ISA Registration [Updated 15th December 2009]
This is has also referred to as the Safeguarding Vulnerable Groups Act (2006) [SVG], the new Vetting & Barring Scheme [VBS] and the Independent Barring Board [IBB], all of which are covered below.
Background
After the tragic events in Soham, the Government appointed Sir Michael Bichard to head an inquiry into the failings of the vetting procedures that allowed Ian Huntley to take a role in a school, despite having been brought to the attention of the authorities on a number of previous occasions concerning incidents with minors.
The resulting document, the Bichard Inquiry Report, made 31 wide-reaching recommendations for improvements to cross Government data sharing procedures. The Government accepted the report's recommendations and introduced legislation to enable them to be implemented. This became the Safeguarding Vulnerable Groups Act 2006 which received the Royal Assent becoming law on November 8th 2006.
Wales and Northern Ireland will share this scheme whilst under devolution, equivalent or enabling legislation is being enacted in Scotland (Protection of Vulnerable Groups [Scotland] Act 2007). Although this may result in some minor local differences, the aim is that there will be an exchange of information between the relevant authorities such that any outcome is consistent across the UK.
Independent Safeguarding Authority (ISA)
A key aspect of the Act is the formation of the Independent Safeguarding Authority - ISA (originally referred to in the legislation as the Independent Barring Board – IBB). The ISA is a “Non-Departmental Public Body” set up by the Home Office, i.e. an autonomous organisation run by public servants.
Under the Act anybody wishing to work with children and/or vulnerable adults will, by law, need to register with the ISA; and employers offering such roles will, by law, need to check that an individual is registered before placing them in that role (more details below).
The Act also recognised the role of endorsing organisations* who, whilst not being the direct employer, will have the same access to the ISA as employers do.
* an endorsing organisation is generally a professional body that does not directly permit members to have access to children or vulnerable adults, so cannot directly prevent them from undertaking such work, but does lend their name to those members they have checked to work with children and/or vulnerable adults.
What do the ISA do?
The role of the ISA is to :-
- Assess relevant information on people wishing to register and, where they believe this information indicates the individual poses a threat to children and/or vulnerable adults, decline to register (bar) them. The information comes from a variety of sources, but for the most part it is the information that would be revealed via an Enhanced Disclosure.
- Provide people wishing to place an individual in an eligible role a means of checking their registration status
- Notify people who have checked the registration status of an individual in the past and still retain an interest in their status, if that status changes, e.g. if information has come to light that has caused the individual to be de-registered
- Accept notifications from organisations which have removed people from regulated activities (or would have removed them had they not left voluntarily) because they believed those people caused harm to or posed a risk to children or vulnerable adults.
What roles will require ISA registration?
The Act defines two categories of role that will require the jobholder to be ISA registered :-
- Regulated activities
- Controlled activities
Regulated Activities
Within the Act "regulated activity" is defined as :-
- Any activity which includes contact with children* or vulnerable adults and is of a specified nature e.g. teaching, training, coaching, care, supervision, advice, treatment or transport and which will be undertaken frequently*, intensively* or overnight
- Any activity allowing contact with children* or vulnerable adults in a specified place, e.g. schools, carehomes, hospitals etc., and which will be undertaken frequently** or intensively*** This would cover people like building & maintenance contractors working on school sites (during term time) etc
- Fostering and childcare
- Certain defined positions of responsibility, e.g. school governor, director of social services, trustees of certain charities (i.e. those aimed to benefit children or vulnerable adults)
- * This was amended in December 2009 to refer to the same children. People undertaking a role on different sites and thereby not coming into contact with the same children in a way that might facilitate "grooming" would not be required to register uless they met the same children frequently, intensively or overnight.
** Frequently is on one or more occasion per week on an ongoing basis
***Intensively is taking place on 4 or more days in any month
The Act does make provision for situations where the presence of children is “merely incidental” and such situations are not considered regulated activities. To be considered merely incidental the presence of a child or children must have been unforseen or have been dependent on the presence of an adult for whom the relevant activity was actually provided.
For instance if a mother attends an adult evening class for painting where it was accepted that, despite there being no child-care facilities, parents could bring their children along if they had no alternative. The presence of that child would not make the teaching of the class a regulated activity, even if the child was allowed to participate in some way; since despite the presence of a child being foreseen, it was dependent on the presence of the adult at who the class was aimed.
By the same token however, if the class accepted under 18's (which could include the mother) attending in their own right, then the teaching of that class would be a regulated activity.
Where an activity is deemed regulated by reason of the establishment where it is undertaken the key is that it provides a means of contact with children or vulnerable adults. For instance a builder undertaking work in a school in the day during term time would be required to employ ISA registered workers, as that would be a regulated premises. However undertaking the work during holidays or solely at night would not, unless children also had access at these times for other (official) activities.
