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Pre-Consultation Consideration of Retrospective Checking

Introduction

19. From the date of commencement of the new Act, anyone seeking work in the children's or protected adults' workforce will be required to join the vetting and barring scheme in order to obtain a disclosure. So anyone either joining the workforce for the first time or moving posts within the workforce will naturally become a scheme member. Retrospective checking is the phrase used to describe the phasing in of members of the existing workforce who are not brought into the scheme through natural turnover.

20. Section 100 makes provision for the commencement of the Bill. Section 34(1)(b) makes it an offence to fail to remove a barred individual from regulated work. The way in which this provision is commenced will determine how existing employees and volunteers are brought into the scheme. If it is never commenced then retrospective checking will not be formally initiated. Some organisations may nevertheless opt to bring existing employees into the new vetting and barring scheme but they will not be required to do so. Alternatively, section 34(1)(b) may be commenced in a phased way.

21. The consultation carried out between February and May 2006, Protecting Vulnerable Groups: Scottish Vetting and Barring Scheme, made it clear that registration of the existing workforce onto the vetting and barring scheme would not be an immediate requirement when the new scheme first becomes operational. Instead, the intention was that Scottish Ministers would have the power to set a time by which the entire relevant workforce should be scheme members.

22. The initial consultation suggested that the existing workforce may be phased into the scheme by occupation or sector and further suggested that this take place between 3 and 5 years from the new scheme becoming operational. Most consultees agreed with the proposal, although a limited number felt it was an unnecessary given that many staff had already completed the current disclosure system, in some cases very recently. There were also some concerns expressed, primarily by the voluntary sector, over the additional cost to employers in terms of an administrative burden as staff are brought onto the scheme. Some parts of the voluntary sector were also concerned that volunteers who had not previously been disclosed, might give up volunteering as they found the possibility of a disclosure check off-putting. Additionally, there were some concerns over the capacity of the new scheme to be able to deal with the immediate and potentially large numbers of individuals needing to become scheme members. These concerns were echoed during the stage 1 consideration of the Bill.

23. The modelling underpinning the Bill's Financial Memorandum was based upon a phasing-in period of 3 years and that has led to an erroneous belief that retrospective checking will be undertaken over the initial 3 year period. It is important to be clear that no decision has been taken yet on retrospective checking and that, as with all other aspects of implementation, there will be full and comprehensive consultation with the full spectrum of stakeholders and delivery partners prior to decisions being reached. The Scottish Executive has no interest in poor implementation which will dent the confidence of organisations, employers and the public in the reliability and efficiency of the new vetting and barring scheme and deny the benefits which will flow from the more streamlined, robust arrangements.

24. The two substantive issues at the core of consideration of retrospective checking are:

• whether to have retrospective checking or whether to rely on natural turnover of staff to bring people into the new vetting and barring scheme; and
• if there is to be retrospective checking, then how should this be managed and prioritised and over what period should the process be managed.

Whether Retrospective Checking?

25. The case for retrospective checking turns on the extent to which organisations/society are prepared to carry the risk that there will be people in the workforce who have never been checked and people on whom continuous updating of information does not take place. In the absence of retrospective checking, there would be three broad categories of people undertaking regulated work:

• Scheme members who had joined the workforce or changed post or taken on an additional regulated work role following commencement of the Act. On joining the scheme, any information would be assembled and an assessment made as to whether the person should be barred. For the very small minority who would be barred, they would be denied scheme membership and access to children and protected adults through regulated work. For the vast majority of individuals, they would be admitted to the scheme, and their information kept continuously updated. Where new information came to light suggesting behaviour which may render them unsuitable, the individual and organisations associated with that individual would be notified that they were under consideration for listing and an assessment process would begin in which the individual would be fully involved.
• Employees and volunteers who, at some point prior to the commencement of the Act, have undergone an enhanced disclosure check. Conviction information and any non-conviction information deemed by the Chief Constable relevant to the post applied for will have been included on the disclosure certificate which both the individual and the organisation will have seen. Organisations will therefore have been able to determine whether there were convictions of sufficient seriousness, multitude and/or recency to indicate the person was unsuitable for working with children and/or protected adults. Notwithstanding the pressure on organisations to make such judgements, the older the disclosure certificate, the less reliance can be placed on it since the probability of new information increases with time. The safeguard and increased protection which comes from continuous updating and reviewing of new information for relevance to unsuitability cannot be associated with this category of people.
• Employees and volunteers who have not received any form of disclosure check. Since retrospective checking was not commenced under the Protection of Children (Scotland) Act 2003, there are a significant minority of people who are undertaking regulated work with children and/or protected adults who have never been vetted. At one level, the fact that conviction and relevant intelligence has never been reviewed for this category of people suggests that this group could be a cause for concern. On the other hand, it might be argued that people who have a long association with an organisation and where no cause for concern has emerged thus far, are likely to pose a low risk of compromising the welfare of children and/or protected adults. We do however see from time to time cases where someone with a long association with an organisation is sometimes found guilty of inappropriate behaviour, sometimes stretching back over many years.

