Safeguarding Vulnerable Groups Act 2006

Barring E+W+N.I.

1 [F1 Independent Safeguarding Authority] E+W+N.I.

(1) There shall be a body corporate to be known as the [F1 Independent Safeguarding Authority] (“[F1 ISA]”).

(2) Schedule 1 makes provision relating to [F1 ISA].

(3) Schedule 2 (transfers to [F1 ISA]) has effect.

Textual Amendments

F1 Words in s. 1 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

Commencement Information

I1 S. 1 in force at 2.1.2008 for E.W. by S.I. 2007/3545, art. 3

I2 S. 1 in force at 31.3.2008 for N.I. by S.I. 2008/930, art. 2(a)

2 Barred lists E+W

(1) [F2 ISA] must establish and maintain—

(a) the children's barred list;

(b) the adults' barred list.

(2) Part 1 of Schedule 3 applies for the purpose of determining whether an individual is included in the children's barred list.

(3) Part 2 of that Schedule applies for the purpose of determining whether an individual is included in the adults' barred list.

(4) Part 3 of that Schedule contains supplementary provision.

(5) In respect of an individual who is included in a barred list, [F2 ISA] must keep other information of such description as is prescribed.

Textual Amendments

F2 Words in s. 2 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

Commencement Information

I3 S. 2 in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(a)

I4 S. 2 in force at 20.1.2009 for specified purposes by S.I. 2009/39, art. 2(1)(a)

I5 S. 2 in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

I6 S. 2(2)(3) in force at 31.12.2007 for specified purposes by S.I. 2007/3545, art. 2(a)

I7 S. 2(2)-(4) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(o)

I8 S. 2(4) in force at 31.12.2007 for specified purposes by S.I. 2007/3545, art. 2(b)

I9 S. 2(4) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(v)

I10 S. 2(5) in force at 31.12.2007 for specified purposes by S.I. 2007/3545, art. 2(c)

3 Barred persons E+W

(1) A reference to a person being barred from regulated activity must be construed in accordance with this section.

(2) A person is barred from regulated activity relating to children if he is—

(a) included in the children's barred list;

(b) included in a list maintained under the law of Scotland or Northern Ireland which the Secretary of State specifies by order as corresponding to the children's barred list.

(3) A person is barred from regulated activity relating to vulnerable adults if he is—

(a) included in the adults' barred list;

(b) included in a list maintained under the law of Scotland or Northern Ireland which the Secretary of State specifies by order as corresponding to the adults' barred list.

Commencement Information

I11 S. 3 in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

I12 S. 3(1)(2)(a) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 2(a)

I13 S. 3(2)(b)(3)(b) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(a)

4 Appeals E+W

(1) An individual who is included in a barred list may appeal to the [F3 Upper] Tribunal against—

(a) a decision under paragraph 2 or 8 of Schedule 3 not to remove him from the list;

(b) a decision under paragraph 3, 5, 9 or 11 of that Schedule to include him in the list;

(c) a decision under paragraph 17 or 18 of that Schedule not to remove him from the list.

(2) An appeal under subsection (1) may be made only on the grounds that [F4 ISA] has made a mistake—

(a) on any point of law;

(b) in any finding of fact which it has made and on which the decision mentioned in that subsection was based.

(3) For the purposes of subsection (2), the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

(4) An appeal under subsection (1) may be made only with the permission of the [F3 Upper] Tribunal.

(5) Unless the [F3 Upper] Tribunal finds that [F4 ISA] has made a mistake of law or fact, it must confirm the decision of [F4 ISA].

(6) If the [F3 Upper] Tribunal finds that [F4 ISA] has made such a mistake it must—

(a) direct [F4 ISA] to remove the person from the list, or

(b) remit the matter to [F4 ISA] for a new decision.

(7) If the [F3 Upper] Tribunal remits a matter to [F4 ISA] under subsection (6)(b)—

(a) the [F3 Upper] Tribunal may set out any findings of fact which it has made (on which [F4 ISA] must base its new decision); and

(b) the person must be removed from the list until [F4 ISA] makes its new decision, unless the [F3 Upper] Tribunal directs otherwise.

F5 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F3 Word in s. 4 inserted (3.11.2008) by The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 1(1), Sch. 3 para. 222(a)

F4 Words in s. 4 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

F5 S. 4(8)-(11) omitted (3.11.2008) by virtue of The Transfer of Tribunal Functions Order 2008 (S.I. 2008/2833), art. 1(1), Sch. 3 para. 222(b)

Modifications etc. (not altering text)

C1 S. 4 applied (7.4.2008) by The Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008 (S.I. 2008/473), arts. 1(1), 4(6)

C2 S. 4 applied (7.4.2008) by The Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008 (S.I. 2008/473), arts. 1(1), 2(6)

C3 S. 4 transfer of functions (3.11.2008) by First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 (S.I. 2008/2684), arts. 1, 7(a)(vi)

Commencement Information

I14 S. 4(1)-(7)(9)-(11) in force at 19.5.2008 by S.I. 2008/1320, art. 2(b)

I15 S. 4(8) in force at 31.12.2007 by S.I. 2007/3545, art. 2(d)

Regulated activity E+W

5 Regulated activity E+W

(1) A reference to regulated activity relating to children must be construed in accordance with Part 1 of Schedule 4.

(2) A reference to regulated activity relating to vulnerable adults must be construed in accordance with Part 2 of that Schedule.

(3) The Secretary of State may by order amend that Schedule, or any of the modifications of that Schedule in the provisions mentioned in subsection (4), so as to vary the meaning of—

(a) regulated activity relating to children;

(b) regulated activity relating to vulnerable adults.

(4) The provisions are—

• section 7(5);

• section 9(5);

• section 10(3);

• section 19(8);

• paragraph 4 of Schedule 6.

Commencement Information

I16 S. 5 in force at 20.1.2009 in so far as not already in force by S.I. 2009/39, art. 2(1)(b)

I17 S. 5(1)(2) in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(b)

I18 S. 5(1)(2) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(w)

I19 S. 5(3)(4) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(b)

Regulated activity providers E+W

6 Regulated activity providers E+W

(1) A reference to a regulated activity provider must be construed in accordance with this section.

(2) A person (P) is a regulated activity provider if—

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

(b) if the regulated 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, and

(c) he makes, or authorises the making of, arrangements (whether in connection with a contract of service or for services or otherwise) for another person to engage in that activity.

(3) A person (P) is also a regulated activity provider if section 53(4) (fostering) so provides.

(4) A person (P) is also a regulated activity provider if he carries on a scheme—

(a) under which an individual agrees with P 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 [F6 arises—

(i) in relation to England, under section 10 of the Health and Social Care Act 2008, or

(ii) in relation to Wales, under section 11 of the Care Standards Act 2000.]

(5) P is not a regulated activity provider if he is an individual and the arrangements he makes are private arrangements.

(6) Arrangements are private arrangements if the regulated activity is for, or for the benefit of, P himself.

(7) Arrangements are private arrangements if the regulated activity is for, or for the benefit of, a child or vulnerable adult who is—

(a) a member of P's family;

(b) a friend of P.

(8) A person does not make arrangements for another to engage in a regulated activity merely because he (alone or together with others) appoints that person—

(a) to a position mentioned in paragraph 4(1)(a), (b), (g), (h), (i), (j) or (m) or 8(1)(a), (d) or (e) of Schedule 4,

(b) as a deputy under section 16(2)(b) of the Mental Capacity Act 2005 (c. 9);

(c) as member or chief executive of [F7 ISA];

(d) to any position mentioned in paragraph (a), (b) or (f) of section 59(10) or to exercise any function mentioned in that paragraph.

[F8 (8C) The Secretary of State does not make arrangements for another to engage in a regulated activity by virtue of anything the Secretary of State does under section 12A or 12D, or regulations under section 12B, of the National Health Service Act 2006 (direct payments for health services).

(8D) A Primary Care Trust does not make arrangements for another to engage in a regulated activity by virtue of anything the Primary Care Trust does under regulations under section 12A(4) or 12B of the National Health Service Act 2006 (direct payments for after-care services).]

(9) For the purposes of subsection (7) it is immaterial whether P is also acting in any capacity other than as a family member or friend.

(10) If a regulated activity provider is an unincorporated association any requirement of or liability (including criminal liability) under this Act must be taken to be a requirement on or liability of—

(a) the person responsible for the management and control of the association, or

(b) if there is more than one such person, all of them jointly and severally.

(11) “Family” and “friend” must be construed in accordance with section 58.

(12) The Secretary of State may by order provide that in specified circumstances a person who makes, or authorises the making of, arrangements (of any description) for another to engage in regulated activity either is or is not a regulated activity provider.

Textual Amendments

F6 Words in s. 6(4)(b) substituted (1.10.2010) by The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 19(2)

F7 Words in s. 6 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

F8 S. 6(8C)(8D) inserted (19.1.2010) by Health Act 2009 (c. 21), s. 40(1), Sch. 1 para. 13; S.I. 2010/30, art. 2(b)

Commencement Information

I20 S. 6 in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(c)

I21 S. 6 in force at 20.1.2009 for specified purposes by S.I. 2009/39, art. 2(1)(e)(2)

I22 S. 6 in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

I23 S. 6(12) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(c)

Restrictions on participating in regulated activity E+W

7 Barred person not to engage in regulated activity E+W

(1) An individual commits an offence if he—

(a) seeks to engage in regulated activity from which he is barred;

(b) offers to engage in regulated activity from which he is barred;

(c) engages in regulated activity from which he is barred.

(2) A person guilty of an offence under subsection (1) 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.

(3) It is a defence for a person charged with an offence under subsection (1) to prove that he did not know, and could not reasonably be expected to know, that he was barred from that activity.

(4) It is a defence for a person charged with an offence under subsection (1) to prove—

(a) that he reasonably thought that it was necessary for him to engage in the activity for the purpose of preventing harm to a child or vulnerable adult (as the case may be),

(b) that he reasonably thought that there was no other person who could engage in the activity for that purpose, and

(c) that he engaged in the activity for no longer than was necessary for that purpose.

(5) For the purposes of this section, 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;

(c) in paragraph 7(4), paragraph (a) must be disregarded.

(6) 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 (2)(b) to 12 months must be taken to be a reference to six months.

Commencement Information

I24 S. 7 in force at 12.10.2009 by S.I. 2009/2611, art. 2, Sch.

Prospective

F9 8 Person not to engage in regulated activity unless subject to monitoring E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F9 S. 8 repealed (10.9.2012 immediately after the coming into force of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (S.I. 2012/2157)) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 48, Sch. 10 Pt. 5 (with s. 97); S.I. 2012/2234, art. 2(aa)(bb)(ii)

9 Use of barred person for regulated activity E+W

(1) A person commits an offence if—

(a) he permits an individual (B) to engage in regulated activity from which B is barred,

(b) he knows or has reason to believe that B is barred from that activity, and

(c) B engages in the activity.

(2) A personnel supplier commits an offence if—

(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

(c) he knows or has reason to believe that B is barred from that activity.

(3) A person guilty of an offence under this section 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.

(4) It is a defence for a person charged with an offence under this section to prove—

(a) that he reasonably thought that it was necessary for the barred person to engage in the activity for the purpose of preventing harm to a child or vulnerable adult (as the case may be),

(b) that he reasonably thought that there was no other person who could engage in the activity for that purpose, and

(c) that the barred person engaged in the activity for no longer than was necessary for that purpose.

(5) For the purposes of this section, 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;

(c) in paragraph 7(4), paragraph (a) must be disregarded.

(6) 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 (3)(b) to 12 months must be taken to be a reference to six months.

Commencement Information

I25 S. 9 in force at 12.10.2009 by S.I. 2009/2611, art. 2, Sch.

Prospective

F10 10 Use of person not subject to monitoring for regulated activity E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F10 S. 10 repealed (10.9.2012 immediately after the coming into force of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (S.I. 2012/2157)) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 50, Sch. 10 Pt. 5 (with s. 97); S.I. 2012/2234, art. 2(aa)(bb)(ii)

11 Regulated activity provider: failure to check E+W

(1) A regulated activity provider commits an offence if—

(a) he permits an individual (B) to engage in regulated activity,

(b) B engages in the activity, and

(c) he fails to ascertain whether B is subject to monitoring in relation to the activity.

