Safeguarding Vulnerable Groups Act 2006 (c. 47)

(The document as of February, 2008)

-- Back --

Page 2

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9

(1) The Secretary of State may by regulations provide that a person commits an offence if--

(a) he engages in activity that is regulated activity by virtue of paragraph 1(9) or 7(9) of Schedule 4, and

(b) he is not subject to monitoring in relation to the activity.

(2) The Secretary of State may by regulations provide that a prescribed person (P) commits an offence if he fails in the prescribed period to make a check in accordance with section 15 in relation to another person (B) appointed to a position mentioned in paragraph 4(1) or 8(1) of Schedule 4.

(3) Regulations under subsection (1) or (2) may provide for defences to the offence.

(4) An offence created by regulations under this section is punishable on summary conviction with a maximum fine not exceeding level 5 on the standard scale.

15 Sections 13 and 14: checks

(1) This section has effect for the purposes of sections 13 and 14.

(2) P makes a check in accordance with this section if--

(a) he obtains relevant information relating to B in pursuance of an application under section 30, or

(b) he obtains a copy of an enhanced criminal record certificate relating to B issued in relation to P.

(3) P makes a check in accordance with this section if--

(a) an enhanced criminal record certificate relating to B is issued during the prescribed period,

(b) the application for the certificate is countersigned on behalf of P by a registered person (within the meaning of Part 5 of the Police Act 1997 (c. 50)), and

(4) The information is--

(a) whether B is subject to monitoring, and

(b) whether the Independent Barring Board is considering whether to include B in a barred list in pursuance of paragraph 3 or 5 or (as the case may be) 9 or 11 of Schedule 3.

(5) In subsection (2)(a) "relevant information" means--

(a) in relation to a person appointed to a position mentioned in paragraph 4(1) of Schedule 4, relevant information relating to children (within the meaning of section 31);

(b) in relation to a person appointed to a position mentioned in paragraph 8(1) of Schedule 4, relevant information relating to vulnerable adults (within the meaning of section 31).

(6) For the purposes of subsection (2)(b) an enhanced criminal record certificate is issued in relation to P only if--

(a) he countersigned the application for the certificate as a registered person for the purposes of Part 5 of the Police Act 1997 (c. 50), or

(b) the application was countersigned on his behalf by such a person.

(7) In this section "enhanced criminal record certificate" means--

(a) in relation to a person appointed to a position mentioned in paragraph 4(1) of Schedule 4, an enhanced criminal record certificate issued under the Police Act 1997 containing suitability information relating to children (within the meaning of section 113BA of that Act);

(b) in relation to a person appointed to a position mentioned in paragraph 8(1) of Schedule 4, an enhanced criminal record certificate issued under that Act containing suitability information relating to vulnerable adults (within the meaning of section 113BB of that Act).

Exceptions

16 Exception to requirement to make monitoring check

(1) Regulated activity falls within this section if it is carried out for the purposes of or in connection with any of the following--

(a) an establishment for the detention of persons in lawful custody (within the meaning of section 59(7)(a) to (c));

(b) a recreational, social, sporting or educational activity provided wholly or mainly for vulnerable adults;

(c) a course of education or instruction which is provided wholly or mainly for vulnerable adults and is of a prescribed description;

(d) the provision of services, by or on behalf of a person who provides or manages housing, to vulnerable adults in connection with that housing;

(e) welfare services of a prescribed description;

(f) dealing with payments by a person appointed to receive them as mentioned in section 59(10)(f).

(2) Activity does not fall within this section if the individual engaging in the activity is a prison officer acting in the course of his duty.

(3) In subsection (2) "prison officer" includes--

(a) a prisoner custody officer within the meaning of section 89(1) of the Criminal Justice Act 1991 (c. 53);

(b) a custody officer within the meaning of section 12(3) of the Criminal Justice and Public Order Act 1994 (c. 33).

(4) Activity does not fall within this section by virtue of paragraph (b) of subsection (1) if--

(a) the activity is carried out by or for a local authority in connection with the provision of community care services within the meaning of section 46 of the National Health Service and Community Care Act 1990 (c. 19);

(b) the activity is carried out by or in an establishment in relation to which a requirement to register arises under section 11 of the Care Standards Act 2000 (c. 14);

(d) the activity is carried out by a person to whom Part 2 of that Act applies in pursuance of an order under section 42 of that Act of 2000;

(e) the activity is carried out by an NHS body within the meaning of section 17(3) or by a person who provides health care for such a body.

