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Chapter 3: Vetting and Barring Disclosure

3.1 One list or two?

The Scottish Executive is proposing that there will be a Disqualified from Working with Vulnerable Adults List ( DWVAL) that will operate in a similar way to the Disqualified from Working with Children List. The consultation document asked for views on this.

The issue of whether there should be one list or two was raised by consultees at various points in their response to the consultation paper and was also noted by other respondents during the course of information events, focus groups or interviews.

Of those responding specifically to proposal 7, 27 consultees felt that there was no need for 2 separate lists and that a combined list would suffice, or that inclusion in one of the lists should imply automatic inclusion in the other. This view emerged elsewhere in the consultation with a further 9 consultees (commenting on proposal 9 specifically - changes to the DWCL) noted that there was no need for 2 separate lists and that a combined list would suffice, or that inclusion in one of the lists should imply automatic inclusion in the other.

Eighteen consultees commenting specifically at proposal 7 felt there was a need to check applicants against both lists, or that inclusion on either list should preclude working with any vulnerable group. In the words of a consultee working within the social work sector,

"We would feel there must be similar issues in being placed in DWVAL/ DWCL and find it difficult to understand how someone on one of these lists could be considered suitable to work with any vulnerable group."

Five consultees intimated that such checks should be carried out with one application only and 3 felt the lists needed to be strongly linked in order to operate properly. Conversely, 2 consultees thought that 2 lists would be better than a combined list in some circumstances; 1 because it would be comparable to the system in England and Wales to allow for cross-border checks, and the other because separate lists fit better with human rights.

While most comments regarding the issue of one or two lists were made in relation to proposal 7, this issue was also noted by consultees commenting at other points in the consultation paper. For example, 7 consultees commenting on proposals 11-13 (which asked about the status and governance arrangements for the Central Barring Unit) stated that they would prefer one list rather than the two proposed and 1 felt that the separate lists must have separate criteria. A further 7 consultees commenting on Q2 (which asked for comments on the recommendations) felt there was no need for two lists and that one list of barred individuals would be preferable. Eight consultees responding to question 6 (which asked for any other comments) queried the need for two separate lists. They felt that combining both the DWVAL and the DWCL would increase the reliability of the system and also lead to savings in time and administration costs. Seven consultees commenting on proposals 1-3 (scope of new vetting and barring disclosure) questioned the need for two separate lists. Of those commenting on proposal 23 (cross-referencing with offender registers and other lists), 11 consultees again stated that one list would be their preferred option.

Views on having one or two lists were mixed among those attending information events, focus groups and in-depth interviews and many respondents found it difficult to provide possible examples as to why an individual might be barred from one list but not from another. One respondent did note though that automatic disclosure of inclusion on both lists would mean a lack of employment opportunities across a wide range of different jobs and might mean that some individuals become relatively unemployable. Most respondents attending qualitative discussions noted that if there are 2 lists introduced, when requesting disclosure on any employee, they would expect to be notified if that individual were on the other barred list.

There were also some concerns that automatic inclusion on both lists would open up opportunities for individuals to sue in respect of human rights or UK employment law. A few respondents commented that the new scheme must take account of human rights and UK and EU employment legislation.

3.2 Costs of disclosure

Not surprisingly, the issue of costs of disclosure was commented on by significant numbers of those participating across all elements of this consultation exercise. This section of the report examines a number of issues raised by respondents in relation to costs.

3.2.1 Costs of obtaining disclosure under the Current System

The fee for disclosure is currently £20, having risen from £13.60 in April 2006, although the cost of disclosures for unpaid posts within the voluntary sector in Scotland are covered by Scottish Ministers. Under the present system, 32 consultees viewed disclosure costs as a burden, both in terms of money and time, although 38 considered that the current cost of disclosure in Scotland was acceptable. Some individuals attending groups and interviews were aware that the equivalent cost of obtaining disclosure in England and Wales is at a higher level and some noted that an increase in fee in Scotland to the level of that currently charged in England and Wales would be significantly more expensive for individuals.