26. Over time, natural turnover will lead some people in the final two categories to move into the scheme membership group. However, a key consideration will be how tolerable it will be for organisations, individuals and the public to indefinitely have three distinct categories of people within the workforces and in particular, to have scheme members whose suitability is kept under continuous review, co-existing in the same organisations with people who have never been vetted.

27. The policy objectives of the vetting and barring scheme set out in paragraph 1 will only be realised if all those undertaking regulated work are within the scheme which, in essence, means once retrospective checking is complete. In the absence of retrospective checking, the new vetting and barring scheme will offer a much more streamlined and robust system of vetting for those who are participating in it but it will fall short of fully offering the robust protection and safeguards that it has been designed to deliver.

28. The ultimate risk posed by not undertaking retrospective checking is that an individual who knows he/she is a danger and would be barred if they applied for scheme membership stays within the same post to avoid detection. It is even possible to construct a scenario where an individual is barred but the existing employer is unaware of his barred status. For example, an individual who applies for a new post, triggering application for scheme membership, who is then barred due to past offences, could stay within their existing employment having failed to secure the new post since only the prospective employer would automatically be notified the outcome of their scheme membership application. By continuing to work whilst barred, the individual would be committing a new and additional offence to those which led to him being barred. However, it is possible that their current employer may only become aware of the barred status if they undertake a retrospective check which in the absence of section 34(1)(b) being commenced, they would not be under an obligation to do.

29. This risk has to be set alongside the fact that the majority of the workforce would become scheme members through natural turnover over time and that some of those who won't, may be insulted at the prospect of being vetted. This could particularly apply perhaps to someone who has undertaken the same voluntary activity for twenty years and has offered nothing but unstinting service without any cause for concern.

30. The extent of retrospective checking depends on the extent to which individuals are brought into the scheme through natural turnover. The natural effect is highest in the early years of the scheme, as new entrants and those who are more mobile are brought within the ambit of the scheme. This will gradually decline until there are smaller and smaller numbers of individuals who have been in the same post or undertaken the same volunteering activity for a considerable time and whose organisations do not require periodic checks.

31. The chart shows a graphical estimation of the proportion of individuals that can be anticipated to join the scheme through natural turnover and new entrants joining the workforce. Complete precision on turnover is not possible because of the dynamic nature of the workforce and because we do not have detailed information on the extent of overlap between the employed workforce and the voluntary sector. However, it is possible to estimate the trajectory.

Approximate Percentage of the Workforce Brought onto the Scheme through Natural Turnover

32. The top line (circular data points) projects the estimated natural phasing-in using the assumptions adopted for the Financial Memorandum and the lower line (triangular data points) is based on a more cautious turnover assumption (20% rather than 30%). This profiling reveals that after 3 years between 48.8% and 65.7% of the workforce would be scheme members depending on the natural turnover rate. The equivalent figures for years 5, 10 and 20 are:

• 67.2% and 83.2%, (year 5)
• 89.3% and 97.2% (year 10)
• 98.8% and 99.9%. (year 20)

33. This means that at years 3, 5, 10 and 20, the numbers of the workforce who are not scheme members could be up to approximately 330,000, 190,000, 50,000 and 4,000 respectively. These overall figures cannot of course take account of the perverse incentive that illicit individuals have not to move post and avoid detection through scheme membership. Regardless of the rate of turnover, both lines demonstrate that it is unlikely that full scheme membership will ever be achieved in the absence of retrospective checking.

