SECTION 1 – INDEPENDENT BARRING BOARD
This section establishes the Independent Barring Board as an independent public body. It also introduces Schedules 1 and 2 which make further provision about the Board.
For operational purposes, the Board is referred to as the Independent Safeguarding Authority and that term shall be used in this guide.
Other relevant material
www.isa-gov.org.uk – this is the website of the Independent Safeguarding Authority. It provides updates on preparation for implementation of the Act in October 2009.
This section establishes the two lists of barred persons, one of which is concerned with children who are barred from working with children and the other with vulnerable adults. This section (together with Schedule 3 to the Act) specifies the types of behaviour which leads to inclusion on a barred list.
The lists
Subsection (1) requires the Independent Safeguarding Authority to “establish and maintain” two lists:
(a) the children’s barred list; and
(b) the adults’ barred list.
While there are two separate lists, often the same behaviour will lead to inclusion on both lists. This is what we see happening frequently at the moment – for example, a care home worker who assaults a resident is often placed on both the Protection of Children Act 1999 list as well as the list of persons considered unsuitable to work with vulnerable adults maintained under the Care Standards Act 2000.
The four routes to inclusion on the children’s barred list
There are four routes to inclusion on a barred list. These can be viewed as a spectrum: at one end we have very obvious and serious risks which mean that the Board has no option but to include an individual on a barred list, in the middle we have behaviours that give rise to a presumption of inclusion and at the other end we have behaviours, or risks posed, that mean the Board has a discretion as to whether to include. Here are the four routes:
(i) conviction for very serious offences: automatic inclusion with no right to make representations – persons convicted of (or given a police caution for) certain very serious offences involving children will automatically be included on the children’s barred list. Given the seriousness of the misconduct which will lead to inclusion under this route, the barred person has no right to make representations to the Independent Safeguarding Authority (ISA) in an attempt to persuade them that s/he need not be included. The offences are listed in the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (S.I. 2009/37) which are available here;
(ii) conviction for less serious offences: automatic inclusion but right to make representations – conviction or cautioning for certain less serious (but still significant) offences will lead to inclusion on the children’s barred list but with a right for the barred person to make representations to the ISA as to why s/he should be removed from the list. The offences are listed in the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (S.I. 2009/37) which are available here;
(iii) misconduct: right to make representations before barring decision taken – this route to inclusion is likely to be of most relevance to child care workers because it allows for inclusion of a person on a barred list where the ISA has information that, for example, an individual has harmed, or placed at risk of harm, a child, e.g. where a child care worker has been dismissed for harming a child. Inclusion under this route is not automatic. The person in question has the right to make representation before the Authority makes a decision as to whether the person should be included on a barred list;
(iv) possible risk of harm: right to make representations before barring decision taken – this is probably the most contentious route to barring because it can lead to someone being barred even if they have done nothing wrong. A person may be put on the barred list under this route because of a perceived risk that s/he will harm a child. Inclusion under this route is not automatic: the person has the right to make representations before the Independent Safeguarding Authority makes a decision. When the Bill which led to the 2006 Act was proceeding through Parliament, the Government Minister have these examples of possible bars on the basis of risk of potential harm:
(a) “the police had an anonymous tip-off that a teacher had a collection of pornography…The police discovered that although there was no evidence that the teacher had used the adult pornography in any inappropriate way, the teacher had a number of photos of children in school uniform or fully clothed among his collection of adult pornography. When questioned about this, he admitted that he was sexually attracted to children. He had not committed any offence. There was no evidence that any child had been harmed, nor that he had ever attempted to involve a child in any sexual behaviour. But he was judged to pose an unacceptable risk of harm for inclusion in the children's workforce”; and
(b) “a teacher receiving psychiatric and psychological help for depression and, during that treatment, revealing to the psychologist that he had a sexual interest in children. The psychologist was sufficiently concerned about this to report it…although the teacher was not working in a school at the time. The [barring decision] followed from that referral”.
Can children be placed on a barred list?
