Title and commencement
Title and commencement1
1
This Order may be cited as the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007.
2
This Article and Articles 2 to 4, 58 and 61 come into operation two weeks after the day on which this Order is made.
P13
The other provisions of this Order come into operation on such day or days as the Secretary of State may by order appoint.
Interpretation
Interpretation2
1
Subject to Article 22(1), the Interpretation Act (Northern Ireland) 1954 (c. 33) applies to this Order as it applies to an Act of the Assembly.
2
In this Order—
“the 1972 Order” means the Health and Personal Social Services (Northern Ireland) Order 1972 (NI 14);
“the 2003 Order” means the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (NI 9);
“the adults' barred list” must be construed in accordance with Article 6(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 Order” means the Children (Northern Ireland) Order 1995 (NI 2);
“the children's barred list” must be construed in accordance with Article 6(1)(a);
“employment agency” and “employment business” must be construed in accordance with Part II of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (NI 20);
F1“HSC body” means any of the following within the meaning of the Health and Social Care (Reform) Act (Northern Ireland) 2009—
- a
the Regional Health and Social Care Board;
- b
the Regional Agency for Public Health and Social Well-being;
- c
a HSC trust;
- d
a special agency;
- e
the Patient and Client Council;
- a
“ F2ISA” must be construed in accordance with Article 5;
“institution of further education” has the same meaning as in the Further Education (Northern Ireland) Order 1997 (NI 15) F3except that it includes a college or institution established under Article 5(1) of the Agriculture Act (Northern Ireland) 1949 (c.2) for the purpose of instructing persons in agriculture and related subjects;
“F4social care” has the same meaning as in the 1972 Order;
“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;
- a
“prescribed” means prescribed by regulations made by the Secretary of State;
F5“RQIA” means the Health and Social Care Regulation and Quality Improvement Authority;
“statutory provision” must be construed in accordance with section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c,33);
“supervisory authority” must be construed in accordance with Article 47(7);
“vulnerable adult” must be construed in accordance with Article 3.
2
A reference (however expressed) to a person being barred must be construed in accordance with Article 7.
3
A reference to a person being subject to monitoring in relation to a regulated activity must be construed in accordance with Article 28.
4
Nothing in this Order affects any power to provide information which exists apart from this Order.
Vulnerable adults3
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 probation officer,
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 paragraph (9),
i
payments are made to him (or to another on his behalf) in pursuance of arrangements under section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002 (c. 6), 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 Article 3(5) of the Education (Northern Ireland) Order 1996 (NI 1);
b
an independent school which is approved by the Department of Education in accordance with Article 26 of that Order; or
c
an institution of further education which provides accommodation for children.
4
Domiciliary care is care of any description or assistance falling within paragraph (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 paragraph 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, remand centre or young offenders centre;
b
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 Article 20(5).
9
A person falls within this paragraph 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 care under Article 8 of the 1972 Order;
e
he is a person of a prescribed description not falling within sub-paragraphs (a) to (d).
10
A person requires assistance in the conduct of his own affairs if—
a
an enduring power of attorney (within the meaning of the Enduring Powers of Attorney (Northern Ireland) Order 1987 (NI 16) in respect of him is registered in accordance with that Order or an application is made under that Order for the registration of an enduring power of attorney in respect of him;
b
an order under Article 99 or 101 of the Mental Health (Northern Ireland) Order 1986 (NI 4) has been made by the High Court in relation to him or his property or affairs, or such an order has been applied for;
c
a representative is or is to be appointed to receive payments on his behalf in pursuance of regulations made under the Social Security Administration (Northern Ireland) Act 1992 (c. 8).
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 paragraph (1) is not to be treated as a vulnerable adult.
Family and personal relationships4
1
This Order does not apply to any activity which is carried out in the course of a family relationship.
2
This Order 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.
Barring
The F87Disclosure and Barring ServiceF875
In this Order references to DBS are references to the Disclosure and Barring Service established by section 87(1) of the Protection of Freedoms Act 2012.