34. Another factor which could influence the numbers flowing into scheme membership is that in the absence of a managed programme of retrospective checking, some organisations may determine their own arrangements for bringing their workers within the scheme. Such organisations are responding to the inherent risk of having non-scheme members within their workforce and are therefore likely to favour early joining. This could lead to significant front-end loading on the vetting and barring scheme which will already be coping with its peak in natural membership.

35. An indication that retrospective checking will occur is likely to limit this effect. In its absence, the scheme membership form could ask applicants to indicate whether they had already been subject to enhanced disclosure. This information could be used to facilitate prioritisation of the existing workforce voluntarily joining the scheme. Alternatively, it could be left to registered bodies to negotiate individually with the vetting and barring scheme an appropriate slot for staff to be registered on the scheme. In effect, this would leave the retrospective checking of the workforce down to good practice amongst employers and voluntary bodies although there would be no penalty for those that chose not to participate.

36. An alternative to determining how retrospective checking is to be undertaken from the point of commencement of the vetting and barring scheme would be to allow the scheme to operate through natural turnover for a period of time, perhaps three to five years. Then we would determine how the remainder of the workforce is to be brought on to the scheme and over what period and how they would be supported through this process, particularly the voluntary sector. This has the benefit of signalling that retrospective checking will occur. However, it allows for the management of that process to be informed by more detailed information than is available at the moment since we do not know the overlap between employment in regulated work with the statutory sector and volunteering. The phasing period and the support offered to organisations and individuals would be usefully informed by experience of the initial natural turnover period.

37. Discussion is therefore being undertaken at this pre-consultation stage to canvass early views from stakeholders as to whether to have retrospective checking or whether to rely on natural turnover of staff to bring people onto the new vetting and barring scheme. Views are also invited on the sub-option of indicating that retrospective checking will occur but leaving the detailed consideration of how and over what period until the new vetting and barring scheme has been operational for a period of time perhaps three to five years.

The Nature of Retrospective Checking

38. Regardless of whether retrospective checking is undertaken from the outset or postponed until the new vetting and barring scheme has bedded down and the natural turnover effect has started to decline, a key consideration is how the process should be managed.

39. The spectrum of choice ranges from close management of this process, specifying perhaps a particular profession and/or local authority area and/or combined with recency of last disclosure as the means of managing workflow, through to simply specifying a date following which it would be an offence to employ a barred person.

40. At one end of the spectrum, we could leave it to organisations and individuals to determine when and how to bring their existing workforce onto the scheme within a specified period. This is only tenable if retrospective checking is not commenced from the outset because otherwise, there could be a deluge coinciding with the peak period of natural membership, risking the effective operation of the new scheme in its embryonic period. However, it would be quite possible to say that from year four and by the end of year seven, all members of the existing workforce should be brought into the scheme.

41. An advantage of this approach is that it allows organisations to place vetting into the context of their wider recruitment and child protection practices and the nature of work undertaken by their staff. For example, an organisation will know which members of staff have unsupervised access to vulnerable children, whether they have previously been disclosure checked, whether they were subject to other rigorous recruitment determinants and therefore, where they should be placed in terms of priority for scheme membership.

42. The administrative task of joining the new vetting and barring scheme will be similar to the existing enhanced disclosure scheme. However, once the transition has been made to the new scheme, the administration burden will reduce because the need for cumbersome multiple disclosures will be replaced with streamlined updated checks and continuous updating of information for scheme members. There are many types of organisations to be brought onto the scheme (for example, large, small, statutory, voluntary, those with considerable experience of the existing disclosure arrangements, those with very little exposure to vetting). They will therefore vary in the resources at their disposal to manage retrospective checking and the ease with which they can accommodate this activity.. An open approach will allow organisations to spread the administrative activity associated with retrospective checking in a way which will minimise disruption on other business.

43. The open option has the drawback that it offers the least predictability in the numbers joining the vetting and barring scheme, particularly since some organisations would leave it to the final moments before bringing on their workforce. This unevenness with a peak at some future point could compromise the service provided by the scheme. Rather than a steady accretion of robust protections as the workforce is progressively brought into scheme membership, the open option risks postponement of the full advantages of having a vetting and barring scheme until the very final point by which retrospective checking is to be achieved. These concerns could be mitigated to some degree by voluntary arrangements for the timing of retrospective checks, as mentioned in paragraph 35, particularly for organisations with significant numbers of existing workers.

