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The Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Miscellaneous Provisions) Regulations 2010

Draft. This instrument was laid in draft and may differ from the one made. Look for the made version under its title.

Draft 2010, ISBN 9780111492062

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

Draft Regulations laid before Parliament under section 61(3) of the Safeguarding Vulnerable Groups Act 2006, for approval by resolution of each House of Parliament.

Children And Young Persons, England And Wales

Protection Of Vulnerable Adults, England And Wales

Made 2010

Coming into force in accordance with regulation 1

The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 23(1), 61(5) and 64(1)(a) and (3) of, and paragraphs 1(1), 2(1), 7(1), 8(1) and 24(1) and (2) of Schedule 3 to, the Safeguarding Vulnerable Groups Act 2006f1:

In accordance with section 56(3)(q) of that Act, the Secretary of State has consulted the Welsh Ministers:

A draft of these Regulations was laid before Parliament in accordance with section 61(3) of that Act and approved by resolution of each House of Parliament:

Annotations to the whole text

Footnotes

f1

2006 c. 47. Each of paragraphs 1(1), 2(1), 7(1) and 8(1) of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 (“the Act”) refers to criteria prescribed for the purposes of the relevant paragraph. Paragraph 24 of Schedule 3 to the Act makes provision as to the criteria that may be prescribed for the purposes of paragraphs 1(1), 2(1), 7(1) and 8(1) of that Schedule. Paragraph 24(2) was amended by S.I. 2008/3050. Section 60(1) of the Act defines “prescribed” as meaning prescribed by regulations made by the Secretary of State.

Contents

  1. 1Citation and commencement
  2. 2Circumstances in which a responsible person must not permit another to engage in a controlled activity in England relating to children
  3. 3Circumstances in which a responsible person must not permit another to engage in controlled activity in England relating to vulnerable adults
  4. 4Modification of section 113A of the Police Act 1997
  5. 5Modification of section 113B of the Police Act 1997: assessment of suitability for work which is a controlled activity relating to children
  6. 6Modification of section 113B of the Police Act 1997: assessment of suitability for work which is a controlled activity relating to vulnerable adults
  7. 7Modification of section 113B of the Police Act 1997: assessment of suitability for work which is a controlled activity relating to children and for work which is a controlled activity relating to vulnerable adults
  8. 8Further modification of section 113B of the Police Act 1997
  9. 9Amendment of the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009
  10. Signature
  11. Explanatory note

1Citation and commencement

These Regulations may be cited as the Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Miscellaneous Provisions) Regulations 2010 and come into force on the day after the day on which they are made.

2Circumstances in which a responsible person must not permit another to engage in a controlled activity in England relating to children

(1)

This regulation applies only in relation to controlled activity in England.

(2)

A responsible personf1 (“RP”) may only permit another (“A”) to engage in a controlled activity relating to childrenf2 in the circumstances specified in paragraph (3) or the circumstances specified in paragraph (4).

(3)

The circumstances in this paragraph are that—

(a)

the Secretary of State has issued to A under section 113B of the Police Act 1997f3 either—

(i)

an enhanced criminal record certificate which includes suitability information relating to children (within the meaning of section 113BA of that Actf4), or

(ii)

a notification that A is—

(aa)

not barred from regulated activity relating to childrenf5,

(bb)

not included in the list kept under section 1 of the Protection of Children Act 1999f6, and

(cc)

not subject to a direction made under section 142 of the Education Act 2002f7;

(b)

the certificate or notification was issued within the period of 90 days ending on the date on which RP permits A to engage in a controlled activity relating to children; and

(c)

RP received a copy of that certificate or notification before permitting A to engage in a controlled activity relating to children.

(4)

The circumstances in this paragraph are that RP is satisfied, before permitting A to engage in controlled activity relating to children, that A is—

(a)

not barred from regulated activity relating to children,

(b)

not included in the list kept under section 1 of the Protection of Children Act 1999, and

(c)

not subject to a direction made under section 142 of the Education Act 2002.

(5)

Paragraph (2) does not apply in relation to any continuous period in which A is permitted by RP to engage in a controlled activity relating to children if—

(a)

the permission was given before these Regulations came into force, and

(b)

the permission continues to have effect after these Regulations came into force.