There were some consultees who noted that the current system is too bureaucratic and costly, and this issue was highlighted by 32 consultees providing comment to question 1 of the consultation paper specifically.

"The current system for getting disclosures is too bureaucratic and costly. There is no simple way for small independent bodies that are caught up in the legislation to register and secure a disclosure without filling in endless complex forms; the overall cost of the system is running into millions of pounds - money that would be better spent on frontline services."
(Education)

Similarly, reference to the current costs was also made by those participating in groups and interviews. Many were unhappy about what was perceived to be a significant increase in costs to the individual in April of this year, and one or two specifically noted that an increase of almost 50% this year was too high.

3.2.2 Costs of Disclosure under the New System

At question 6 (general comments on the proposed new scheme), the issue of costs associated with the new scheme was the most frequently mentioned concern with 18 consultees commenting on a possible financial burden and the need for funding. Of those commenting at question 4 (interests of employers), 43 consultees referred to costs associated with the new system, and 13 mentioned the effect on the voluntary sector specifically.

In considering likely cost levels specifically, it was acknowledged that the cost of implementing the new system was not known, although there were concerns that the cost of implementing the proposals as laid out could be significant. While there were some acknowledgments that removing the need for multiple disclosures could reduce long term costs, it was felt that the cost of the initial disclosure could increase significantly, particularly if the new system is to be self funding. While many individuals attending information events, groups and interviews accepted that the cost of implementing and managing the new scheme would need to be covered by charges levied on users, many found it difficult to second guess a likely level of charge that would need to be imposed if the Scottish Executive introduce the system as outlined in the consultation document.

Eight consultees at Proposal 4 (cost of vetting and barring disclosure) asked that costs be kept at an "acceptable", "balanced" or "reasonable" level (although they did not provide indications of what constituted an acceptable, balanced or reasonable level); "Costs need to be calculated carefully which would maintain a balance between enabling the efficient and effective provision of the service without being a burden on smaller organisations." (Social work)

In response to question 5 (interests of applicants), the need for extra resources was mentioned by 5 consultees; either to help implement the system or to offset some or all costs to applicants.

A number of key themes emerged in relation to the costs of the new system and these are commented on in the following paragraphs.

i Costs of the New System

Of those who were able to specify what might be an acceptable cost, there were preferences for something in line with the current level of £20. Some respondents were concerned that the cost of disclosure could increase to over £50 and for most this level was too high.

In response to Proposal 4 specifically, 71 consultees suggested a range of fees; including 38 who favoured no increase on the current charge of £20; 2 consultees suggested amounts of less than £10, and 13 felt amounts between £10 and £20 would be appropriate. Thirteen consultees suggested prices from between £20 and £35 and 5 consultees suggested fees of £50 or over (see chart 3.1).

Chart 3.1 Preferences for cost of new system

(Base : all suggesting cost level at Proposal 4)

ii Disclosures for Voluntary Organisations

Disclosures for unpaid posts within the voluntary sector in Scotland are currently covered by Scottish Ministers and proposal 5 stated the intention to continue to provide this. There was widespread agreement across all audiences for volunteers working in voluntary organisations with children or adults at risk to receive a disclosure at no cost to themselves.

Fifty five consultees responding to the question relating to proposal 5 (free vetting and barring disclosure for volunteers), voiced broad support for the proposal overall, while 97 chose to comment on the need to ensure the system remains free for volunteers. Eleven commented specifically that this should include a free service to voluntary organisations as well as the applicants themselves. Nine consultees wanted to see a system of full cost recovery in place.

As the following quotation from a Local Authority shows, there were also requests from 16 consultees for those working in a voluntary capacity outwith voluntary organisations to also be offered free disclosure checks.

"Proposed substantial higher cost for a Vetting and Barring check may prohibit organisations' ability to deliver services. Keen to see an extension of free checks for individuals who act in a volunteering capacity outwith a voluntary organisation. There are many parent helpers who assist with school activities which are non paid and these valuable activities could be curtailed or ceased completely due to additional costs."

