Children And Young Persons, England And Wales PART 1 Introduction Citation, commencement and interpretation 1 1 This Order may be cited as the Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009 and comes into force on 12th October 2009. 2 In this Order— “ the Act ” means the Safeguarding Vulnerable Groups Act 2006; “the 1999 Act ” means the Protection of Children Act 1999 ; “the 2000 Act ” means the Care Standards Act 2000 ; “the 2002 Act ” means the Education Act 2002 ; “relevant person” means a person who immediately before the relevant day— is engaging in regulated activity with the permission of a regulated activity provider, and is not included in the list kept under section 1 of the 1999 Act or the list kept under section 81 of the 2000 Act, subject to a direction under section 142 of the 2002 Act or barred from regulated activity; “relevant day” means the first day on which a person may make a monitoring application; “the first transitional period” means the period starting on the day on which this Order comes into force and ending immediately before the relevant day; “the second transitional period” means the period starting on the relevant day and ending on the day on which Schedule 10 to the Act comes into force in relation to the 1999 Act, the 2000 Act and the 2002 Act for all purposes; “the third transitional period” means the period starting on the day on which this Order comes into force and ending on the day on which section 24 of the Act comes into force in relation to relevant persons. Provisions coming into force on 12th October 2009 2 12th October 2009 is the day appointed for the coming into force of the following provisions of the Act— a paragraph 14 of Schedule 9, in relation to England and Wales; b Schedule 10 in so far as it relates to the repeal of sections 113C, 113D and 113F of the Police Act 1997 ; c section 63 in so far as it relates to the provisions specified in paragraphs (a) and (b). Revocations 3 The Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions) Order 2009 is revoked. PART 2 Provisions applying during the first transitional period Transitional modifications applying during the first transitional period 4 Articles 5 to 9 apply during the first transitional period. Modification to section 113BA of the Police Act 1997 5 1 Section 113BA of the Police Act 1997 has effect subject to the following modification. 2 For subsection (2) substitute— 2 Suitability information relating to children is whether the applicant— a is provisionally included in the list kept under section 1 of the Protection of Children Act 1999; b is included in the list kept under section 1 of the Protection of Children Act 1999 otherwise than provisionally and disqualified from working with children for the purposes of section 35 of the Criminal Justice and Court Services Act 2000 or is barred from regulated activity relating to children; c is subject to a direction made under section 142 of the Education Act 2002. 2A If the applicant is provisionally included in the list kept under section 1 of the Protection of Children Act 1999, the suitability information includes the fact that the applicant must not be employed or, as the case may be, must cease to be employed in a childcare position with a childcare organisation in accordance with section 7 of that Act. 2B If the applicant is subject to a direction made under section 142 of the Education Act 2002, the suitability information includes— a details of any prohibition or restriction on the applicant’s employment; b the grounds on which the direction was made, and, where the grounds are misconduct, details of the misconduct. 2C In subsection (2A), “childcare position” and “childcare organisation” have the same meanings as in section 12 of the Protection of Children Act 1999. . Modification to section 113BB of the Police Act 1997 6 1 Section 113BB of the Police Act 1997 has effect subject to the following modification. 2 For subsection (2) substitute— 2 Suitability information relating to vulnerable adults is whether the applicant— a is provisionally included in the list kept under section 81 of the Care Standards Act 2000; b is included in the list kept under section 81 of the Care Standards Act 2000 otherwise than provisionally and prohibited from working in a care position or is barred from regulated activity relating to vulnerable adults. 2A If the applicant is provisionally included in the list kept under section 81 of the Care Standards Act 2000, the suitability information includes the fact that the applicant must not be employed or, as the case may be, must cease to be employed in a care position. 2B In subsection (2), “care position” has the same meaning as in Part 7 of the Care Standards Act 2000. . Modification to section 119 of the Police Act 1997 7 1 Section 119 of the Police Act 1997 has effect subject to the following modification. 2 In subsection (1A), for “a list mentioned in section 113C(3) or 113D(3) above” substitute “the list kept under section 1 of the Protection of Children Act 1999 or the list kept under section 81 of the Care Standards Act 2000 or maintains a list under section 2 of the Safeguarding Vulnerable Groups Act 2006”. Modification to section 120A of the Police Act 1997 8 1 Section 120A of the Police Act 1997 has effect subject to the following modification. 