Independent Safeguarding Authority Vetting and Barring Scheme

Under the Safeguarding Vulnerable Groups Act 2006, the University, as both an employer and as a provider of professional education, has a statutory duty to notify the Independent Safeguarding Authority (ISA) of any individual who may pose a threat to children or vulnerable adults (see the section on Duty to refer).

Although the Coalition Government has decided not to implement all the provisions of the Safeguarding Vulnerable Groups Act 2006 (and further changes will be introduced in 2012 under the new Protection of Freedoms Act 2012), the duty to refer continues to apply.

Vetting and Barring Scheme

The Independent Safeguarding Authority Vetting and Barring Scheme applies to individuals (including volunteers) working in ‘regulated activity’. Regulated activity includes:

any activity of a specified nature that involves contact with children or vulnerable adults frequently, intensively and/or overnight. (Such activities include teaching, training, care, supervision, advice, treatment and transportation.)
any activity allowing contact with children or vulnerable adults that is in a specified place frequently or intensively. (Such places include schools and care homes, but do not include Universities.)
fostering and childcare.

‘Regulated activity’ is when the activity is frequent (once a month or more) or ‘intensive’ (takes place on three or more days in a 30-day period).

Where in the University is there likely to be 'regulated activity'?

UUK has been in discussion with the Department for Children, Schools and Families (DCFS) regarding the application of the Vetting and Barring Scheme (VBS) in higher education. Interim sector-speficic guidance has been issued recently and further, more detailed guidance is expected in 2012. The interim guidance suggests that the implications of the new Scheme for HEIs will not be as onerous as first thought. DCSF have advised that regulated activity is likely to take place in relation to HE in the following circumstances:

some students on placements in workplaces arranged by HEIs will carry out regulated activity
the VBS will affect staff who undertake regulated activity with students who are under the age of 18
HEI staff or students may interact with children in carrying out paid or voluntary outreach work with schools
HEI staff or students may interact with the vulnerable groups through their academic research.
some HEI staff working in HEI health centres or learning support units may work with vulnerable adults
the VBS will affect members of governing bodies of HEIs, to the extent that HEIs educate students under the age of 18.
the VBS may affect HEI staff who have contact with work experience students.

Staff working in student residences will not be covered by the Scheme if care or supervision of students is not an expectation of their role.

Duty to refer

Since the 'duty to refer' came into force on 12 October 2009, it has been a criminal offence to fail to refer an unsuitable person (employee, student, volunteer) working in regulated activity who has been removed from regulated activity to the ISA for a decision on barring.

The duty to refer is triggered when the University judges:

that an individual has caused harm or poses a risk of harm to the relevant vulnerable group, following the application of its staff or student disciplinary procedures; and
has removed the individual from the workplace, or would or might have removed him/her if the individual has already left. (For example, the duty to refer will apply if an employee resigns before the completion of an investigation if the investigation subsequently establishes that an allegation is not unfounded or malicious.)

Since this is a statutory duty, this overrides normal data protection principles. The University should not wait for the outcome of an internal appeal: it must refer on the basis of its initial conclusion.

The duty to refer is unlikely to apply where a warning is issued and the individual (employee, student, volunteer) is allowed to continue in their role working with children and/or vulnerable adults. Nor will it apply if the behaviour was the result of a lack of professional insight or breach of confidence which are more appropriately issues of 'fitness to practise' which should be referred to a regulatory/professional body rather than the ISA.

For advice on student referrals, Schools should speak to David Gibson, Assistant Director (Academic Policy and Student Administration) in Academic Services (telephone number: extension 3014).

Decisions on staff referrals will be made by the Director of Human Resources who will also be responsible for the referral. College Deans/Heads of Services should discuss with their HR Business Partner whether a referral to ISA is necessary in appropriate disciplinary cases (or cases where an employee resigns before the investigation or disciplinary process is completed).

Colleges and Services are reminded that it is a criminal offence to fail to refer where the duty to refer applies. Individuals as well as the University as a corporate body can be held to be liable.

Implications of barring of staff and students

In most cases, an employee will be dismissed for misconduct before a referral takes place. Exceptionally, an employee may be barred for activities outside of employment, in which case the University must remove the employee from regulated activity. Consideration should be given to whether other suitable work is available or whether to apply the appropriate procedure to terminate the employment.

For students, the DCSF has advised that, If a student training for work in regulated activity is barred, the HEI is justified in removing the student from that course. Any action to expel the student from the HEI would depend on whether the student’s behaviour had breached the HEI’s internal rules and/or whether the student could transfer to some other course.