Children could be placed on a barred list, e.g. where a child has committed a sexual offence against another child. However, the Government has recognised that children should not be treated in the same way as adults in this respect. When the Safeguarding Vulnerable Groups Bill was before Parliament, the Government Minister said the following on the topic:
“no juvenile under the age of 18 could be included in either list—the children's list or the vulnerable adults' list—automatically without the right to make representations” and “where somebody who is under 18 has committed one of the specified offences, the IBB would consider this under a discretionary route, allowing the individual to make representations. The IBB will, as with all discretionary cases, need to make a judgment whether the individual poses a risk to vulnerable groups and whether it is appropriate to include them in either or both barred lists.”
In addition, the minimum barring period (the period before a person can apply to be removed from a barred list) is shorter in the case of a child than an adult: see below.
Minimum barred periods
A person is not included in a barred list for all time. The Safeguarding Vulnerable Groups Act 2006 recognises that people can learn from their mistakes so that they are no longer unsuitable to work with a vulnerable group. It does this by providing for reviews of a person’s inclusion on a barred list.
Under the 2006 Act itself, no one has the right to a review. Schedule 3 to the Act provides for an initial filter stage – individuals must first seek, and be granted, the ISA’s permission to apply for review. Further, this permission may not be sought until the individual has spent a certain minimum period on a barred list. This reflects the legislative assumption that a person will not modify his/her behaviour overnight. Recent regulations have set out this minimum barred period. Under the Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 (available at www.opsi.gov.uk/si/si2008/uksi_20080474_en_1, the general position is as follows:
There are similar restrictions on repeat applications for review. For example, a person who was barred when aged over 25 who has already made an application for review is prohibited from making another for a further ten years.
The barring decision-making procedure
The procedure for making representations to the ISA and for its decision making processes generally are dealt with in Schedule 3 to the Act and in the Safeguarding Vulnerable Groups Act 2006 (Barring Procedure) Regulations 2008 (S.I. 2008/474) which are available at www.opsi.gov.uk/si/si2008/uksi_20080474_en_1.
Some key points to note are as follows:
(1) under the 2008 Regulations:
(2) where the ISA has to determine disputed matters of fact, e.g. whether a childcare worker has assaulted a child, it will apply the civil standard of proof (i.e. whether it was more likely than not that the assault took place). The same standard will apply on any appeal to the First-tier Tribunal against a barring decision. This was confirmed by the Government when the Bill which became the 2006 Act was proceeding through Parliament (Commons Committee, 13.7.06);
(3) it will be possible for the ISA to reject very weak cases without seeking any representations from the childcare worker concerned, e.g. where it is obvious that a referral has been made maliciously. This was confirmed by the Government when the Bill was proceeding through Parliament (Commons Committee, 13.7.06);
(4) the Act does not require the individual concerned to stop working with children whilst the ISA is considering whether s/he should be barred. The Government said as follows when the Bill was proceeding through Parliament:
“where there are allegations against someone in the workplace, such as a teacher in a school, once a referral has been made to the IBB that person will not be suspended or stopped from working”;
(5) if the ISA decides not to bar an individual, this does not mean that his/her employer is prevented from taking action. The Government Minister said the following on this point as the Bill which led to the 2006 Act was proceeding through Parliament:
“Nothing in the ISA's decision not to bar an individual limits the right of a specific employer not to employ a specific individual. I should stress that point. It cannot be emphasised enough that a decision by the ISA not to bar someone is quite separate from the decision of an employer as to whether or not to employ them in the full knowledge of their past history, their suitability for employment and so on. We would expect employers to take their duties in that regard very seriously indeed, irrespective of any decisions of the IBB not to bar an individual.”
(6) An employer may be informed that barring is under consideration (i.e. before the ISA has made a final decision). This is what the Government proposes:
“we propose that an employer should be informed that an individual is under consideration at the point where the Independent Safeguarding Authority has satisfied itself that the conduct or allegation is both sufficiently serious for a barring decision, and that it is not clearly unfounded or malicious.
The ISA should be able to reach a view quickly on these matters, so this point may occur before the ISA is ready to take its barring decision. Employers should then be able to seek any necessary further information that the ISA considers relevant for the purpose of assessing the risk of harm posed by the individual to the vulnerable groups, in order to decide what safeguards to put in place. Employers will be placed under a requirement not to pass this information on to a third party.”
