Briefing for Members of CCPS

Protection of Vulnerable Groups (Scotland) Act, statutory instruments for consultation, November 2009 – February 2010.

Briefing for members of CCPS

Scottish Government work on the Protection of Vulnerable Groups establishes lists of those barred from working with children and protected adults, and a scheme which those who are not barred and wish to work with protected adults and children must join.

The Protection of Vulnerable Groups Act, which was passed in 2007, requires a number of Statutory Instruments to be passed by Parliament before this scheme comes into effect (around the end of 2010). The Scottish Government has published seven SSIs for consultation, alongside a partial regulatory impact assessment and draft guidance on the Act. The SSIs deal with offences which would lead to automatic listing or automatic consideration for listing on the barred from working with adults/children lists; definitions of regulated work with adults and children; third party access to disclosures; and fees for scheme membership. A further SSI relating to retrospective checking is expected in the new year.

The SSIs can be accessed online at Below you will find summaries of the content of the SSIs, along with information on what position (if any) CCPS has previously taken on the issues, and whether/how CCPS might respond on this occasion.

It would be extremely useful if members could read through this information, and provide feedback on possible CCPS responses. The closing date for the consultation is 2 February 2010, and it would be appreciated if members could feed in their comments by Friday 15 January 2010.

Questions of clarification or comments on the proposals should be directed to Kirsten Gooday at or on 0131 337 3295.

Automatic listing order

The Act makes provision for Ministers to automatically list an individual as unsuitable to work with adults and/or children, without considering the case in further detail, where certain criteria are met. This SSI sets out those criteria i.e. the offences which an individual will have committed for this to happen.
Anyone convictedafter the commencement of the SSI of the murder of a child or of any offence involving non-consensual sexual penetration of another person will be automatically listed as unsuitable to work with children or protected adults.
Anyone who has been previously convicted of these offences is unlikely not to be listed as unsuitable, but will go through the consideration process.
This applies to adults or children convicted of such an offence (members interested in children’s rights may wish to note that this is a change from the previous policy intention that anyone under 18 would always go through the consideration process).
Individuals can appeal against this on grounds of a change in circumstances after a prescribed period of time has elapsed (mostly likely ten years).
CCPS has not commented on this issue in previous consultations and would not propose to comment on this SSI.

Automatic consideration for listing order

The 2007 Act already contains a list of offences, conviction for which automatically lead to an individual’s suitability to work with children being considered (note that this only applies to work with children, and that to include work with protected adults would require more amendment than the Statutory Instrument which is being consulted on)
This SSI adds the following offences to the list
Female genital mutilation
Trafficking of children
Ill treatment and wilful neglect of an adult with incapacity
Ill treatment and wilful neglect of a mentally disordered person
Intercourse with a step child (under 18)
Culpable homicide where the victim is a child
CCPS has not commented on this issue in previous consultations and would not propose to comment on this SSI.

Protected adults regulations

The definition of a protected adult in the 2007 Act is service based (i.e. an adult is only protected for the time that they are receiving a particular service). Most services provided by CCPS members will sit within the definitions in the Act relating to regulated (by the Care Commission or its equivalent) services.
The Act also contains a reference to ‘welfare services’ which was included to ensure that services such as those provided by WRVS are within the scope of the Act and staff working in these services can be checked against the barred lists.
This SSI defines a welfare service as a service that
Is provided to one or more persons over the age of 16
Is delivered on behalf of an organisation
Requires training to be undertaken by the person delivering the service
Has a frequency and formality attached to the service; and either
Requires a contract to be agreed between the service provider and the recipient of the service prior to the service being carried out; or
Is personalised to an individual adult’s needs
In previous consultations on the Act, CCPS members have not commented on the issue of welfare services (presumably as most of your services already fall within the other definitions in the Act) so it is not intended that CCPS will comment on this SSI. Any member wishing to raise an issue at this stage, however, should please do so.

Regulated work with adults order

Within services which confer protected adult status (see protected adult regulations above), only those employees/volunteers undertaking ‘regulated work’ with adults need to be/should be checked against the barred lists. The Act does not list positions which fall into regulated work, rather it provides a list of criteria which allow organisations to assess who is in regulated work.
Social care staff will be covered under definitions in the Act relating to caring for adults, being in sole charge of adults etc.
The Act as passed also makes provision for a variety of other people to be in regulated work, and Ministers now wish to make this more proportionate; the following changes are therefore being proposed:
The Act states than anyone working in a residential establishment or accommodation would be in regulated work; this would include those working in the grounds or incidentally entering the premises, for example postmen and window cleaners. It is proposed to make this more proportionate by including the caveats that only those who work in such establishments and a) are in unsupervised contact with protected adults as part of their normal duties and b) where unsupervised contact is not incidental (the definition in the Act of incidental is where a service provided by a person or organisation is not targeted at a protected adult) would be undertaking regulated work.
The Act states than anyone working for an organisation that provides care homes would be in regulated work, even where they were not based in a care home. This is felt to be disproportionate and has been removed. Those working for such an organisation, whose normal duties take them into a care home as described above, would be covered under this part of the Act, but, for example, central finance staff based in an office, would not need to be checked.
The Act states that all trustees of adult charities should become scheme members. It is proposed to modify this so that a) only charities carrying out regulated work with adults would be covered and b) only trustees responsible for appointment, management and dismissal of employees doing regulated work will become scheme members.
CCPS has always advocated a proportionate approach to protection, and it would be in line with this to support the changes relating to residential establishments and care homes. Members providing such services are asked to comment.
CCPS has not previously responded on the issue of charity trustees, as the views of the membership have been split between those who believe that trustees should be checked and those who don’t. Members are asked to comment on the proposed compromise position. Members who provide services to both adults and children are asked to cross refer with the regulated work with children order and what effect the two different systems might have on them.

