Leader magazineASCL - Association of School and College Leaders

For the record

Ruth Kelly's statement to the Commons following the List 99 and sex offenders row, has helped to clarify the rather tangled arrangements for protecting children and schools from 'unsuitable people'. It also indicated imminent changes to the procedures.

The present situation is as follows. It is a criminal offence to employ a person or for a person to seek employment in an educational setting if that person is on List 99. List 99 is compiled by the secretary of state and covers misconduct and medical reasons for unfitness to teach as well as the fact that someone is on the Protection of Children Act (POCA) list and its equivalent for vulnerable adults (the POVA list).

Some inclusions on List 99 are mandatory and automatic; these include being found guilty of sexual offences, both physical and non-physical (for instance, rape or downloading child pornography), being on the POCA list or having a disqualification order from a court. Individuals can appeal to the Care Standards tribunal for some things but not if they are on the POCA list.

List 99 is designed for a different purpose from the lists which are essentially meant to assist the police in managing sex offenders in the community; these are the Sex Offenders Register and the lists of people on civil orders roughly equivalent to an ASBO (Sexual Offences Protection Order and Risk of Sexual Harm Order). These lists are not necessarily comprehensive themselves.

The decisions on List 99 have previously been taken by ministers or officials acting for ministers on expert advice, including advice from the police. In her speech to the Commons, the secretary of state announced this will change.

The intention is to hand these decisions over to an expert panel and, in anticipation of this, an expert panel will be set up under a leading figure in the field and ministers will follow the decisions of this panel. The change will require primary legislation, which will be included in a bill being brought forward in February.

In future, all cautions where the offender has, by definition, admitted his guilt, will be a reason for placing a person on List 99.

A new vetting and barring system was already in preparation as a result of the Bichard report. It has been delayed partly because the police forces have still not been able to produce an accessible national intelligence system - the consequence of local operational autonomy for police authorities.

A preliminary step will be to make it mandatory for schools to seek a CRB check for any person they employ in school who has had a break in employment of more than three months.

At present it is at the school's discretion, though any school that fails to do so risks being found negligent if a disaster occurred. All checks will be enhanced ones.

At present those with direct contact with children, or those who are in a position where children might consider them to be trustworthy adults, are covered. In future this will also include those whose jobs give them access to sensitive information on children.

The new vetting and barring system will draw from the police records into the CRB. The CRB will pass information on a continuous basis to the Vetting and Barring Unit. When an application is made by an individual this will be passed to the unit which will make a decision based on the information available to the CRB.

An employer will apply to the Central Unit and receive relevant information. The individual will be informed whether or not s/he is barred and have a right of appeal.

The new system is subject to consultation and legislation, though continuous consultation and development work has been going on since the Bichard report was issued. It should be in place on the statute book by the autumn.

Clarification over CRB checks

After being alerted by members that some local authorities were instructing schools to conduct Criminal Record Bureau checks on all existing staff, ASCL brought this to the attention of the DfES. The following week, the government sent a letter to all local authorities stating that this is not necessary.

The letter, which can be found at www.ascl.org.uk, states that there is "no requirement to obtain a disclosure on existing staff". Heads "will continue to have discretion to seek a disclosure where they have grounds for concern about the suitability of an existing member of staff, and where the member of staff consents". Otherwise, staff should only be checked under certain specified circumstances.

Members who continue to have problems with their local authority are urged to contact Bob Carstairs, assistant general secretary, on 0116 299 1122 or bob.carstairs@ascl.org.uk

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