(5) In this section "welfare services"--

(a) includes services which provide support, assistance, advice or counselling to individuals with particular needs;

(b) does not include community care services within the meaning of section 46 of the National Health Service and Community Care Act 1990.

(6) Paragraphs (b), (c), (d) and (e) of subsection (1) cease to have effect on the relevant day.

(7) The relevant day is--

(a) the last day of the period of three years starting on the day any provision of this section is brought into force, or

(b) such later day as the Secretary of State specifies by order.

(8) A date specified under subsection (7)(b) must be not more than three years after--

(a) the relevant day as mentioned in subsection (7)(a), or

(b) the last day specified in respect of the paragraph concerned under subsection (7)(b).

(9) The Secretary of State may by order amend or omit any paragraph of subsection (1).

17 NHS employment

(1) A regulated activity provider falls within this section if--

(a) he permits a person (E) to engage in regulated activity,

(b) immediately before the permission takes effect E is engaged in relevant NHS employment,

(d) the regulated activity is also relevant NHS employment.

(2) Relevant NHS employment is employment--

(a) with an NHS body, or

(b) with a person who provides health care for an NHS body (wherever the health care is provided),

in which the employee engages in regulated activity.

(3) Each of the following is an NHS body--

(a) a National Health Service trust;

(b) a Strategic Health Authority;

(d) a Local Health Board;

(e) a Special Health Authority;

(f) a Primary Care Trust.

Offences: supplementary

18 Offences: companies &c.

(1) If an offence under section 9, 10, 11, 23, 27 or 38 or Schedule 6 is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of--

(a) a director, manager, secretary or other similar officer of the body, or

(b) a person purporting to act in such a capacity,

he (as well as the body) commits the offence.

(2) If an offence under section 9, 10, 11, 23, 27 or 38 or Schedule 6 is committed by a partnership (whether or not a limited partnership) and is proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part of--

(a) a partner, or

(b) a person purporting to act as a partner,

he (as well as the partnership) commits the offence.

(3) In subsection (1), "director", in relation to a body corporate whose affairs are managed by its members, means a member of the body.

19 Offences: other persons

(1) A person commits an offence if, in the course of acting or appearing to act on behalf of a regulated activity provider--

(a) he permits an individual (B) to engage in a regulated activity in relation to which B is not subject to monitoring,

(b) he knows or has reason to believe that B is not subject to monitoring in relation to that activity, and

(2) A person commits an offence if, in the course of acting or appearing to act on behalf of a personnel supplier--

(a) he supplies an individual (B) to another (P),

(b) he knows or has reason to believe that P will make arrangements for B to engage in regulated activity from which B is barred, and

(3) A person commits an offence if, in the course of acting or appearing to act on behalf of a personnel supplier--

(a) he supplies an individual (B) to another (P),

(b) he knows or has reason to believe that P will make arrangements for B to engage in regulated activity in relation to which B is not subject to monitoring, and

(4) A person guilty of an offence under subsection (1) or (3) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5) A person guilty of an offence under subsection (2) is liable--

(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or to a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

(6) If the commission of an offence under section 11 is due to the act or reckless default of a person who acts for or appears to act for the regulated activity provider--

(a) that person is guilty of the offence, and

(b) he may be proceeded against and punished whether or not proceedings are also taken against the regulated activity provider.

(7) In the application of subsection (6) to a person who is in Crown employment (within the meaning of the Employment Rights Act 1996 (c. 18)), section 51(2) must be ignored.

(8) For the purpose of subsections (2)(b) and (3)(b), Schedule 4 is modified as follows--

(a) in paragraph 1, sub-paragraphs (1)(b) and (2)(a) must be disregarded;

(b) in paragraph 7(1), the words "if it is carried out frequently by the same person or the period condition is satisfied" must be disregarded;

(9) In determining what is the appropriate sentence to pass in respect of a person who is convicted of an offence under subsection (1) in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 4 the court must consider the extent to which the offender had regard to any guidance issued by the Secretary of State as to the circumstances in which an activity is carried out frequently.

(10) In relation to an offence committed before the commencement of section 282(3) of the Criminal Justice Act 2003 (c. 44), the reference in subsection (5)(b) to 12 months must be taken to be a reference to six months.

20 Section 19: exclusions and defences

(1) A person does not commit an offence under section 19 if B has not attained the age of 16.

(2) A person does not commit an offence under section 19 if the regulated activity--

(a) is regulated activity relating to adults, and

(b) falls within section 16.

