No-one would argue that children and vulnerable adults in the care of education establishments should not be safe, particularly when regulated activities are taking place.
As one might expect, early and later years childcare, schools and further education colleges all fall squarely within the remit of the safeguarding regime, as set out in the Safeguarding of Vulnerable Groups Act (SVGA) 2006.
What is surprising, however, is the wide range of job roles that are potentially affected within these establishments. For example, not only does it apply to teachers, supply teachers and classroom assistants, but also registered child-minders, youth workers, coach drivers and caretakers as well as cleaning, catering and administrative staff.
What are regulated activities?
In order for an activity to be classified as regulated in relation to children or young people, it must now fall into one of four specified groups. These groups cater to a variety of different circumstances that constitute a regulated activity and therefore need to be carefully considered.
However, any work that is frequently undertaken at a defined list of establishments where there is an opportunity to have contact with children or young people (such as schools, nurseries, childcare premises and children’s homes) can be deemed to be a regulated activity. As a result, this inevitably incorporates activities that we would not normally expect to fall within the safeguarding regime, therefore placing greater importance on the need for schools to carefully scrutinise the nature of work being undertaken by all employees.
But when regulated activities are contracted out to a seemingly specialist and competent service provider, who is it that holds the responsibility?
Who is responsible?
The majority of obligations apply to the Regulated Activity Provider (RAP) – essentially those bodies responsible for the management or control of the particular regulated activity. Where a regulated activity is conducted by an establishment’s own employees, it is straightforward and therefore unnecessary to state that they will be the RAP.
However, when work is contracted out to a service provider there could be two or more companies with RAP responsibility: the service provider responsible for the day-to-day management of the service, and the establishment that holds ultimate control by specifying or monitoring the quality of the service, including the authority to terminate the regulated activity if these conditions are not met.
The SVGA is not definitive on how this situation should be dealt with and this creates a scenario in which an educational establishment could seemingly be classified as a RAP for activities carried out by a third-party service provider.
As a result, it is important to put in place the necessary diligence checks in order to ensure that service providers (and therefore the establishment itself) are fully compliant under the safeguarding regime.
It is important to ensure that measures are in place to not only achieve compliance but ensure children are safeguarded. With this in mind, how does an educational establishment ensure that a service provider is fully compliant with its safeguarding responsibilities?
There are a number of ways to do this, but asking key questions during the planning phase will put an educational establishment in a good place. Establishments should consider the following:
Are all employees aware of the extent of their responsibilities under the SVGA?
Have steps been taken to identify regulated activities which fall within the scope of their work?
Where regulated activities are identified, are suitable checks being made of a person’s barred status through the Disclosure and Barring Service (DBS)? The DBS is now the single body responsible for administering checks and monitoring barred lists.
Is there sufficient clarity from the service provider on those circumstances in which information about individuals must be referred back to the DBS, and are sufficient procedures in place to ensure compliance?
RAPs have a legal duty to refer any person who has harmed or posed a risk of harm to a child or vulnerable adult, satisfied the “harm test”, or received a caution or conviction for a relevant criminal offence. Organisations should therefore make sure that efficient systems and procedures are in place so that individuals can be identified and acted upon accordingly.
By considering the above criteria, a school or college will have considered many of the key issues in order to determine if the service provider is aware of and, more importantly, compliant with its responsibilities under the SVGA. An easy way to do this is by creating a short audit checklist before carrying out this assessment.
Consequences of non-compliance
It is not sufficient for a school or college to simply require a service provider’s compliance with its responsibilities under the SVGA. Even where there is an attempt to contractually transfer these obligations, the establishment risks being classified as the RAP by law and the consequences for non-compliance are severe. The regime creates a number of criminal offences:
• Section 9 of the SVGA dictates that it is a criminal offence for a RAP to permit a person to engage in a regulated activity if they know or have reason to believe that person is barred. This carries a potential term of imprisonment of five years and/or an unlimited fine.
• Section 35 of the SVGA stipulates that if a RAP fails, without reasonable excuse, to comply with its duty to provide information to the DBS then it has committed an offence.
Additionally, where an offence is committed that is attributable to the neglect of a director, manager or other officer of the company, then that individual will also be determined to have committed the offence.
Safeguarding children is of paramount importance in any educational establishment, as everyone wants a situation where children can thrive in a safe environment. To ensure that this is the case it is important that the requirements of the SVGA are given careful consideration so that full compliance can be demonstrated.
Nicholas Barker is a solicitor in the education team at national law firm DWF.