(2) A regulated activity provider ascertains whether B is subject to monitoring only if—

(a) he obtains an appropriate verification in accordance with Part 1 of Schedule 5 and neither of Parts 2 and 3 of that Schedule is prescribed in relation to him,

(b) he obtains an appropriate verification in accordance with Part 2 of that Schedule and that Part is prescribed in relation to him, or

(c) he obtains an appropriate verification in accordance with Part 3 of that Schedule and that Part is prescribed in relation to him.

(3) A person does not commit an offence under subsection (1) if the regulated activity—

(a) is regulated activity relating to vulnerable adults, and

(b) falls within section 16.

(4) A person does not commit an offence under subsection (1) if he falls within section 17.

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

(6) A person does not commit an offence under subsection (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 this section, and

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

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

(8) A person commits an offence if—

(a) he provides written confirmation under Schedule 5 that is false in any material respect, and

(b) he either knows that it is false or is reckless as to whether it is false.

(9) A person guilty of an offence under subsection (1) or (8) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(10) In determining what is the appropriate sentence to pass in respect of a person who is convicted of an offence under this section 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.

Commencement Information

I26 S. 11(2) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(a)

12 Personnel suppliers: failure to check E+W

(1) Schedule 6 (employment businesses: failure to check) has effect.

(2) The Secretary of State may by order make provision (including provision amending this Act) corresponding to Schedule 6 in relation to the supply of persons by a personnel supplier otherwise than in the course of carrying on an employment business.

Commencement Information

I27 S. 12(1) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(y)

I28 S. 12(1) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(r)

I29 S. 12(2) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(d)

13 Educational establishments: check on members of governing body E+W

(1) The appropriate officer (P) commits an offence if he fails in the prescribed period to make a check in accordance with section 15 relating to any person (B) who is appointed to the governing body of an educational establishment mentioned in section 8(5).

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

(3) A person does not commit an offence under subsection (1) if, in relation to any continuous period for which B is a member of the governing body of the establishment—

(a) the appointment first took effect before the commencement of this section, and

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

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

(5) An appropriate officer is such person as is prescribed.

Commencement Information

I30 S. 13(1)(5) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(b)

14 Office holders: offences E+W

(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.

Commencement Information

I31 S. 14(1)(2)(3) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(c)

Prospective

F11 15 Sections 13 and 14: checks E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 S. 15 repealed (10.9.2012 immediately after the coming into force of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (S.I. 2012/2157)) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 55, Sch. 10 Pt. 5 (with s. 97); S.I. 2012/2234, art. 2(aa)(bb)(ii)

Prospective

Exceptions E+W

F12 16 Exception to requirement to make monitoring check E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F12 S. 16 repealed (10.9.2012 immediately after the coming into force of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (S.I. 2012/2157)) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 56, Sch. 10 Pt. 5 (with s. 97); S.I. 2012/2234, art. 2(aa)(bb)(ii)

F13 17 NHS employment E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F13 S. 17 repealed (10.9.2012 immediately after the coming into force of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (S.I. 2012/2157)) by Protection of Freedoms Act 2012 (c. 9), s. 120, Sch. 9 para. 57, Sch. 10 Pt. 5 (with s. 97); S.I. 2012/2234, art. 2(aa)(bb)(ii)

Offences: supplementary E+W

18 Offences: companies &c. E+W

(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.

Commencement Information

I32 S. 18 in force at 12.10.2009 for specified purposes by S.I. 2009/2611, art. 2, Sch.

19 Offences: other persons E+W

(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

(c) B engages in the activity.

(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

(c) he knows or has reason to believe that B is barred from the activity.

(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

(c) he knows or has reason to believe that B is not subject to monitoring in relation to the activity.

(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;

(c) in paragraph 7(4), paragraph (a) 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.

Commencement Information

I33 S. 19(2)(5)(10) in force at 12.10.2009 by S.I. 2009/2611, art. 2, Sch.

I34 S. 19(8) in force at 12.10.2009 for specified purposes by S.I. 2009/2611, art. 2, Sch.

20 Section 19: exclusions and defences E+W

(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.

Commencement Information

I35 S. 20(1) in force at 12.10.2009 for specified purposes by S.I. 2009/2611, art. 2, Sch.

Controlled activity E+W

21 Controlled activity relating to children E+W

(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 [F14 three] days in any period of 30 days, and

(c) it gives the person an opportunity mentioned in subsection (9).

(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 [F14 three] days in any period of 30 days,

(c) it is carried out by the person while engaging in any form of work (whether or not for gain),

(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) [F15 or section 12A(1), or regulations under section 12A(4), of the National Health Service Act 2006,] 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 [F14 three] days in any period of 30 days, and

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

(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 [F16 section 72 of the Education and Skills Act 2008 relating to children];

(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 [F17 Welsh Ministers].

(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,

[F18 (aa) out of direct payments made under section 12A(1), or under regulations under section 12A(4), of the National Health Service Act 2006, ]

(b) in an establishment in relation to which a requirement to register arises under section 11 of the Care Standards Act 2000 (c. 14), F19 ...

(c) by an agency in relation to which such a requirement arises[F20 , or

(d) as an activity in respect of which a requirement to register arises under section 10 of the Health and Social Care Act 2008.]

(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 [F21 education functions or its] 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 [F22 Welsh Ministers] (in the exercise of its functions under Part 4 of the Children Act 2004 (c. 31) (Welsh family proceedings));

F23 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

[F24 (ea) for, or on behalf of, the Welsh Ministers in the exercise of their functions under Part 10A, 11 or 12 of the Children Act 1989, Part 1, 2 or 3 of the Care Standards Act 2000 or section 15 of the Adoption and Children Act 2002;]

(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.

[F25 (h) for, or on behalf of, a person in respect of whom a requirement to register in respect of any activity arises under section 10 of the Health and Social Care Act 2008.]

(11) In this section—

• [F26 “education functions” has the meaning given by section 579(1) of the Education Act 1996;]

• “ 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;

• [F27 “local authority” has the meaning given by section 579(1) of the Education Act 1996; ]  

• “ social services functions ” has the meaning given by section 1A of [F28 the Local Authority Social Services Act 1970 ] ;

• “ 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).

Textual Amendments

F14 Word in s. 21(3)(4)(5) substituted (31.3.2010) by The Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Devolution and Miscellaneous Provisions) Order 2010 (S.I. 2010/1154) , arts. 1(1) , 11

F15 Words in s. 21(5)(a) inserted (19.1.2010) by Health Act 2009 (c. 21), s. 40(1), Sch. 1 para. 14(2); S.I. 2010/30, art. 2(b)

F16 Words in s. 21(6)(b) substituted (26.1.2009) by Education and Skills Act 2008 (c. 25), s. 173(4), Sch. 1 para. 89; S.I. 2008/3077, art. 4(g)

F17 Words in s. 21(6)(d) substituted (12.10.2009) by The Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009 (S.I. 2009/2610), arts. 1(1), 30(a)

F18 S. 21(8)(aa) inserted (19.1.2010) by Health Act 2009 (c. 21), s. 40(1), Sch. 1 para. 14(3); S.I. 2010/30, art. 2(b)

F19 Word in s. 21(8)(b) omitted (1.10.2010) by virtue of The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 19(4)(a)(i)

F20 S. 21(8)(d) and word inserted (1.10.2010) by The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 19(4)(a)(ii)

F21 Words in s. 21(10)(a) substituted (5.5.2010) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), art. 1, Sch. 2 para. 62(2)(a)

F22 Words in s. 21(10)(c) substituted (12.10.2009) by The Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009 (S.I. 2009/2610), arts. 1(1), 30(a)

F23 S. 21(10)(d) omitted (1.4.2012) by virtue of Education Act 2011 (c. 21), s. 82(3), Sch. 8 para. 21; S.I. 2012/924, art. 2

F24 S. 21(10)(ea) inserted (12.10.2009) by The Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009 (S.I. 2009/2610), arts. 1(1), 28

F25 S. 21(10)(h) inserted (1.10.2010) by The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 19(4)(b)

F26 Words in s. 21(11) inserted (5.5.2010) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), art. 1, Sch. 2 para. 62(2)(b)

F27 Words in s. 21(11) substituted (5.5.2010) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), art. 1, Sch. 2 para. 62(2)(c)

F28 Words in s. 21(11) substituted (5.5.2010) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), art. 1, Sch. 2 para. 62(2)(d)

Commencement Information

I36 S. 21 in force at 20.1.2009 for specified purposes by S.I. 2009/39, art. 2(1)(e)(2)

I37 S. 21 in force at 12.10.2009 for specified purposes by S.I. 2009/2611, art. 2, Sch.

I38 S. 21 in force at 30.3.2010 in so far as not already in force by S.I. 2010/1101 , art. 3

22 Controlled activity relating to vulnerable adults E+W

(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 [F29 three] 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;

(c) the provision of domiciliary care;

(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;

(c) opportunity to have access to such other information as may be prescribed relating to 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 [F30 arises—

  (i)

  in relation to England, under section 10 of the Health and Social Care Act 2008, or

  (ii)

  in relation to Wales, under section 11 of the Care Standards Act 2000;]

• “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 F31 ...

  (f)

  [F32 in Wales, an independent clinic (within the meaning of section 2 of the Care Standards Act 2000);]

  (g)

  an independent medical agency F33 ...;

• [F34 “independent hospital”—

  (a)

  in relation to England, means—

  (i)

  a hospital as defined by section 275 of the National Health Service Act 2006 that is not a health service hospital as defined by that section, or

  (ii)

  any other establishment in which any of the services listed in subsection (7) are provided and which is not a health service hospital as so defined; and

  (b)

  in relation to Wales, has the same meaning as in the Care Standards Act 2000;

• “independent medical agency” means an undertaking (not being an independent hospital, or in Wales an independent clinic) which consists of or includes the provision of services by medical practitioners;]

• “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.

• [F35 “undertaking” includes any business or profession and—

  (a)

  in relation to a public or local authority, includes the exercise of any functions of that authority; and

  (b)

  in relation to any other body of persons, whether corporate or unincorporate, includes any of the activities of that body.]

[F36 (7) The services referred to in paragraph (a)(ii) of the definition of “independent hospital” are as follows—

(a) medical treatment under anaesthesia or intravenously administered sedation;

(b) dental treatment under general anaesthesia;

(c) obstetric services and, in connection with childbirth, medical services;

(d) termination of pregnancies;

(e) cosmetic surgery, other than—

(i) ear and body piercing;

(ii) tattooing;

(iii) the subcutaneous injection of a substance or substances into the skin for cosmetic purposes; or

(iv) the removal of hair roots or small blemishes on the skin by the application of heat using an electric current.]

Textual Amendments

F29 Word in s. 22(2) substituted (31.3.2010) by The Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Devolution and Miscellaneous Provisions) Order 2010 (S.I. 2010/1154), arts. 1(1), 11

F30 Words in s. 22(6) substituted (1.10.2010) by The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 19(5)(a)(i)

F31 Words in s. 22(6) omitted (1.10.2010) by virtue of The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 19(5)(a)(ii)(aa)

F32 Words in s. 22(6) substituted (1.10.2010) by The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 19(5)(a)(ii)(bb)

F33 Words in s. 22(6) omitted (1.10.2010) by virtue of The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 19(5)(a)(ii)(cc)

F34 Words in s. 22(6) inserted (1.10.2010) by The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 19(5)(a)(iii)

F35 Words in s. 22(6) inserted (1.10.2010) by The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 19(5)(a)(iv)

F36 S. 22(7) added (1.10.2010) by The Health and Social Care Act 2008 (Consequential Amendments No.2) Order 2010 (S.I. 2010/813), art. 19(5)(b)

Commencement Information

I39 S. 22 in force at 12.10.2009 for specified purposes by S.I. 2009/2611, art. 2, Sch. (as amended (30.3.2010) by S.I. 2010/1101, art. 11(2)(a))

I40 S. 22 in force at 30.3.2010 in so far as not already in force by S.I. 2010/1101, art. 3

I41 S. 22(1)-(4)(5)(a)(b)(6) in force at 20.1.2009 for specified purposes by S.I. 2009/39, art. 2(1)(e)(2)

23 Controlled activity: regulations E+W

(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;

(c) circumstances in which a responsible person must not permit 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.