(3) A person does not commit an offence under section 19(1) if, in relation to any continuous period for which B is permitted to engage in the regulated activity--

(a) the permission is first given before the commencement of that section, and

(b) it continues to have effect after such commencement.

(4) Subsection (3) does not have effect in respect of permission which continues to have effect after such date as the Secretary of State specifies by order.

(5) A person does not commit an offence under subsection (1) of section 19 if--

(a) the regulated activity provider for whom he acts or appears to act falls within section 17,

(b) the permission mentioned in subsection (1) of section 19 commences at a time when B is engaged in relevant NHS employment mentioned in section 17(1)(b) in circumstances mentioned in subsection (3) above, and

(c) for the duration of the permission mentioned in subsection (1) of section 19, B continues to be engaged in that relevant NHS employment.

(6) A person is not guilty of an offence under section 19(3) in relation to any period during which B is continuously supplied to another if the period begins before the commencement of that section.

(7) Subsection (6) does not have effect in respect of a supply which continues to have effect after such date as the Secretary of State specifies by order.

Controlled activity

21 Controlled activity relating to children

(1) A reference to a controlled activity relating to children must be construed in accordance with this section.

(2) An activity which falls within any of subsections (3) to (7) is a controlled activity to the extent that it is not a regulated activity relating to children.

(3) An activity falls within this subsection if--

(a) it consists in or is carried out in connection with any form of health care, treatment or therapy to which subsection (8) applies,

(b) it is carried out frequently by the same person or it is carried out by the same person on more than two days in any period of 30 days, and

(4) An activity falls within this subsection if--

(a) it is carried out in a further education institution (within the meaning of section 140(3) of the Education Act 2002 (c. 32)),

(b) it is carried out frequently by the same person or it is carried out by the same person on more than two days in any period of 30 days,

(d) it is carried out for or in connection with the purposes of the institution, and

(e) it gives the person the opportunity mentioned in subsection (9)(a).

(5) An activity falls within this subsection if--

(a) it consists in making payments under section 17A of the Children Act 1989 (c. 41) or the provision of assistance either in connection with the making of such payments or securing the provision of services paid for out of them,

(b) it is carried out frequently by the same person or it is carried out by the same person on more than two days in any period of 30 days, and

(6) An activity falls within this subsection if it is carried out as mentioned in subsection (10) frequently and it gives a person carrying out the activity the opportunity to have access to--

(a) health, educational or social services records relating to children;

(b) information provided pursuant to section 117(1) of the Learning and Skills Act 2000 (c. 21);

(c) in the case of a person carrying out an activity mentioned in subsection (10)(b), records of family proceedings (within the meaning of section 8(3) of the Children Act 1989) held by the Children and Family Court Advisory and Support Service;

(d) in the case of a person carrying out an activity mentioned in subsection (10)(c), records of family proceedings (within the meaning of section 8(3) of the Children Act 1989) held by the National Assembly for Wales.

(7) An activity falls within this subsection if it consists in or involves on a regular basis the day to day management or supervision of a person carrying out an activity which falls within subsection (3), (4) or (6).

(8) This subsection applies to health care, treatment or therapy which is provided for a child--

(a) in pursuance of arrangements made by or under an enactment,

(b) in an establishment in relation to which a requirement to register arises under section 11 of the Care Standards Act 2000 (c. 14), or

(9) The opportunities are--

(a) opportunity to have any form of contact with children;

(b) opportunity to have access to the health records of children.

(10) The activity is carried out--

(a) for, or on behalf of, a local authority (in the exercise of its educational or social services functions);

(b) for, or on behalf of, the Children and Family Court Advisory and Support Service;

(c) for, or on behalf of, the National Assembly for Wales (in the exercise of its functions under Part 4 of the Children Act 2004 (c. 31) (Welsh family proceedings));

(d) for, or on behalf of, the Qualifications and Curriculum Authority;

(e) for, or on behalf of, Her Majesty's Chief Inspector of Schools in England;

(f) for, or on behalf of, HM Chief Inspector of Education and Training in Wales;

(g) for, or on behalf of, an establishment or agency in respect of which a requirement to register arises under section 11 of the Care Standards Act 2000.

(11) In this section--

"educational records" includes individual child information within the meaning of--
(a)
section 99 of Childcare Act 2006 (c. 21),
(b)
that section as modified by section 100 of that Act, or
(c)
section 101 of that Act;
"local authority"--
(a)
in relation to the education functions of a local authority, has the same meaning as in section 579(1) of the Education Act 1996 (c. 56);
(b)
in any other case, has the meaning given by section 1 of the Local Authority Social Services Act 1970 (c. 42);
"social services functions" has the meaning given by section 1A of that Act;
"social services records" means records obtained or held by a local authority in the exercise of its social services functions.

