at a specified time, and may delay the overall disclosure application process. There is no charge for the fingerprinting.
The introduction of the routes was accompanied by a tightening up on the rules on ID documents, with 21 documents, such as national insurance cards, TV licences, and Disclosure Scotland and Criminal Records Bureau certificates, ceasing to be acceptable. This was to reduce use of documents that are easily obtained or forged and to make it more difficult for applicants to conceal a change of name.

Documents that remain acceptable are divided into three groups, described and with helpful explanations about the various documents and how to check them, is in the DBS's identification checking guidelines, available via tinyurl.com/ajcobbs.

All documents must be originals. Photocopies are not acceptable, or documents printed from the internet such as bank statements or utility bills. At least one document must show the applicant's date of birth.
  • Group/table 1: Primary trusted identity credentials
    Any current valid passport.
    UK biometric residence permit.
    UK, Isle of Man or Channel Islands current driving licence (can be full or provisional, but must be photo card with counterpart except for Jersey).
    UK or Channel Islands birth certificate issued at the time of birth (full or short form, including those issued by UK authorities overseas such as embassies, high commissions and HM forces).

  • Group/table 2a: Trusted government/state issued documents
    Old style paper version of UK driving licence.
    Non-UK photo driving licence, can be used for up to 12 months from the date the person entered the UK provided it is still valid.
    UK or Channel Islands birth certificate issued after the time of birth by the general register office or relevant authority.
    UK or Channel Islands marriage or civil partnership certificate.
    UK or Channel Islands adoption certificate.
    UK HM forces ID card.
    UK or Channel Islands firearms licence.

  • Group/table 2b: Financial and social history documents
    Must have been issued in the last 12 months
    UK or EEA mortgage statement.
    UK financial statement such as pension, endowment or ISA.
    UK or Channel Islands P45 or P60 statement.
    UK or Channel Islands council tax statement.
    Must have been issued in the last 12 months and must still be valid
    UK work permit or visa.
    Must have been issued in the last 3 months
    UK, Channel Islands or EEA bank or building society statement.
    UK or EEA credit card statement.
    UK utility bill (but not a mobile phone bill).
    Benefit statement such as child benefit or pension.
    Document issued by UK or Channel Islands central or local government, government agency or local authority giving entitlement (such as Department for Work and Pensions, Employment Service, HMRC).
    Issued any time, provided it is still valid
    Bank or building society account opening confirmation letter.
    EU national ID card.
    UK or Channel Islands cards carrying the PASS (national proof of age standards scheme) accreditation logo.
    Only for non-UK and non-EEA nationals residing outside the UK at the time of application
    Valid letter of sponsorship from future employment provider.
    Only for UK nationals, 16-19 years old in full time education
    Letter from head teacher or college principal; only acceptable in exceptional circumstances if other documents cannot be provided.
The DBS's guidance explains how to check the various documents, and explains what a registered body should do if it suspects false identity or documents.

Minimum age
Updated 6/9/12. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 10 September 2012 s.80 of the Protection of Freedoms Act 2012 introduces a minimum age of 16 for an individual applying for a disclosure, and 18 for a registered person or countersignatory for a registered body. Prior to this there was no minimum age limit for applying for a disclosure, or for countersignatories for registered bodies or registered persons who are individuals rather than organisations (for example a self-employed person who employs people in the course of their business).

New category of person eligible for enhanced certificate
Added 6/9/12. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 10 September 2012 enhanced DBS checks can be undertaken for a person aged 16 or over, who is a member of the household of another person who works closely with children (including regulated activity with children), where both of the persons live on the same premises as the work takes place. This might include, for example, the spouse of a boarding school manager when both the boarding school manager and the spouse live on site at the school.

This change is brought in by reg.10 of the Police Act 1997 (Criminal Records)(Amendment No.2) Regulations 2012.

Disclosure of police information
Added 6/9/12. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 10 September 2012, chief officers of police must use the test of "reasonably believe to be relevant" rather than "might be relevant" when considering the release of approved information on the criminal record certificate. In addition, chief officers should take account of new statutory guidance when making assessments about the release on relevant non-conviction information on certificates.