Barred listsI16
2
Part I of Schedule 1 applies for the purpose of determining whether an individual is included in the children's barred list.
3
Part II of that Schedule applies for the purpose of determining whether an individual is included in the adults' barred list.
4
Part III of that Schedule contains supplementary provision.
5
In respect of an individual who is included in a barred list, F7ISA must keep other information of such description as is prescribed.
Barred personsI2C17
1
A reference to a person being barred from regulated activity must be construed in accordance with this Article.
2
A person is barred from regulated activity relating to children if he is—
a
included in the children's barred list; or
b
included in a list maintained under the law of England and Wales or Scotland 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; or
b
included in a list maintained under the law of England and Wales or Scotland which the Secretary of State specifies by order as corresponding to the adults' barred list.
AppealsI3C2C38
1
An individual who is included in a barred list may appeal to the Care Tribunal against—
a
a decision under paragraph 2 or 8 of Schedule 1 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 paragraph (1) may be made only on the grounds that F8ISA 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 paragraph was based.
3
For the purposes of paragraph (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 paragraph (1) may be made only with the leave of the Care Tribunal.
5
6
If the Care Tribunal finds that F8ISA has made such a mistake it must—
a
direct F8ISA to remove the person from the list, or
b
remit the matter to F8ISA for a new decision.
7
If the Care Tribunal remits a matter to F8ISA under paragraph (6)(b)—
a
the Care Tribunal may set out any findings of fact which it has made (on which F8ISA must base its new decision); and
b
the person must be removed from the list until F8ISA makes its new decision, unless the Care Tribunal directs otherwise.
8
In this Article “the Care Tribunal” means the Tribunal established under Article 44 of the 2003 Order.
Regulated activity
Regulated activityI49
1
A reference to regulated activity relating to children must be construed in accordance with Part I of Schedule 2.
2
A reference to regulated activity relating to vulnerable adults must be construed in accordance with Part II 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 paragraph (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—
a
Article 11(5),
b
Article 13(5),
c
Article 14(3),
d
Article 23(8),
e
paragraph 4 of Schedule 4.
Regulated activity providers
Regulated activity providersI510
1
A reference to a regulated activity provider must be construed in accordance with this Article.
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 Article 55(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 arises under Article 12 of the 2003 Order.
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), (e), (g), (h) or (i) or 8(1)(a) or (d) of Schedule 2,
b
as a controller under Article 101 of the Mental Health (Northern Ireland) Order 1986 (NI 4);
c
as member or chief executive of F9ISA;
d
to any position mentioned in sub-paragraph (a) or (c) of Article 3(10) or to exercise any function mentioned in that paragraph.
9
For the purposes of paragraph (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 Order 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 Article 4.
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.
Restrictions on participating in regulated activity
Barred person not to engage in regulated activity11
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 paragraph (1) is liable—
a
on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both;
b
on summary conviction, to imprisonment for a term not exceeding 6 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 paragraph (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 paragraph (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 Article, Schedule 2 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.
Person not to engage in regulated activity unless subject to monitoringF8612
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Use of barred person for regulated activity13
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 that 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 Article is liable—
a
on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both;
b
on summary conviction, to imprisonment for a term not exceeding 6 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 Article 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 Article, Schedule 2 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.
Use of person not subject to monitoring for regulated activityF8514
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Regulated activity provider: failure to checkI615
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 I of Schedule 3 and neither of Parts II and III of that Schedule is prescribed in relation to him,
b
he obtains an appropriate verification in accordance with Part II of that Schedule and that Part is prescribed in relation to him, or
c
he obtains an appropriate verification in accordance with Part III of that Schedule and that Part is prescribed in relation to him.
3
A person does not commit an offence under paragraph (1) if the regulated activity—
a
is regulated activity relating to vulnerable adults, and
b
falls within Article 20.
4
A person does not commit an offence under paragraph (1) if he falls within Article 21.
5
A person does not commit an offence under paragraph (1) if B has not attained the age of 16.
6
A person does not commit an offence under paragraph (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
Paragraph (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 3 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 paragraph (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 Article in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 2 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.