Information kept about a barred person
Subsection (5) requires the Board to keep “other information” in respect of an individual included on a barred list. That is, information other than the fact that a person is included on a list. The information to be kept is to be set out in regulations: for the regulations, see below.
Regulations made under this section
The Safeguarding Vulnerable Groups Act 2006 (Barred List Prescribed Information) Regulations 2008 (S.I. 2008/16) are available at www.opsi.gov.uk/si/si2008/uksi_20080016_en_1.
This section sets out what it means to be ‘barred’. A person included on a barred list is barred from “regulated activity” relating to either children or vulnerable adults, depending on which list s/he is on. If a person is included on both lists, s/he is barred from taking part in both types of activity.
For the meaning of “regulated activity”, see section 5. The core meaning of the term is relatively easy to understand. It includes the type of work one would expect, such as working as a children and families social worker or in a children’s home. However, matters become quite technical at the margins of the definition.
Scottish and Northern Irish misconduct
Subsections (2) and (3) make provision for persons included on certain Scottish and Northern Irish lists also to be barred in England and Wales. In order to ‘count’ under the Safeguarding Vulnerable Groups Act 2006, the Scottish or Northern Irish lists must be specified by order of the Secretary of State.
One Order has been made: the Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Order 2009 (S.I. 1797). It is available at www.opsi.gov.uk/si/si2009/uksi_20091797_en_1#f00001 and relates to the list of persons barred from working with children in Northern Ireland.
This section deals with appeals against barring decisions of the Independent Safeguarding Authority (ISA). It sets out which decisions may be appealed to Tribunal. The Tribunal in question is the Upper Tribunal (established under the Tribunals, Court and Enforcement Act 2007).
There is no appeal as of right. The Tribunal must give leave in order for an appeal to be brought: subsection (4). There is an onward right of appeal to the Court of Appeal, but only on a point of law and with the leave of the Court.
Decisions that may be appealed
The decisions that may be appealed to the Tribunal are described below.
(1) Decisions to include a person on a barred list
The following decisions relating to the children’s barred list may be appealed to the Tribunal:
(a) endangering a child. That is, a decision to include a person on the children’s barred list because the ISA has decided (a) that s/he has engaged in “relevant conduct” and (b) that it is “appropriate” to include him/her on the children’s barred list. An example of relevant conduct is conduct which endangers a child, e.g. harms a child (paragraph 3 of Schedule 3 to this Act);
(b) risking harm to a child. That is, a decision to include a person on the children’s barred list because the ISA has decided (a) that one of the ‘risk of harm’ grounds applies, for example where the ISA is satisfied that a person may harm a child and (b) that it is “appropriate” to include the person on the children’s barred list (paragraph 5 of Schedule 3 to this Act);
(2) Decisions not to remove in ‘presumption of inclusion’ cases
Where a person is convicted of certain offences, there is a presumption that s/he will be included on the children’s or adults’ barred list (depending on the offence). However, the individual in question has the right to make representations as to why s/he should not be maintained on the list. An appeal may also be made against a decision to include following the making of these representations.
(3) Decisions not to remove: late representations
Paragraph 17 of Schedule 3 to this Act applies to individuals who were included on a barred list despite the ISA having been unable to ascertain their whereabouts. Under that paragraph, the individual can (with the ISA’s permission) make late representations. This section confers a right of appeal where, following paragraph 17 representations, the ISA refuse to remove an individual from a barred list.
Paragraph 17 does not, however, apply to any person who was included on a barred list upon conviction for having committed one of the very serious offences that leads to automatic inclusion: these individuals have no rights of appeal against decisions to include them on barred lists.
(4) Decisions not to remove: reviews
Paragraph 18 of Schedule 3 to this Act provides a procedure for the ISA to review a person’s continued inclusion on a list. Where, following a review, the ISA decide to maintain a person on a barred list, this section confers a right of appeal to the Tribunal.
The role of the Tribunal
Grounds of appeal
There are two grounds on which an appeal may be brought (subsection (2)). These are:
(a) that the ISA made a mistake on any point of law; and
(b) that the ISA made a mistake in a finding of fact. The finding of fact must be of a particular type for this purpose – it must be one on which the ISA’s decision was based.