These changes are in s.113B of the Police Act 1997, as amended by the Protection of Freedoms Act 2012 s.82.

Additional (brown envelope) information
Added 6/9/12. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Police forces have been obliged by law to disclose relevant information (known as additional information or "the brown envelope") to the registered body only. This is information which does not show on the applicant's certificate.

From 10 September 2012, this information will not be provided by the police for the DBS to send to the organisation. However the police will still keep their right, using their common law powers, to pass such information to a potential employer where they consider it justified and proportionate.

Independent review of information
Added 6/9/12. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 10 September 2012, individuals have a new right to apply in writing to an independent monitor to request a review of whether information released as approved information is relevant and ought to be included on the DBS enhanced certificate. In addition, parties other than the DBS check applicant will be able to dispute the accuracy of information on a certificate.

This is in s.117A of the Police Act 1997, as amended by the Protection of Freedoms Act 2012 s.82.

Sexual offences
Updated 21/1/13. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 1 October 2012, men convicted of homosexual offences prior to the decriminalisation of consensual gay sex in 1967 can apply to have such convictions deleted from the police national computer. Such convictions will then no longer show up as a sexual offence on DBS checks.

This change is brought in by ss.92-101 of the Protection of Freedoms Act 2012 and the Protection of Freedoms Act (Relevant Official Records) Order 2012.


CRIMINAL RECORD CHECKS

The first paragraph was added 11/3/12. The remainder was last updated 20/6/10 and has not been updated yet. This information updates s.41.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Following the government's "red tape challenge" on employment-related regulations in October 2011, it was announced that a universally portable Criminal Records Bureau check will be created from early 2013. Employers will be able to view this instantly online, so there will be no need for a fresh application when moving jobs. Work on this will be led by the Home Office. It sounds very like what was planned for 2010.

The Criminal Records Bureau issued on 6 April 2009 a revised code of practice for registered bodies and other recipients of CRB disclosure information. The revised code is intended to ensure organisations do not breach the spirit and requirements of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 by submitting ineligible disclosure applications. It also seeks to ensure registered and umbrella bodies correctly verify the identity of disclosure applicants; sensitive and personal data in disclosures is correctly managed and used by registered and umbrella bodies and others; and registered bodies and others treat their applicants fairly when considering sensitive disclosure information. Registered bodies which fail to comply with the code may be suspended or deregistered. The code is at www.crb.homeoffice.gov.uk/PDF/Code%20of%20practice%20Apr%2009.pdf.

The CRB website includes detailed guidance on the code's obligations. Guidance on other aspects of CRB checks is at www.crb.homeoffice.gov.uk/guidance.aspx.

The fee for CRB checks is £26 for standard disclosures and £36 for enhanced. The fee is waived for checks on volunteers, defined in the Police Act 1997 (Criminal Records) Regulations 2002 as "a person engaged in an activity which involves spending time, unpaid (except for travel and other approved out-of-pocket expenses), doing something which aims to benefit some third party other than or in addition to a close relative".

A standard disclosure (also referred to as a criminal record certificate) lists convictions which are "spent" under the Rehabilitation of Offenders Act 1974, unspent convictions and cautions. For work with children (defined in most cases as under 18) or vulnerable adults the disclosure is enhanced (called an enhanced criminal record certificate), listing in addition police information such as suspicions that did not lead to a caution or conviction, and information about whether the person is barred from working with (as appropriate) children or vulnerable adults.

Standard and enhanced checks are available only in relation to professions or positions specified in various exception orders made under the Rehabilitation of Offenders Act 1974 — mostly positions involving access to children or vulnerable adults, work in health or education, and certain professions such as accountancy. The CRB can provide information about positions for which disclosures can be obtained.

In exceptional cases a care worker may be allowed to start work in a care home, for a domiciliary care agency, or as an adult placement carer before a CRB check has been issued, provided an AdultFirst check has been done by the CRB (fee £6).