Personnel suppliers: failure to checkI716
1
Schedule 4 (employment businesses: failure to check) has effect.
2
The Secretary of State may by order make provision (including provision amending this Order) corresponding to Schedule 4 in relation to the supply of persons by a personnel supplier otherwise than in the course of carrying on an employment business.
Educational establishments: check on members of governing bodyI817
1
The appropriate officer (P) commits an offence if he fails in the prescribed period to make a check in accordance with Article 19 relating to any person (B) who is appointed to the governing body of an educational establishment mentioned in Article 12(5).
F101A
B commits an offence if he—
a
acts as a member of the governing body of an educational establishment mentioned in Article 12(5),
b
has not consented to P making a check in accordance with Article 19(2)(a), and
c
has not provided P with any information required to make that check.
2
A person guilty of an offence under paragraph (1) F11or (1A) 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 paragraph (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 Article, and
b
it continues to have effect after such commencement.
F123A
A person does not commit an offence under paragraph (1A) if, in relation to any continuous period for which the person is a member of the governing body of the establishment—
a
the person's appointment first took effect before the commencement of this Article, and
b
it continues to have effect after such commencement.
4
F13Paragraphs (3) and (3A) do 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.
F146
The period prescribed for purposes of paragraph (1) must not start before B has—
a
consented to P making a check in accordance with Article 19(2)(a), and
b
provided P with any information required to make that check.
Office holders: offencesI918
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(7) or 7(9) of Schedule 2, 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 Article 19 in relation to another person (B) appointed to a position mentioned in paragraph 4(1) or 8(1) of Schedule 2.
3
Regulations under paragraph (1) or (2) may provide for defences to the offence.
4
An offence created by regulations under this Article is punishable on summary conviction with a maximum fine not exceeding level 5 on the standard scale.
Articles 17 and 18: checksF8419
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Exceptions
Exception to requirement to make monitoring checkF8320
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
HSS employmentF8221
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Offences: supplementary
Offences: companies, etc.I1022
1
For the purposes of an offence under Article 13, 14, 15, 27, 31 or 40 or Schedule 4, section 20(2) of the Interpretation Act (Northern Ireland) 1954 (c. 33) applies with the omission of the words “the liability of whose members is limited” and where the affairs of a body corporate are managed by its members, applies in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate.
2
If an offence under Article 13, 14, 15, 27, 31 or 40 or Schedule 4 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.
Offences: other personsI1123
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 paragraph (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 paragraph (2) is liable—
a
on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both;
b
on summary conviction, to imprisonment for a term not exceeding 6 months, or to a fine not exceeding the statutory maximum, or to both.
6
If the commission of an offence under Article 15 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 paragraph (6) to a person who is in Crown employment (within the meaning of the Employment Rights (Northern Ireland) Order 1996 (NI 16)), Article 53(2) must be ignored.
8
For the purpose of paragraphs (2)(b) and (3)(b), Schedule 2 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 paragraph (1) in a case where the regulated activity falls within paragraph 1(1) or (2) or 7(1) or (4) of Schedule 2 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.
Article 23: exclusions and defencesI1224
1
A person does not commit an offence under Article 23 if B has not attained the age of 16.
2
A person does not commit an offence under Article 23 if the regulated activity—
a
is regulated activity relating to adults, and
b
falls within Article 20.
3
A person does not commit an offence under Article 23(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 Article, and
b
it continues to have effect after such commencement.
4
Paragraph (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 paragraph (1) of Article 23 if—
a
the regulated activity provider for whom he acts or appears to act falls within Article 21,
b
the permission mentioned in paragraph (1) of Article 23 commences at a time when B is engaged in relevant HSS employment mentioned in Article 21(1)(b) in circumstances mentioned in paragraph (3) above, and
c
for the duration of the permission mentioned in paragraph (1) of Article 23, B continues to be engaged in that relevant HSS employment.
6
A person is not guilty of an offence under Article 23(3) in relation to any period during which B is continuously supplied to another if the period begins before the commencement of that Article.