The Act also exempts "private arrangements" between a parent and another individual who is known to them. This would cover a parent asking a friend to take their child to an event or asking neighbour to babysit. It also covers teachers or tutors who teach in the child's home, though these would still have to register if on occasions they taught in any other premises.
In December 2009 the Children's Secretary (Ed Balls) accepted the findings of Sir Roger Singleton which recommended that 16, 17 and 18-year-olds undertaking regulated activity as part of their ongoing education should not be required to register, nor should host families of exchange visits lasting less than 28 days, provided the parents of the visiting under 18-year-old accept responsibility for the selection of the host family. This also recommended that overseas visitors bringing their own groups of children to the UK for a visit or an event should have a 3 month exemption from the requirement to register for the work they do with those children. (They would need to register to work with any other children)
Controlled Activities
This is a subset of regulated activity which allows an employer to place a barred individual in a role if they put appropriate safeguards in place.
Controlled activities are only applicable to further education, health care, regulated social care and family court proceedings and generally relate to support or ancillary functions or where the jobholder has access to records on children and/or vulnerable adults.
The definition of controlled activity is one of the aspects devolved so may vary between Scotland, Wales and N Ireland.
Definition of “children”
The default definition of children is anybody under the age of 18; with the exception of employees in paid or unpaid roles where the age is 16.
As with other legislation, the Act does not cover employers (offering paid or unpaid roles) of 16 or 17 year-olds.
Nor does it mandate that somebody who trains, teaches or instructs under 16 year-old employees, or those gaining work-experience, in the workplace should be ISA registered. However where such an activity forms part of an individual's normal role (as laid down in their job description or otherwise) the employer would be committing an office if they knowingly placed a barred person in that role and a barred person would be committing an offence if they put themselves forward for such a role.
Definition of “vulnerable adults”
This is a new definition developed for the purposes of ISA registration so may vary from other definitions developed for other purposes.
A person is a vulnerable adult if he (she) has attained the age of 18 and :-
- is in residential accommodation such as a care home or a residential special school
- is in sheltered housing,
- receives domiciliary care in his own home,
- is receiving any form of health care,
- is detained in lawful custody,
- is by virtue of an order of a court under supervision by a person exercising functions for the purposes of Part 1 of the Criminal Justice and Court Services Act 2000 (c. 43),
- receives a welfare service of a prescribed description,
- receives any service or participates in any activity provided specifically for persons who fall with age-related needs (includes needs associated with frailty, illness, disability or mental capacity), disabilities or prescribed physical or mental health conditions or expectant or nursing mothers living in residential care,
- payments are made to him (or to another on his behalf) by a local authority in lieu of social care services
- requires assistance in the conduct of his own affairs.
Are there any other (new) responsibilities for employers using the service?
Where an employer is a regulated activity provider, i.e. an organisation directly delivering a service, from 12th October 2009 they will be legally required to notify the ISA if they remove an individual from a role undertaking regulated activity (or they would have been removed had they not left voluntarily) because they harmed or posed a risk of harm to a child or vulnerable adult. The same applies to endorsing organisations who withdraw that endorsement on similar grounds.
Other employers of those working with children or vulnerable adults can refer relevant information to the ISA.
The form to refer incidents concering children is available (in MS Word format) from the ISA web site - follow the "Referrals" tab and scroll to the links about 2/3 the way down the page - or here.
the form for refering incidents concerning vulnerable adults is here
Does ISA registration replace Disclosures?
No
Checking ISA registration is a mandatory requirement for those organisations placing people in regulated activities or endorsing people to work in regulated activities.
Disclosures are a means for those organisations to verify an applicant's response to the question “Do you have any criminal convictions?”
It was initially thought that ISA registration would replace many Standard & Enhanced Disclosures, since for the most part eligibility for such checks was due to the role including working with children or vulnerable adults, and the ISA would be making the decision as to the suitability of the individual to undertake those aspects of a role.
However the range of regulated activities defined by the Act is huge and it was never likely that the ISA could define a single set of barring criteria that would be suitable for all roles, e.g. a children's care home manager and a man fixing windows in a school. All they can do is bar people who have committed serious/violent offences in the past or who have a history of abusing children or vulnerable adults or who, based on all the information available from all sources (including non-conviction information), they consider would pose a threat to children or vulnerable adults if they were given unconstrained access to them.
ISA registration is not an endorsement for an individual to work with children or vulnerable adults and organisations are still expected to assess the suitability of the applicant for the particular role they are offering, for which they will need a Disclosure.
Having said that, many roles which include elements that the Act defines as regulated activities may afford the jobholder very limited access to children or vulnerable adults; and for these the employer may deem that ISA registration is adequate. They would still be well advised to check the applicant's response to the question “Do you have any criminal convictions?” but may wish to limit this to unspent convictions in which case they would only ask for a Basic Disclosure.