Because of widespread concern about CRB checks being carried out where there is no statutory entitlement to do so — in particular in relation to volunteers, where the checks are free — the Office of the Third Sector issued guidance in 2008 on CRB checks for organisations that use volunteers. Although the guidance is no longer available, it warned that organisations which carry out free checks when they are not entitled to do so could be required to pay the fee for the checks. For guidance on trustee checks (currently being revised), see the Charity Commission's CC30 Finding new trustees: What charities need to know at www.charitycommission.gov.uk/publications/cc30.aspx.

CIPD (the Chartered Institute for Personnel and Development) updated in March and April 2009 its guidance on employing people with criminal records, risk assessment in relation to employing people with criminal records, and recruitment of people working with children and vulnerable adults. These are at www.cipd.co.uk/subjects/dvsequl/exoffenders/crimrec.htm,
www.cipd.co.uk/subjects/dvsequl/exoffenders/crimrecra.htm and
www.cipd.co.uk/subjects/recruitmen/general/recruitypw.htm.


VETTING AND BARRING SCHEME

Updated 20/6/10. This information updates s.41.7 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Home Office issued in March 2010 guidance on the vetting and barring scheme (VBS), which is essential reading for any organisation which works with children or with adults defined under the Safeguarding Vulnerable Groups Act 2006 as vulnerable. It is at www.isa.homeoffice.gov.uk/PDF/VBS_guidance_ed1_2010.pdf.

Although the government announced on 15 June 2010 that some aspects of VBS registration in England and Wales and in Northern Ireland were being reviewed and "remodelled", much of the guidance still applies. A summary of the guidance, containing only those provisions that apply to safeguarding during the VBS review period, is at www.crb.homeoffice.gov.uk/pdf/VBS%20Interim%20guidance.pdf.

The Independent Safeguarding Authority (ISA) newsletter of 15 June 2010, available by registering for newsletters on the ISA's website at www.isa.homeoffice.gov.uk, explains how to apply for CRB checks during the review period. Up to date information about CRB checks is available from the CRB at www.crb.homeoffice.gov.uk. The VBS contact centre is at 0300 123 1111 and the CRB customer services centre at 0870 9090 811.

The ISA recommends that employers get their information about the VBS and CRB checks via Business Link at tinyurl.com/34x3oyh, but I am quite sure that one aspect of this is incorrect [see second bullet point below] and am therefore not currently recommending it.

Until any recommendations arising from the review are implemented, provisions of the Safeguarding Vulnerable Groups Act 2006 which have already been implemented, and existing rules under the Protection of Children Act, Care Standards Act and related legislation that have not yet been repealed, continue to apply, as summarised below.

The dates and details below refer to England. Organisations outside England should take advice locally, because although most provisions are the same for Wales there are a few differences, Northern Ireland has separate legislation although it closely follows England and Wales, and Scotland is developing a parallel scheme.

Suspended for the time being
While the government's review is in progress, the following provisions, which were due to come into effect on 26 July 2010 and in November 2010, have been put on hold.

  • Voluntary registration with the ISA. Provision for voluntary ISA registration for individuals starting work or changing roles, whether paid or unpaid, in regulated activities with children or vulnerable adults has been suspended. Voluntary registration was due to start on 26 July 2010.


  • Compulsory registration with the ISA. Compulsory registration of anyone starting work or changing roles, paid or unpaid, in a regulated activity was due to start in November 2010. The statement issued by the Home Office on 15 June and information on the ISA website seem very clear that all registration, including compulsory registration from November, has been suspended. But as of 20 June the Business Link website said, at tinyurl.com/35eon69, that compulsory registration will start in November. I am 99.9% sure this is an error and have contacted Business Link. If you check their website and find it has been changed — or if you learn from the ISA that the Business Link statement is indeed correct — please let me know. (The fact that Business Link, a supposedly reliable source of information, almost certainly has this wrong is an indication of just how confusing the information relating to this whole process is.)


  • Assuming that compulsory registration from November of new workers and those changing roles is suspended, so too will be compulsory registration, phased in over five years, of anyone who is already in regulated or controlled activities when compulsory registration starts.


  • ISA registration process. The arrangement for ISA registration through the Criminal Records Bureau, with a combined CRB/ISA application form, has been suspended. However, the combined forms have already started to be issued, and from 20 July 2010 all applications received by the CRB must be on the new form. The new form can be used before then, from 28 June 2010, but applications submitted on the new form will not be processed until 26 July. The sections of the form that relate specifically to ISA registration should not be filled in. Information about how to fill in the forms is available from the CRB or in the ISA newsletter of 15 June [see above].