Consultees responding to the question on Proposal 5 specifically were also supportive of extending the range of individuals available to access free disclosure, regardless of the sector or organisation they work for. This was raised by 16 consultees, while a further 9 also referred to the need to provide free checks for the paid staff of voluntary organisations. Seven consultees mentioned the need for a reduced rate for paid staff in voluntary organisations.

iii Impact on Recruitment

In response to Proposal 5 specifically, 17 consultees remarked that costs can act as a disincentive in a sector where recruitment is already a challenge and 3 noted that the checks should be free for all applicants. One consultee noted,

"The new scheme could well be a barrier to volunteering, which in turn may adversely affect the opportunities for children and vulnerable adults to participate in the type of activities listed. Voluntary organisations provide via their staff- who largely work on a voluntary basis - a layer of "trusted" people in whom children and adults at risk can confide if they are being abused. The new scheme could prove counter-productive to the aim of securing the safety of children and vulnerable adults if it results in the removing or reduction of such staff. It will, therefore, be vital for confidence in the system to be built up so that potential volunteers are not deterred from entering the system."
(Voluntary)

Seventeen consultees commenting at question 5 (interests of applicants) were concerned that financial issues may act as a deterrent to applicants, although 4 consultees felt that this could be mitigated by setting fees at a level appropriate to the applicants' ability to pay.

This was also of concern to some respondents attending qualitative discussions and particularly for those working within the social work and health sectors. Many individuals employed within these sectors are on minimum / low wage and / or work part-time. It was noted that any additional burden of costs could impact on the willingness of potential staff to apply for jobs requiring disclosure. That said, another employer within the care sector noted that they had not had a problem with losing potential staff because of the costs of disclosure and that some potential employees have an expectation that they will have to pay for a disclosure certificate. Once again, the withdrawal of a need for multiple disclosures was seen to help counteract this issue longer term.

iv Indirect Costs of Disclosure

The issue of indirect costs in relation to the administration and time taken to manage the disclosure process was raised by a number of those responding to the consultation paper. For example, 14 consultees commenting on Proposal 5 specifically, noted the burden placed by associated administrative costs.

It is also important to note that some individuals attending groups, interviews and information events, further noted the indirect costs that would be introduced alongside the new system. Even among those organisations working in the voluntary sector that do not have to pay for disclosure, there were concerns about the increased cost of training (on how the scheme would operate and how information would be interpreted) and administration in order to ensure the new scheme could work effectively and efficiently.

Thirty-five consultees responding to question 3 (interests of vulnerable groups) felt that the system might operate as a deterrent, barrier or disincentive to workers or volunteers who might apply for a post. The need to avoid this outcome was highlighted by Peter Peacock, Minister for Education and Young People in his statement introducing the consultation "It is vital that, in securing protection as our first priority, we also create a climate in which people who can contribute so much and so significantly to enhancing the quality of life of children and adults at risk are not discouraged from doing so." ² However, 40 consultees, of whom over a quarter were from the voluntary sector, felt the new system might lead to recruitment problems or to a reduction in volunteers. This was echoed by some respondents attending information events, focus groups and in-depth interviews and there were some concerns that some clubs or activities within the leisure sector might end as a result of changes to the disclosure system.

v Additional Financial Burdens

In response to Proposal 5 specifically, 35 consultees stated that any cost increase would be a financial burden on small or voluntary organisations, and 11 commented that extra disclosure costs would mean a reduction in the money available to spend on providing a service. Nineteen consultees mentioned the impact of the recent increase in cost of disclosure and 4 noted that higher costs might lead to a lower rate of compliance or inhibit recruitment for those working with children or adults at risk.

vi Burden on Resources / Resource Implications

Eight consultees responding to question 2 (comments on the Bichard recommendations) voiced concern over any increase in costs associated with the new system and a number of qualitative respondents were concerned about the potential increases that would be needed in order to implement the system as outlined. For example, one consultee from the Early Years sector felt that "The Executive must make finances available to provide ongoing training to voluntary organisations or run the risk of an adverse affect on voluntary sector activity, capacity and ability to comply."

