CRIMINAL RECORD CHECK GUIDANCE

Transcription

1 Probation CRIMINAL RECORD CHECK GUIDANCE Adopted by the South Wigston High School (Academy) February 2015 Next Review date - February 2017 Headteacher: Gary Toward Deputy Headteachers: Sean Caldwell, Jane Corrall Assistant Headteachers: Ron Anderson, Chris Henley, Stuart Collison, Nikki Squires

2 Contents Purpose... 2 Scope... 2 Posts requiring a DBS check... 2 Categories DBS Disclosure Certificates What s on it?... 3 Convictions shown on a Disclosure Certificate... 3 DBS Update Service... 3 Checking overseas applicants and UK applicants who lived abroad... 4 Starting employment without DBS clearance... 5 DBS applications and identity checking... 6 DBS Re-checks School/College/Academy employees and volunteers Ofsted s view... 6 LA Comment... 6 Portability... 6 Single Central Record (SCR) Information for people who are not direct school/college/academy employees or volunteers... 7 Leicestershire County Council employees... 8 Services provided by Public Bodies, Agencies and other Organisations... 8 Sample Letter... 8 Self-employed Providers i.e. Music Teachers, Consultants... 9 Casual Workers including Invigilators... 9 Volunteers... 9 Governors Visitors (including Delivery Drivers) Contractors Home to School and Other Transport Provision Letting of Premises Work Experience students in schools and colleges External Placements Additional Advice/Guidance Statutory Guidance Ofsted - advice and FAQs, including some relating to the Single Central Record Ofsted additional advice and FAQs EMSS ESC Service Desk Appendix A:... Summary of the new definition of a regulated activity from 10th September Children Specified Places No longer in regulated activity - children Activities Establishments: Office holders (England): Ofsted s website contains a series of frequently asked questions Adults Frequency Appendix B:New definition of a regulated activity from 10th September 2012 Statutory Guidance (Adults) Appendix C:Definition of a regulated activity prior to 10th September Appendix D:Statutory guidance: Regulated Activity (children) - supervision of activity with children which is regulated activity when unsupervised

3 SOUTH WIGSTON HIGH SCHOOL AN ACADEMY TRUST AND PARTNER IN THE FOSSE TRUST St Thomas Road, South Wigston, Leicester. LE18 4TA Telephone: CRIMINAL RECORD CHECK GUIDANCE PURPOSE Leicestershire County Council (LCC), as a registered body with the Disclosure & Barring Service (DBS) has a legal obligation to only request checks that fall within the scope of the relevant legislation. In addition, there is a cost to the School/College/Academy for processing an application as well as the charge from the DBS. Therefore Headteachers/Principals are requested not to make unnecessary DBS checks. The purpose of this guidance is to advise Headteachers/Principal on the changes to the definition of a regulated activity which come into effect on 10 th September 2012 and give general guidance about who does and does not require a criminal records check. SCOPE This guidance is recommended to all Headteachers engaging an employee or volunteer or other individuals working in their School, College or Academy. Posts requiring a DBS check All employees and volunteers working in a School, College or Academy are designated as working in a 'regulated activity' and are eligible for an enhanced level DBS check. The changes effective on 10 th September 2012 introduce 2 different categories of DBS checks that fall under the heading of a regulated activity. Categories 1. An enhanced DBS check for a post that meets the new definition of a regulated activity will include a check against the relevant barred list(s) for children s, adults or both. As all posts within schools, colleges and academies are defined as regulated activities the electronic application system is set up to automatically request a check against the children s barred list. It is an offence to employ an individual in a post designated as a regulated activity who has been barred from working with children. The new definition of a regulated activity is contained in Appendix A. An enhanced DBS check for posts that meets the criteria under the previous definition of a regulated activity will not include a barred list check. The previous definition of a regulated activity is contained in Appendix C. 2. Headteachers will not be able to process applications for anyone under the age of 16. 3