  • Employers' access to ISA information. Provision for all employers, including domestic employers (of nannies, private tutors and teachers, care workers etc) to make free, instant online ISA checks from 26 July to see if a person is registered or is barred from work with vulnerable groups, has been suspended. Information about whether a person is barred will continue to be provided to employers and volunteer-using organisations only through CRB enhanced checks.


  • Provision for employers to register with the ISA, express an interest in a person's ISA registration status, and be informed by the ISA if the person is subsequently barred, has been suspended.


  • New criminal offence. Until compulsory registration starts, the provision will not come into effect making it an offence, with a fine of up to £5,000, for an employer to employ a person, whether paid or unpaid, to work with children or vulnerable adults in a regulated who is not registered with the ISA, or to fail to check the ISA system. However, it is already an offence subject to the same fine knowingly to allow a barred person to engage in a regulated activity, or for such a person to seek or take on work with the group from which they are barred. It is also unlawful for an employer or organisation to allow a barred person to engage in a controlled activity, unless there is suitable provision for supervision.
Consultations
Two aspects of the vetting and barring scheme which have not yet been implemented were being consulted on even before the new review, with the consultations ending on 9 July 2010. The results of these consultations don't seem to be on the internet, or at least I can't find them.
  • Controlled activity. Whether the category of controlled activities, where people have less access to children or vulnerable adults than in regulated activities, should be reduced or removed by moving some posts into regulated activity and removing others from regulation.


  • Portability. Whether the statutory requirement for some workers to have CRB checks when they move to another regulated activity should be revised, so the employer only has to check their ISA status.
Still in force
Provisions that were implemented on 12 October 2009, or in some cases earlier, remain in force. These include:
  • CRB checks. All CRB checks for work with children or vulnerable adults are enhanced. Standard CRB checks are no longer available for work with children or vulnerable adults, but remain available where checks are required for other types of work or licences [see Criminal record checks, above].


  • Where a criminal record check is required for certain types of work with children or vulnerable adults, for example under the Care Standards Act 2000, it continues to be required.


  • Where a criminal record check is not required, but is permitted under various Rehabilitation of Offenders Act 1974 (Exceptions) Orders, an employer or organisation which considers it appropriate may carry out a check. Checks continue to be unlawful where they are not permitted.


  • Regulated activities. An employer or organisation which manages or controls regulated activity is called in the Home Office guidance a RAP — a regulated activity provider. The range of regulated activities from which people can be barred is now wider than it was before October 2009, especially in relation to work with vulnerable adults, but some aspects of regulated activity were eased following the Singleton review [see Regulated activity below].


  • Duty to refer. Employers and service providers of regulated and controlled activities, social services, professional regulators, and personnel suppliers (employment agencies, employment businesses and education institutions) must notify the ISA of relevant information about individuals who pose a threat to children or vulnerable adults. The ISA's detailed referral guidance, including the procedure for referrals, can be accessed via tinyurl.com/34rfbpv. It is a criminal offence for a body which has a statutory duty to refer to fail to do so without having a reasonable excuse.


  • Employers and organisations which do not have a duty to refer, parents/private employers, and members of the public may — but do not have to — refer information to social services or the police, who will investigate and if appropriate refer it on to the ISA.


  • Vetting and barring. Decisions about inclusion on the children's barred list (which replaced the Protection of Children Act list and list 99) and the adults' barred list (which replaced the Protection of Vulnerable Adults list), are made by the Independent Safeguarding Authority (ISA). Employers and volunteer-using organisations find out if someone is barred via an enhanced CRB check.


  • It is an offence for a barred individual to seek or undertake a regulated activity, whether paid or unpaid, with children or vulnerable adults, or for an employer or organisation knowingly to allow a barred person to engage in a regulated activity, or to engage in a controlled activity without adequate supervision.