(12) The Secretary of State may, by order, amend subsections (2) to (11) (including by adding new subsections or omitting or varying any of the subsections or anything contained in them).

22 Controlled activity relating to vulnerable adults

(1) A reference to a controlled activity relating to vulnerable adults must be construed in accordance with this section.

(2) An activity which is ancillary to or is carried out wholly or mainly in relation to an activity which falls within subsection (4) is a controlled activity to the extent that it is not a regulated activity relating to vulnerable adults if--

(a) it is carried out frequently by the same person or it is carried out by the same person on more than two days in any period of 30 days, and

(b) it gives the person an opportunity mentioned in subsection (5).

(3) An activity which consists in or involves on a regular basis the day to day management or supervision of a person carrying out an activity mentioned in subsection (2) is also a controlled activity relating to vulnerable adults.

(4) Each of the following falls within this subsection--

(a) the provision of primary care services;

(b) the provision of hospital services;

(d) the making of arrangements in connection with an adult placement scheme;

(e) the provision of community care services;

(f) the making of payments under section 57 of the Health and Social Care Act 2001 (c. 15);

(g) such other activity as is prescribed.

(5) The opportunities are--

(a) opportunity to have any form of contact with a vulnerable adult;

(b) opportunity to have access to the health records or social services records (within the meaning of section 21(11)) of a vulnerable adult;

(6) In this section--

"adult placement scheme" means a scheme--
(a)
under which an individual agrees with the person carrying on the scheme to provide care or support (which may include accommodation) to an adult who is in need of it, and
(b)
in respect of which a requirement to register arises under section 11 of the Care Standards Act 2000 (c. 14);
"community care services" has the same meaning as in section 46(3) of the National Health Service and Community Care Act 1990 (c. 19);
"domiciliary care" must be construed in accordance with section 59(4) and (5);
"hospital services" means in-patient or out-patient services provided by--
(a)
a National Health Service trust;
(b)
an NHS foundation trust;
(c)
a Local Health Board;
(d)
a Primary Care Trust;
(e)
an independent hospital (within the meaning of section 2 of the Care Standards Act 2000);
(f)
an independent clinic (within the meaning of that section);
(g)
an independent medical agency (within the meaning of that section);
"primary care services" means any of the following--
(a)
primary medical services or primary dental services provided under the National Health Service Act 2006 (c. 41) ("the NHS Act") or the National Health Service (Wales) Act 2006 (c. 42) ("the NHS (Wales) Act");
(b)
general ophthalmic services provided under Part 6 of the NHS (Wales) Act;
(c)
general ophthalmic services provided in accordance with section 38 of the National Health Service Act 1977 (c. 49);
(d)
pharmaceutical services provided in pursuance of arrangements made under section 126 or 127 of the NHS Act or section 80 or 81 of the NHS (Wales) Act, or local pharmaceutical services provided under section 134 of, or Schedule 12 to, the NHS Act or under section 92 of, or Schedule 7 to, the NHS (Wales) Act;
(e)
a service which corresponds to a service mentioned in any of paragraphs (a) to (d) but which is provided otherwise than by virtue of arrangements made pursuant to an enactment mentioned in that paragraph.

23 Controlled activity: regulations

(1) The Secretary of State may, by regulations, make provision as to--

(a) the persons who are permitted to engage in controlled activity;

(b) the steps which must be taken by a responsible person in connection with permitting another to engage in controlled activity;

(2) The regulations may--

(a) include provision for a responsible person who contravenes any provision of the regulations to be guilty of an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale;

(b) in relation to such an offence, make provision corresponding to sections 18, 19 and 20.

(3) A person is a responsible person if--

(a) he is responsible for the management or control of a controlled activity, and

(b) if the controlled activity is carried out for the purposes of an organisation, his exercise of that responsibility is not subject to supervision or direction by any other person for those purposes.

Monitoring

24 Monitoring

(1) An individual is subject to monitoring in relation to regulated activity if--

(a) he is not barred from engaging in the activity,

(b) he makes a monitoring application,

(d) he pays such fee (if any) as is prescribed.

(2) A monitoring application must specify whether it is in respect of--

(a) regulated activity relating to children, or

Pages: P.1 | P.2 | P.3 | P.4 | P.5 | P.6 | P.7 | P.8 | P.9

-- Back --

Stat