2 In subsection (3)(b), for “mentioned in section 113C(3) or 113D(3)” substitute “kept under section 1 of the Protection of Children Act 1999 or section 81 of the Care Standards Act 2000 or maintained under section 2 of the Safeguarding Vulnerable Groups Act 2006”. Modifications to Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 9 1 Schedule 3 to the Act has effect subject to the following modifications. 2 In paragraph 1, for sub-paragraphs (2) and (3) substitute— 2 If IBB is satisfied that this paragraph applies to the person, it must include the person in the children’s barred list. . 3 In paragraph 2, for sub-paragraphs (2) and (3) substitute— 2 If IBB is satisfied that this paragraph applies to the person, it must— a include the person in the children’s barred list; b give the person an opportunity to make representations as to why the person should be removed from the children’s barred list. . 4 In paragraph 7, for sub-paragraphs (2) and (3) substitute— 2 If IBB is satisfied that this paragraph applies to the person, it must include the person in the adults’ barred list. . 5 In paragraph 8, for sub-paragraphs (2) and (3) substitute— 2 If IBB is satisfied that this paragraph applies to the person, it must— a include the person in the adults’ barred list; b give the person an opportunity to make representations as to why the person should be removed from the adults’ barred list. . PART 3 Provisions applying during the second transitional period Transitional modifications applying during the second transitional period 10 Articles 11 and 12 apply during the second transitional period. Modification to section 113BA of the Police Act 1997 11 1 Section 113BA of the Police Act 1997 has effect subject to the following modification. 2 For subsection (2) substitute— 2 Suitability information relating to children is— a whether the applicant is included in the list kept under section 1 of the Protection of Children Act 1999; b whether the applicant is subject to a direction made under section 142 of the Education Act 2002; c whether the applicant is barred from regulated activity relating to children; d if the applicant is barred from such regulated activity, such details as are prescribed of the circumstances in which he became barred; e whether the applicant is subject to monitoring in relation to regulated activity relating to children; f whether the Independent Barring Board is considering whether to include the applicant in the children’s barred list in pursuance of paragraph 3 or 5 of Schedule 3 to the 2006 Act. 2A If the applicant is included in the list kept under section 1 of the Protection of Children Act 1999, the suitability information includes whether the inclusion is provisional and— a if it is provisional, the fact that the applicant must not be employed or, as the case may be, must cease to be employed in a childcare position with a childcare organisation in accordance with section 7 of that Act; b if it is not provisional, the fact that the applicant is disqualified from working with children for the purposes of section 35 of the Criminal Justice and Court Services Act 2000. 2B If the applicant is subject to a direction made under section 142 of the Education Act 2002, the suitability information includes— a details of any prohibition or restriction on the applicant’s employment; b the grounds on which the direction was made, and, where the grounds are misconduct, details of the misconduct. 2C In subsection (2A), “childcare position” and “childcare organisation” have the same meanings as in section 12 of the Protection of Children Act 1999. . Modification to section 113BB of the Police Act 1997 12 1 Section 113BB of the Police Act 1997 has effect subject to the following modification. 2 For subsection (2) substitute— 2 Suitability information relating to vulnerable adults is— a whether the applicant is included in the list kept under section 81 of the Care Standards Act 2000; b whether the applicant is barred from regulated activity relating to vulnerable adults; c if the applicant is barred from such regulated activity, such details as are prescribed of the circumstances in which he became barred; d whether the applicant is subject to monitoring in relation to regulated activity relating to vulnerable adults; e whether the Independent Barring Board is considering whether into include the applicant in the adults’ barred list in pursuance of paragraph 9 or 11 of Schedule 3 to the 2006 Act. 2A If the applicant is included in the list kept under section 81 of the Care Standards Act 2000, the suitability information includes whether the inclusion is provisional and— a if it is provisional, the fact that the applicant must not be employed or, as the case may be, must cease to be employed in a care position; b if it is not provisional, the fact that the applicant is prohibited from working in a care position. 2B In subsection (2A), “care position” has the same meaning as in Part 7 of the Care Standards Act 2000. . PART 4 Provisions applying during the first and second transitional periods Transitional modifications and provisions applying during the first and second transitional periods 13 Articles 14 to 18 apply during the first and second transitional periods. Modifications to section 113E of the Police Act 1997 14 1 Section 113E of the Police Act 1997 has effect subject to the following modifications. 2 In subsection (3)— a the words “113A or” must be ignored; b for paragraph (a), substitute “it is made in a case prescribed under section 113BB(1)” . 