  • The ISA will continuously monitor criminal records and information from employers, social services, ,regulators etc, and will review barring decisions as relevant new information becomes available. Under the original VBS, if the monitoring results in barring of an individual, employers who had registered an interest would be notified. This provision will not be implemented at this stage. Even when and if it is implemented, employers will not be notified of criminal offences, convictions or other information that does not result in barring. This information will continue to be available only through CRB checks.
The Safeguarding Vulnerable Groups Act 2006, setting out the legislative framework for the scheme, is at www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/2006/cukpga_20060047_en_1,
with explanatory notes at www.opsi.gov.uk/acts/en2006/2006en47.htm.

REGULATED ACTIVITY UNDER THE VETTING AND BARRING SCHEME

Updated 20/6/10. This information updates s.41.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
In relation to the vetting and barring scheme [see above], a regulated activity is one which involves contact with children or vulnerable adults and:

  • takes place frequently or intensively and is of a specified nature, including teaching, training, instruction, care, supervision, some advice or guidance, some treatment or therapy, some transport, or moderating an internet chatroom etc likely to be used wholly or mainly by children or vulnerable adults; or
  • takes place frequently or intensively and is in a specified place such as a school or care home; or
  • most fostering or childcare; or
  • being a governor of an educational body.
Under the original legislation, "intensively" meant it took place overnight or on three or more days in a 30-day period. Following the Singleton review of the definition of regulated activity in autumn 2009, the definition of "overnight" remains an activity that takes place between 2am and 6am and has the opportunity for face to face contact with a child or vulnerable adult. But from 1 April 2010, the Safeguarding Vulnerable Groups (Regulated Activity, Devolution and Miscellaneous Provisions) Order 2010 redefined intensively as four or more days in a 30-day period. The order is at www.opsi.gov.uk/si/si2010/plain/uksi_20101154_en.

The legislation does not define "frequently". Home Office guidance originally defined it as taking place once a month or more, but the Home Office vetting and barring scheme guidance issued in March 2010 defined it generally as being carried out once a week or more frequently on an ongoing basis. But in relation to health and social care it generally remains once a month or more. These definitions are in appendix B of the guidance, which has the status of statutory guidance.

Other changes following the Singleton review, as set out in the Home Office guidance, include:
  • Being a trustee of a children's or vulnerable adults' charity is not a regulated activity, unless the trustee is carrying out a specified activity or working in a specified setting frequently or intensively.
  • Private arrangements between parents or friends are not regulated. But where an organisation makes the decision about who will have contact with a child or vulnerable adult, it becomes a regulated activity.
  • Exchange visits of less than 28 days, where overseas parents take responsibility for selecting the volunteer host family, are treated as private arrangements.
  • Going into different schools or similar settings to work with different groups is not a regulated activity, but if the writer (or whoever) goes into the same setting often enough for it to be frequent or intensive, it becomes a regulated activity.
  • 16-18 year olds who engage in regulated activity as part of their continuing education will not have to register with the ISA.
  • There is a three-month exemption from the requirement to register for overseas visitors bringing their own group of children to the UK, provided the visitors work only with their own group. If they work with other children, ISA registration is required.
The Home Office guidance is at www.isa.homeoffice.gov.uk/PDF/VBS_guidance_ed1_2010.pdf.

REGISTRATION OF HEALTH AND ADULT SOCIAL CARE PROVIDERS

Updated 20/6/10. This information updates s.41.3.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Voluntary sector providers of healthcare and adult social care must be registered with the Care Quality Commission (CQC) if they carry out regulated activities as defined under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010.

Regulated activities include some but not necessarily all provision of domiciliary personal care; accommodation for people who require nursing or personal care or treatment for substance abuse; treatment of disease, disorder or injury; surgical procedures; diagnostic and screening procedures; where immediate action or attention is needed, telephone or email medical advice by a body established for that purpose; maternity services, termination of pregnancy and some family planning services; and nursing services that are not part of another regulated activity. This is only a summary and it will be a criminal offence to engage in a regulated activity without being registered with the CQC, so organisations which think they may be required to register should take advice.

The regulations are at www.opsi.gov.uk/si/si2010/uksi_20100781_en_1.
The Care Quality Commission's website is at www.cqc.org.uk.



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