Powers of the Tribunal
If the Tribunal decides there was no mistake of fact or law, it must confirm the ISA’s decision (subsection (5)). If it decides that there was such a mistake, it must either direct the person’s removal from the list or remit the matter back to the ISA (subsection (6)). If the matter is remitted, the Tribunal may set out findings of fact on which the ISA must base its decision (subsection (7)). It may also direct that the person be maintained on the list pending the ISA’s decision (subsection (7)).
Subsection (3) aims to prevent the Tribunal from second-guessing the ISA’s judgement as to whether it is appropriate to include a person on a barred list. It provides that “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” and, accordingly, it is not a question in respect of which the tribunal has jurisdiction.
SECTION 5 – REGULATED ACTIVITY
“Regulated activity” is one of the key terms used in the Act. It operates to:
(i) describe the activities in which a barred person must not take part (and if s/he does take part in them the offence under section 7 is committed);
(ii) identify providers (regulated activity providers) who must undertake checks to ensure that they do not employ barred persons (see section 11);
(iii) identify childcare workers who must become ISA-registered (see section 8).
The meaning of “regulated activity”
The term “regulated activity” is actually defined in Schedule 4 to the Act and there are separate definitions for regulated activity related to children and regulated activity related to adults. In the case of children, there are at least 50 different types of regulated activity, but probably the most significant types are as follows:
(i) any form of care for or supervision of children (unless incidental to care for adults) which is carried out frequently by the same person; and
(ii) any form of advice or guidance provided wholly or mainly for children, if carried out frequently by the same person and relating to children’s physical, emotional or educational well-being. This would capture children and family social workers.
The definition is not fixed: subsection (3) gives the Secretary of State power to alter the definition by order.
Guidance etc
The Independent Safeguarding Authority has produced a factsheet providing guidance about the meaning of “regulated activity”. It is available at www.isa-gov.org.uk/PDF/283896_ISA_A4_FactSheetNo3.pdf.
SECTION 6 – REGULATED ACTIVITY PROVIDERS
This section describes what it means to be a regulated activity provider. There are a number of different categories of regulated activity provider. Later sections of the Act go on to confer a number of safeguarding-related obligations upon regulated activity providers.
As with the definition of regulated activity itself, the definition of regulated activity provider becomes very complicated at the margins. However, it is absolutely clear that providing social services for children and offering childcare fall within the definition.
The most significant type of “regulated activity provider”: management or control of regulated activity
Management of regulated activity
A person is a regulated activity provider if:
(a) s/he is responsible for the management of regulated activity; and
(b) s/he makes arrangements for another person to engage in that activity. For this purpose, it does not matter whether the arrangements are in connection with a contract for services or otherwise.
A person is also a regulated activity provider if s/he is further removed from the making of the arrangements, that is where:
(i) s/he responsible for the management of regulated activity; and
(ii) s/he authorises the making of arrangements for another person to engage in that activity. Again, it does not matter whether the arrangements are in connection with a contract for services or otherwise.
Control of regulated activity
A person is a regulated activity provider if:
(i) s/he is responsible for the control of regulated activity; and
(ii) s/he makes arrangements for another person to engage in that activity. For this purpose, it does not matter whether the arrangements are in connection with a contract for services or otherwise.
A person is also a regulated activity provider if:
(i) s/he is responsible for the control of regulated activity; and
(ii) s/he authorises the making of arrangements for another person to engage in that activity. For this purpose, it does not matter whether the arrangements are in connection with a contract for services or otherwise.
Organisations
In order for any of the above definitions to apply, in the case of regulated activity carried out for the purposes of an organisation, in addition the person’s responsibility for management or control of regulated activity must be of a certain type. This is that the exercise of that responsibility must not be subject to supervision or direction by any person for the purposes of the organisation.
Fostering
A person is also a regulated activity provider if section 53(4) so provides. See the note to that section for further details.
