Who must register with the ISA?
The Safeguarding Vulnerable Groups Act (2006) 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)
* Frequently is on one or more occasion per week on an ongoing basis
*Intensively is taking place on 4 or more days in any 30 day period
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.
Specified Establishments
In additin to the above roles, certain establishments require that anybody working on the premises in any capacity that "gives that person the opportunity, in consequence of anything he is permitted or required to do in connection with the activity, to have contact with children or vulnerable adults".
These establishments are :-
- an educational institution which is exclusively or mainly for the provision of full-time education to children;
- an establishment which is exclusively or mainly for the provision of nursery education ;
- a hospital which is exclusively or mainly for the reception and treatment of children;
- an institution which is exclusively or mainly for the detention of children;
- a children’s home (within the meaning of section 1 of the Care Standards Act 2000 (c. 14));
- a home provided in pursuance of arrangements under section 82(5) of the Children Act 1989 (c. 41);
- relevant childcare premises i.e. those on which any form of childcare or daycare that falls under the Childcare Act 2006 or Children Act 1989 takes place, irrespective of whether the provider of that care is actually registered.
- a residential and/or care home for vulnerable adults, including refuges
Positions
There are also specified positions that require the jobholder to be ISA registered :-
- member of the governing body of an educational establishment
- member of a relevant local government body;
- director of children’s services of a local authority in England;
- director of adult social services of a local authority in England;
- director of social services of a local authority in Wales;
- chief education officer of a local authority in Wales;
- charity trustee of a children’s charity, i.e. whose operations include undertaking regualted activity with children
- member of the Youth Justice Board for England and Wales;
- Children’s Commissioner or deputy Children’s Commissioner
- Children’s Commissioner for Wales or deputy Children’s Commissioner for Wales;
- somebody who establishes, maintains or controls a database established under the Children Act 2004;
- member of a Local Safeguarding Children Board ;
- member or chief executive of the Children and Family Court Advisory and Support Service;
- a deputy appointed in respect of a child under the Mental Capacity Act 2005 (c. 9);
- member, chief executive or member of staff of ISA.
Exemptions
The scheme is designed to cover situations where adults work with children or vulnerable adults in a defines set of roles or circumstances. It does not apply to normal interaction between adults and children or vulnerable adults in everyday life or within the family.
There are also some activities which are specifically outside the scope of the scheme and therefore do not require the person undertaking the activity to be ISA registered. However, this is not a "black & white" situation and whether ISA registration is legally required could well depend on the specific curcumstances.
Fortunately becoming ISA registered is not restricted so anybody can do so voluntarily, even if the legal imperative is questionable.
16 & 17 year olds in the workplace
Teaching, training, coaching, care, supervision, advice, treatment or transport of 16 & 17 year olds as part of their employment (which may include work experience) is not regulated activity. However if the employer appoints somebody within the organisation with specific responsibility for undertaking any of the activities mentioned above with the 16 & 17 year olds, then that person must not be barred by the ISA from working with children and the legislation allows the employer to check this by means of checking their ISA registration status. (In other words they should be ISA registered voluntarily)
16 & 17 year olds in mixed age sport & leisure activities
Where a 16 or 17 year old participates in a sporting or leisure activity that is open to all ages and not specifically aimed at under 18 year olds, then teaching, training instructing or providing care and supervision to the group is not regulated activity unless the group becomes wholly or mainly composed of 16 and 17 year olds.
Presence of Children is Incidental
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.
Under 16's
Under 16 year olds undertaking regulated activity do not need to be ISA registered.
Sole Traders
Where an individual is a sole trader they do not have to be ISA registered to undertake regulated activity where there is no specified Regulated Activity Provider who is legally required to check their registration status. For instance a swimming teacher who teaches children to swim at a local pool as a sole trader does not have to be ISA registered. However, if the booking for the lesson is taken by the pool operators, who ask the teacher to take the lesson, the pool operators are the Regulated Activity Provider and have to check that the teacher is ISA registered.
Peers
A member of a group assisting the group leader in providing regulated activity to that group is not undertaking regulated activity. So if a scoutmaster asks one of the age 16+ scouts to assist them by teaching knot-tying to some of the younger scouts in the group, that is not regulated activity.
Multiple "specified" settings
Where somebody works infrequently in a number of "specified settings" e.g. schools, but across all specified settings they do exceed the definitions (above) of frequently or intensively there is no requirement to be ISA registered.
However the converse of this is not true. Where a person undertakes regulated activity with different children or vulnerable adults but does not meet the frequesncy or intensively criteria with any one of them, they are still required to be ISA registered. So staff at a paintball site that organises events for groups of under 18's, 3 days a week, do have to be ISA registered even though no group attends more than once a month.
Foregn Nationals working with other Foreign Nationals
Adults from outside England, Wales & Norther Ireland can work with u18 visitors from outside the same for up to 3 months without being ISA registered.
Host Families for School Visits/Exchanges
Where the school-organised placement is for less than 28days, the hosting is voluntary and the child's parents have agreed to the selection of the host family there is no need for the hosting family to be ISA registered.