3 In subsection (5) the definitions of “children’s suitability statement”, “specified children’s direction”, “specified children’s list”, “adults’ suitability statement” and “specified adults’ list” must be ignored. 4 After subsection (5) insert— 5A For the purposes of this section each of the following is a specified adults’ list— a the list kept under section 81 of the Care Standards Act 2000; b the adults’ barred list maintained under section 2 of the Safeguarding Vulnerable Groups Act 2006; c the adults’ barred list maintained under Article 6 of the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 . . Modification to section 116 of the Police Act 1997 15 1 Section 116 of the Police Act 1997 has effect subject to the following modification . 2 For subsection (3) substitute— 3 Section 113B(3) to (11) and sections 113BA, 113BB and 113E, as modified by the Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009, shall apply in relation to this section with any necessary further modifications. . Teachers’ pensions – entitlement to payment of retirement benefits 16 1 The Teachers’ Pensions Regulations 1997 (“the 1997 Regulations ”) have effect subject to the following modifications. 2 In regulation E4 a person also falls within Case C if the requirements of paragraph (4)(a) to (d) of that regulation are met and— a the Secretary of State has notified the person in writing that the requirements specified in paragraphs (3) and (4) below are met, or b the requirement specified in paragraph (7) below is met. 3 The requirement is that IBB has not included, and is not considering including, the person in a barred list. 4 The requirement is that neither the General Teaching Council for England nor the General Teaching Council for Wales has made a prohibition order in relation to the person on the grounds— a of unacceptable professional conduct, or b that the person has been convicted (at any time) of a relevant offence. 5 The General Teaching Council for England and the General Teaching Council for Wales must, at the request of the Secretary of State, inform the Secretary of State whether they have made a prohibition order in relation to a particular person on the grounds— a of unacceptable professional conduct, or b that the person has been convicted (at any time) of a relevant offence. 6 In paragraphs (4) and (5) “unacceptable professional conduct”, “relevant offence” and “prohibition order” have the same meaning as in Schedule 2 to the Teaching and Higher Education Act 1998. 7 The requirement is that IBB has included, or is considering including, the person in a barred list but the Secretary of State is satisfied that there are exceptional circumstances relating to the person which make it appropriate that the person should fall within Case C. 8 Accordingly, where a person falls within Case C in accordance with this article the entitlement takes effect— a where, immediately before the person became incapacitated the person was in excluded employment, on the day after the last day of the person’s excluded employment; and b in any other case, as soon as the person falls within the Case or as soon as the person would have fallen within the Case had there not been a requirement that the Secretary of State notify that person that the requirements specified in paragraphs (3) and (4) are met, or (in all cases), if later, 6 months before the date of the last of any medical reports considered by the Secretary of State in determining under regulation H9 of the 1997 Regulations that the person had become incapacitated. 9 In paragraph (8) “excluded employment” has the same meaning as in the 1997 Regulations. Modifications to the General Teaching Council for England (Disciplinary Functions) Regulations 2001 17 1 The General Teaching Council for England (Disciplinary Functions) Regulations 2001 have effect subject to the following modifications. 2 In regulation 9 — a after paragraph (1)(b) insert— ; or ba the Independent Barring Board, established under section 1 of the Safeguarding Vulnerable Groups Act 2006 (“IBB”) has included, or is considering whether to include, a registered teacher in either of the barred lists maintained under section 2 of that Act ; b for paragraph (3), substitute— 3 Where the Council is in receipt of documents concerning a registered teacher in which a relevant issue arises the Council shall refer those documents— a where paragraph (1)(b) applies, to the Secretary of State for his consideration; b where paragraph (1)(ba) applies, to IBB. . c for paragraph (4), substitute— 4 Where a Committee is considering allegations of unacceptable professional conduct or serious professional incompetence against a registered teacher or that he has been convicted of a relevant offence and a relevant issue arises, the Committee shall refer those allegations, or if the relevant issue forms part of a wholly separate allegation, that allegation, and all relevant documents or copies of documents— a where paragraph (1)(b) applies, to the Secretary of State for his consideration; b where paragraph (1)(ba) applies, to IBB. . d for paragraph (5), substitute— 5 Where a prohibition order is made in relation to a person on grounds of unacceptable professional conduct or a conviction for a relevant offence the Council shall refer the case and copies of all relevant documents— a where paragraph (1)(b) applies, to the Secretary of State for him to consider the further exercise of his own powers; b where paragraph (1)(ba) applies, to IBB. . Power of Secretary of State to refer to IBB 18 1 The Secretary of State may refer a person (X) to IBB if each of the following conditions is satisfied in relation to X. 2 The first condition is that information relating to X has been provided to the Secretary of State or the Welsh Ministers in accordance with a provision specified in paragraph (5). 