7
Paragraph (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.
Controlled activity
Controlled activity relating to childrenI1325
1
A reference to a controlled activity relating to children must be construed in accordance with this Article.
2
An activity which falls within any of paragraphs (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 paragraph if—
a
it consists in or is carried out in connection with any form of health care, treatment or therapy to which paragraph (8) applies,
b
it is carried out frequently by the same person or it is carried out by the same person on more than F15three days in any period of 30 days, and
c
it gives the person an opportunity mentioned in paragraph (9).
4
An activity falls within this paragraph if—
a
it is carried out in an institution of further education,
b
it is carried out frequently by the same person or it is carried out by the same person on more than F15three 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 paragraph (9)(a).
5
An activity falls within this paragraph if—
a
it consists in making payments under Article 18C of the Children Order 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 F15three days in any period of 30 days, and
c
it gives the person the opportunity mentioned in paragraph (9)(a).
6
An activity falls within this paragraph if it is carried out as mentioned in paragraph (10) frequently and it gives a person carrying out the activity the opportunity to have access to—
a
health, educational or F16social care records relating to children;
b
information provided pursuant to Article 24 of the Education (Northern Ireland) Order 2006 (NI 11);
7
An activity falls within this paragraph 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 paragraph (3), (4) or (6).
8
This paragraph applies to health care, treatment or therapy which is provided for a child—
a
in pursuance of arrangements made by or under a statutory provision,
b
in an establishment in relation to which a requirement to register arises under Article 12 of the 2003 Order, or
c
by an agency in relation to which such a requirement arises.
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, an education and library board;
c
for, or on behalf of, the Council for the Curriculum, Examinations and Assessments;
d
for, or on behalf of, inspectors appointed under Article 102 of the Education and Libraries (Northern Ireland) Order 1986;
e
for, or on behalf of, an establishment or agency in respect of which a requirement to register arises under Article 12 of the 2003 Order.
11
12
The Secretary of State may, by order, amend paragraphs (2) to (11) (including by adding new paragraphs or omitting or varying any of the paragraphs or anything contained in them).
Controlled activity relating to vulnerable adultsI1426
1
A reference to a controlled activity relating to vulnerable adults must be construed in accordance with this Article.
2
An activity which is ancillary to or is carried out wholly or mainly in relation to an activity which falls within paragraph (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 F19three days in any period of 30 days, and
b
it gives the person an opportunity mentioned in paragraph (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 paragraph (2) is also a controlled activity relating to vulnerable adults.
4
Each of the following falls within this paragraph—
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 F20social care;
f
the making of payments under section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002 (c. 6);
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 F20social care records (within the meaning of Article 25(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 Article—
“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 arises under Article 12 of the 2003 Order;
- a
“domiciliary care” must be construed in accordance with Article 3(4) and (5);
“hospital services” means in-patient or out-patient services provided by—
- a
an F21HSC body;
- b
an independent hospital (within the meaning of Article 2 of the 2003 Order);
- c
an independent clinic (within the meaning of that Article);
- d
an independent medical agency (within the meaning of that Article);
- a
“primary care services” means any of the following—
- a
primary medical services or primary dental services provided under the 1972 Order;
- b
general ophthalmic services provided in accordance with Article 62 of that Order;
- c
pharmaceutical services provided in pursuance of arrangements made under Article 63 of that Order ;
- d
a service which corresponds to a service mentioned in any of sub-paragraphs (a) to (c) but which is provided otherwise than by virtue of arrangements made pursuant to a statutory provision mentioned in that sub-paragraph.
- a
Controlled activity: regulationsI1527
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 Articles 22, 23 and 24.
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.
Monitoring
MonitoringI1628
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 makesF22 an application to the Secretary of State under this Article (“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 the Secretary of State.
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 paragraph (3)(b) in relation to the individual, but does not include information to which paragraph (9) applies.
6
Paragraph (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 F23. . . section 113A of the Police Act 1997);
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 paragraph applies to information mentioned in paragraph (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.