Private arrangements
Subsection (5) provides that an individual is not a regulated activity provider by virtue of making “private arrangements”. The following are private arrangements for this purpose:
(a) an arrangement where the regulated activity in question is for, or for the benefit of, a child of the family of the person making the arrangements (i.e. a person who arranges care for his own child, such as a babysitter, is not caught by the definition of ‘regulated activity provider’). For the meaning of “family”, see section 58 of this Act; and
(b) an arrangement where the regulated activity in question is for, or for the benefit of, a child who is a “friend” of the person making the arrangements. For the meaning of “friend”, see section 58 of this Act.
Excluded appointments
Subsection (8) excludes the making of certain appointments from falling within the definition of “regulated activity provider”. Of most relevance are the following:
(a) appointing a person to be a governor of a school;
(b) appointing a person to be a charity trustee of a children’s charity;
(c) appointing a person to be a member of the Youth Justice Board;
(d) appointing a person to be Children’s Commissioner or Deputy Children’s Commissioner (whether for the UK/England or Wales).
Note, all this section does is exclude the act of appointing from the definition of “regulated activity”. It has no bearing on whether the post in question constitutes regulated activity and often if a barred person engages in
Unincorporated associations
Subsection (10) deals with the legal position of an unincorporated association under the Act. An example of such an organisation could be a play group run by a group of parents, rather than by a private company.
Subsection (10) says:
“If a regulated activity provider is an unincorporated association any requirement of or liability (including criminal liability) under this Act 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.”
SECTION 7 – BARRED PERSON NOT TO ENGAGE IN REGULATED ACTIVITY
This section will come into force on 12 October 2009. This section is one of the most important enforcement provisions of the Act. This is because it makes it a criminal offence for a person on the children’s barred list to engage in regulated activity with children.
This section is described as follows by the official Explanatory Notes to the Act:
“This section makes it an offence for a barred person to engage in regulated activity, or seek or offer to engage in regulated activity.
Subsection (3) provides a defence if the person can prove that he did not know, and could not reasonably be expected to know, that he was barred. A person who, for example, could not be contacted by ISA either when it was considering whether to include him in the list (so as to give him an opportunity to make representations) or when it made known its barring decision might benefit from this defence.
Subsection (4) does specify one type of exceptional situation where a person who knows he is barred is able to engage in regulated activity. This is where he reasonably thinks that it is necessary to do so in order to prevent harm coming to a child or vulnerable adult, where he reasonably thinks that there was no-one else around who could engage in the activity for that purpose and he engages in the activity for the shortest amount of time necessary. This would cover a barred doctor providing first aid to a child who had an accident in the street.
Subsection (5) modifies the definition of regulated activity for the purposes of section 7. It disapplies the requirements about frequency and the period condition. This means that for the purposes of this section a relevant activity will be regulated activity even if it is carried out once only. So, for example, a person who is barred from regulated activity relating to children will commit an offence if he supervises children on a single occasion.”
Penalties
The maximum penalties for commission of an offence under this section are as follows:
(a) where the offence is prosecuted in the Crown Court, imprisonment for five years, or a fine, or both,
(b) where the offence is prosecuted in the Magistrates’ Court, imprisonment for 6 months, or a fine, or both.
SECTION 8 – PERSON NOT TO ENGAGE IN REGULATED ACTIVITY UNLESS SUBJECT TO MONITORING
One of the perceived weaknesses of the current vetting schemes is that, generally, provision is only made for checks at the point at which an employer proposes to employ an individual (or if subsequent checks are required this is only intermittently). The Act intends to rectify through the provision it makes for monitoring.
This section is intended to become effective in November 2010, at which point the first staff groups (described by the Government as “new entrants and job movers into regulated activity”) will be required to become subject to monitoring with other groups being phased in over the coming years. It should also be noted that, as from July 2010 the Government intends to permit the first staff groups to become subject to monitoring on a voluntary basis.
This is probably the most important section of the Act for the mainstream childcare workforce. It requires childcare workers (who wish to take part in regulated activity with children) to be subject to ‘monitoring’. The use of the term ‘monitoring’, with its suggestion of surveillance, is unfortunate and liable to confuse. Possibly for this reason, the ISA has started to refer to persons who are subject to monitoring as simply ‘ISA-registered’.