3Circumstances in which a responsible person must not permit another to engage in controlled activity in England relating to vulnerable adults

(1)

This regulation applies only in relation to controlled activity in England.

(2)

A responsible person (“RP”) may only permit another (“A”) to engage in a controlled activity relating to vulnerable adults in the circumstances specified in paragraph (3) or the circumstances specified in paragraph (4).

(3)

The circumstances in this paragraph are that—

(a)

the Secretary of State has issued to A under section 113B of the Police Act 1997 either—

(i)

an enhanced criminal record certificate which includes suitability information relating to vulnerable adults (within the meaning of section 113BB of that Actf1), or

(ii)

a notification that A is—

(aa)

not barred from regulated activity relating to vulnerable adultsf2, and

(bb)

not included in the list kept under section 81 of the Care Standards Act 2000f3;

(b)

the certificate or notification was issued within the period of 90 days ending on the date on which RP permits A to engage in a controlled activity relating to vulnerable adults; and

(c)

RP received a copy of that certificate or notification before permitting A to engage in a controlled activity relating to vulnerable adults.

(4)

The circumstances in this paragraph are that RP is satisfied, before permitting A to engage in controlled activity relating to vulnerable adults, that A is—

(a)

not barred from regulated activity relating to vulnerable adults, and

(b)

not included in the list kept under section 81 of the Care Standards Act 2000.

(5)

Paragraph (2) does not apply in relation to any continuous period in which A is permitted by RP to engage in a controlled activity relating to vulnerable adults if—

(a)

the permission was given before these Regulations came into force, and

(b)

the permission continues to have effect after these Regulations came into force.

4Modification of section 113A of the Police Act 1997

(1)

Section 113A(1)f1 of the Police Act 1997 does not apply if the exempted question referred to in section 113A(2)(b) relates to the assessment of the suitability of a person for any work which is a controlled activity relating to children or a controlled activity relating to vulnerable adults.

(2)

After section 113A(9) of the Police Act 1997, insert—

“(10)

This section is subject to regulation 4 of the Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Miscellaneous Provisions) Regulations 2010.”.

5Modification of section 113B of the Police Act 1997: assessment of suitability for work which is a controlled activity relating to children

(1)

If—

(a)

the Secretary of State would, apart from this regulation, be required to issue to an individual an enhanced criminal record certificate within the meaning of section 113B(1) of the Police Act 1997, and

(b)

paragraph (2) applies,

the Secretary of State must issue to the individual a notification instead of a certificate.

(2)

This paragraph applies if—

(a)

the only prescribed purpose for which the registered personf1 states that the certificate is required is the assessment of the suitability of a person for any work which is a controlled activity relating to children; and

(b)

the individual is—

(i)

not barred from regulated activity relating to children,

(ii)

not included in the list kept under section 1 of the Protection of Children Act 1999, and

(iii)

not subject to a direction made under section 142 of the Education Act 2002.

(3)

But paragraph (2) does not apply if the controlled activity is work in a further education institution within the meaning of section 140(3) of the Education Act 2002 where the normal duties of that work involve regular contact with persons aged under 18.

(4)

The notification must state that the individual is—

(a)

not barred from regulated activity relating to children,

(b)

not included in the list kept under section 1 of the Protection of Children Act 1999, and

(c)

not subject to a direction made under section 142 of the Education Act 2002.

(5)

The Secretary of State must send a copy of the notification to whoever acted as the registered personf2 in relation to the application for the certificate.

6Modification of section 113B of the Police Act 1997: assessment of suitability for work which is a controlled activity relating to vulnerable adults

(1)

If—

(a)

the Secretary of State would, apart from this regulation, be required to issue to an individual an enhanced criminal record certificate within the meaning of section 113B(1) of the Police Act 1997, and

(b)

paragraph (2) applies,

the Secretary of State must issue to the individual a notification instead of a certificate.

(2)

This paragraph applies if—

(a)

the only prescribed purpose for which the registered person states that the certificate is required is the assessment of the suitability of a person for any work which is a controlled activity relating to vulnerable adults; and

(b)

the individual is—

(i)

not barred from regulated activity relating to vulnerable adults, and

(ii)

not included in the list kept under section 81 of the Care Standards Act 2000.