F2410
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 Agency in Northern Ireland or the Driver and Vehicle Licensing Agency;
c
by the Department for Social Development or 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 Article 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 Article were an application under that section.
F34Monitoring: power to prescribe additional fees28A
1
An individual subject to monitoring under Article 28 in relation to a regulated activity must pay a prescribed fee if—
a
no fee was payable by virtue of Article 28(1)(d) when the individual made a monitoring application (within the meaning of Article 28) 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 Article 28(1)(d) if a monitoring application were now made in respect of the activity.
2
The amount of the fee payable by virtue of paragraph (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 paragraph (1)(b).
3
An individual does not cease to be subject to monitoring under Article 28 merely because the individual fails to pay a fee required by this Article (but see Article 32(2A)).
Monitoring fees29
1
This Article has effect in respect of fees which may be prescribed in relation to applications for monitoring under Article 28 F25or in relation to a change of circumstances under Article 28A.
2
In setting a fee for an application made F26, or change of circumstances occurring, during the period of 5 years beginning with the commencement of F27Article 28, 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 F28ISA (including payments under paragraph 11 of Schedule 1 to the Safeguarding Vulnerable Groups Act 2006);
b
in respect of any other expenditure of the Secretary of State in connection with his functions under this Order.
3
In setting a fee for an application made F29, 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 that Schedule;
b
in respect of any other expenditure of the Secretary of State in connection with his functions under this Order.
4
For the purposes of paragraph (2), it is immaterial that any expenditure is incurred before the commencement of Article 28 F30or 28A.
6
Fees received by the Secretary of State by virtue of Article 28(1)(d) F33or 28A must be paid into the Consolidated Fund of the United Kingdom.
Ceasing monitoringI1730
1
The Secretary of State may cease monitoring as mentioned in Article 28 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.
Prohibition of requirement to produce certain recordsF8831
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Notices and information
Provision of vetting informationI1832
1
The Secretary of State must provide a person (A) with the information mentioned in paragraph (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 F35the table in Schedule 5,
F36aa
that column 2 of the entry by virtue of which A falls within column 1 refers to children or (as the case may be) vulnerable adults,
ab
whether the information is sought by A with a view to permitting or supplying B to carry out paid activity or with a view to making a check in accordance with Article 19(2)(a) in relation to the appointment of B to a position in which B will carry out paid activity, and
b
that B has consented to the provision of the information to A.
F372A
The Secretary of State may refuse to provide A with the information if B has failed to pay a fee required by Article 28A.
3
F38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
The information is—
a
if F39A's declaration states that column 2 of the relevant entry refers to children, relevant information relating to children, and
b
if F39A's declaration states that column 2 of the relevant entry refers to vulnerable adults, relevant information relating to vulnerable adults.
5
F40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
If B consents to the provision of information to A in relation to an application under this Article, the consent also has effect in relation to any subsequent such application by A.
F416A
“Paid activity” means an activity carried out for financial gain.
6B
The Secretary of State may by regulations provide for an activity to be treated as, or not to be treated as, an activity carried out for financial gain.
7
The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article (including the form and manner of a declaration contained in such an application).
8
The Secretary of State may by regulations make provision requiring an authority which makes or proposes to make payments to or on behalf of a person in accordance with regulations under Article 18C of the Children Order or section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002 (c. 6) to inform the person of his right to obtain relevant information under this Article.
Meaning of relevant information in Article 32I1933
1
This Article has effect for the purposes of Article 32.
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 Article 28(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 paragraph (2)(b), IBB is considering whether to include B in the children's barred list in pursuance of paragraph 3 or 5 of Schedule 1;
d
in relation to paragraph (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 paragraph (4)(b) “simultaneous application” means an application made simultaneously with B's monitoring application under Article 28.
6
The Secretary of State may by order amend the preceding provisions of this Article for the purpose of altering the meaning of relevant information relating to children or vulnerable adults (as the case may be).
Notification of cessation of monitoringI2034
1
The Secretary of State must establish and maintain a register for the purposes of this Article.