3 The second condition is that the Secretary of State has sent a notice to X inviting X to make representations as to why X should not be made subject to a direction under section 142 of the Education Act 2002. 4 The third condition is that the Secretary of State has not made a direction under that section in relation to X. 5 The provisions are— a regulation 4 or 6 of the Education (Supply of Information) (Wales) Regulations 2003 ; b regulation 4 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 . PART 5 Further Transitional Provisions Transitional provisions relating to the provision of information 19 1 Article 20 applies from the coming into force of this Order until the end of the first transitional period. 2 Article 21 applies from the coming into force of this Order until the end of the second transitional period or the third transitional period, whichever is the later. 3 Article 22 applies from the coming into force of this Order until the end of the third transitional period. Information provided to IBB 20 A person who holds records of convictions or cautions for the use of police forces generally must make those records available to IBB. Information provided by IBB 21 1 IBB may provide to either of the persons specified in paragraph (2) any information specified in paragraph (3). 2 The persons are— a the Secretary of State for the purposes of his functions under the Teachers’ Pensions Regulations 1997, Part 5 of the Police Act 1997 and article 22; b the Scottish Ministers for the purposes of their functions under Part 5 of the Police Act 1997. 3 The information is— a information provided to IBB under paragraph 20 of Schedule 3 to the Act; b the fact that a person is included in a barred list; c the fact that IBB is considering including a person in a barred list; d the personal details of any person referred to in sub-paragraph (b) or (c); 4 In paragraph (3) “personal details” includes the name (including any former name or alias), address, gender and date of birth of a person together with such further details as IBB considers are necessary to identify the person in question. 5 IBB may, at the request of a person (X) who meets the requirement specified in paragraph (7), inform that person whether a person (Y) falls within paragraph (6). 6 Y falls within this paragraph if Y is— a included in the list kept under section 1 of the 1999 Act; b included in the list kept under section 81 of the 2000 Act; c subject to a direction under section 142 of the 2002 Act; d included in a barred list. 7 The requirement is that X satisfies IBB that X has a legitimate interest in knowing whether Y falls within paragraph (6). 8 If IBB— a knows or thinks that a person appears in the register of teachers maintained under section 3 of the Teaching and Higher Education Act 1998 , and b becomes aware of relevant information relating to that person, it must provide that information to the General Teaching Council for England or General Teaching Council for Wales , as the case may be. 9 In paragraph (8) “relevant information” is information which— a relates to the protection of children or vulnerable adults in general, or b is relevant to the exercise of any function of the General Teaching Council for England or the General Teaching Council for Wales, and includes information specified in paragraph (3). Information provided by the Secretary of State 22 1 The Secretary of State may, at the request of a person (X) who meets the requirement specified in paragraph (2), inform that person whether a person (Y) falls within article 21(6). 2 The requirement is that X satisfies the Secretary of State that X has a legitimate interest in knowing whether Y falls within article 21(6). Relevant conduct engaged in before the repeal of sections 28 to 29A of the Criminal Justice and Court Services Act 2000 23 1 In relation to conduct engaged in during the relevant period, paragraph 3(4) of Schedule 3 to the Act has effect as if the words “before the commencement of section 2” were omitted. 2 “Relevant period” means the period— a starting on the day on which this Order comes into force, and b ending with the coming into force of the repeal by the Act of sections 28 to 29A of the Criminal Justice and Court Services Act 2000 . PART 6 Prescribed Criteria Amendments to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 24 1 The Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 are amended as follows. 2 In Part 1 of the table in paragraph 2 of the Schedule (prescribed criteria – automatic inclusion in the children’s barred list with the right to make representations) insert the following entries at the appropriate place— Theft Act 1968, section 9(1)(a) The offence was committed with intent to commit rape Theft Act (Northern Ireland) 1969, section 9 The offence was committed with intent to commit rape 3 In Part 2 of the table in paragraph 2 of the Schedule— a omit “Theft Act 1968, section 9(1)(a)” and “Theft Act (Northern Ireland) 1969, section 9”; b insert the following entry at the appropriate place— Sexual Offences (Scotland) Act 1976, section 3 . 