(3)

The notification must state that the individual is—

(a)

not barred from regulated activity relating to vulnerable adults, and

(b)

not included in the list kept under section 81 of the Care Standards Act 2000.

(4)

The Secretary of State must send a copy of the notification to whoever acted as the registered person in relation to the application for the certificate.

7Modification of section 113B of the Police Act 1997: assessment of suitability for work which is a controlled activity relating to children and for work which is a controlled activity relating to vulnerable adults

(1)

If—

(a)

the Secretary of State would, apart from this regulation, be required to issue to an individual an enhanced criminal record certificate within the meaning of section 113B(1) of the Police Act 1997, and

(b)

paragraphs (2), (4) and (5) apply,

the Secretary of State must issue to the individual a notification instead of a certificate.

(2)

This paragraph applies if the prescribed purposes for which the registered person states that the certificate is required are the assessment of the suitability of a person for any work which is a controlled activity relating to children and the assessment of the suitability of a person for any work which is a controlled activity relating to vulnerable adults.

(3)

But paragraph (2) does not apply if the controlled activity is work in a further education institution within the meaning of section 140(3) of the Education Act 2002 where the normal duties of that work involve regular contact with persons aged under 18.

(4)

This paragraph applies if the individual is—

(a)

not barred from regulated activity relating to children,

(b)

not included in the list kept under section 1 of the Protection of Children Act 1999, and

(c)

not subject to a direction made under section 142 of the Education Act 2002.

(5)

This paragraph applies if the individual is—

(a)

not barred from regulated activity relating to vulnerable adults, and

(b)

not included in the list kept under section 81 of the Care Standards Act 2000.

(6)

The notification must state that the individual is—

(a)

not barred from regulated activity relating to children,

(b)

not included in the list kept under section 1 of the Protection of Children Act 1999,

(c)

not subject to a direction made under section 142 of the Education Act 2002,

(d)

not barred from regulated activity relating to vulnerable adults, and

(e)

not included in the list kept under section 81 of the Care Standards Act 2000.

(7)

The Secretary of State must send a copy of the notification to whoever acted as the registered person in relation to the application for the certificate.

(8)

If paragraphs (2) and (4) apply but paragraph (5) does not apply, the information referred to in section 113B(4), (5) and (6)(b) must relate only to the assessment of the suitability of the person for any work which is a controlled activity relating to vulnerable adults.

(9)

If paragraphs (2) and (5) apply but paragraph (4) does not apply, the information referred to in section 113B(4), (5) and (6)(b) must relate only to the assessment of the suitability of the person for any work which is a controlled activity relating to children.

8Further modification of section 113B of the Police Act 1997

After section 113B(12) of the Police Act 1997, insert—

“(13)

This section is subject to regulations 5, 6 and 7 of the Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Miscellaneous Provisions) Regulations 2010.”.

9Amendment of the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009

(1)

The Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009f1 are amended as follows.

(2)

In regulation 1—

(a)

for paragraphs (6) and (7), substitute—

“(6)

In regulations 3 to 6—

(a)

a reference to an offence, A, specified in the Schedule includes a reference to an offence, B, which in relation to offence A is a connected offence, and

(b)

a reference to being convicted of an offence specified in the Schedule includes a reference to being convicted of—

(i)

an Islands offence, or

(ii)

a relevant foreign offence.

(7)

In paragraph (6)(b), an Islands offence is an offence satisfying the criteria in paragraph (7A) and a relevant foreign offence is an offence satisfying the criteria in paragraph (8).

(7A)

The criteria are that—

(a)

the offence is one under the law in force in the Isle of Man or any of the Channel Islands;

(b)

the conduct which constitutes the offence would, if carried out in England and Wales, amount to an equivalent offence which is specified in the Schedule; and

(c)

where the equivalent offence is one specified in paragraph 1(a) to (c), (e) or (g)(i), 2(b)(ii) to (v), (c), (d)(ii), (e), (g) or (i)(i) or 4(b)(ii) to (vii), (c), (d)(ii), (e), (g) or (i)(i) of the Schedule, the offence was committed in relevant circumstances relating to the equivalent offence.”; and

(b)

after paragraph (8), insert—

“(8A)

For the purposes of paragraph (7A), an act punishable under the law in force in the Isle of Man or any of the Channel Islands constitutes an offence under that law however it is described in that law.”.