Commencement Information

I42 S. 23(1)(2) in force at 12.10.2009 by S.I. 2009/2611, art. 2, Sch.

I43 S. 23(3) in force at 20.1.2009 for specified purposes by S.I. 2009/39, art. 2(1)(e)(2)

I44 S. 23(3) in force at 12.10.2009 for specified purposes by S.I. 2009/2611, art. 2, Sch.

I45 S. 23(3) in force at 30.3.2010 in so far as not already in force by S.I. 2010/1101, art. 3

Monitoring E+W+N.I.

24 Monitoring E+W

(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 [F37 an application to the Secretary of State under this section (a “monitoring application”)],

(c) he satisfies the prescribed requirements, and

(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

(b) regulated activity relating to vulnerable adults.

(3) On a monitoring application being made the Secretary of State must—

(a) make such enquiries as he thinks appropriate to ascertain whether any relevant information exists in relation to the individual;

(b) request the person who holds such information to provide it to him.

(4) The Secretary of State must—

(a) provide the individual with any disclosable information that he has, or

(b) notify the individual that he has no disclosable information.

(5) Disclosable information is information provided to the Secretary of State under subsection (3)(b) in relation to the individual, but does not include information to which subsection (9) applies.

(6) Subsection (4) does not apply if the individual made an application for an enhanced criminal record certificate (under section 113B of the Police Act 1997 (c. 50)) simultaneously with his monitoring application.

(7) The Secretary of State must also ensure that—

(a) at such intervals as he thinks appropriate such enquiries are made as he thinks appropriate to ascertain whether any new relevant information exists in relation to the individual;

(b) the person who holds such new relevant information is requested to provide it to him.

(8) Relevant information is—

(a) the prescribed details of relevant matter (within the meaning of section 113A of the Police Act 1997 (c. 50));

(b) information which the chief officer of a relevant police force thinks might be relevant in relation to the regulated activity concerned;

(c) such other information as may be prescribed.

(9) This subsection applies to information mentioned in subsection (8)(b) which the chief officer of a relevant police force thinks it would not be in the interests of the prevention or detection of crime to disclose to an individual subject to monitoring.

[F38 (10) The Secretary of State may determine the form, manner and contents of a monitoring application.]

(11) The prescribed requirements may include requirements as to the manner in which the applicant must prove his identity (identification requirements); and if such requirements include a requirement that the applicant has his fingerprints taken at such place and in such manner as may be prescribed, the regulations may make provision requiring their destruction in specified circumstances and by specified persons.

(12) For the purpose of verifying evidence of identity supplied in pursuance of the identification requirements the Secretary of State may obtain such information as he thinks is appropriate from data held—

(a) by the Identity and Passport Service;

(b) by the Driver and Vehicle Licensing Agency;

(c) by the Secretary of State in connection with keeping records of national insurance numbers;

(d) by such other persons or for such purposes as is prescribed.

(13) Relevant information is new if it was not discovered when any earlier inquiries under this section were carried out.

(14) References to a relevant police force must be construed in accordance with section 113B of the Police Act 1997 as if an application under this section were an application under that section.

Textual Amendments

F37 Words in s. 24(1)(b) substituted (29.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 83(a), 116(1); S.I. 2010/125, art. 2(m)

F38 S. 24(10) substituted (29.1.2010) by Policing and Crime Act 2009 (c. 26), ss. 83(b), 116(1); S.I. 2010/125, art. 2(m)

Commencement Information

I46 S. 24(1)(c)(d)(8)(a)(c)(10)(11)(12)(d) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(d)

[F39 24A Monitoring: power to prescribe additional fees E+W+N.I.

(1) An individual subject to monitoring under section 24 in relation to a regulated activity must pay a prescribed fee if—

(a) no fee was payable by virtue of section 24(1)(d) when the individual made a monitoring application (within the meaning of section 24) in respect of the activity, and

(b) there has been a prescribed change of circumstances as a result of which a fee would be payable by virtue of section 24(1)(d) if a monitoring application were now made in respect of the activity.

(2) The amount of the fee payable by virtue of subsection (1) must not exceed the amount of fee which would be payable if a monitoring application were made in respect of the activity as mentioned in subsection (1)(b).

(3) An individual does not cease to be subject to monitoring under section 24 merely because the individual fails to pay a fee required by this section (but see section 30(2A)).]

Textual Amendments

F39 S. 24A inserted (29.1.2010 for specified purposes) by Policing and Crime Act 2009 (c. 26), ss. 84(1), 116(1); S.I. 2010/125, art. 3

25 Monitoring: fees E+W

(1) This section has effect in respect of fees which may be prescribed in relation to applications for monitoring under section 24 [F40 or in relation to a change of circumstances under section 24A].

(2) In setting a fee for an application made[F41 , or change of circumstances occurring,] during the period of five years beginning with the commencement of that section, the Secretary of State may take account of expenditure incurred, or which he thinks will be incurred, by him before the end of that period (taking one financial year with another)—

(a) in connection with the operation of [F42 ISA] (including payments under paragraph 11 of Schedule 1);

(b) in respect of any other expenditure of the Secretary of State in connection with his functions under this Act.

(3) In setting a fee for an application made [F43 or change of circumstances occurring] after that period, the Secretary of State may take account of expenditure incurred, or which he thinks will be incurred, by him—

(a) in making payments under paragraph 11 of Schedule 1;

(b) in respect of any other expenditure of the Secretary of State in connection with his functions under this Act.

(4) For the purposes of subsection (2), it is immaterial that any expenditure is incurred before the commencement of section 24 [F44 or 24A].

(5) The [F45 powers] to prescribe fees [F46 are] exercisable only with the consent of the Treasury.

(6) Fees received by the Secretary of State by virtue of section 24(1)(d) [F47 or 24A] must be paid into the Consolidated Fund.

Textual Amendments

F40 Words in s. 25(1) inserted (29.1.2010 for specified purposes) by Policing and Crime Act 2009 (c. 26), ss. 84(2)(a), 116(1); S.I. 2010/125, art. 3

F41 Words in s. 25(2) inserted (29.1.2010 for specified purposes) by Policing and Crime Act 2009 (c. 26), ss. 84(2)(b), 116(1); S.I. 2010/125, art. 3

F42 Words in s. 25 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

F43 Words in s. 25(3) inserted (29.1.2010 for specified purposes) by Policing and Crime Act 2009 (c. 26), ss. 84(2)(c), 116(1); S.I. 2010/125, art. 3

F44 Words in s. 25(4) inserted (29.1.2010 for specified purposes) by Policing and Crime Act 2009 (c. 26), ss. 84(2)(d), 116(1); S.I. 2010/125, art. 3

F45 Word in s. 25(5) substituted (29.1.2010 for specified purposes) by Policing and Crime Act 2009 (c. 26), ss. 84(2)(e)(i), 116(1); S.I. 2010/125, art. 3

F46 Word in s. 25(5) substituted (29.1.2010 for specified purposes) by Policing and Crime Act 2009 (c. 26), ss. 84(2)(e)(ii), 116(1); S.I. 2010/125, art. 3

F47 Words in s. 25(6) inserted (29.1.2010 for specified purposes) by Policing and Crime Act 2009 (c. 26), ss. 84(2)(f), 116(1); S.I. 2010/125, art. 3

Commencement Information

I47 S. 25 in force at 19.5.2008 by S.I. 2008/1320, art. 2(c)

26 Ceasing monitoring E+W

(1) The Secretary of State may cease monitoring as mentioned in section 24 in relation to an individual in such circumstances as are prescribed.

(2) The Secretary of State must cease such monitoring in relation to an individual who—

(a) satisfies the Secretary of State that he is not engaged in the regulated activity concerned, and

(b) requests the Secretary of State to cease monitoring.

Commencement Information

I48 S. 26(1) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(e)

Prospective

F48 27 Prohibition of requirement to produce certain records E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F48 Ss. 24-27 repealed (10.9.2012 immediately after the coming into force of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (S.I. 2012/2157)) by Protection of Freedoms Act 2012 (c. 9), ss. 69, 120, Sch. 10 Pt. 5 (with s. 97); S.I. 2012/2234, art. 2(f)(bb)

28 Independent monitor E+W+N.I.

After section 119A of the Police Act 1997 (c. 50) (further sources of information: Scotland) insert—

“119B Independent monitor

(1) There is to be an independent monitor for the purposes of this Part.

(2) The independent monitor is a person appointed by the Secretary of State—

(a) for such period, not exceeding three years, as the Secretary of State decides;

(b) on such terms as the Secretary of State decides.

(3) A person may be appointed for a further period or periods.

(4) The Secretary of State may terminate the appointment of the independent monitor before the end of the period mentioned in subsection (2)(a) by giving the monitor notice of the termination not less than three months before it is to take effect.

(5) The independent monitor must review—

(a) all cases in which information is disclosed to a registered person in pursuance of section 113B(6)(b);

(b) a sample of cases in which a certificate issued under section 113B has included information in pursuance of subsection (4)(b) of that section;

(c) a sample of cases in which the chief officer of a police force has decided that information must not be included in a certificate or report in pursuance of section 113B(4)(b) or disclosed in pursuance of section 113B(5)(c) and (6)(b);

(d) all cases in which information is withheld from an individual because it is information to which section 24(9) of the Safeguarding Vulnerable Groups Act 2006 applies;

(e) a sample of cases in which relevant information (within the meaning of section 24(8)(b) of that Act) is provided to an individual in pursuance of section 24(4)(a) of that Act.

(6) The purpose of a review under subsection (5) is to ensure compliance with Article 8 of the European Convention of Human Rights.

(7) The independent monitor must in relation to each year make a report to the Secretary of State about the performance of police forces in exercising their functions under this Part.

(8) The independent monitor may make recommendations to the Secretary of State as to—

(a) any guidance issued by the Secretary of State or which the monitor thinks it would be appropriate for the Secretary of State to issue;

(b) any changes to any enactment which the monitor thinks may be appropriate.

(9) The chief officer of a police force must provide to the independent monitor such information as the monitor reasonably requires in connection with the exercise of his functions under this section.”

Modifications etc. (not altering text)

C4 S. 28 extended (Guernsey) (with modifications) (10.12.2009) by Police Act 1997 (Criminal Records) (Guernsey) Order 2009 (S.I. 2009/3215), art. 4, Sch. 2, Sch. 3 (with arts. 6-8)

C5 S. 28 extended (Jersey) (with modifications) (18.3.2010) by The Police Act 1997 (Criminal Records) (Jersey) Order 2010 (S.I. 2010/765), arts. 1(2), 4, Sch. 2, Sch. 3 (with arts. 6-8)

C6 S. 28 extended (Isle of Man) (with modifications) (18.3.2010) by The Police Act 1997 (Criminal Records) (Isle of Man) Order 2010 (S.I. 2010/764), arts. 1(2), 4, Sch. 2, Sch. 3 (with arts. 6-8)

Commencement Information

I49 S. 28 in force at 20.1.2009 by S.I. 2009/39, art. 2(1)(c)

29 Part 5 of the Police Act 1997: code of practice E+W+N.I.

(1) Section 122 of the Police Act 1997 (c. 50) (code of practice) is amended as follows.

(2) In subsection (1) after “information provided to” insert “ , or the discharge of any function by, ”.

(3) In subsection (3) for the words from “The Secretary of State” to “application” substitute “ Subsection (3A) applies if the Secretary of State thinks that the registered person who countersigned an application for a certificate under section 113A or 113B ”.