4 DBS Disclosure Certificates What s on it? From 17 th June 2013 a DBS Disclosure Certificate will only be sent to the person who has applied for it; the County Council will no longer receive a copy of it and the Councils Strategic HR Service will not be able to alert Headteachers when a Certificate contains a criminal record. Certificates will normally arrive with the applicant within 7-14 days. Before a new employee can start work the Headteachers should ask the applicant to produce the original certificate (not a photocopy) for inspection, to establish whether or not it contains any relevant information. If the certificate does show a criminal record(s) or non-conviction information, an impact assessment should undertake; more information is available on the HR Webpage for LCC Schools & Colleges or Academies. In circumstances where a current employee is asked to apply for their 3-yearly recheck Headteachers must ensure that they see the new certificate within 28 days of the application being made. If a new or existing employee refuses to show their new certificate Headteachers should seek advice from their HR Advisor. Convictions shown on a Disclosure Certificate Following a Court of Appeal Judgement the following filtering rules, introduced with new legislation, will remove certain old and minor convictions and cautions, reprimands and warnings from all DBS Certificates issued from 29 May 2013; For those 18 or over at the time of the offence: An adult conviction will be removed from a DBS Certificate if it does not appear on the Exceptions to the Rules list (below), 11 years have elapsed since the date of conviction; and it is the person s only offence, and it did not result in a custodial sentence. If a person has more than one offence, then details of all their convictions will always be included. An adult caution will be removed after six years have elapsed since the date of the caution and if it does not appear on the list of offences relevant to safeguarding. For those under 18 at the time of the offence: For convictions, the same rules apply as for adult convictions, except that the elapsed time period is five and a half years. For cautions, the same rules apply as for adult cautions, except that the elapsed time period is two years. Exceptions to the Rules Some offences will never be removed from a DBS Certificate. These include the most serious sexual and violent offences. The DBS will not be reissuing all previously issued DBS (and CRB) Certificates with the new filtering rules applied as these were issued under the legislative provisions in place at the date of issue. DBS UPDATE SERVICE If an individual is registered with the Update Service, Headteachers, with permission of the individual, can carry out free online Status Checks to see if any new information has come to light since the Certificate was issued. The individual will be able to see who has carried out a Status Check and when the check was undertaken from their online account. 4

5 When a DBS Certificate is registered with the Update Service, the DBS will keep it up-to-date by searching to see if any new information has come to light since the date it was issued, Headteachers will be able to do an on-line check to see if the certificate is valid or whether a new application is required. When a Status Check is made the person undertaking the check will; 1. Need to ensure that the DBS certificate has been issued for the appropriate workforce and, if required, the certificate identifies that the relevant Barred List check has been undertaken; Child Workforce - Use this for any position that involves working/volunteering with children. Adult Workforce - Use this for any position that involves working/volunteering with adults. Child and Adult Workforce - Use this for any position that involves working/volunteering with children and adults. Other Workforce - Use this for any position that does not involve working/volunteering with children or adults e.g. security guard. 2. Need to confirm their entitlement to carry it out and that they are able to comply with the DBS s Code of Practice. 3. Enter their name and organisation together with the applicant s name, date of birth and Certificate number. When the Status Check is carried out one of the following 4 results will appear instantly: 1. This Certificate did not reveal any information and remains current as no further information has been identified since its issue, this means; The Certificate was blank and did not reveal any information about the person and no new information has been found since its issue. 2. This Certificate remains current as no further information has been identified since its issue, this means: The Certificate revealed information about the person and no new information has been found since its issue and it can therefore be accepted as still current and valid. 3. This Certificate is no longer current, this means: That new information has come to light since the Certificate was issued and a new DBS check is required to see this new information. 4. The details entered do not match those held on our system. Please check and try again as, either: The individual has not subscribed to the Update Service; or The Certificate has been removed from the Update Service by the individual; or Incorrect information has been entered. Once a Status Check has been undertaken the result should be printed out, recorded on the Single Central Record and then placed on the individual s personal file. 5

6 CHECKING OVERSEAS APPLICANTS AND UK APPLICANTS WHO LIVED ABROAD The DBS can check applicants from overseas but does not have access to overseas criminal records. Only convictions recorded in the UK will be revealed. However in a small number of cases, overseas criminal records are also held on the Police National Computer and these would be revealed as part of a DBS check. If an individual, irrespective of nationality, has lived outside of the UK you can ask them to get a criminal records check, or Certificate of Good Character, from their country of origin or residence. In some cases it may also be possible for employers to get such a check through the relevant embassy in the UK but the applicant must give their permission. Processes for getting criminal records checks abroad vary between countries. Where an applicant is from or has lived in a country where criminal record checks for child protection purposes cannot be made, or is a refugee with leave to remain in the UK and has no means of obtaining the relevant information, extra care must be taken in taking up references and carrying out other background checks, for example, additional references must be sought, and references must be followed up by a telephone call as well as a letter. The DBS do not check whether an applicant is permitted to work within the UK. The recruiter is responsible for ensuring employees do not have any restrictions to take up employment within the UK. STARTING EMPLOYMENT WITHOUT DBS CLEARANCE Whilst it is not recommended to commence employment until a satisfactory DBS Disclosure has been obtained, in exceptional circumstances, the Headteacher can decided to allow the employee to start work prior to the DBS Disclosure being received. In these circumstances it is recommended that, a risk assessment is undertaken to access the risk of placing the person in the job prior to a DBS Disclosure being received and consideration should be given to putting additional safeguarding measures in place. As a prerequisite to these additional measures: the DBS Disclosure application must have been completed and submitted to the DBS; And; all other pre-employment checks must have been undertaken; The following additional safeguarding measures are available: The employee is checked against the ISA Children s Barred List; Requesting an ISA Children s Barred List check can be made. Ensure that the employee does not have unsupervised access to children during the period preceding receipt of the DBS Disclosure. Supervision arrangements should be clearly documented in the risk assessment and the arrangements reviewed on a fortnightly basis. (Employees subject to additional supervision arrangements must be informed that they will be under supervision and the reason and nature of the supervision should be specified.); The role of the supervisor must be clearly spelt out and that individual must understand what is required of them. When the risk assessment has been completed, it should be retained in the employee s personal file. 6