Eleven consultees at question 4 (interests of employers) required extra funding to alleviate any additional financial burden caused by the new system and 3 specifically referred to a need to cap fee levels.

vii Responsibility to Pay

The issue of costs was clearly important to audiences participating in all elements of the consultation exercise with some respondents querying who should have responsibility to cover the costs of the new system. One or two respondents attending focus groups suggested that the Scottish Executive should underwrite the cost of the new scheme and then recoup their initial expenditure at a later date. One consultee from the voluntary sector commented "We believe that it should be fully funded by new money from the Executive and not by the threat of money coming out of other funds."

Six consultees commenting on Proposal 4 specifically felt that the cost of disclosure should be borne by the applicant, with 2 proposing that the disclosure fee be treated in a similar way to professional registrations. Some respondents attending groups felt this was acceptable to those qualifying to work within a profession and who had reasonable expectations for future salary levels, but that it would be unfair to expect employees on minimum or low wages to have to cover the costs of their own disclosure.

Conversely, 3 consultees stated that the employer should be responsible for meeting the cost of disclosures. One manager in a nursery participating in a qualitative discussion noted that her employer currently pays for disclosure checks for all staff. However, it was her view that her employer might not be prepared to pay above a maximum of £30.

The problems faced by those on low wages were also raised by 11 consultees in relation to Proposal 4, who felt there should be some kind of sliding scale related to ability to pay, and one or two of those participating in focus groups made a suggestion for some form of means testing for employees to determine their ability to pay for disclosure. It was however also acknowledged by some respondents that "means testing" would serve to make the process more complicated to administer and have the potential to cause delays in the timescales for disclosure. Means testing for employer organisations was also suggested by 26 consultees at Proposal 5 who felt that some sort of scale based on the type of organisation, staff turnover or number of employees would be merited.

The need for some kind of monetary assistance was mentioned by 30 consultees in relation to Proposal 5, who suggested that whole or part funding should be made available, perhaps after an impact assessment. Two consultees felt money should be ring-fenced to pay for disclosure checks in the public sector and another 2 consultees suggested that a one-off fee per organisation could be introduced.

viii Extending Coverage of the Workforce

While there was broad support for the concept of extended coverage of the workforce needing disclosure, 3 consultees providing comment in relation to Proposal 9 (changes to the DWCL) specifically were concerned that voluntary organisations would incur cost or resource problems as a result of extending the scope of childcare positions needing disclosure.

This was also cited as an issue by some respondents attending information events, groups and interviews, who noted that the costs of checking a wider range of staff had the potential for a significant impact on many organisations. For example, including those in administrative posts who have not previously required disclosure checks and others with indirect contact with children and adults at risk.

Commenting on Proposal 4 (costs of vetting and barring disclosure) specifically, the issue of students, either on placement or entering the workplace for the first time, was raised by eight consultees who felt they should receive a free disclosure.

ix Other Costing Issues

We have already noted that cost is an issue concerning many who participated in this consultation exercise and a number of other issues in relation to increased costs were raised. These included:

• Costs associated with the IT systems that will be needed to ensure the new system operates effectively;
• Costs in relation to information sharing across a wide range of bodies and the allied need for ICT systems capable of cross-referencing huge amounts of information;
• Costs to organisations of implementing and administering the system were raised by 18 consultees commenting on Proposals 1-3 (scope of new vetting and barring disclosure), with a further 7 voicing concern that workloads would increase;
• Commenting on Proposals 11-13 (Central Barring Unit), 8 consultees were not convinced of the need for a new agency and reasons for this were based mainly on cost.

Conversely, 3 consultees commenting on question 4 noted the potential for cost savings because there would no longer be the need for multiple disclosures. One consultee from the justice sector commented "The cost will also be of concern, although if the 'life' of the Certificate is elongated this cost could be recouped over time."