(3)

In paragraph 2 of the Schedulef2, in Part 2 of the table omit—

(a)

“Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968, section 9”, and

(b)

“Sexual Offences (Scotland) Act 1976, section 3”.

(4)

In paragraph 4 of the Schedulef3, in Part 1 of the table—

(a)

at the appropriate places in the first column, insert—

(i)

“Sexual Offences Act 2003f4, section 66”,

(ii)

“Sexual Offences Act 2003, section 67”,

(iii)

“Sexual Offences (Northern Ireland) Order 2008f5, Article 70”, and

(iv)

“Sexual Offences (Northern Ireland) Order 2008, Article 71”;

(b)

in the second column, at places that correspond with each of the entries mentioned in subparagraph (a), insert “The offence was committed against a child under the age of 16”;

(c)

in the first column, omit—

(i)

“Sexual Offences Act 1956, section 1”, and

(ii)

“Sexual Offences Act 2003, section 1”; and

(d)

in the second column, omit the entries that correspond with the entries mentioned in subparagraph (c).

(5)

In paragraph 4 of the Schedule, in Part 2 of the table—

(a)

omit—

(i)

“Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968, section 9”,

(ii)

“Sexual Offences Act 2003, section 66”,

(iii)

“Sexual Offences Act 2003, section 67”,

(iv)

“Sexual Offences (Northern Ireland) Order 2008, Article 70”, and

(v)

“Sexual Offences (Northern Ireland) Order 2008, Article 71”; and

(b)

at the appropriate places in the first column insert—

(i)

“Sexual Offences Act 1956, section 1f6”, and

(ii)

“Sexual Offences Act 2003, section 1”.

(6)

Regulation 24(3)(b) of the Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous Provisions and Commencement No. 5) Order 2009f7 is revoked.

Signature

Name

Parliamentary Under Secretary of State

Department for Children, Schools and Families

Date

Explanatory note

(This note is not part of the Regulations)

These Regulations, made under the Safeguarding Vulnerable Groups Act 2006 (“the Act”), make provision relating to controlled activity and to the criteria prescribed for the purposes of various paragraphs in Schedule 3 (barred lists) to the Act. The Regulations come into force on the day after the day on which they are made.

Regulation 2 provides that a responsible person, as defined in section 23(3) of the Act, may only permit another to engage in controlled activity relating to children, as defined in section 21 of the Act, in the circumstances specified in that regulation; this restriction does not apply if permission was given before the Regulations came into force and remains in place after that date. Regulation 3 makes provision in relation to controlled activity relating to vulnerable adults, as defined in section 22 of the Act, in terms similar to the provision made in regulation 2. Regulations 2 and 3 apply in relation only to controlled activity in England.

Regulation 4 modifies section 113A of the Police Act 1997. The modification provides that the duty of the Secretary of State to issue a criminal record certificate does not apply if the exempted question for which the certificate is required relates to the assessment of the suitability of a person for any work which is a controlled activity relating to children or a controlled activity relating to vulnerable adults.

Regulations 5, 6 and 7 modify section 113B of the Police Act 1997. The modifications provide for the Secretary of State to issue a notification stating that the person is not barred from regulated activity in relation to children and/or vulnerable adults, instead of an enhanced criminal record certificate. The notification is relevant to the circumstances specified in regulations 2 and 3. The modifications do not apply if the controlled activity is work in a further education institution where the normal duties of that work involve regular contact with persons aged under 18. Regulation 8 makes a textual modification of section 113B of the Police Act 1997, referring to regulations 5, 6 and 7.

Regulation 9 amends the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 which prescribe the criteria which determine whether a person should be included automatically in the children’s barred list or the adults’ barred list maintained under section 2 of the Act.

An assessment of the impact of these Regulations is set out at section 10 of the Explanatory Memorandum which is available alongside these Regulations on the OPSI website.