(4) After subsection (3) insert—

“(3A) The Secretary of State may—

(a) refuse to issue the certificate;

(b) suspend the registration of the person;

(c) cancel the registration of the person.

(3B) Section 120AB applies if the Secretary of State proposes to suspend or cancel a person's registration under subsection (3A) above as it applies if he proposes to suspend or cancel a person's registration by virtue of section 120AA.”

Commencement Information

I50 S. 29 in force at 20.1.2009 by S.I. 2009/39, art. 2(1)(d)

Notices and information E+W

30 Provision of vetting information E+W

(1) The Secretary of State must provide a person (A) with the information mentioned in subsection (4) in relation to another (B) if—

(a) A makes an application for the information,

(b) the application contains the appropriate declaration, and

(c) the Secretary of State has no reason to believe that the declaration is false.

(2) The appropriate declaration is a declaration by A—

(a) that he falls within column 1 of a specified entry, and

(b) that B has consented to the provision of the information to A.

[F49 (2A) The Secretary of State may refuse to provide A with the information if B has failed to pay a fee required by section 24A.]

(3) In this section references to a specified entry are to an entry in the table in Schedule 7 specified by A in his declaration.

(4) The information is—

(a) if column 2 of the specified entry refers to children, relevant information relating to children, and

(b) if column 2 of the specified entry refers to vulnerable adults, relevant information relating to vulnerable adults.

(5) Paragraph (b) of subsection (2) does not apply if the specified entry is 17.

(6) If B consents to the provision of information to A in relation to an application under this section, the consent also has effect in relation to any subsequent such application by A.

(7) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this section (including the form and manner of a declaration contained in such an application).

(8) The Secretary of State may by regulations make provision requiring a local authority which makes or proposes to make payments to or on behalf of a person in accordance with regulations under section 17A of the Children Act 1989 (c. 41) or section 57 of the Health and Social Care Act 2001 (c. 15) to inform the person of his right to obtain relevant information under this section.

Textual Amendments

F49 S. 30(2A) inserted (29.1.2010 for specified purposes) by Policing and Crime Act 2009 (c. 26), ss. 84(3), 116(1); S.I. 2010/125, art. 3

Commencement Information

I51 S. 30(7)(8) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(f)

31 Meaning of relevant information in section 30 E+W

(1) This section has effect for the purposes of section 30.

(2) Relevant information relating to children is—

(a) whether B is subject to monitoring in relation to regulated activity relating to children, and

(b) if so, whether he is undergoing assessment.

(3) Relevant information relating to vulnerable adults is—

(a) whether B is subject to monitoring in relation to regulated activity relating to vulnerable adults, and

(b) if so, whether he is undergoing assessment.

(4) B is undergoing assessment if—

(a) the Secretary of State is required to notify B as mentioned in section 24(4) in connection with B's monitoring application but has not yet done so;

(b) B has made a simultaneous application under section 113B of the Police Act 1997 but the Secretary of State has not yet issued an enhanced criminal record certificate under that section;

(c) in relation to subsection (2)(b), IBB is considering whether to include B in the children's barred list in pursuance of paragraph 3 or 5 of Schedule 3;

(d) in relation to subsection (3)(b), IBB is considering whether to include B in the adults' barred list in pursuance of paragraph 9 or 11 of that Schedule.

(5) In subsection (4)(b) “simultaneous application” means an application made simultaneously with B's monitoring application under section 24.

(6) The Secretary of State may by order amend the preceding provisions of this section for the purpose of altering the meaning of relevant information relating to children or vulnerable adults (as the case may be).

Commencement Information

I52 S. 31(6) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(e)

32 Notification of cessation of monitoring E+W

(1) The Secretary of State must establish and maintain a register for the purposes of this section.

(2) The Secretary of State must register a person (A) in relation to another (B) if—

(a) A makes an application to be registered in relation to B,

(b) the application contains the appropriate declaration,

(c) the Secretary of State has no reason to believe that the declaration is false, and

(d) B is subject to monitoring in relation to the regulated activity to which the application relates.

(3) The appropriate declaration is a declaration by A—

(a) that he falls within column 1 of a specified entry, and

(b) that B has consented to the application.

(4) In this section references to a specified entry are to an entry in the table in Schedule 7 specified by A in his declaration.

(5) A's application and registration relate—

(a) if column 2 of the specified entry refers to children, to regulated activity relating to children;

(b) if column 2 of the specified entry refers to vulnerable adults, to regulated activity relating to vulnerable adults.

(6) The Secretary of State must notify A if B ceases to be subject to monitoring in relation to the regulated activity to which A's registration relates.

(7) The requirement under subsection (6) is satisfied if notification is sent to any address recorded against A's name in the register.

(8) Paragraph (b) of subsection (3) does not apply if the specified entry is 17.

(9) If B consents to the provision of information to A under section 30 the consent also has effect as consent to any application by A to be registered in relation to B under this section.

(10) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this section (including the form and manner of a declaration contained in such an application).

Commencement Information

I53 S. 32(10) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(g)

33 Cessation of registration E+W

(1) In this section references to registration are to registration in the register maintained for the purposes of section 32.

(2) Once a person is notified as mentioned in subsection (6) of that section, his registration ceases.

(3) The Secretary of State may cancel a person's registration in such circumstances as are prescribed.

(4) The Secretary of State must cancel a person's registration—

(a) if the person applies for it to be cancelled;

(b) in prescribed circumstances, if the person in relation to whom he is registered applies for it to be cancelled.

(5) When a person's registration is cancelled under subsection (3) or (4)(b), the Secretary of State must notify him of that fact.

(6) The requirement under subsection (5) is satisfied if notification is sent to any address recorded against A's name in the register.

Commencement Information

I54 S. 33(3)(4)(b) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(h)

Prospective

34 Declarations under sections 30 and 32 E+W

(1) An individual commits an offence if, in an application made for the purposes of section 30 or 32—

(a) he makes a false declaration, and

(b) he either knows that it is false or is reckless as to whether it is false.

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

35 Regulated activity providers: duty to refer E+W

(1) Subsection (2) applies to—

(a) a regulated activity provider who holds any prescribed information in relation to a person (P) engaged in regulated activity provided by him;

(b) a responsible person (within the meaning of section 23) who holds any prescribed information in relation to a person (P) whom he permits to engage in controlled activity.

(2) A person to whom this subsection applies must provide [F50 ISA] with the information if—

(a) he withdraws permission for P to engage in the activity for a reason mentioned in subsection (3), or

(b) he does not withdraw permission for such a reason but would or might have done so if P had not otherwise ceased to engage in the activity.

(3) The reasons are that the person to whom subsection (2) applies thinks—

(a) that paragraph 1, 2, 7 or 8 of Schedule 3 applies to P,

(b) that P has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 3), or

(c) that the harm test is satisfied.

(4) The harm test is that P may—

(a) harm a child or vulnerable adult,

(b) cause a child or vulnerable adult to be harmed,

(c) put a child or vulnerable adult at risk of harm,

(d) attempt to harm a child or vulnerable adult, or

(e) incite another to harm a child or vulnerable adult.

(5) For the purposes of subsection (3)(b), conduct is inappropriate if it appears to the person to whom subsection (2) applies to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 3.

(6) If regulated activity engaged in by P—

(a) is regulated activity relating to vulnerable adults, and

(b) falls within section 16,

subsection (2) must be read as if for “must” there were substituted “ may ”.

(7) This section does not apply if the conditions specified in subsection (2) are fulfilled before the section is commenced.

Textual Amendments

F50 Words in s. 35 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

Commencement Information

I55 S. 35(1) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(i)

I56 S. 35(1) in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

I57 S. 35(2)-(7) in force at 12.10.2009 by S.I. 2009/2611, art. 2, Sch.

36 Personnel suppliers: duty to refer E+W

(1) A personnel supplier must provide [F51 ISA] with any prescribed information it holds in relation to a person (P) who has been supplied by it to another person if the supplier knows that P has ceased to be engaged in regulated activity or controlled activity in the circumstances mentioned in subsection (2)(a) or (b) of section 35.

(2) A personnel supplier which is an employment agency or employment business must provide [F51 ISA] with any prescribed information it holds in relation to a person (P) for whom it acts if—

(a) the agency or business determines to cease to act for P for a reason mentioned in subsection (4), or

(b) it does not determine to cease to act for P for such a reason but would or might have done so if its arrangement with, or employment of, him had not otherwise come to an end.

(3) A personnel supplier which is an educational institution must provide [F51 ISA] with any prescribed information it holds in relation to a student (P) following a course at the institution if—

(a) the institution determines to cease to supply P to another person for him to engage in regulated or controlled activity for a reason mentioned in subsection (4),

(b) the institution determines that P should cease to follow a course at the institution for a reason mentioned in subsection (4), or

(c) it does not determine as mentioned in paragraph (a) or (b) for such a reason but would or might have done so if P had not otherwise ceased to engage in the activity or ceased to follow the course.

(4) The reasons are that the personnel supplier thinks—

(a) that paragraph 1, 2, 7 or 8 of Schedule 3 applies to P,

(b) that P has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 3), or

(c) that the harm test is satisfied.

(5) The harm test is that P may—

(a) harm a child or vulnerable adult,

(b) cause a child or vulnerable adult to be harmed,

(c) put a child or vulnerable adult at risk of harm,

(d) attempt to harm a child or vulnerable adult, or

(e) incite another to harm a child or vulnerable adult.

(6) For the purposes of subsection (4)(b), conduct is inappropriate if it appears to the personnel supplier to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 3.

(7) An employment agency acts for a person if it makes arrangements with him with a view to—

(a) finding him employment with an employer, or

(b) supplying him to employers for employment by them.

(8) An employment business acts for a person if it employs him to act for and under the control of other persons in any capacity.

(9) In this section “employment” has the same meaning as in the Employment Agencies Act 1973 (c. 35).

(10) This section does not apply if the conditions specified in subsection (1), (2) or (3) are fulfilled before the section is commenced.

Textual Amendments

F51 Words in ss. 36-47 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

Commencement Information

I58 S. 36(1)(2)(3) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(j)

I59 S. 36(1)-(3) in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

I60 S. 36(4)-(10) in force at 12.10.2009 by S.I. 2009/2611, art. 2, Sch.

37 Regulated activity providers: duty to provide information on request &c. E+W

(1) This section applies if [F51 ISA] is considering—

(a) whether to include any person in a barred list;

(b) whether to remove any person from a barred list.

(2) [F51 ISA] may require—

(a) any regulated activity provider who has made arrangements for that person to engage in regulated activity (whether or not the arrangements are still in place),

(b) any responsible person (within the meaning of section 23) who permits or has permitted that person to engage in controlled activity,

(c) any personnel supplier which is an employment agency or employment business and which acts for or has acted for that person, or

(d) any personnel supplier which is an educational institution and which has supplied that person to another person for him to engage in regulated or controlled activity,

to provide [F51 ISA] with any prescribed information he or it holds relating to the person.

(3) An employment agency acts for a person if it makes arrangements with him with a view to—

(a) finding him relevant employment with an employer, or

(b) supplying him to employers for relevant employment by them.

(4) Relevant employment is employment which consists in or involves engaging in regulated or controlled activity.

(5) An employment business acts for a person if it employs him to engage in regulated or controlled activity for and under the control of other persons.

(6) In this section “employment” has the same meaning as in the Employment Agencies Act 1973 (c. 35).

Textual Amendments

F51 Words in ss. 36-47 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

Commencement Information

I61 S. 37 in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(d)

I62 S. 37 in force at 20.1.2009 in so far as not already in force by S.I. 2009/39, art. 2(1)(e)

I63 S. 37(2) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(k)

38 Duty to provide information: offences E+W

(1) A person commits an offence if—

(a) he is required under section 35 or 36 or in pursuance of section 37 to provide information to [F51 ISA], and

(b) he fails, without reasonable excuse, to provide the information.