7 DBS APPLICATIONS AND IDENTITY CHECKING All applications for a DBS check are now made on-line and a guide to using the on-line service is available on EIS. Headteachers must ensure that the job described in the position applied for line gives a clear indication of the nature of the work and whether the work is with children or adults as this is important for the checking process and the relevance of the check. Head Teachers/Principal should also ensure that the DBS application has been completed in accordance with the Identification checking requirements of the DBS which is available on EIS. If you require and assistance with making an on-line application please telephone the EMSS ESC Service Desk or escservicedesk@eastmidlandssharedservices.org. DBS RE-CHECKS SCHOOL/COLLEGE/ACADEMY EMPLOYEES AND VOLUNTEERS OFSTED S VIEW Ofsted has endorsed the guidance given by the DCSF in respect of 3 yearly re-checks, which is, that there is no requirement (with the exception of schools, colleges or academies that provide residential care for students/students) to re-check the DBS s of staff as the law only requires DBS checks for staff at the recruitment stage, and only then if the person has a break in service of more than three months. In view of the above Headteachers may wish to consider not rechecking staff every 3 years who are continually working within their school or college. LA Comment As enhanced DBS checks (DBS) only contain information that is available at the date of issue, unless the individual has subscribed to the DBS Update Service, it is strongly recommended that when recruiting a new member of staff any job offer is the subject of a new DBS check being undertaken and a satisfactory outcome received regardless of whether the recruit is currently employed within a Leicestershire School, College or other establishment. Portability Whilst DBS disclosures are transferable from another employer In the light of the DCSF guidance Headteachers may wish to consider accepting the portability of a previously issued DBS Disclosure certificate. Portability means the re-use of a DBS check obtained for a position in one organisation and later used for a position in another setting. It is recommended that DBS checks are not accepted from another employer, agency, or organisation unless they are registered with the DBS s Update Service. The portability of DBS issued by Leicestershire County Council was previously agreed in conjunction with the undertaking of three yearly DBS rechecks, however as there is clear advice from Ofsted that such re-checks are not required, it is very important during the recruitment process to ensure that safer recruitment practices are followed including the undertaking of DBS checks as mentioned above. However, schools/colleges/academies do have the flexibility to accept the portability of a DBS check. If portability in any form is used for a new appointee Headteachers must consider: Whether requests for references asked for specific and relevant information relating to the work being applied for, as well as the persons suitability to work with children. 7

8 If the DBS check is an enhanced check for a regulated activity and that a Children s Barred List check has been undertaken; no other type of DBS check is not acceptable for work (paid or unpaid) in schools, colleges or academies. Whilst a DBS check carries no formal period of validity, the older a check is the less reliable the information is; the information it contains may not be up to date. The date of issue (on the individual s copy) should be used as a guide as to whether to request a new DBS check. If the individual is registered with the DBS Update Service an on-line check can be undertaken to validate whether the certificate is up-to-date. For further information on the DBS Update Service. A certificate is not valid if any of the following apply if: There has been a three-month break in service prior to appointment, unless the individual is registered with the DBS s Update Service; The employee undertakes a new post with significantly greater responsibility for children i.e. was employed as a cleaner but undertakes a role as an LSA. A new employee holds a certificate as a volunteer. A DBS check is not valid for a volunteer who is entering paid employment; a new application must be submitted in all circumstances. Finally, it is important when accepting an existing certificate that the original certificate is inspected; a photocopy of the original document is not acceptable. SINGLE CENTRAL RECORD (SCR) INFORMATION FOR PEOPLE WHO ARE NOT DIRECT SCHOOL/COLLEGE/ACADEMY EMPLOYEES OR VOLUNTEERS Whilst Headteachers are entitled to see the details contained on a DBS Disclosure for an employee or volunteer directly appointed by them to undertake work within their school, college or academy, this is not the case for others who are employees or volunteers from other organisations, companies etc. The information contained on a DBS is covered by the provisions of the Data Protection Act. An individual visiting a school, college or academy being asked to produce their DBS Disclosure certificate, has the legal right not to divulge personal information contained in the disclosure other than that necessary to satisfy a specific requirement and is not of a personal or sensitive nature. The specific requirement for the SCR is only to verify the name on the disclosure, the certificate number and the date of issue, therefore it is not necessary for any other part of the document to be inspected or shown. In circumstances where the disclosure certificate number and the date of issue has been provided by the Organisation direct to the school/college/academy the SCR should show that it has been checked by the employing organisation; an identity check will then be sufficient to enable the person to conduct their business at the school/college/academy. It may be an offence within law to ask an individual, who is not an employee or a volunteer appointed by your school, college or academy for any other additional information which is personal to them i.e. address, NI number, date of birth. However, you should ensure that you have received. information from the employing/voluntary organisation about a DBS check and the person should be asked for photographic ID linking them to the organisation they work for, or if this is not available a letter from the organisation on their headed paper stating the individuals name and some other photographic ID e.g. passport, driving licence. 8