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 F42the table in Schedule 5,
F43aa
that column 2 of the entry by virtue of which A falls within column 1 refers to children or (as the case may be) vulnerable adults, and
b
that B has consented to the application.
4
F44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
A's application and registration relate—
a
if F45A's declaration states that column 2 of the relevant entry refers to children, to regulated activity relating to children;
b
if F45A's declaration states that column 2 of the relevant 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 paragraph (6) is satisfied if notification is sent to any address recorded against A's name in the register.
8
F46. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
If B consents to the provision of information to A under Article 32 the consent also has effect as consent to any application by A to be registered in relation to B under this Article.
10
The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article (including the form and manner of a declaration contained in such an application).
Cessation of registrationI2135
1
In this Article references to registration are to registration in the register maintained for the purposes of Article 34.
2
Once a person is notified as mentioned in paragraph (6) of that Article, 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 paragraph (3) or (4)(b), the Secretary of State must notify him of that fact.
6
The requirement under paragraph (5) is satisfied if notification is sent to any address recorded against A's name in the register.
Declarations under Articles 32 and 3436
1
An individual commits an offence if, in an application made for the purposes of Article 32 or 34—
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 paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
F51Notification of proposal to include person in children's barred list36A
1
If ISA proposes to include a person (B) in the children's barred list in the circumstances mentioned in paragraph 3(1) or 5(1) of Schedule 1, it—
a
must notify any person who is registered in relation to B under Article 34 in relation to regulated activity relating to children, and
b
may notify any other person who it is satisfied falls within paragraph (2).
2
The following fall within this paragraph—
a
any person who is permitting B to engage in regulated activity relating to children,
b
any responsible person (within the meaning of Article 27) who is permitting B to engage in controlled activity relating to children.
3
A notification under this Article must—
a
explain that ISA has not yet taken a final decision about whether to include B in the barred list, and
b
include such information as ISA thinks appropriate about its reasons for proposing to include B in the barred list.
4
The requirement to notify a person under paragraph (1)(a) is satisfied if notification is sent to any address recorded against that person's name in the register.
Notification of proposal to include person in adults' barred list36B
1
If ISA proposes to include a person (B) in the adults' barred list in the circumstances mentioned in paragraph 9(1) or 11(1) of Schedule 1, it—
a
must notify any person who is registered in relation to B under Article 34 in relation to regulated activity relating to vulnerable adults, and
b
may notify any other person who it is satisfied falls within paragraph (2).
2
The following fall within this paragraph—
a
any person who is permitting B to engage in regulated activity relating to vulnerable adults,
b
any responsible person (within the meaning of Article 27) who is permitting B to engage in controlled activity relating to vulnerable adults.
3
A notification under this Article must—
a
explain that ISA has not yet taken a final decision about whether to include B in the barred list, and
b
include such information as ISA thinks appropriate about its reasons for proposing to include B in the barred list.
4
The requirement to notify a person under paragraph (1)(a) is satisfied if notification is sent to any address recorded against that person's name in the register.
Articles 36A and 36B: notification of outcome36C
1
Paragraph (2) applies if ISA—
a
has notified a person (A) under Article 36A or 36B that it proposes to include another (B) in a barred list, and
b
includes B in the barred list or decides not to do so.
2
ISA must notify A that it has included B in the barred list or that it has decided not to do so (as the case may be).
3
In a case where A is registered in relation to B under Article 34 (or has ceased to be so registered by virtue of B's inclusion in the barred list), the requirement in paragraph (2) is satisfied if notification is sent to any address recorded (or, as the case may be, formerly recorded) against A's name in the register.
Regulated activity providers: duty to referI2237
1
Paragraph (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 Article 27) 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 paragraph applies must provide F47ISA with the information if—
a
he withdraws permission for P to engage in the activity for a reason mentioned in paragraph (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 paragraph (2) applies thinks—
a
that paragraph 1, 2, 7 or 8 of Schedule 1 applies to P,
b
that P has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1), 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 paragraph (3)(b), conduct is inappropriate if it appears to the person to whom paragraph (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 1.