All ‘monitoring’/ISA-registered really means in effect is that a person has been put on a list the membership of which is reserved for persons who are not barred. An employer can check whether a prospective employee is on the list. If s/he is, then the employer can safely employ in the knowledge that the individual is not barred. If the individual was barred, s/he would not appear on the monitoring list.
The mechanics of monitoring are dealt with by section 24 of the Act.
Phasing-in of ISA-registration
The Government intends to proceed with the following arrangements for phasing-in the scheme:
Explanatory Notes
This section is described as follows by the official Explanatory Notes to the Act:
“Subsection (1) makes it an offence for a person to engage in regulated activity with the permission of a regulated activity provider unless he is subject to monitoring. (A person may apply to become subject to monitoring under section 24.)
Subsection (2) ensures that childminders who are required to be registered under the provisions of the Childcare Act 2006 or who would be required to be registered but for the fact that they do not provide childcare for a child below the age of eight will be required to be subject to monitoring. This applies even where the childminder is engaged in providing services to a person who is not a regulated activity provider (see note on section 6 for definition of regulated activity provider). This requirement also applies to childminders in Wales in similar circumstances.
Subsection (3) makes it an offence for a person to act as a member of a governing body of an educational establishment whilst not subject to monitoring. A "member of a governing body" can include not only a person traditionally described as a "governor" but also one who is a member of a body which "governs" an educational establishment, for example, a director or trustee if the board of directors or trustees is the "governing body" of the relevant educational institution.
Subsection (6) ensures that this offence does not apply if the individual who engages in the activity is under 16 years old. This will ensure that young people can, for example, undertake work experience in a nursery without being subject to monitoring.
Subsections (7) and (11) ensure that those already in post before it becomes an offence for an individual not to be subject to monitoring will not initially be criminalised if they are not subject to monitoring. The implementation of the scheme will be phased and the intention is that, to start with, only new appointments will be subject to its requirements. After a prescribed date however (subsections (9) and (12)) those already in post at the commencement of section 8 will need also to be subject to monitoring.
Subsection (8) extends the scope of subsection (7) in certain cases involving NHS employment. It deals with the situation where a person is engaged in relevant NHS employment when the section comes into force and he then engages in another form of relevant NHS employment. In this case, the first NHS employment is caught by subsection (7). The second NHS employment is not caught by subsection (7) as the permission to engage in that activity does not pre-date commencement of the section. Subsection (8) ensures that in this situation the person does not need to apply to be subject to monitoring in respect of the second NHS employment until he needs to apply to be subject to monitoring in respect of the first NHS employment.
Subsection (14) will require courts to consider the extent to which guidance issued by the Secretary of State on the definition of "frequently" has been followed when setting the penalty for the commission of the offence in the section. This is intended to protect those individuals who have followed the Secretary of State's guidance in the event that a court takes a different view to the Secretary of State on the interpretation of frequently.”
Penalties
The maximum penalty for commission of an offence under this section is £5,000 (subsection (4)).
Defences
Under subsection 13, it is a defence for a person charged with an offence under subsection (1), (2) or (3) to prove that he did not know, and could not reasonably be expected to know, that he was not subject to monitoring in relation to the activity in question.
SECTION 9 – USE OF BARRED PERSON FOR REGULATED ACTIVITY
This section will come into force on 12 October 2009. This Act aims to make doubly sure that barred persons do not engage in regulated activity. As looked at above, section 7 provides that it is an offence for a barred person to engage in regulated activity. So, that is a control placed upon the worker. Section 9, however, places a control upon the employer by providing that where a regulated activity provider, such as a children’s home, knowingly employs a barred person, an offence is committed.
Explanatory Notes
This section is described as follows by the official Explanatory Notes to the Act:
“This section makes it an offence for any person to permit an individual to engage in regulated activity if he knows or has reason to believe that the individual is barred from that activity and the person engages in the activity. Subsection (5) makes similar modifications to the definition of regulated activity as are made by section 7(5). So even where the regulated activity is taking place occasionally or for a short period of time, the person giving permission would commit an offence. There is a similar offence in respect of a personnel supplier (defined in section 60) who supplies an individual for regulated activity.