9 If there are any concerns in respect of the information provided these should be discussed with the person s organisation, preferably beforehand; where there is an immediate problem immediate safeguarding measures should be taken to ensure that the person can conclude the purpose of their visit. LEICESTERSHIRE COUNTY COUNCIL EMPLOYEES All Leicestershire County Council employees meeting the eligibility criteria are DBS checked to the appropriate level. Schools, Colleges and Academies should record on their SCR anyone who undertakes meets this definition within their establishment including psychologists, centrally employed teachers etc. There are a number of County Council employees who visit schools and colleges are not eligible to be DBS checked as they do not meet the eligibility criteria i.e. Auditors, HR Advisors, H&S Advisors, Building Surveyors, Architects, Tree Surgeons but whose contact with children is incidental; not the purpose of their visit. In all cases these and similar groups of staff HeadTeacher should ensure that appropriate arrangements are in place to enable these individuals to undertake their work without unsupervised access to children. SERVICES PROVIDED BY PUBLIC BODIES, AGENCIES AND OTHER ORGANISATIONS There is a legal requirement on local authorities, supply agencies and other organisations providing individuals to work (whether paid or unpaid) in schools, colleges and academies to carry relevant employment checks. Schools, Colleges Academies must confirm that the appropriate checks have been carried out and are satisfactory (sample letter). Schools, Colleges and Academies must ensure that the contract or arrangement with the supply agency imposes an obligation on the agency to carry out the same checks as the School, College or Academy would do for their own staff. Where services or activities are provided separately by another body, the governing body should seek assurance that the body concerned has appropriate policies and procedures in place in regard to safeguarding children and child protection and there are arrangements to liaise with the school/college/academy on these matters where appropriate. Individuals such as psychologists, nurses, dentists, centrally employed teachers and other public sector staff will have been checked by their employing organisation, whether Local Authority, Primary Care Trust or Strategic Health Authority. It is not necessary for schools or colleges to see their Disclosure Certificate as appropriate checks will have been carried out. Schools, colleges and Academies will however want to check identity when an individual arrives to ensure impostors do not gain access to children. Sample Letter Dear As you are an Agency or Organisation supplying services to [ school/college/academy] we are required to receive from you written confirmation that the people used in delivering these services have undergone the following checks, Identity checks; Enhanced DBS check for a regulated activity, including the check against the Children s Barred List; 9

10 Relevant qualification; and; Confirmation of the right to work in the United Kingdom Also in circumstances where and individual is supplied has information disclosed on their Disclosure certificate you will supply us with a copy of the Certificate before the individual starts work. Yours sincerely. SELF-EMPLOYED PROVIDERS I.E. MUSIC TEACHERS, CONSULTANTS The Statutory Guidance Safeguarding Children and Safer Recruitment in Education gives guidance on the safeguarding requirements for the provision of child care. In general terms the responsibility for ensuring that employees or volunteers from Organisations or other Groups, self-employed instructors/tutors/teachers undertaking activities have undergone the appropriately checks lies with the school, college or academy. Where the provision of services has been transferred to another Organisation or Group, see Section above Services provided by Public Bodies, Agencies and other Organisations. Prior to, or on, their first visit the person undertaking the activity should provide the required data, i.e. certificate number and the date of issue, relevant qualification, for the SCR and to meet the OFSTED requirements. If Headteachers wish to directly commission individuals they should; See an original DBS; establish the individuals work history; contact the previous employers to establish suitability; Ask the individual to apply for a new DBS if there has been a break in service of more than 3 months, unless the individual has subscribed to the Update Service, and; In the case of a self-employed person check to ensure that they are genuinely self-employed.. CASUAL WORKERS INCLUDING INVIGILATORS Headteachers must ensure that a new DBS is applied for when there has been a 3 month or more break in service, unless the individual has subscribed to the DBS Update Service. A number of schools, colleges and academies arrange training or briefing sessions for Invigilators during the year to ensure that a 3 month break in service does not occur. VOLUNTEERS Volunteers are seen by children as safe and trustworthy adults, and if a school, college or academy is actively seeking volunteers, and is considering people about whom it has little or no recent knowledge, it should adopt the same recruitment measures as it would for paid staff. In other circumstances, for example where a school approaches a parent who is well known to the school to take on a particular role, a streamlined procedure can be adopted: seeking references, checking to ensure others in the school community know of no concerns and can make a positive recommendation, conducting an informal interview to gauge the person s aptitude and suitability, and undertaking a DBS criminal records check. 10