4 In Part 1 of the table in paragraph 4 of the Schedule (prescribed criteria – automatic inclusion in the adults’ barred list with the right to make representations) insert the following entries at the appropriate place— Theft Act 1968, section 9(1)(a) The offence was committed with intent to commit rape Theft Act (Northern Ireland) 1969, section 9 The offence was committed with intent to commit rape 5 In Part 2 of the table in paragraph 4 of the Schedule— a omit “Theft Act 1968, section 9(1)(a)” and “Theft Act (Northern Ireland) 1969, section 9”; b insert the following entry at the appropriate place— Sexual Offences (Scotland) Act 1976, section 3 . PART 7 Provisions relating to Part 1 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 Regulated activity relating to Children Definition of relevant child care premises 25 1 Paragraph 3 of Schedule 4 to the Act is amended as follows. 2 In sub-paragraph (2)(c), after “any form of” insert “child minding or”. 3 After sub-paragraph 3(2) insert— 3 But premises on which a person carries on childcare or child minding are not relevant childcare premises if the premises are the home of a parent of at least one child to whom the childcare or child minding is provided. 4 For the purposes of paragraph (3) “parent” includes any person who has parental responsibility for a child or who has care of a child. 5 “Parental responsibility” has the same meaning as in the Children Act 1989. . Office holders and other amendments to paragraph 4 of Schedule 4 to the Act 26 1 Paragraph 4 of Schedule 4 to the Act is amended as follows. 2 In sub-paragraph (1)(a), after “member of” insert “or clerk to”. 3 In sub-paragraph (1), after paragraph (a) insert— aa person appointed by the governing body of a maintained school to serve on a committee established by that body; ab chief executive of a local authority that has any education functions or social services functions; . 4 In sub-paragraph (1), after paragraph (o) insert— p an individual carrying on or managing a regulated establishment or agency which provides care, accommodation or services wholly or mainly for or in relation to children; q a person appointed under section 27(1)(a) of the Children Act 2004 as the lead director for children and young people’s services (Wales); r Children’s Rights Director appointed under section 120 of the Education and Inspections Act 2006 and a person whose duties consist wholly or mainly of assisting the Director in the exercise of the Director’s functions. . 5 After sub-paragraph (1) insert— 1A For the purposes of sub-paragraph (1)(a), a person is a clerk to the governing body of an educational establishment mentioned in section 8(5) if— a the person is appointed in accordance with regulations under section 23 of the Education Act 2002 as a clerk to the governing body of a maintained school, or b the person is appointed in relation to the governing body of any other educational establishment mentioned in section 8(5) and has functions similar to those of a person falling within paragraph (a). 1B For the purposes of sub-paragraph (1)(p) an establishment or agency is a regulated establishment or agency if the person carrying it on or managing it is required to be registered in respect of it under Part 2 of the Care Standards Act 2000. . 6 In sub-paragraph (7), after the definition of “local authority” insert— “maintained school” has the same meaning as in section 39 of the Education Act 2002; . PART 8 Provisions relating to Part 2 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 Regulated activity relating to vulnerable adults Office holders and other amendments to paragraph 8 of Schedule 4 to the Act 27 1 Paragraph 8 of Schedule 4 is amended as follows. 2 In sub-paragraph (1), after paragraph (a) insert— aa chief executive of a local authority that has any social services functions; . 3 In sub-paragraph (1), after paragraph (f) insert— g an individual carrying on or managing a regulated establishment or agency which provides care, accommodation or services wholly or mainly for or in relation to vulnerable adults; . 4 After sub-paragraph (2) insert— 2A For the purposes of sub-paragraph (1)(g) an establishment or agency is a regulated establishment or agency if the person carrying it on or managing it is required to be registered in respect of it under Part 2 of the Care Standards Act 2000. . PART 9 Miscellaneous Controlled activity relating to children 28 In section 21(10) of the Act, after paragraph (e) insert— 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 ; . Inspection of independent schools in England by approved bodies 29 In relation to times before the coming into force of section 106 of the Education and Skills Act 2008 , paragraph 1(10)(c) of Schedule 4 to the Act has effect as if after “in pursuance of” there were inserted “section 162A(1)(b) or”. References in the Act to the National Assembly for Wales 30 In the following provisions of the Act, for “National Assembly for Wales” substitute “Welsh Ministers”— a section 21(6)(d) and (10)(c), b section 45(7)(b) and (e), and c paragraphs 1(10)(g), 1(11)(b) and 7(6)(c) of Schedule 4. Delyth Morgan Parliamentary Under Secretary of State Department for Children, Schools and Families 1st October 2009