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

Textual Amendments

F51 Words in ss. 36-47 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

Commencement Information

I64 S. 38 in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(e)

I65 S. 38 in force at 20.1.2009 for specified purposes by S.I. 2009/39, art. 2(1)(e)(2)

I66 S. 38 in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

Local authority information and referrals E+W

39 Local authorities: duty to refer E+W

(1) A local authority must provide [F51 ISA] with any prescribed information they hold relating to a person if the first and second conditions are satisfied.

(2) The first condition is that the local authority thinks—

(a) that paragraph 1, 2, 7 or 8 of Schedule 3 applies to the person,

(b) that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 3) occurring after the commencement of this section, or

(c) that the harm test is satisfied.

(3) The harm test is that the person may—

(a) harm a child or vulnerable adult,

(b) cause a child or vulnerable adult to be harmed,

(c) put a child or vulnerable adult at risk of harm,

(d) attempt to harm a child or vulnerable adult, or

(e) incite another to harm a child or vulnerable adult.

(4) The second condition is that the local authority thinks—

(a) that the person is engaged or may engage in regulated activity or controlled activity, and

(b) (except in a case where paragraph 1, 2, 7 or 8 of Schedule 3 applies) that [F51 ISA] may consider it appropriate for the person to be included in a barred list.

(5) A local authority may provide [F51 ISA] with any prescribed information it holds relating to a person if—

(a) the local authority think that a person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 3) occurring before the commencement of this section, and

(b) the condition in subsection (4) is satisfied.

(6) For the purposes of subsection (2)(b) or (5)(a), conduct is inappropriate if it appears to the local authority to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 3.

(7) “Local authority” has the same meaning as in section 1 of the Local Authorities (Goods and Services) Act 1970 (c. 39).

Textual Amendments

F51 Words in ss. 36-47 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

Commencement Information

I67 S. 39(1)(5) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(l)

I68 S. 39(1)(5) in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

I69 S. 39(2)-(4)(6)(7) in force at 12.10.2009 by S.I. 2009/2611, art. 2, Sch.

40 Local authorities: duty to provide information on request E+W

(1) This section applies if [F51 ISA] is considering—

(a) whether to include any person in a barred list;

(b) whether to remove any person from a barred list.

(2) If [F51 ISA] thinks that a local authority hold any prescribed information relating to the person, it may require the authority to provide it with the information.

(3) The local authority must comply with a requirement under subsection (2).

(4) “Local authority” has the same meaning as in section 1 of the Local Authorities (Goods and Services) Act 1970.

Textual Amendments

F51 Words in ss. 36-47 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

Commencement Information

I70 S. 40 in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(f)

I71 S. 40 in force at 20.1.2009 in so far as not already in force by S.I. 2009/39, art. 2(1)(f)

I72 S. 40(2) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(m)

Professional bodies and supervisory authorities E+W

41 Registers: duty to refer E+W

(1) A keeper of a relevant register must provide [F51 ISA] with any prescribed information he holds relating to a person if the first and second conditions are satisfied.

(2) The first condition is that the keeper thinks—

(a) that paragraph 1, 2, 7 or 8 of Schedule 3 applies to the person,

(b) that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 3) occurring after the commencement of this section, or

(c) that the harm test is satisfied.

(3) The harm test is that the person may—

(a) harm a child or vulnerable adult,

(b) cause a child or vulnerable adult to be harmed,

(c) put a child or vulnerable adult at risk of harm,

(d) attempt to harm a child or vulnerable adult, or

(e) incite another to harm a child or vulnerable adult.

(4) The second condition is that the keeper thinks—

(a) that the person is engaged or may engage in regulated activity or controlled activity, and

(b) (except in a case where paragraph 1, 2, 7 or 8 of Schedule 3 applies) that [F51 ISA] may consider it appropriate for the person to be included in a barred list.

(5) A keeper of a relevant register may provide [F51 ISA] with any prescribed information he holds relating to a person if—

(a) he thinks that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 3) occurring before the commencement of this section, and

(b) the condition in subsection (4) is satisfied.

(6) For the purposes of subsection (2)(b) or (5)(a), conduct is inappropriate if it appears to the keeper to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 3.

(7) In this section—

(a) a relevant register is a register appearing in column 1 of the following table, and

(b) in relation to a relevant register, the keeper of the register is the corresponding person appearing in column 2 of the table.

Relevant register	Keeper of the register
1. The register of teachers maintained under section 3 of the Teaching and Higher Education Act 1998 (c. 30)	[F52 The General Teaching Council for Wales]
2.[F53 The register maintained under article 19 of the Pharmacy Order 2010]	[F54 The registrar appointed under article 18 of that Order.]
3. Either of the lists of medical practitioners kept under section 2 of the Medical Act 1983 (c. 54)	The registrar of the General Medical Council
4. The dentists register kept under section 14 of the Dentists Act 1984 (c. 24) or the dental care professionals register kept under section 36B of that Act	The registrar appointed under section 14 of that Act
5. The register of optometrists or the register of dispensing opticians maintained under section 7 of the Opticians Act 1989 (c. 44), or the register of persons undertaking training as optometrists or the register of persons undertaking training as dispensing opticians maintained under section 8A of that Act	The registrar of the General Optical Council
6. The register of osteopaths maintained under section 2 of the Osteopaths Act 1993 (c. 21)	The Registrar of Osteopaths
7. The register of chiropractors maintained under section 2 of the Chiropractors Act 1994 (c. 17)	The Registrar of Chiropractors
8. The register of social workers and social care workers [F55 in Wales] maintained under section 56 of the Care Standards Act 2000 (c. 14)	The [F56 Care Council for Wales]
9. The register of qualified nurses and midwives maintained under Article 5 of the Nursing and Midwifery Order 2001 (S.I. 2002/253)	The registrar appointed under Article 4 of that Order
10. The register of members of relevant professions maintained under Article 5 of the [F57 the Health and Social Work Professions Order 2001]	The registrar appointed under Article 4 of that Order

(8) The Secretary of State may by order amend the table in subsection (7) by inserting an entry or amending or omitting an entry for the time being contained in the table.

Textual Amendments

F51 Words in ss. 36-47 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

F52 Words in s. 41(7) Table substituted (1.4.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 2 para. 27(2); S.I. 2012/924, art. 2

F53 Words in s. 41(7) Table substituted (27.9.2010) by The Pharmacy Order 2010 (S.I. 2010/231), art. 1(5), Sch. 4 para. 15(a); S.I. 2010/1621, art. 2(1), Sch.

F54 Words in s. 41(7) Table substituted (27.9.2010) by The Pharmacy Order 2010 (S.I. 2010/231), art. 1(5), Sch. 4 para. 15(b); S.I. 2010/1621, art. 2(1), Sch.

F55 Words in s. 41(7) Table inserted (1.8.2012) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 15 para. 52(a); S.I. 2012/1319, art. 2(4)

F56 Words in s. 41(7) Table substituted (1.8.2012) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 15 para. 52(b); S.I. 2012/1319, art. 2(4)

F57 Words in s. 41(7) Table substituted (1.8.2012) by Health and Social Care Act 2012 (c. 7), ss. 213(7)(m), 306(4) (with s. 230(6)); S.I. 2012/1319, art. 2(4)

Commencement Information

I73 S. 41(1)(5) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(n)

I74 S. 41(1)(5)(7)(8) in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

I75 S. 41(2)-(4)(6) in force at 12.10.2009 by S.I. 2009/2611, art. 2, Sch.

I76 S. 41(7) in force at 20.1.2009 for specified purposes by S.I. 2009/39, art. 2(1)(g)

I77 S. 41(8) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(f)

42 Registers: duty to provide information on request E+W

(1) This section applies if [F51 ISA] is considering—

(a) whether to include in a barred list a person who appears on a relevant register;

(b) whether to remove such a person from a barred list.

(2) [F51 ISA] may require the keeper of the register to provide it with any prescribed information he holds relating to the person.

(3) The keeper of the register must comply with a requirement under subsection (2).

(4) References to a relevant register and the keeper of a relevant register must be construed in accordance with section 41(7).

Textual Amendments

F51 Words in ss. 36-47 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

Commencement Information

I78 S. 42 in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(g)

I79 S. 42 in force at 20.1.2009 in so far as not already in force by S.I. 2009/39, art. 2(1)(g)

I80 S. 42(2) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(o)

43 Registers: notice of barring and cessation of monitoring E+W

(1) Subsection (2) applies if the Secretary of State knows or thinks that a person (A) appears on a relevant register and either—

(a) A is newly included in a barred list or the Secretary of State becomes aware that A is subject to a relevant disqualification, or

(b) having been subject to monitoring, A ceases to be so subject by virtue of section 26.

(2) The Secretary of State must—

(a) notify the keeper of the register of the circumstances mentioned in paragraph (a) or (b) (as the case may be) of subsection (1), and

(b) in a case where A is newly included in a barred list, require [F51 ISA] to provide the keeper with all the information on which [F51 ISA] relied in deciding to include A in the list.

(3) If [F51 ISA]—

(a) knows or thinks that a person appears on a relevant register, and

(b) becomes aware of relevant information relating to that person,

it must provide the keeper of the register with that information.

(4) In subsection (3), relevant information is information which—

(a) relates to the protection of children or vulnerable adults in general, or of any child or vulnerable adult in particular, and

(b) is relevant to the exercise of any function of the keeper of the register.

(5) But, in that subsection, relevant information does not include—

(a) information that any of the events mentioned in subsection (1)(a) and (b) has occurred in relation to the person;

(b) the information mentioned in subsection (2)(b);

(c) information falling within paragraph 19(5) of Schedule 3.

(6) In this section—

(a) a relevant register is a register appearing in column 1 of entry 1 or 8 of the table in section 41(7), and

(b) in relation to a relevant register, the keeper of the register is the corresponding person appearing in column 2 of the table.

(7) A person is subject to a relevant disqualification if he is included in a list maintained under the law of Scotland or Northern Ireland which the Secretary of State specifies by order as corresponding to a barred list.

Textual Amendments

F51 Words in ss. 36-47 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

Commencement Information

I81 S. 43(3)-(5) in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(h)

I82 S. 43(7) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(g)

44 Registers: power to apply for vetting information E+W

(1) If the keeper of a relevant register applies to the Secretary of State for information within subsection (2) in relation to a person (B), the Secretary of State must provide the keeper of the register with that information.

(2) The information within this subsection is—

(a) whether B is barred from regulated activity relating to children or vulnerable adults,

(b) whether [F51 ISA] is considering whether to include B in a barred list in pursuance of paragraph 3 or 5 or 9 or 11 of Schedule 3,

(c) whether B is subject to monitoring in relation to regulated activity relating to children or vulnerable adults,

(d) if B is subject to such monitoring and the Secretary of State is required to notify B as mentioned in section 24(4), whether the Secretary of State has yet done so, and

(e) if B is subject to such monitoring and has made a simultaneous application under section 113B of the Police Act 1997, whether the Secretary of State has yet issued an enhanced criminal record certificate under that section.

(3) The keeper of a relevant register may apply for information under this section in relation to a person only if—

(a) the person appears in the register, or

(b) the person is being considered for inclusion in the register.

(4) In this section—

(a) a relevant register is a register appearing in column 1 of entry 1 or 8 of the table in section 41(7), and

(b) in relation to a relevant register, the keeper of the register is the corresponding person appearing in column 2 of the table.

(5) In subsection (2)(e) “simultaneous application” means an application made simultaneously with B's monitoring application under section 24.

(6) The Secretary of State may by order amend this section for the purpose of altering the information within subsection (2).

(7) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this section.

Textual Amendments

F51 Words in ss. 36-47 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

Commencement Information

I83 S. 44(6) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(h)

I84 S. 44(7) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(p)

45 Supervisory authorities: duty to refer E+W

(1) A supervisory authority must provide [F51 ISA] with any prescribed information it holds relating to a person if the first and second conditions are satisfied.

(2) The first condition is that the supervisory authority thinks, on the basis of relevant evidence—

(a) that paragraph 1, 2, 7 or 8 of Schedule 3 applies to the person,

(b) that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 3) occurring after the commencement of this section, or

(c) that the harm test is satisfied.