11 In other circumstances, e.g. where a volunteer s role will be one off, such as accompanying teachers and students on a day outing or helping at a concert or school fete, it would not be necessary to undertake the same level of recruitment or undertake a criminal records check, however the person should not be left alone and unsupervised in charge of children. Further guidance on supervision is available. Where volunteers recruited by another organisation work in a school, e.g. sports coaches from a local club, the school should obtain assurance from that organisation that the person has a criminal records check. The school/college/academy can request from the supplying organisation information about a DBS check (certificate number and date of issue) or ask the person to show you their DBS disclosure certificate. The person should be asked to bring with them some photographic ID linking them to the organisation they work for, or if this is not available a letter from the organisation on their headed paper stating the individuals name and some other photographic ID e.g. passport, driving licence. GOVERNORS The role of Governor is no longer designated as a regulated activity (Category 1) meaning that a criminal records check is no longer required under the new regulations. Governors however are eligible to be checked without a barred list check under Category 2. Governing bodies may consider for reputational reasons criminal record checks of new Governors should continue. In circumstances where a Governor also volunteers to assist in the classroom, or goes on residential visits they must undergo a criminal records check for a regulated activity which includes a barred list check (Category 1). VISITORS (INCLUDING DELIVERY DRIVERS) It is not necessary for visitors, who have business with the Headteacher or other staff or who have brief contact with children with a member of staff present, to have a DBS Disclosure Certificate as they should only have incidental contact with children for short periods of time. However, it is good practice to ensure that visitors sign in and out, and are escorted whilst on the premises by a member of staff or appropriately vetted volunteer. Visitors should not be left unsupervised for any significant period. Further guidance on supervision is available. CONTRACTORS Building and other maintenance contractors do not meet the criteria for a DBS check. More information on the eligibility criteria is available. Statutory guidance, states that Children should not be allowed in areas where builders are working, for health and safety reasons, so these workers should have no contact with children. If it is not practicable to isolate the Contractors from the students it is important that at the start of the planning process the requirements of the school/college/academy safeguarding requirements are identified at the planning stage to enable them to be built into the contract by the Contractor. If the Head teacher has concerns that their requirements are not being met through this process they should take immediate action to raise their concerns with the named contractor's representative previously identified for the purpose. In general terms Health & Safety requirements will encompass a number of safeguarding requirements. The contract should also state what action will be taken in the event that the safeguarding requirements are breached. Contractors who come on-site to carry out emergency repairs or service equipment should not be left unsupervised for any significant period. 11

12 Finally, whilst we advise that where possible people i.e. building surveyors, architects, contractors, visiting schools and colleges in connection a contract to make prior arrangements there are occasions when this may not be possible due to delays, emergencies, proximity etc. we would ask that wherever possible such ad hoc visits can be accommodated in order to avoid delays to the project. HOME TO SCHOOL AND OTHER TRANSPORT PROVISION The County Councils Passenger Transport Unit may be responsible for the provision of Home to School Transport. The Unit has robust procedures within their contract standards and monitoring procedures that seek, as far as practicable, to ensure that children and adults arrive safely to their destination. Their standards are applied to all bus and taxi contractors including escorts and the County Councils in-house provision. If Home to School Transport is provided by the County Council schools, colleges and academies do not need to record the details of Service Providers to be record on the Single Central Record. In circumstances where Schools, Colleges or Academies contract their own student/student transport provision they must ensure that the Provider meets the requirements of the School/College/Academy s Safeguarding Policies and Procedures, DCSF guidance and OFSTED requirements. LETTING OF PREMISES The Letting of a school/college/academy facility to an individual to provide an activity not connected with the school/college/academy or for private use, is not the responsibility of the school/college/academy to ensure that the Client is DBS checked unless they are recommending the Provider to students, students or parents WORK EXPERIENCE STUDENTS IN SCHOOLS AND COLLEGES Children under the age of 16 cannot be DBS checked. Statutory Guidance Safeguarding Children and Safer Recruitment in Education, gives detailed guidance on the safeguarding requirements for work experience students and providers. Paragraph 4.23 of the Statutory Guidance, states It is not necessary to DBS check: Secondary students on Key Stage 4 work experience in other schools, FE colleges or nursery classes; secondary students undertaking work in another school or FE college as part of voluntary service, citizenship or vocational studies; or Key Stage 5 or sixth form students in connection with a short careers or subject placement. Secondary students undertaking voluntary work or work experience in other schools. Students who undertake short periods of work experience that involve contact with children in other schools or education establishments. N.B. Headteachers of Special Schools and Schools with Special Units may require that students over the age of 16 are DBS checked prior to undertaking voluntary service, citizenship or vocational studies within their establishments. It is good practice to ensure that visiting students sign in and out, and are supervised whilst on the premises by a member of staff or appropriately vetted volunteer. In all of these instances it is the school/college/academy placing the student should ensure that s/he is suitable for the placement in question; the Headteacher of the receiving school/college/academy should request written confirmation of this. In some instances students/student may be required to find their own work experience placement, in which case before the placement is agreed the Headteacher of the receiving school/college/academy should check the suitability of the student/student with his/her School/college/academy. 12