Subsection (4) provides a defence where it is necessary for an employer to permit a barred individual to engage in regulated activity to prevent harm. This will only be in rare circumstances where there was no-one else who could engage in the specific activity e.g. a school giving a barred parent who had come to pick up their child consent by phone to look after a stricken child at the school campsite where the sole teacher in charge had been taken ill.”
Penalties
The maximum penalties for commission of an offence under this section are as follows:
(a) where the offence is prosecuted in the Crown Court, imprisonment for five years, or a fine, or both,
(b) where the offence is prosecuted in the Magistrates’ Court, imprisonment for 6 months, or a fine, or both.
What about domestic employment arrangements?
A barred person is prohibited from taking domestic employment, such as a nanny, which amounts to regulated activity. However, in such cases, the domestic employer is not obliged to check whether the worker is ISA-registered (but may do so if s/he wishes).
SECTION 10 – USE OF PERSON NOT SUBJECT TO MONITORING FOR REGULATED ACTIVITY
We looked above at section 8, which requires child care workers to be subject to ‘monitoring’ (ISA-registered). We also explained what that actually means – a person is in effect placed on a list the membership of which is reserved for persons who are not barred. Accordingly, if an employer checks the list and finds that a prospective employee is on the list, s/he can safely be employed.
Section 8, therefore, places obligations upon childcare workers to make sure that they are subject to monitoring. This section dovetails with that obligation by requiring regulated activity providers to only employ persons who are subject to monitoring. The net result should be to ensure that barred individuals are kept out of the child care workforce. This section should be read in conjunction with section 11 which is the section which actually imposes the obligation to make a monitoring check.
Continuous updating
See the note to section 32 for details of how the ISA intends to ensure that employers are notified if an ISA-registered person becomes barred.
Phasing-in
ISA-registration will be phased in, as explained in the note to section 8. The Government has explained how this section will be modified to follow suit:
“the offence that applies to regulated activity providers who knowingly permit an individual to engage in regulated activity without being subject to monitoring, and the offences to apply to regulated activity providers and appropriate officers who fail to make an appropriate check before permitting an individual to engage in regulated activity, will apply only where the individual applies for a new job after the commencement of the provisions. Offences will not be committed if an individual is already in employment before the commencement of this section until such time as the Secretary of State specifies by order.”
Explanatory Notes
This section is described as follows by the official Explanatory Notes to the Act:
“This section makes it an offence for a regulated activity provider to permit an individual whom he knows or has reason to believe is not subject to monitoring in relation to regulated activity to engage in that activity. A similar offence is created in relation to a personnel supplier who supplies an individual in these circumstances, though the regulated activity provider will commit the offence only if the individual actually engages in the activity.
Subsection (3) redefines regulated activity…so that it is an offence for a personnel supplier to supply an individual to engage in regulated activity without them being subject to monitoring, even where this activity takes place only briefly or for a short period of time. Again the modifications mirror those made by section 7(5), which are explained more extensively above.
Subsection (5) ensures that this offence does not apply if the individual who engages in the activity is under 16 years old. This will ensure that a person will be able to use, for example, young people who are not subject to monitoring for work experience in a nursery.
Subsections (6), (8), (11) and (12) have a similar purpose to section 8(7), (9), (11) and (12) (see above).
Again, similarly to section 8 for employees and volunteers, subsections (7) and (9) exempt certain providers of regulated activity mentioned in sections 16 and 17 (where certain conditions are met), from the offence of employing someone whom he knows or has reason to believe is not subject to monitoring.
Subsection (10) will require courts to consider the extent to which guidance issued by the Secretary of State on the definition of "frequently" has been followed when setting the penalty for the commission of the offence in the section. This is intended to protect employers who have followed the Secretary of State's guidance in the event that a court takes a different view to the Secretary of State on the interpretation of "frequently".”
Penalties
The maximum penalty for commission of an offence under this section is £5,000 (subsection (4)).
Other relevant legislation
It is possible for an employee of an organisation also to be criminally liable for allowing a person to take part in regulated activity when s/he is not subject to monitoring: see section 19 of this Act.