(3) The harm test is that the person may—

(a) harm a child or vulnerable adult,

(b) cause a child or vulnerable adult to be harmed,

(c) put a child or vulnerable adult at risk of harm,

(d) attempt to harm a child or vulnerable adult, or

(e) incite another to harm a child or vulnerable adult.

(4) The second condition is that the supervisory authority thinks—

(a) that the person is engaged or may engage in regulated activity or controlled activity, and

(b) (except in a case where paragraph 1, 2, 7 or 8 of Schedule 3 applies) that [F51 ISA] may consider it appropriate for the person to be included in a barred list.

(5) The supervisory authority may provide [F51 ISA] with any prescribed information it holds relating to a person if—

(a) it thinks, on the basis of relevant evidence, that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 3) occurring before the commencement of this section, and

(b) the condition in subsection (4) is satisfied.

(6) Subsection (1) does not apply if the supervisory authority is satisfied that [F51 ISA] already has the information.

(7) A supervisory authority is—

(a) a registration authority within the meaning of section 5 of the Care Standards Act 2000 (c. 14) in respect of its functions under Part 2 of that Act;

[F58 (aza) the Secretary of State in respect of the Secretary of State's functions under sections 141B to 141E of the Education Act 2002;

(azb) the Secretary of State in respect of the Secretary of State's functions under Chapter 1 of Part 4 of the Education and Skills Act 2008;]

[F59 (aa) the Secretary of State in respect of his functions under Chapter 1 of Part 10 of the Education Act 2002 (c. 32) ; ]

(b) the [F60 Welsh Ministers] in respect of its functions under Chapter 1 of Part 10 of the Education Act 2002 (c. 32);

[F61 (c) the Care Quality Commission in respect of its functions under Part 1 of the Health and Social Care Act 2008;]

F62 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) the [F63 Welsh Ministers] in respect of its functions under Chapters 4 and 6 of Part 2 of [F64 the Health and Social Care (Community Health and Standards) Act 2003];

[F65 (ea) the Welsh Ministers in the exercise of their functions under Part 10A, Part 11 or Part 12 of the Children Act 1989;]

(f) the Public Guardian in the exercise of his functions;

(g) Her Majesty's Chief Inspector of Schools in England in the exercise of his functions;

(h) Her Majesty's Chief Inspector of Education and Training in Wales in the exercise of his functions;

(i) the Charity Commissioners for England and Wales in the exercise of their functions.

(8) Relevant evidence is evidence obtained by the supervisory authority in the exercise of the functions mentioned in subsection (7).

(9) The Secretary of State may by order amend subsection (7) by inserting a paragraph or amending or omitting a paragraph for the time being contained in the subsection.

(10) For the purposes of subsection (2)(b) or (5)(a), conduct is inappropriate if it appears to the supervisory authority to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 3.

Textual Amendments

F51 Words in ss. 36-47 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

F58 S. 45(7)(aza)(azb) inserted (1.4.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 2 para. 27(3); S.I. 2012/924, art. 2

F59 S. 45(7)(aa) inserted (23.4.2010) by The Safeguarding Vulnerable Groups Act 2006 (Supervisory Authorities and Devolution Alignment) Order 2010 (S.I. 2010/1073), arts. 1(2), 2

F60 Words in s. 45(7)(b) substituted (12.10.2009) by The Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009 (S.I. 2009/2610), arts. 1(1), 30(b)

F61 S. 45(7)(c) substituted (1.4.2009) by Health and Social Care Act 2008 (c. 14), s. 170(3)(4), Sch. 5 para. 91(a); S.I. 2009/462, art. 2(1), Sch. 1 para. 35(bb)

F62 S. 45(7)(d) repealed (1.4.2009) by Health and Social Care Act 2008 (c. 14), s. 170(3)(4), Sch. 5 para. 91(b), Sch. 15 Pt. 1; S.I. 2009/462, art. 2(1), Sch. 1 paras. 35(bb), 36

F63 Words in s. 45(7)(e) substituted (12.10.2009) by The Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009 (S.I. 2009/2610), arts. 1(1), 30(b)

F64 Words in s. 45(7)(e) substituted (1.4.2009) by Health and Social Care Act 2008 (c. 14), s. 170(3)(4), Sch. 5 para. 91(c); S.I. 2009/462, art. 2(1), Sch. 1 para. 35(bb)

F65 S. 45(7)(ea) inserted (12.10.2009) by Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Order 2009 (S.I. 2009/1797), arts. 1(1), 6

Commencement Information

I85 S. 45(1)(5) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(q)

I86 S. 45(1)(5)(7)(9) in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

I87 S. 45(2)-(4)(6)(8)(10) in force at 12.10.2009 by S.I. 2009/2611, art. 2, Sch.

I88 S. 45(7) in force at 20.1.2009 for specified purposes by S.I. 2009/39, art. 2(1)(h)

I89 S. 45(9) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(i)

46 Supervisory authorities: duty to provide information on request E+W

(1) This section applies if [F51 ISA] is considering—

(a) whether to include in a barred list a person in relation to whom [F51 ISA] thinks that a supervisory authority may have prescribed information;

(b) whether to remove such a person from a barred list.

(2) [F51 ISA] may require the supervisory authority to provide it with any prescribed information it holds relating to the person.

(3) The supervisory authority must comply with a requirement under subsection (2).

Textual Amendments

F51 Words in ss. 36-47 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

Commencement Information

I90 S. 46 in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(i)

I91 S. 46 in force at 20.1.2009 in so far as not already in force by S.I. 2009/39, art. 2(1)(h)

I92 S. 46(1)(a)(2) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(r)

47 Supervisory authorities: power to apply for vetting information E+W

(1) If a supervisory authority applies to the Secretary of State for information within subsection (2) or (3) relating to a person (B), the Secretary of State must provide the supervisory authority with that information.

(2) The information within this subsection is—

(a) whether B is barred from regulated activity relating to children,

(b) whether [F51 ISA] is considering whether to include B in the children's barred list in pursuance of paragraph 3 or 5 of Schedule 3,

(c) whether B is subject to monitoring in relation to regulated activity relating to children,

(d) if B is subject to such monitoring and the Secretary of State is required to notify B as mentioned in section 24(4) in connection with his monitoring application, whether the Secretary of State has yet done so, and

(e) if B is subject to such monitoring and has made a simultaneous application under section 113B of the Police Act 1997, whether the Secretary of State has yet issued an enhanced criminal record certificate under that section.

(3) The information within this subsection is—

(a) whether B is barred from regulated activity relating to vulnerable adults,

(b) whether [F51 ISA] is considering whether to include B in the adults' barred list in pursuance of paragraph 9 or 11 of Schedule 3,

(c) whether B is subject to monitoring in relation to regulated activity relating to vulnerable adults,

(d) if B is subject to such monitoring and the Secretary of State is required to notify B as mentioned in section 24(4) in connection with his monitoring application, whether the Secretary of State has yet done so, and

(e) if B is subject to such monitoring and has made a simultaneous application under section 113B of the Police Act 1997, whether the Secretary of State has yet issued an enhanced criminal record certificate under that section.

(4) A supervisory authority may apply for information under this section only if the information is required in connection with the exercise of a function of the supervisory authority mentioned in section 45(7).

(5) In subsections (2)(e) and (3)(e), “simultaneous application” means an application made simultaneously with B's monitoring application under section 24.

(6) The Secretary of State may by order amend this section for the purpose of altering the information within subsection (2) or (3).

(7) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this section.

Textual Amendments

F51 Words in ss. 36-47 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 81(2)(3)(m)(i), 116(5)(a)

Commencement Information

I93 S. 47(6) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(j)

I94 S. 47(7) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(s)

48 Supervisory authorities: notification of barring &c. in respect of children E+W

(1) This section applies if—

(a) a person is newly included in the children's barred list,

(b) the Secretary of State becomes aware that a person is subject to a relevant children's disqualification, or

(c) having been subject to monitoring in relation to regulated activity relating to children, a person ceases to be so subject by virtue of section 26.

(2) The Secretary of State must notify every interested supervisory authority of the circumstance mentioned in paragraph (a), (b) or (c) (as the case may be) of subsection (1).

(3) A supervisory authority is an interested supervisory authority only if—

(a) it has applied to the Secretary of State to be notified if any of the circumstances mentioned in subsection (1) occurs in relation to the person, and

(b) the application has not been withdrawn.

(4) A supervisory authority may apply to the Secretary of State under subsection (3)(a) only if the notification is required in connection with the exercise of a function of the supervisory authority mentioned in section 45(7).

(5) For the purposes of subsection (3)(b) an application is withdrawn if the supervisory authority notifies the Secretary of State that it no longer wishes to be notified if any of the circumstances mentioned in subsection (1) occurs in relation to the person.

(6) A person is subject to a relevant children's disqualification if he is included in a list maintained under the law of Scotland or Northern Ireland which the Secretary of State specifies by order as corresponding to the children's barred list.

(7) The Secretary of State may provide that in prescribed circumstances a supervisory authority is not an interested supervisory authority for the purposes of this section.

(8) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this section.

Commencement Information

I95 S. 48(6) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(k)

I96 S. 48(7)(8) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(t)

49 Supervisory authorities: notification of barring &c. in respect of vulnerable adults E+W

(1) This section applies if—

(a) a person is newly included in the adults' barred list,

(b) the Secretary of State becomes aware that a person is subject to a relevant adults' disqualification, or

(c) having been subject to monitoring in relation to regulated activity relating to vulnerable adults, a person ceases to be so subject by virtue of section 26.

(2) The Secretary of State must notify every interested supervisory authority of the circumstance mentioned in paragraph (a), (b) or (c) (as the case may be) of subsection (1).

(3) A supervisory authority is an interested supervisory authority only if—

(a) it has applied to the Secretary of State to be notified if any of the circumstances mentioned in subsection (1) occurs in relation to the person, and

(b) the application has not been withdrawn.

(4) A supervisory authority may apply to the Secretary of State under subsection (3)(a) only if the notification is required in connection with the exercise of a function of the supervisory authority mentioned in section 45(7).

(5) For the purposes of subsection (3)(b) an application is withdrawn if the supervisory authority notifies the Secretary of State that it no longer wishes to be notified if any of the circumstances mentioned in subsection (1) occurs in relation to the person.

(6) A person is subject to a relevant adults' disqualification if he is included in a list maintained under the law of Scotland or Northern Ireland which the Secretary of State specifies by order as corresponding to the adults' barred list.

(7) The Secretary of State may provide that in prescribed circumstances a supervisory authority is not an interested supervisory authority for the purposes of this section.

(8) The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this section.

Commencement Information

I97 S. 49(6) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(l)

I98 S. 49(7)(8) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 4(u)

50 Provision of information to supervisory authorities E+W

(1) This section applies if [F66 ISA] has information that it thinks is relevant to a supervisory authority.

(2) [F66 ISA] must provide the supervisory authority with the information.

(3) Information is relevant to a supervisory authority if—

(a) it relates to the protection of children or vulnerable adults in general, or of any child or vulnerable adult in particular, and

(b) is relevant to the exercise of any function of the authority,

but does not include information falling within paragraph 19(5) of Schedule 3 or information that any of the events mentioned in section 48(1)(a), (b) and (c) or 49(1)(a), (b) and (c) has occurred in relation to a person.

Textual Amendments

F66 Words in s. 50 substituted (12.11.2009) by Policing and Crime Act 2009 (c. 26), 81(2)(3)(m)(i), 116(5)(a)

Commencement Information

I99 S. 50 in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(j)

I100 S. 50 in force at 22.6.2009 for specified purposes by S.I. 2009/1503, art. 3

I101 S. 50 in force at 22.4.2010 for specified purposes by S.I. 2010/1101, art. 4

[F67 Provision of information to the police E+W+N.I.

Textual Amendments

F67 S. 50A and cross-heading inserted (30.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 88, 116(1); S.I. 2009/3096, art. 2(a)

50A Provision of information to the police E+W+N.I.