13 Students (Community College, 6 th Form, FE College, University etc.) who are required to work with children as a necessary part of a training course, e.g. student teachers, nursery nurses, child care etc., will need to apply for disclosure when they are accepted onto the course. On their 1 st visit the Student should bring with them their CRB Disclosure Certificate so that the information required for the SCR can be completed and verified. Trainees on initial teacher education (ITE) courses - it is the ITE providers responsibility, not the school's, to ensure these checks are made. In the event of delay in receiving disclosures from the CRB, DCSF guidance gives head teacher s discretion to allow trainees to start working in a school subject to a satisfactory check of List 99 and completion of other normal recruitment procedures. Training providers should keep head teachers fully informed of the progress of applications for disclosures, since schools will want to maintain closer supervision of trainees who have not yet received enhanced clearance. Schools must be satisfied that checks have indeed been done. (OFSTED guidance Sept 2009) External Placements The Placement Organiser should determine, using the DCSF and the CYPS Safeguarding Units Work Experience guidance, who within workplace should be DBS, checked i.e. Lead Supervisor, Main Mentor. Post-16 Students undertaking work experience in the care sector will require an enhanced DBS check before they take up their placement. There should be no requirement for Students/Students to be DBS checked as they should never be left to work unsupervised; however assurances may be sought by the Provider to establish the suitability of the student/student to undertake the role being offered. ADDITIONAL ADVICE/GUIDANCE Statutory Guidance Safeguarding Children and Safer Recruitment in Education, Ofsted - advice and FAQs, including some relating to the Single Central Record, Ofsted additional advice and FAQs, EMSS ESC Service Desk Telephone or escservicedesk@eastmidlandssharedservices.org 13

14 Appendix A: Summary of the new definition of a regulated activity from 10th September 2012 The Safeguarding of Vulnerable Groups Act 2006 established criteria that determined whether or not a post was designated as a regulated activity which would require the post holder to undergo an enhanced Disclosure & Barring Service (DBS) check. The Protection of Freedoms Act 2012 has change the definition which comes into effect on 10 th September This guidance includes a description of the new definition also identifies those areas no longer included with the revised definition. Children The new definition of regulated activity covers anyone whether paid or unpaid undertaking work relating to children comprises only: 1) Unsupervised activities: teach, train, instruct, care for or supervise children, or provide advice/guidance on well-being, or drive a vehicle only for children; 2) Work for a limited range of establishments ( specified places see list below), with opportunity for contact, (but not work by supervised volunteers - Statutory Guidance on supervision is included in Appendix D; Work under 1) or 2) is Regulated Activity only if done regularly. Regular means carried out by the same person frequently (once a week or more often), or on 4 or more days in a 30-day period (or in some cases, overnight). 3) Relevant personal care, for example washing or dressing; or health care by or supervised by a professional, even if done once; 4) Registered child-minding and foster-carers; Regulated activity still excludes: Family arrangements; Personal, non-commercial arrangements. Specified Places Schools & colleges wholly or mainly for under 18 year olds (all or mainly full-time, for children); Student referral units (also known as Short Stay Schools) not falling within the above; Nursery schools; Institutions for the detention of children; Children's homes; Children's centres in England; Childcare premises (including nurseries). No longer in regulated activity - children Activities Activity supervised at reasonable level. (Statutory Guidance on supervision is included in Appendix D; 14

15 Health care not by (or directed or supervised by) a health care professional; Legal advice; Treatment/ therapy (now included in health care ). Establishments: Occasional or temporary services, e.g. maintenance (not teaching etc.); Volunteers supervised at reasonable level. Office holders (England): All positions removed, e.g. governors, Councillors; Further advice in respect of the requirement for Governors is available from the County Councils Governors Development Service (Tel no ) Inspectorates removed. Ofsted s website contains a series of frequently asked questions. Adults Those who provide: Personal care: assistance with washing and dressing, eating, drinking and toileting or teaching someone to do one of these tasks; Social work: provision by a social care worker of social work which is required in connection with any health services or social services; Conveying adults for reasons of age, illness or disability to, from or between places where they receive healthcare, personal care or social work. This would not include friends or family or taxi drivers; Assistance with a person s cash, bills or shopping because of their age, illness or disability (The expectation is that this will not include call centre/telephone based support, further guidance is awaited); Assistance with the conduct of an adult s own affairs, for example, lasting or enduring powers of attorney, or deputies appointed under the Mental Health Act; Healthcare: if they are a regulated health care professional or are acting under the direction or supervision of one, for example doctors, nurses, health care assistants and physiotherapists. Further information is available in Appendix B. Frequency On one occasion or more 15