44. The alternative would be to opt for a managed approach that allows control of the workflow into the vetting and barring scheme and sets a clear framework for organisations and individuals to work within. For example, those who have never been subject to a disclosure check could be brought into the scheme in the first year of retrospective checking, those whose disclosures were undertaken more than four years ago could be brought into the scheme in year two, and those with disclosure certificates under four years old could be brought on in year three. The workflow in any particular year could be spread by perhaps specifying that local authorities A and B should submit applications in January, authorities C, D and E in February etc.

45. There are a range of parameters which could be used to spread retrospective checking and which could be used in combination to tightly control the workflow. Stakeholders are invited to suggest any additions to those identified below:

• Recency of disclosure check
• Local authority/geographic area
• Relevant workforce (children, protected adults or both)
• Statutory or voluntary sector
• Professional grouping (teachers, social workers, health professionals, care workers, voluntary work with children, voluntary work with protected adults, others)
• Registration with regulatory body or not
• Characteristics of individual members of workforce such as month of birthday.

46. A key point is that these dimensions would be used to ensure that retrospective checking proceeds in an orderly way rather than to inherently manage risk. There is no inference that a teacher with a June birthday living in geographic area A who had never been disclosure checked has been deemed to pose a greater risk than a volunteer born in October, working with protected adults in local authority K who underwent an enhanced check three years prior to commencement.

47. Whilst there would be considerable advantage in being able to sequence retrospective checking to target individuals who pose most risk to vulnerable people, the reality is that there are only a relatively small number of such people and we have no information on whether there is any pattern as to how such individuals are distributed across the country or the workforce. Indeed, the purpose of the vetting and barring scheme is to manage unsuitable people out of the workforce.

48. A related point on which we invite views is 'queue jumping.' If there is not to be retrospective checking then the existing workforce can join the scheme as deemed appropriate by them and the organisations they are undertaking regulated work with. If however, retrospective checking is to be subject to some form of managed process where particular portions of the workforce are expected to join the scheme at a particular point in time, should they be allowed to join the scheme before this prescribed point? If this happened in large numbers it could undermine the benefits of a managed process.

49. If there is to be phasing in, discussion is being undertaken at this pre-consultation stage to canvass early views on whether a carefully managed or an open programme of retrospective checking is favoured by stakeholders. If the former is preferred, what parameters could be used to control the phasing in and to what extent can this be tightly managed?

Duration of the Phasing-in Period

50. The purpose of retrospective checking is to realise the full benefits of the vetting and barring scheme. If these benefits are deemed sufficient to merit retrospective checking being initiated, then a second-order consideration is over what period should retrospective checking be undertaken. The Bill's Financial Memorandum assumed a phasing period of three years running alongside the processing of new members but this was simply for illustrative purposes and to allow assumptions to be set to facilitate the generation of financial calculations.

51. Maximising the numbers joining the scheme through natural turnover and minimising the burden on organisations of the administrative costs associated with bringing on existing workers point to a long period for retrospective checking. Securing the robust protection for children and vulnerable groups associated with the vetting and barring scheme points to a shorter period. Although workflow through the vetting and barring scheme is a consideration, the predictability of the workflow and avoiding significant unevenness in caseload over time is the key workflow concern. This is less affected by the duration of retrospective checking and more by the extent to which it is controlled and managed.

52. It is apparent from evidence given during Stage 1 of the Bill's Parliamentary consideration that some stakeholders feel that the scenario used in the Financial Memorandum of a three year phasing in programme from the commencement of the Act was too aggressive. With the exception of the six year horizon suggested by SCVO we are less clear on what would be deemed a reasonable retrospective period. We are also less clear on whether deferring retrospective checking until Year 4 might make phasing in over a three year period more acceptable to stakeholders and avoid an adverse impact on some sectors, particularly the voluntary sector.

53. If there is to be retrospective checking, discussion is being undertaken at this pre-consultation stage to canvass early views from stakeholders on the duration of phasing-in. , Effectively we are asking at what point is the right balance struck between securing robust protection and the full benefits of the vetting and barring scheme, and, managing the burden falling on organisations of bringing their existing workforce onto the new scheme.

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