(1) ISA may provide any information it has to a chief officer of police for use for any of the following purposes—

(a) the prevention, detection and investigation of crime;

(b) the apprehension and prosecution of offenders.

(2) The power conferred by subsection (1) does not limit any other power of ISA to provide information for any purpose or to any person.]

[F68 (3) In subsection (1), “a chief officer of police” includes—

(a) the Chief Constable of the Police Service of Northern Ireland, and

(b) the chief constable of a police force in Scotland.]

Textual Amendments

F68 S. 50A(3) inserted (31.3.2010) by The Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Devolution and Miscellaneous Provisions) Order 2010 (S.I. 2010/1154), arts. 1(1), 12

Crown E+W

51 Crown application E+W

(1) Subject to the provisions of this section, this Act and any regulations or orders made under it bind the Crown.

(2) No contravention by the Crown of any provision of this Act or of any regulations or order made under it makes the Crown criminally liable.

(3) Despite subsection (2), this Act and any regulations or orders made under it apply to persons in Crown employment (within the meaning of the Employment Rights Act 1996 (c. 18)) as they apply to other persons.

(4) Subsection (2) of section 6 does not apply in relation to any activity carried out by the Crown.

(5) Each government department and other body performing functions on behalf of the Crown—

(a) if the department or body engages in regulated activity, is the regulated activity provider in relation to the activity;

(b) if the department or body engages in controlled activity, is the responsible person (within the meaning of section 23) in relation to the activity.

(6) In subsection (5) “body” includes office-holder.

(7) Nothing in this section is to be taken as in any way affecting Her Majesty in her private capacity (within the meaning of section 38(3) of the Crown Proceedings Act 1947 (c. 44)).

Commencement Information

I102 S. 51 in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(k)

I103 S. 51 in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

Miscellaneous E+W+N.I.

52 Referrals: findings of fact immaterial E+W

(1) For the purposes of the provisions mentioned in subsection (2), it is immaterial whether there is a finding of fact in any proceedings.

(2) The provisions are—

• section 35(3)(b) and (c);

• section 36(4)(b) and (c);

• section 39(2)(b) and (c) and (5)(a);

• section 41(2)(b) and (c) and (5)(a);

• section 45(2)(b) and (c) and (5)(a).

Commencement Information

I104 S. 52 in force at 12.10.2009 by S.I. 2009/2611, art. 2, Sch.

53 Fostering E+W

(1) Despite section 58, this Act applies to activity that is regulated activity by virtue of paragraph 1(5) of Schedule 4.

(2) Subsection (1) does not affect the operation of this Act in relation to any other activity that is carried out in connection with a foster child.

(3) Subsection (4) applies if a person (P)—

(a) makes arrangements for another person to foster a child as a private foster parent, and

(b) has power to terminate the arrangements.

(4) P is, if he would not otherwise be, a regulated activity provider in relation to fostering carried out by the foster parent in pursuance of the arrangements.

(5) The following provisions of this section apply for the purposes of this Act.

(6) A person fosters a child if he is a foster parent of the child.

(7) A person is a foster parent if—

F69 (a) he is a local authority foster parent within the meaning of section 23(3) of the Children Act 1989 (c. 41);

(b) he is a person with whom a child has been placed by a voluntary organisation under section 59(1)(a) of that Act;

(c) he is a private foster parent.

(8) A person is a private foster parent if he falls within subsection (9) and looks after a child—

(a) for reward, or

(b) in pursuance of an arrangement made by someone other than a member of the child's family.

(9) A person falls within this subsection if—

(a) he fosters the child privately within the meaning of section 66(1) of the Children Act 1989,

(b) he would be so fostering the child but for subsection (2) of that section (minimum period of 28 days), or

(c) (in the case of a child who has attained the age of 16) he would fall within paragraph (a) or (b) if the child were under the age of 16.

(10) A person's family includes—

(a) the person's foster child;

(b) the foster child of any member of the person's family;

and references to a family relationship and family member are to be construed accordingly.

Textual Amendments

F69 Words "of section 23(3)" in s. 53(7)(a) expressed to be repealed (1.4.2011 for E.) by Children and Young Persons Act 2008 (c. 23), s. 44(4), Sch. 1 para. 20, Sch. 4; S.I. 2010/2981, art. 4(a)(l)

Commencement Information

I105 S. 53 in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(l)

I106 S. 53 in force at 20.1.2009 in so far as not already in force by S.I. 2009/39, art. 2(1)(i)

54 Devolution: alignment E+W

(1) The Secretary of State may, by order, make such provision (including provision amending any enactment contained in or made under any Act, including this Act) as he thinks necessary or expedient in consequence of or having regard to any relevant Scottish legislation or relevant Northern Ireland legislation.

(2) An order may—

(a) include provision for treating a person to whom a monitoring provision applies as if he were subject to monitoring in relation to regulated activity;

(b) confer power to make subordinate legislation (within the meaning given by the Interpretation Act 1978 (c. 30)).

(3) Relevant Scottish legislation is any provision made by or under an Act of the Scottish Parliament which the Secretary of State thinks—

(a) corresponds to provision made by or under this Act,

(b) makes monitoring provision, or

(c) affects the operation of any provision made by or under this Act.

(4) Relevant Northern Ireland legislation is any provision of such legislation which the Secretary of State thinks—

(a) corresponds to provision made by or under this Act

(b) makes monitoring provision, or

(c) affects the operation of any provision made by or under this Act.

(5) Monitoring provision is provision for the collation and disclosure of information relating to persons who engage or wish to engage in activity which the Secretary of State thinks corresponds to regulated activity with children or vulnerable adults.

Commencement Information

I107 S. 54(1)(2) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(m)

I108 S. 54(1)(2) in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

I109 S. 54(3)-(5) in force at 12.10.2009 by S.I. 2009/2611, art. 2, Sch.

55 Northern Ireland E+W+N.I.

An Order in Council under paragraph 1(1) of the Schedule to the Northern Ireland Act 2000 (c. 1) (legislation for Northern Ireland during suspension of devolved government) which contains a statement that it is made only for purposes corresponding to those of this Act—

(a) is not subject to paragraph 2 of that Schedule (affirmative resolution of both Houses of Parliament), but

(b) is subject to annulment in pursuance of a resolution of either House of Parliament.

56 Devolution: Wales E+W

(1) In so far as a power to make subordinate legislation under any of the following provisions is exercisable only in relation to Wales, it is exercisable by the Welsh Ministers instead of by the Secretary of State—

(a) section 8(9) or (12);

(b) section 10(8) or (12);

(c) section 11(7);

(d) section 13(1), (4) or (5);

(e) section 20(4) or (7);

(f) section 23(1);

(g) section 30(8);

(h) paragraph 3(3) of Schedule 6.

(2) If the exercise of a power to make subordinate legislation under any of the following provisions will have effect in relation to any function of the Welsh Ministers to which the provision applies, or would apply in consequence of the exercise of the power, the Secretary of State must not exercise the power without the consent of the Welsh Ministers—

(a) section 45(1), (5) or (9);

(b) section 46(2);

(c) section 47(7);

(d) section 48(7) or (8);

(e) section 49(7) or (8).

(3) If the exercise of a power to make subordinate legislation under any of the following provisions will have effect in relation to Wales, the Secretary of State must not exercise the power unless he first consults the Welsh Ministers—

(a) section 5(3);

(b) section 16(1)(c) or (e);

(c) section 21(12);

(d) section 22(4)(g);

(e) section 26(1);

(f) section 31(6);

(g) section 35(1);

(h) section 36(1), (2) or (3);

(i) section 37(2);

(j) section 39(1) or (5);

(k) section 40(2);

(l) section 41(1), (5) or (8);

(m) section 42(2);

(n) section 59(1)(g) or (11);

(o) section 64(2);

(p) section 65;

(q) paragraph 1(1), 2(1), 7(1) or 8(1) of Schedule 3;

(r) paragraph 2(1)(f) or 7(1)(f) of Schedule 4;

(s) paragraph 14 of Schedule 5;

(t) paragraph 5 of Schedule 6.

(4) A power to make subordinate legislation is a power to make regulations or an order.

(5) In the application of section 61 to the exercise of a power by the Welsh Ministers by virtue of this section—

(a) the reference in subsection (2) of that section to either House of Parliament must be taken to be a reference to the National Assembly for Wales;

(b) the reference in subsection (3) of that section to each House of Parliament must be taken to be a reference to the Assembly.

Commencement Information

I110 S. 56 in force at 31.12.2007 by S.I. 2007/3545, art. 2(e)

General E+W+N.I.

57 Damages E+W

(1) No claim for damages lies in respect of any loss or damage suffered by any person in consequence of—

(a) the fact that an individual is included in a barred list;

(b) the fact that an individual is not included in a barred list;

(c) the provision of prescribed information in pursuance of any of sections 35, 36, 37, 39, 40, 41, 42, 45 and 46.

(2) Subsection (1)(c) does not apply to the provision of information which is untrue by a person who knows the information is untrue and either—

(a) he is the originator of the information and he knew at the time he originated the information that it was not true, or

(b) he causes another person to be the originator of the information knowing, at the time the information is originated, that it is untrue.

(3) Nothing in this Act affects section 8 of the Human Rights Act 1998 (c. 42) as it relates to the power of a court to award damages in respect of an unlawful act of a public authority (within the meaning of that Act).

Commencement Information

I111 S. 57 in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(m)

I112 S. 57 in force at 20.1.2009 in so far as not already in force by S.I. 2009/39, art. 2(1)(j)

58 Family and personal relationships E+W

(1) This Act does not apply to any activity which is carried out in the course of a family relationship.

(2) This Act does not apply to any activity which is carried out—

(a) in the course of a personal relationship, and

(b) for no commercial consideration.

(3) A family relationship includes a relationship between two persons who—

(a) live in the same household, and

(b) treat each other as though they were members of the same family.

(4) A personal relationship is a relationship between or among friends.

(5) A friend of a person (A) includes a person who is a friend of a member of A's family.

(6) The Secretary of State may by order provide that an activity carried out in specified circumstances either is or is not—

(a) carried out in the course of a family relationship;

(b) carried out in the course of a personal relationship.

Commencement Information

I113 S. 58 in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(n)

I114 S. 58 in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

I115 S. 58(6) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 5(n)

59 Vulnerable adults E+W+N.I.

(1) A person is a vulnerable adult if he has attained the age of 18 and—

(a) he is in residential accommodation,

(b) he is in sheltered housing,

(c) he receives domiciliary care,

(d) he receives any form of health care,

(e) he is detained in lawful custody,

(f) he is by virtue of an order of a court under supervision by a person exercising functions for the purposes of Part 1 of the Criminal Justice and Court Services Act 2000 (c. 43),

[F70 (fa) he is by virtue of an order of a court under supervision by a person acting for the purposes mentioned in section 1(1) of the Offender Management Act 2007 (c. 21) , ]

(g) he receives a welfare service of a prescribed description,

(h) he receives any service or participates in any activity provided specifically for persons who fall within subsection (9),

(i) payments are made to him (or to another on his behalf) in pursuance of arrangements under section 57 of the Health and Social Care Act 2001 (c. 15), F71 ...

[F72 (ia) payments are made to him (or to another on his behalf) under section 12A (1) , or under regulations under section 12A (4) , of the National Health Service Act 2006, or ]

(j) he requires assistance in the conduct of his own affairs.

(2) Residential accommodation is accommodation provided for a person—

(a) in connection with any care or nursing he requires, or

(b) who is or has been a pupil attending a residential special school.

(3) A residential special school is a school which provides residential accommodation for its pupils and which is—

(a) a special school within the meaning of section 337 of the Education Act 1996 (c. 56);

(b) an independent school (within the meaning of section 463 of that Act) which

[F73 (i) is in England and is specially organised to make special educational provision for pupils with special educational needs (within the meaning of section 312 of that Act), or

(ii) is in Wales and is approved by the Welsh Ministers under section 347 of that Act;]

(c) an independent school (within the meaning of section 463 of that Act) not falling within paragraph (a) or (b) which, with the consent of [F74 the Welsh Ministers] given under section 347(5)(b) of that Act, provides places for children with special educational needs (within the meaning of section 312 of that Act);

(d) an institution within the further education sector (within the meaning of section 91 of the Further and Higher Education Act 1992) which provides accommodation for children.