16 Appendix B: New definition of a regulated activity from 10th September 2012 Statutory Guidance (Adults) 16

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21 Appendix C: Definition of a regulated activity prior to 10th September 2012 Regulated activity covers anyone whether paid or unpaid working closely with children or vulnerable adults (definition), (not part of a family or personal arrangement), on a frequent or intensive basis. It can include, but is not limited to, any of the following: Teaching, training or instruction, care or supervision of children or provided wholly or mainly to vulnerable adults; Providing advice or guidance for children; Providing advice, guidance or assistance wholly or mainly to vulnerable adults; Any form of healthcare treatment or therapy provided to children or vulnerable adults; Driving a vehicle that is being used for the specific purpose of conveying children or vulnerable adults; Working in a specified place or setting where there is the opportunity for contact with children or vulnerable adults. Activities include teaching, training and instruction, as well as catering, cleaning, administrative and maintenance workers or contractors; Fostering and childcare; Specified positions; And; Roles that involve managing, on a regular basis, the day-to-day work of those carrying out specified activities or working in specified places or settings. Glossary Frequency and intensive Frequently - once a month or more. Intensive - three days or more in a single 30-day period. Specified places & settings Schools (educational institutions exclusively or mainly for the provision of full-time education to under-18s); Childcare premises (including nurseries); Residential homes for children in care; Children s hospitals (hospitals exclusively or mainly for the reception and treatment of children); Children s detention centres (institutions exclusively or mainly for the detention of children); Children s centres; Adult care homes; 21

22 Specified positions School governor or director of children s or adult social services All activity undertaken within specified place or setting where there is the opportunity for contact with children or vulnerable adults. Activities include teaching, training and instruction, as well as catering, cleaning, administrative and maintenance workers or contractors, Roles that involve managing, on a regular basis, the day-to-day work of those carrying out specified activities or working in specified places or settings. Specified activities The Scheme covers the following activities, which involve contact with children and/or vulnerable adults. The example given of each specified activity is intended to be illustrative, not exhaustive. Supervision regularly involves day-to-day management or supervision of a person carrying out a regulated or controlled activity. Teaching, training or instruction, care or supervision of children or provided wholly or mainly to vulnerable adults e.g. children s sports coaches, private tutors, teachers, probation officers, prison officers, care workers, speech therapists and youth workers. Advice or guidance for children, and advice, guidance or assistance for vulnerable adults e.g. children s mentors, counsellors, children s careers advisers, voluntary or other independent organisations that provide advice or support to older people or disabled people, Individuals who visit vulnerable adults to offer assistance. Any form of healthcare treatment or therapy provided to a child or vulnerable adult e.g. healthcare professionals, therapists, healthcare assistants in both hospitals and community settings; it does not include first aid treatment where giving first aid is an ancillary role to a person s main occupation. Driving a vehicle solely for the purpose of conveying children or vulnerable adults e.g. minibus/bus drivers taking children to or from schools/colleges or vulnerable adults to day centres. Registered child-minders and foster carers Vulnerable adults: a definition A vulnerable adult is defined by the SVGA as a person who is aged 18 years or over and who: is living in residential accommodation, such as a care home or a residential special school is living in sheltered housing is receiving domiciliary care in their own home is receiving any form of healthcare is detained in lawful custody (in a prison, remand centre, young offender institution, secure training centre or attendance centre, or under the powers of the Immigration and Asylum Act 1999) is under the supervision of the probation services 22

23 is receiving a welfare service defined as the provision of support, assistance or advice by any person, the purpose of which is to develop an individual s capacity to live independently in accommodation or support their capacity to do so is receiving a service or participating in an activity for people who have particular needs because of their age or who have any form of disability is an expectant or nursing mother living in residential care, or Is receiving direct payments from a local authority or health and social care trust in lieu of social care services. 23