For roles that they are eligible for Standard or Enhanced Disclosures the employer is still encouraged to request them, to evaluate the suitability of the subject for the particular role being offered. The same applies to periodic re-checks, since the ISA will only notify a change in registration status.
Educational establishments, regulated care homes and domiciliary care providers will still be legally required to ask for Disclosures.
When does the law come into force?
The ISA officially became operational in January 2009 when they took over the role of making barring decisions on new referrals to the PoCA, PoVA and “List 99” lists. From 12th Ocober 2009 these lists will be consolidated into two lists of "barred" indivuals; one for working with children and the other for working with vulnerable adults. (Individuals can be on both lists.)
Also from 12th October 2009 the requirement for employers to notify the ISA if they remove an individual from a role undertaking regulated activity because they harmed or posed a risk to a child or vulnerable adult comes into force. (see above)
ISA registration begins on 26th July 2010, but with an estimated 11 million people working in regulated activities, the requirement to register will be phased. This was postponed from October 12th 2009 in an announcement on 19th March 2009.
From November 2010 employers will need to ensure that newly appointed employees are ISA registered before they undertake regulated activities.
Some time after that (no dates set yet) employers will need to ensure that existing employees who do not already have an Enhanced Disclosure are registered with the ISA if they undertake regulated activities.
Where an employee has an existing Enhanced Disclosure they should apply for ISA registration when they come to renew it under the employers recheck policy.
The CRB has allowed 5 years for transition.
How do people register with the ISA?
The process will the same as applying for an Enhanced Disclosure, but there will be an extra question on the form asking if ISA registration is required.
How long will it last?
The information received form the CRB is that “The cost for an individual to apply for ISA registration will be a one-off, lifetime fee ....”
How much will it cost?
Registering with the ISA will cost £64 for paid roles. This consists of £36 for the Enhanced Disclosure check plus £28 ISA registration fee. However, not all applications will be eligible to have an Enhanced Disclosure issued because, unlike Disclosures, ISA registration will not require a 3rd party (see The self-employed below). The CRB fee will still be levied though, as making the Enhanced CRB checks and passing the results to the ISA is an integral part of the registration process.
As now with the CRB fee, the ISA registration fees will be waived for volunteers within the current CRB definition of a volunteer, i.e. working unpaid (apart from out-of-pocket expenses) solely for the benefit of others.
As now trainees, students and people working unpaid to gain work experience will have to pay the fees.
Also, because ISA registration is portable between roles, somebody registering as a volunteer will have to pay the £28 ISA registration fee if they subsequently wish to use that registration to undertake a paid role. Exactly how that will work is unknown at this time, but we suspect that organisations checking the registration status of an individual will be required to say whether the role for which that are making the check qualifies as voluntary under the CRB definition.
Who pays?
As with the current CRB application process, the fee is actually passed to the CRB by the Registered Body. It is up to the employer whether they bear the cost of the fee or ask the applicant to pay it.
However, CRB checks are specific to an employer whereas ISA registration will last indefinitely and be portable between employers. Consequently employers may consider that ISA registration is the individual's responsibility, similar to obtaining a passport or drivers licence.
What is clear is that where an individual is registered for voluntary work and subsequently applies for a paid regulated role, the cost of upgrading the registration status will be invoiced to the subject, not the prospective employer.
How do employers check whether an individual is ISA registered?
This will be a free, online enquiry via the ISA website.
Organisations checking the status of an individual will need to have the subject's permission in the form of some personal details and their registration number.
Users of the service will also need to identify themselves/their organisation so that they can be notified if the registration status of an individual previously checked subsequently changes.
We understand that users will be able to de-register their interest in an individual if that person leaves the organisation or moves to role where they no longer undertake regulated activities.
What about........?
The self-employed
Unlike Standard and Enhanced Disclosures, which require a 3rd party requesting organisation, ISA registration can be applied for by an individual solely at their own request.
Applications will still need to be countersigned by a Registered Umbrella Body and an Enhanced Disclosure will not be issued. The applicant must still pay the £36 CRB fee plus the £28 ISA registration fee unless they are eligible as a volunteer for these to be waived,
Effectively the 3rd party will be the ISA.
People who are only eligible for a Standard Disclosure? As from 12th October 2009 access to the new lists (replacing POVAS, POCA etc.) will be restricted to Enhanced Disclosures. Anybody requiring CRB checks for roles that come under the new definitions of regulated activities (given above)
should specify Enhanced. Applications in progress at the CRB on 12th October that are at the Standard leve but have the sections on working with children and/or vulnerable adults ticked will only show convictions. The new lists will not be checked.