[F75 (e) a 16 to 19 Academy which provides accommodation for children.]

(4) Domiciliary care is care of any description or assistance falling within subsection (5) whether provided continuously or not which a person receives in a place where he is, for the time being, living.

(5) Assistance falls within this subsection if it is (to any extent) provided to a person by reason of—

(a) his age;

(b) his health;

(c) any disability he has.

(6) Health care includes treatment, therapy or palliative care of any description.

(7) A person is in lawful custody if he is—

(a) detained in a prison (within the meaning of the Prison Act 1952 (c. 52));

(b) detained in a remand centre, young offender institution or secure training centre (as mentioned in section 43 of that Act);

(c) detained in an attendance centre (within the meaning of section 53(1) of that Act);

(d) a detained person (within the meaning of Part 8 of the Immigration and Asylum Act 1999 (c. 33)) who is detained in a removal centre or short-term holding facility (within the meaning of that Part) or in pursuance of escort arrangements made under section 156 of that Act.

(8) The reference to a welfare service must be construed in accordance with section 16(5).

(9) A person falls within this subsection if—

(a) he has particular needs because of his age;

(b) he has any form of disability;

(c) he has a physical or mental problem of such description as is prescribed;

(d) she is an expectant or nursing mother in receipt of residential accommodation pursuant to arrangements made under section 21(1)(aa) of the National Assistance Act 1948 or care pursuant to paragraph 1 of Schedule 8 to the National Health Service Act 1977 (c. 49);

(e) he is a person of a prescribed description not falling within paragraphs (a) to (d).

(10) A person requires assistance in the conduct of his own affairs if—

(a) a lasting power of attorney is created in respect of him in accordance with section 9 of the Mental Capacity Act 2005 (c. 9) or an application is made under paragraph 4 of Schedule 1 to that Act for the registration of an instrument intended to create a lasting power of attorney in respect of him;

(b) an enduring power of attorney (within the meaning of Schedule 4 to that Act) in respect of him is registered in accordance with that Schedule or an application is made under that Schedule for the registration of an enduring power of attorney in respect of him;

(c) an order under section 16 of that Act has been made by the Court of Protection in relation to the making of decisions on his behalf, or such an order has been applied for;

(d) an independent mental capacity advocate is or is to be appointed in respect of him in pursuance of arrangements under section 35 of that Act;

(e) independent advocacy services (within the meaning of [F76 section 223A of the Local Government and Public Involvement in Health Act 2007] or section 187 of the National Health Service (Wales) Act 2006 (c. 42)) are or are to be provided in respect of him;

(f) a representative is or is to be appointed to receive payments on his behalf in pursuance of regulations made under the Social Security Administration Act 1992 (c. 5).

(11) The Secretary of State may by order provide that a person specified in the order or of a description so specified who falls within subsection (1) is not to be treated as a vulnerable adult.

Textual Amendments

F70 S. 59(1)(fa) inserted (1.4.2008) by The Offender Management Act 2007 (Consequential Amendments) Order 2008 (S.I. 2008/912), art. 1, Sch. 1 para. 21(2)

F71 Word in s. 59(1)(i) repealed (19.1.2010) by Health Act 2009 (c. 21), s. 40(1), Sch. 1 para. 15(2), Sch. 6; S.I. 2010/30, art. 2(b)

F72 S. 59(1)(ia) inserted (19.1.2010) by Health Act 2009 (c. 21), s. 40(1), Sch. 1 para. 15(3); S.I. 2010/30, art. 2(b)

F73 Words in s. 59(3)(b) substituted (1.9.2009) by Education and Skills Act 2008 (c. 25), ss. 147(8)(a), 173(4); S.I. 2009/1513, art. 3

F74 Words in s. 59(3)(c) substituted (1.9.2009) by Education and Skills Act 2008 (c. 25), ss. 147(8)(b), 173(4); S.I. 2009/1513, art. 3

F75 S. 59(3)(e) inserted (1.4.2012) by Education Act 2011 (c. 21), s. 82(3), Sch. 13 para. 17(3); S.I. 2012/924, art. 2

F76 Words in s. 59(10)(e) substituted (27.3.2012 for specified purposes) by Health and Social Care Act 2012 (c. 7), ss. 185(4), 306(1)(d)(4)

Commencement Information

I116 S. 59 in force at 11.2.2008 for specified purposes for E.W. by S.I. 2007/3545, art. 4(o)

I117 S. 59 in force at 31.3.2008 for specified purposes for N.I. by S.I. 2008/930, art. 2(b)

I118 S. 59 in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

60 Interpretation E+W+N.I.

(1) In this Act—

• “the adults' barred list” must be construed in accordance with section 2(1)(b);

• “barred list” means the children's barred list or the adults' barred list;

• “child” means a person who has not attained the age of 18;

• “the children's barred list” must be construed in accordance with section 2(1)(a);

• “educational institution” includes any training provider (within the meaning of Part 3 of the Education Act 2005 (c. 18)), whether or not the training provider would otherwise be regarded as an institution;

• “employment agency” and “employment business” must be construed in accordance with the Employment Agencies Act 1973 (c. 35);

• “personnel supplier” means—

  (a)

  a person carrying on an employment agency or an employment business, or

  (b)

  an educational institution which supplies to another person a student who is following a course at the institution, for the purpose of enabling the student to obtain experience of engaging in regulated or controlled activity;

• “prescribed” means prescribed by regulations made by the Secretary of State;

• “supervisory authority” must be construed in accordance with section 45(7);

• “vulnerable adult” must be construed in accordance with section 59.

(2) A reference (however expressed) to a person being barred must be construed in accordance with section 3.

(3) A reference to a person being subject to monitoring in relation to a regulated activity must be construed in accordance with section 24.

(4) Nothing in this Act affects any power to provide information that exists apart from this Act.

Commencement Information

I119 S. 60 in force at 31.3.2008 for specified purposes for N.I. by S.I. 2008/930, art. 2(b)

I120 S. 60 in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

I121 S. 60(1) in force at 31.12.2007 for specified purposes for E.W. by S.I. 2007/3545, art. 2(f)

I122 S. 60(1)(4) in force at 11.2.2008 for specified purposes for E.W. by S.I. 2007/3545, art. 4(p)

61 Orders and regulations E+W+N.I.

(1) Any power under this Act to make orders or regulations is exercisable by statutory instrument.

(2) Subject to subsections (3) and (4), orders or regulations under this Act are subject to annulment in pursuance of a resolution of either House of Parliament.

(3) An instrument containing provision made—

(a) by order under section 5(3),

(b) by order under section 16(7)(b),

(c) by order under section 21(12),

(d) in regulations under section 22(4)(g),

(e) in regulations under section 23,

(f) by order under section 54(1) if it contains provision amending any Act or confers power to make subordinate legislation,

(g) under section 64(3),

(h) in regulations prescribing criteria for the purpose of paragraph 1, 2, 7 or 8 of Schedule 3,

(i) by order under paragraph 6 or 12 of Schedule 3, or

(j) by order under paragraph 14 of Schedule 5.

must not be made unless a draft of the instrument is laid before and approved by a resolution of each House of Parliament.

(4) Subsection (2) does not apply to an order made under section 65, including such an order which contains provision made under section 64 (except subsection (3) of that section).

(5) A power to make an order or regulations may be exercised so as to make different provision for different purposes.

Commencement Information

I123 S. 61 in force at 31.12.2007 by S.I. 2007/3545, art. 2(g)

I124 S. 61 in force at 31.3.2008 for specified purposes for N.I. by S.I. 2008/930, art. 2(b)

I125 S. 61 in force at 12.10.2009 in so far as not already in force by S.I. 2009/2611, art. 2, Sch.

62 Transitional provision E+W

Schedule 8 has effect.

Commencement Information

I126 S. 62 in force at 31.12.2007 for specified purposes by S.I. 2007/3545, art. 2(h)

I127 S. 62 in force at 11.2.2008 for specified purposes by S.I. 2007/3545, art. 4(q)

63 Amendments and repeals E+W

(1) Schedule 9 contains amendments.

(2) Schedule 10 contains repeals.

Modifications etc. (not altering text)

C7 S. 63 extended (Guernsey) (with modifications) (10.12.2009) by Police Act 1997 (Criminal Records) (Guernsey) Order 2009 (S.I. 2009/3215), art. 4, Sch. 2, Sch. 3 (with arts. 6-8)

C8 S. 63 extended (Jersey) (with modifications) (18.3.2010) by The Police Act 1997 (Criminal Records) (Jersey) Order 2010 (S.I. 2010/765), arts. 1(2), 4, Sch. 2, Sch. 3 (with arts. 6-8)

C9 S. 63 extended (Isle of Man) (with modifications) (18.3.2010) by The Police Act 1997 (Criminal Records) (Isle of Man) Order 2010 (S.I. 2010/764), arts. 1(2), 4, Sch. 2, Sch. 3 (with arts. 6-8)

Commencement Information

I128 S. 63 in force at 12.10.2009 for specified purposes by S.I. 2009/2610, art. 2(c) (with arts. 4-23)

I129 S. 63 in force at 12.10.2009 for specified purposes by S.I. 2009/2611, art. 2, Sch.

I130 S. 63(1) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 2(d)

I131 S. 63(1) in force at 19.5.2008 for specified purposes by S.I. 2008/1320, art. 3

I132 S. 63(1) in force at 17.12.2008 for specified purposes by S.I. 2008/3204, art. 2(a)

I133 S. 63(1) in force at 20.1.2009 for specified purposes by S.I. 2009/39, art. 2(1)(l)

I134 S. 63(1) in force at 22.6.2009 for specified purposes by S.I. 2009/1503, art. 2(b)

I135 S. 63(2) in force at 30.3.2010 for specified purposes by S.I. 2010/1101, art. 5

64 Supplementary, incidental, consequential &c. provision E+W

(1) Power to make subordinate legislation under this Act includes power to make—

(a) such supplementary, incidental or consequential provision, or

(b) such transitory, transitional or saving provision,

as the person making the subordinate legislation thinks necessary or expedient.

(2) The Secretary of State may by order may make such further provision as he considers appropriate—

(a) for the general purposes, or any particular purpose, of this Act;

(b) in consequence of any provision made by this Act;

(c) for giving full effect to this Act or any provision made by it.

(3) Subordinate legislation under subsection (1) or (2) may amend, repeal, revoke or otherwise modify any enactment (including this Act).

(4) References in this section to subordinate legislation are to an order or regulations under this Act.

(5) Nothing in this Act affects the generality of the power conferred by this section.

Commencement Information

I136 S. 64 in force at 31.12.2007 by S.I. 2007/3545, art. 2(i)

65 Commencement E+W+N.I.

This Act (except this section and section 55) comes into force on such day as the Secretary of State appoints by order.

66 Extent E+W+N.I.

(1) Subject to subsections (2) to (4), the preceding provisions of this Act extend only to England and Wales.

(2) Sections 1, 28, 29 and 55 and Schedule 1 and, so far as relating to those provisions, sections 59 to 61 and 65 also extend to Northern Ireland.

(3) The amendment of an enactment in Schedule 9 has the same extent as the enactment amended, but the amendments made by paragraph 14 of that Schedule do not extend to Scotland.

(4) Her Majesty may by Order in Council direct that this Act extends, with such modifications as appear to Her Majesty to be appropriate, to any of the Channel Islands or the Isle of Man.

Commencement Information

I137 S. 66 in force at 31.12.2007 by S.I. 2007/3545, art. 2(l)

67 Short title E+W+N.I.

This Act may be cited as the Safeguarding Vulnerable Groups Act 2006.

Commencement Information

I138 S. 67 in force at 31.12.2007 by S.I. 2007/3545, art. 2(m)