24 Appendix D: Statutory guidance: Regulated Activity (children) - supervision of activity with children which is regulated activity when unsupervised 1. This document fulfils the duty in legislation i ii that the Secretary of State must publish statutory guidance on supervision of activity by workers with children, which when unsupervised is regulated activity. This guidance applies in England, Wales and Northern Ireland. It covers settings including but not limited to schools, childcare establishments, FE colleges, youth groups and sports clubs. 2. For too long child protection policy has been developed in haste and in response to individual tragedies, with the well-intentioned though misguided belief that every risk could be mitigated and every loophole closed. The pressure has been to prescribe and legislate more. This has led to public confusion, a fearful workforce and a dysfunctional culture of mistrust between children and adults. This Government is taking a different approach. 3. We start with a presumption of trust and confidence in those who work with children, and the good sense and judgment of their managers. This guidance applies when an organisation decides to supervise with the aim that the supervised work will not be regulated activity (when it would be, if not so supervised). In such a case, the law makes three main points: there must be supervision by a person who is in regulated activity iii ; the supervision must be regular and day to day; and the supervision must be reasonable in all the circumstances to ensure the protection of children. The organisation must have regard to this guidance. That gives local managers the flexibility to determine what is reasonable for their circumstances. While the precise nature and level of supervision will vary from case to case, guidance on the main legal points above is as follows. 4. Supervision by a person in regulated activity / regular and day to day: supervisors must be in regulated activity themselves iv. The duty that supervision must take place on a regular basis means that supervision must not, for example, be concentrated during the first few weeks of an activity and then tail off thereafter, becoming the exception not the rule. It must take place on an on-going basis, whether the worker has just started or has been doing the activity for some time. 5. Reasonable in the circumstances: within the statutory duty, the level of supervision may differ, depending on all the circumstances of a case. Organisations should consider the following factors in deciding the specific level of supervision the organisation will require in an individual case: ages of the children, including whether their ages differ widely; number of children that the individual is working with; 24

25 whether or not other workers are helping to look after the children; the nature of the individual s work (or, in a specified place such as a school, the individual s opportunity for contact with children); how vulnerable the children are (the more they are, the more an organisation might opt for workers to be in regulated activity); how many workers would be supervised by each supervising worker. 6. In law, an organisation will have no entitlement to do a barred list check on a worker who, because they are supervised, is not in regulated activity. EXAMPLES VOLUNTEER, IN A SPECIFIED PLACE Mr Jones, a new volunteer, helps children with reading at a local school for two mornings a week. Mr Jones is generally based in the classroom, in sight of the teacher. Sometimes Mr Jones takes some of the children to a separate room to listen to them reading, where Mr Jones is supervised by a paid classroom assistant, who is in that room most of the time. The teacher and classroom assistant are in regulated activity. The head teacher decides whether their supervision is such that Mr Jones is not in regulated activity. VOLUNTEER, NOT IN A SPECIFIED PLACE Mr Wood, a new entrant volunteer, assists with the coaching of children at his local cricket club. The children are divided into small groups, with assistant coaches such as Mr Wood assigned to each group. The head coach oversees the coaching, spends time with each of the groups, and has sight of all the groups (and the assistant coaches) for most of the time. The head coach is in regulated activity. The club managers decide whether the coach s supervision is such that Mr Wood is not in regulated activity. EMPLOYEE, NOT IN A SPECIFIED PLACE Mrs Shah starts as a paid activity assistant at a youth club. She helps to instruct a group of children, and is supervised by the youth club leader who is in regulated activity. The youth club managers decide whether the leader s supervision is such that Mrs Shah is not in regulated activity. In each example, the organisation uses the following steps when deciding whether a new worker will be supervised to such a level that the new worker is not in regulated activity: consider whether the worker is doing work that, if unsupervised, would be regulated activity. If the worker is not, the remaining steps are unnecessary; consider whether the worker will be supervised by a person in regulated activity, and whether the supervision will be regular and day to day, bearing in mind paragraph 4 of this guidance; consider whether the supervision will be reasonable in all the circumstances to ensure the protection of children, bearing in mind the factors set out in paragraph 5 of this guidance; And if it is a specified place such as a school: consider whether the supervised worker is a volunteer. 25

26 Department for Education / Department of Health, Social Services and Public Safety (Northern Ireland), September End-notes i Safeguarding Vulnerable Groups Act 2006, amended by Protection of Freedoms Act 2012: Schedule 4, paragraph 5A: guidance must be for the purpose of assisting organisations in deciding whether supervision is of such a kind that the supervisee is not in regulated activity. ii Safeguarding Vulnerable Groups (Northern Ireland) Order 2007, Schedule 2, paragraph 5A, is as above on guidance on supervision for Northern Ireland. iii If the work is in a specified place such as a school, paid workers remain in regulated activity even if supervised. iv From , the Government plans to commence a statutory duty on an organisation arranging regulated activity (under the 2006 Act or 2007 Order, both as amended) to check that a person entering regulated activity is not barred from regulated activity; and plans to commence a stand-alone barring check service by the new Disclosure and Barring Service. v A volunteer is: in England and Wales, a person who performs an activity which involves spending time, unpaid (except for travel and other approved out-of-pocket expenses), doing something which aims to benefit someone (individuals or groups) other than or in addition to close relatives; in Northern Ireland, a person engaged, or to be engaged, in an activity for a non-profit organisation or person which involves spending time unpaid (except for travel and other approved out-of-pocket expenses) doing something which amounts to a benefit to some third party other than, or in addition to, a close relative. 26