There were also a small number of comments that cost of disclosure cannot be considered in isolation but that consideration also has to be given to the cost of other checks that have to be made by employers or employees. As the following quotation notes, many professional organisations will also have costs associated with registration checks.

"This is impossible to answer at this stage in the process. However, costs are important to small voluntary-run groups. It is not the cost of the check in isolation that needs to be considered but the potential full costs involved. For example, a playworker would require to be registered with the SSSC. At present this involves a fee and a fee for a Disclosure Check. If the Vetting and Barring Check can be brought into this process then costs may actually reduce but if not, there will also be a fee incurred at the point of re-registering with the Scottish Social Services Council ( SSSC) which will also need to be taken into consideration. Playworkers are not financially well-rewarded and increased costs could act as a barrier to employment.
(Voluntary)

3.2.3 Subsequent Disclosures

Proposal 4 states the intention to give Scottish Ministers powers to set charges for Vetting and Barring Disclosures and states that additional costs of conducting the disclosures will be met through the application fee. It is intended that subsequent checks will be free or cost less than the initial disclosure and that a fee would be charged for subsequent disclosures.

Twenty-five consultees felt that they did not have enough information to make judgements on fee levels at this stage and the need to keep any increase in cost at a nominal or minimum level was voiced by 27 consultees commenting on Proposal 4 specifically.

Commenting on the cost of the initial disclosures at Proposal 4, 22 consultees felt an initial higher fee would be acceptable if this meant subsequent disclosures were charged at a lower rate. In total, 36 consultees commented on the need for subsequent disclosures to be cheaper. Twenty-seven consultees also noted that they would accept a higher initial rate if the subsequent disclosures were free. Overall, 36 consultees were in favour of subsequent disclosures being free.

A small number of respondents participating in the information events, focus groups and in-depth interviews noted that the proposed higher levy on initial disclosure could be unfair on employers as many assumed that employers would be covering the cost of disclosure certificates. Respondents also found it difficult to suggest a specific fee to be levied for subsequent checks.

Four consultees commenting on Proposal 4 felt that a higher initial charge would be a disadvantage for the initial employer paying for disclosure and that there should be a standard charge for all types and levels of disclosure. Again, a small number of respondents attending focus groups agreed with this view. There were some suggestions for some form of economic cost analysis to be carried out in order to provide a guide to likely costs of disclosures under the new system.

The possibility of misuse of the system was raised by 7 consultees, 4 of whom suggested that applicants might apply as volunteers to obtain initial disclosure and then take up paid positions after completing the disclosure process.

"However if there is a cost differential between Disclosure Scotland and the Criminal Records Bureau ( CRB) (as there is at present), Registered Bodies in England and Wales may choose to register with Disclosure Scotland (if cheaper) and there may be no legislation to prevent this. This situation would cause an effect in Disclosure Scotland with volumes and the structured phased approach. It would also make it very difficult to project volumes for business resourcing."
(Justice)

One or two respondents attending focus groups also noted that some employers - to save on costs associated with disclosure - might delay offering work to potential employees until they had been vetted by another employer, although most noted that this would be detrimental to an employer needing staff in the short term.

3.2.4 The Cost of Retrospective Checking

Seventeen consultees commenting on Proposal 6 noted the financial or administrative impact that would be felt by voluntary organisations faced with the need to retrospectively vet their workers while 36 felt there would be resourcing issues to be faced.

"There are financial implications for organisations such as ourselves who'll be under more pressure to process more checks and support organisations in other ways such as training, general advice and support. We have already taken a 25% cut from Scottish Executive funding, limiting the capacity of our Disclosure Unit to support those small clubs and groups who need us most. Adequate funding would allow this proposal to be introduced over a shorter period of time than the 3 - 5 years suggested. The protection of children must be paramount over the relatively small economic factors involved."
(Other)

Many respondents attending information events and focus groups noted the need for employers to prioritise groups of employees needing to be disclosed in order to spread additional cost and administrative burden over a time period. In general, there was agreement that a period of between 3-5 years in which to carry out retrospective checking would be acceptable.

