Changes to Disclosure and Barring

The Protection of Freedoms Act 2012 (PFA) has recently received Royal Assent, and came into force on 10th September 2012. It has made changes to safeguarding systems, which will affect organisations dealing with vulnerable adults and children.

Regulated Activity

The first major change is a new definition of “Regulated Activity.” This is further differentiated by reference to children and to adults separately.

Regulated activity relating to children is dealt with under Schedule 4 of the Safeguarding Vulnerable Groups Act 2006, as amended by PFA. The following work is regulated activity only if undertaken regularly:

  1. Teaching, training, instruction, care of, supervision of, the provision of advice/guidance to children
  2. Driving a vehicle only for children
  3. Working in places such as schools, children’s hospitals, children’s homes, children’s centres (but not including work done by volunteers under supervision)

The following is regulated activity regardless of how regularly it is undertaken:

  1. Physical assistance in connection with washing/bathing, toileting or dressing.
  2. Health care provided by or supervised by a professional
  3. Registered child minding, foster carers

Regulated Activity concerning adults now identifies activities, which could lead to an adult being vulnerable at a particular time. There is also no longer a requirement that activities must be duplicated a certain number of times in order to be considered a regulated activity.

There are 6 categories falling within the scope of adult regulated activity, which are as follows:

(a) the provision to an adult of healthcare by, or under the direction or supervision of, a health care professional,
(b) the provision to an adult of relevant personal care,
(c) the provision by a social care worker of relevant social work to an adult who is a client or potential client,
(d) the provision of assistance in relation to general household matters to an adult who is in need of it by reason of age, illness or disability,
(e) any relevant assistance in the conduct of an adult’s own affairs,
(f) the conveying by persons of a prescribed description in such circumstances as may be prescribed of adults who need to be conveyed by reason of age, illness or disability,

By way of clarification, in b) personal care means:

(I) physical assistance in connection with eating, drinking, going to the toilet, washing/bathing, dressing, oral care or care of the skin, hair or nails.
(II) Prompting and then supervising an adult re decision to eat, drink, go to the toilet, wash/bathe, dress, re oral care or care of the skin, hair or nails.
(III) Training, instructing or offering advice to an adult re decision to eat, drink, go to the toilet, wash/bathe, dress, re oral care or care of the skin, hair or nails.

In d) general household matters can include managing cash, paying bills or shopping on the person’s behalf.

In e) conduct of affairs includes a lasting power of attorney, an enduring power of attorney, actions pursuant to an Order made by the Court of Protection under section 16 of the Mental Capacity Act in relation to making decisions on an incapacitated person’s behalf, appointment of an Independent Mental Health Advocate or Independent Mental Capacity Advocate or the appointment of a representative under the Social Security Administration Act 1992.

The provisions in f) do not include family, friends or taxi drivers.

Repeals

The new Act also has the effect of repealing certain provisions.

First, there is a repeal of “controlled activity.” This used to cover those having minimal contact with vulnerable groups. Secondly, there was an intention that registration and monitoring would be introduced. Although this never came into force, it has now been repealed. Thirdly, the ability of the Police to provide additional information about applicants to an organisation will no longer exist. The Police can however use common law powers to do this, where necessary.

Other Changes

There are additional changes brought in by the PFA.

  • As of 10th September 2012, those aged under 16 are no longer able to apply for CRB checks.
  • The Police will now have an additional test to pass before disclosing information held on enhanced CRB certificates. They must now “reasonably believe” the information to be relevant and consider that it ought to be disclosed. Where the applicant believes that information has been wrongly disclosed, they can ask the Independent Monitor to amend the information and/or issue a new certificate.
  • The PFA will also now allow people other than the applicant to apply to the CRB for a decision as to whether the applicant’s CRB check is accurate.

Finally, it is envisaged that at some point after September 2012, the CRB and ISA will be merged and that an update service will be provided. The specifics of these changes have not been finalised yet.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

Briefing tags