PLC Public Sector reports:
The Vetting and Barring Scheme introduced by the Safeguarding Vulnerable Groups Act 2006 (SVGA 2006) requires individuals carrying out regulated activity (working with children or vulnerable adults in certain settings and circumstances) to be registered with the Independent Safeguarding Authority (ISA). Registration will be rolled out from June 2010 and failure to register will be a criminal offence. Criminal penalties also attach to a regulated activity provider who employs or engages a person to carry out regulated activity if that person is barred or has not registered.
Lawyers differ on whether local authorities, NHS Trusts and other such bodies (commissioners) are caught by the definition of regulated activity provider even where the regulated activity is carried out by independent providers.
If they are, they will potentially be liable if their providers’ failure:
- employ someone who they knowingly or have reason to believe is barred or not registered with the ISA; or
- employ someone without checking whether they are registered with the ISA.
The last of these offences is of most concern to commissioners as no actual or implied knowledge is required.
So what can commissioners do to protect themselves?
The simple answer is to check the CRB check and registration of every provider’s employees, volunteers and consultants who are carrying out regulated activity. Can that really be what the legislation intends? Is that reasonable or proportionate?
Until the law in this area is clarified, and unless they want to “check the checks” in every case, the practical answer is for commissioners to hedge their bets in the contract by:
- alerting providers to the new requirements;
- inserting a warranty from the provider in favour of the commissioner that it is registered as the employer of the people carrying out the regulated activity and that the relevant checks have been carried out; and
- giving commissioners the power to call for whatever information they require to satisfy themselves that their providers are complying with the Act.
For example wording, see Safeguarding children and vulnerable adults: Standard clause for public sector service contracts.