3.2.5 Perceived Impact of Increased Costs

A number of additional comments were made in relation to the likely impact of introduction of the new disclosure system and these included:

• Potential staff could be lost if the cost of obtaining disclosure is too high;
• There could be additional costs levied on a number of organisations such as regulatory bodies to enable information sharing to be brought about;
• The cost of running two separate lists would make the scheme more expensive;
• Some volunteers who have not previously needed to be disclosed might give up volunteering if they are required to be disclosed.

3.2.6 Expectations of the New System in relation to Costs

While there was broad support for the new system as outlined in the consultation document, there was an expectation on the part of some respondents that an increase in costs would also mean a speedy or speedier processing time.

At Proposal 4 specifically, 10 consultees expressed the opinion that they would expect any subsequent checks to be full disclosures. A further 5 consultees indicated that they would expect an increase in efficiency or accuracy in return for an increase in cost.

Certainly, a number of individuals attending group discussions noted that they would expect a fast turnaround on disclosure checks if costs were to increase significantly, although some doubted that this would actually happen, particularly for a while after introduction. A suggestion for an online system of conducting disclosure checks was mooted by a small number of respondents as offering potential to keep costs down.

3.3 Lifetime of disclosure

The consultation document asked whether the vetting and barring disclosure certificate should have a finite lifetime, after which a new application for full disclosure needs to be made?

Of the 165 consultees commenting on proposal 26, 95 agreed that the certificate should have a finite lifetime. A further 10 agreed but felt that this would depend on how robust the system was or how efficiently the checking and updating system worked. Six consultees felt that there should be a monitoring period to evaluate the system.

Twenty-one consultees disagreed with the proposal and 30 voiced the opinion that they were unsure why this would be necessary under the new system.

"Why bother with a 10-year lifetime when it will be updated automatically anyway? Who is then to initiate this check, the individual or the organisation employing them? Is there really any need for re-checking?"
(Sport and leisure)

Twenty-six consultees felt the proposed 10 year lifetime was too long and some of these consultees suggested alternative lifetimes. Eleven suggested that 5 years would be more appropriate; 2 suggested 3-5 years and 3 suggested a lifetime of 3 years.

Provided updated information will be available throughout the lifetime of a disclosure, the length of the disclosure took on a more secondary importance. One respondent also queried who would be responsible for notification that a new disclosure is required.

Other issues raised by smaller numbers of consultees included 3 who queried whether a new full disclosure would be needed if someone changed their employer and 2 felt that this would be the case. The cost or resource implications of this aspect of the system were raised by 10 consultees.

Three consultees asked whether the disclosure provided at the 10 year update would be the full, more expensive form of disclosure or the less expensive or free subsequent check disclosure.

Some regulatory bodies currently request updates at more frequent intervals, an example being the Scottish Social Services Council who require rechecking after 3 years. Four consultees felt there should be agreement between all relevant bodies over the timeframe to be used.

Three consultees asked how changes in employment would be documented; they were concerned that should relevant information come to light concerning an individual then there should be some way of tracking who was employing them.

In summary,

Views on whether there should be one or two lists were split. Some consultees and respondents felt that anyone barred from working with children should automatically be barred from working with adults at risk and vice versa.

Regardless of whether there are one or two lists, there was a preference for cross-referencing between the two in any disclosure check.

There were also some concerns over unnecessary duplication of effort, increased bureaucracy and additional costs if two lists are maintained.

There were some concerns over the likely costs of disclosure under the new scheme and many individuals were unable to suggest likely cost levels. Some simply made reference to the need for costs to be reasonable, without actually defining what this meant. There were assumptions from some that a higher disclosure cost would mean an increase in efficiency of the service.

There was wide ranging agreement for the continuation of free disclosure checks for volunteers in voluntary sector organisations, although some respondents also noted that there would be an increase in indirect costs to all organisations.

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