Regulated work with children order

The Act states that only those undertaking ‘regulated work’ with children need to be/should be checked against the barred lists. The Act does not list positions which fall into regulated work, rather it provides a list of criteria which allow organisations to assess who is in regulated work.
Social care staff will be covered under definitions in the Act relating to caring for adults, being in sole charge of adults etc.
The Act as passed also makes provision for a variety of other people to be in regulated work, and Ministers now wish to make this more proportionate; the following changes are therefore being proposed:
The Act states that anyone working in an educational establishment would be in regulated work; this would include those working in the grounds or incidentally entering the premises, for example postmen and window cleaners. It is proposed to make this more proportionate by including the caveat that only those who have unsupervised contact with children as part of their normal duties need to be checked.
The SSI adds a requirement for host parents to become scheme members (in relation to school exchanges etc) and provides a definition of a host parent.
The Act states that trustees of children’s charities should become scheme members, defining a children’s charity as one a) whose workers do regulated work with children and b) whose main purpose is to provide benefits for children. The SSI proposes to remove the first definition, meaning that all charities whose main purpose is to provide benefits for children will fall within the scheme. All trustees of children’s charities should be checked against the barred list due to the ‘status’ of being trustee of a children’s charity.
CCPS does not propose to comment on educational establishments or host parents.
CCPS has not previously responded on the issue of charity trustees, as the views of the membership have been split between those who believe that trustees should be checked and those who don’t. Members are asked to comment on the blanket coverage of children’s charity trustees. Members who provide services to both adults and children are asked to cross refer with the regulated work with adults order and what effect the two different systems might have on them.

Fees regulations

The Act establishes a two-tier fee structure for the scheme, one price when an individual first joins the scheme (or requests a full scheme record) and a lower price when a short scheme record is requested – if a short scheme record tells employers that new information is available since the last full scheme record was issued, prompting the employer to request a full scheme record, they only pay the difference.
This SSI proposes the two prices at £59 and £18. This is much higher than the prices suggested in the 2007 consultation.
Free checks for volunteers will continue, but the SSI clarifies that only volunteers working for qualifying voluntary organisations will fall within this. The definition outlines an organisation a) which is not a further education institution, school, public or local authority, or under the management of a public or local authority b) which is not conducted primarily for profit, and any profit generated is used to further the objectives of the organisation not distributed to its members and c) whose sole or primary objective is to provide services, facilities or activities for the benefit of the general public.
The Regulatory Impact Assessment, in calculating costs of the scheme, assumes that full scheme records will only be requested once. CCPS has previously argued that employers would not be happy to request only a short scheme record (which states whether or not an individual is barred and whether or not any new information has been received since the last full scheme record was issued), stating that employers would wish to see a full scheme record which contains conviction information. The Scottish Government has now clarified that individuals would be expected to keep their full scheme record to show to future employers, and members are asked to comment on this.
The cost assumptions in the Regulatory Impact Assessment suggest that the savings inherent in the scheme (fewer full scheme records being requested) would mean that, although the initial cost of scheme membership will be higher than current disclosure scheme, within 10 years these costs will have been recouped by employers. This seems a very long time in the current financial climate, and members are asked to comment on their ability to pay the higher prices.
Members are asked to comment on 1) the concept of defining a voluntary organisations and 2) the definition used. It would be CCPS’ intention to clarify with the Scottish Government what is meant by services for the general public, and whether or not services provided by CCPS members would fall within this category, perhaps suggesting instead that the term ‘public benefit’ be used. CCPS is also minded to suggest that the definition of a voluntary organisation should include reference to its voluntary governance arrangements.
Members are asked to note that the costs of applying for scheme membership/scheme records only apply to one workforce (adults or children) or to an application to join both schemes at once. An individual who is a member of the scheme in relation to work with protected adults, who then wishes to work with children, would have to pay again to join the scheme. It is not clear that it is within the scope of the SSI to change this, but this is the first time this has been made explicit and it is CCPS’ intention to challenge this.

Contractors and disclosure regulations

As members may remember, a draft of the PVG Bill contained the proposal that contracting authorities should have the right to request to view disclosure certificates from contractors, and that CCPS persuaded the government to amend this to require an SSI to prescribe the circumstances in which a third party may ask to see a disclosure certificate.
This SSI covers arrangements for the transportation of children and protected adults, where educational establishments, councils or health bodies have contracted with a third party to provide this transport. It allows these bodies to request to see the disclosure, but it is up to individuals whether or not to allow this access.
CCPS proposes to submit a short response in favour of this provision not being extended to third party providers of social care services.

Draft guidance

CCPS proposes to make only brief comments on the wording of part of the guidance, not on the substantive points it makes.

Please submit your comments on these issues to by Friday 15 January 2010