Changes to the safeguarding regime: Protection of Freedoms Act 2012

The education sector has been affected by the recent introduction of the Protection of Freedoms Act 2012 (the “Act”). This has amended regulations on the safeguarding of children and vulnerable adults and follows a review of the initial scheme due to apparent confusion and remit of the original requirements.

The Safeguarding Vulnerable Groups Act 2006, prompted by the events related to the Soham murders in 2002, provided a compulsory scheme aimed at vetting employees and voluntary workers who had access to children and vulnerable adults and, if considered a threat, barring them from engaging in regulated and controlled activities.

However, the Vetting and Barring Scheme (the “Scheme”) ran by the Independent Safeguarding Authority (“ISA”), soon encountered severe criticism for its stringent scope and, at times, an invasive approach, coming close to clashing with the provisions of the Rehabilitation of Offenders Act 1974 and to unsettle the delicate balance between protecting the public and protecting civil liberties.

The current Coalition government sought to scale back the scope of the Scheme “in a common and proportionate sense”, resulting in the passing of the Act.  The first intervention sought by the new Act, which it is proposed will come into effect in December 2012, relates to the structure of the Scheme.  It is proposed that the Scheme will now be dissolved and the powers of the ISA will be transferred to a purposely created Disclosure and Barring Service.  The activities of the Criminal Records Bureau (“CRB”) will fall under the management of this new body and the system for the issuing of CRB checks has been amended to allow the applicant to be the only one to receive the check and provide representations before disclosure to an employer.

The Act is aimed at simplifying the Scheme and it did so by removing entirely the application of monitoring powers and the definition of “controlled activity”.  This means that ancillary support workers in the Further Education are no longer covered.

The Act has also tackled two main elements of the Scheme, namely the definition of “regulated activity” and the circumstances in which an individual is included on a barred list.  The definition of “regulated activity relating to children” has been amended to exclude those activities relating to “relevant personal care” and “health care provided by, or under the direction or supervision of, a health care professional”.  In fact, “any form of treatment or therapy provided for a child” is also excluded from the definition.  The regulation of “any form of teaching, training or instruction” is still standing, provided that this is done on a regular basis and subject to the daily supervision of another person engaged in regulated activities relating to children.

The Act also provides amendments to activities relating to the “care for children or their supervision”, limiting the application of this regulation only to health care provided by health care professionals.  Forms of care and supervision undertaken with the daily supervision of another person already engaged in regulated activities relating to children are now also excluded from the list.  The new definition further narrowed its application to “establishments”, removing from its scope hospitals which are exclusively or mainly for the reception and treatment of children.  Educational institutions for the provision of full-time education, nursery education, the detention of children, children’s homes and relevant childcare premises are however still covered by the legislation.

The Act further provides that paid or voluntary work done “on a temporary or occasional basis” is now excluded from the definition of “regulated activity”.  In particular, voluntary work is excluded even if this is carried out on a regular basis, on the condition that this is under the supervision of someone engaged in regulated activity with children.  In the Education sector context, it could mean that whilst the work of a locum teacher would continue to fall under the definition of “regulated activity”, the work of maintenance workers would not.

A final and considerable change to the definition of regulated activity is to the list of people that automatically fall within the scope of the definition.  Removed from this list are now some children related professional posts, including Governors, school inspectors and hospitals workers whose activity requires having contact with children.

It will be interesting to see how practical the new system will be given the uncertainty that the original system had.  Over the coming months as the new machinery is put into place, it will be important to determine whether Further Education Colleges will see the new system as a panacea as a whole or merely a slight amelioration to the latent defects contained in the previous system.

Matthew Kelly is a partner at law firm Thomas Eggar, which handles a wide range of related litigation, such as issues relating to FE governance and capital projects