6
If regulated activity engaged in by P—
a
is regulated activity relating to vulnerable adults, and
b
falls within Article 20,
paragraph (2) must be read as if for “must” there were substituted “
may
”
.
7
This Article does not apply if the conditions specified in paragraph (2) are fulfilled before the Article is commenced.
Personnel suppliers: duty to referI2338
1
A personnel supplier must provide F48ISA 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 paragraph (2)(a) or (b) of Article 37.
2
A personnel supplier which is an employment agency or employment business must provide F48ISA 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 paragraph (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 F48ISA 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 paragraph (4),
b
the institution determines that P should cease to follow a course at the institution for a reason mentioned in paragraph (4), or
c
it does not determine as mentioned in sub-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 1 applies to P,
b
that P has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1), 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 paragraph (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 1.
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 Article “employment” has the same meaning as in Part II of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (NI 20).
10
This Article does not apply if the conditions specified in paragraph (1), (2) or (3) are fulfilled before the Article is commenced.
Regulated activity providers: duty to provide information on request etc.I2439
1
This Article applies if F49ISA is considering—
a
whether to include any person in a barred list;
b
whether to remove any person from a barred list.
2
F49ISA 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 Article 27) 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 F49ISA 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 Article “employment” has the same meaning as in Part II of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1981 (NI 20).
Duty to provide information: offencesI2540
1
A person commits an offence if—
a
he is required under Article 37 or 38 or in pursuance of Article 39 to provide information to F50ISA, and
b
he fails, without reasonable excuse, to provide the information.
2
A person guilty of an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
Education and Library Boards and F63HSC Bodies
Education and Library Boards and F52HSC Bodies: duty to referI2641
1
2
The first condition is that the board or F55HSC body thinks—
a
that paragraph 1, 2, 7 or 8 of Schedule 1 applies to the person,
b
that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1) occurring after the commencement of this Article, 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,
e
incite another to harm a child or vulnerable adult.
4
The second condition is that the board or F56HSC body 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 1 applies) that F54ISA may consider it appropriate for the person to be included in a barred list.
5
A board or an F57HSC body may provide F54ISA with any prescribed information it holds relating to a person if—
a
the board or F58HSC body thinks that a person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1) occurring before the commencement of this Article, and
b
the condition in paragraph (4) is satisfied.
6
For the purposes of paragraphs (2)(b) or (5)(a), conduct is inappropriate if it appears to the board or F59HSC body to be inappropriate having regard to the guidance issued by the Secretary of State under paragraph 4(6) or 10(6) of Schedule 1.
Education and Library Boards and F60HSC bodies: duty to provide information on requestI2742
1
This Article applies if F61ISA is considering—
a
whether to include any person in a barred list;
b
whether to remove any person from a barred list.
2
3
The board or body must comply with a requirement under paragraph (2).
Professional bodies and supervisory authorities
Registers: duty to referI2843
1
A keeper of a relevant register must provide F64ISA 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 1 applies to the person,
b
that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1) occurring after the commencement of this Article, 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 1 applies) that F64ISA may consider it appropriate for the person to be included in a barred list.
F654A
Paragraph (4B) applies where the keeper of a relevant register appearing in any of the entries in column 1 of the table in paragraph (7) thinks that the harm test is satisfied.
4B
Where this paragraph applies, the second condition is to be taken as satisfied if—
a
a relevant registration decision has effect in relation to the person and the reason, or one of the reasons, for the relevant registration decision is also the reason, or one of the reasons, for the keeper thinking the harm test is satisfied,
b
the person is under investigation by the body of which the keeper is the registrar in relation to an offence and matters relevant to that investigation are the reason, or one of the reasons, for the keeper thinking that the harm test is satisfied, or
c
the body of which the keeper is the registrar holds information about the person which the keeper thinks is likely, in due course—
i
to lead to the making of a relevant registration decision for a reason which is the same as the reason, or one of the reasons, for the keeper thinking that the harm test is satisfied, or
ii
to lead to an investigation in relation to an offence in which matters relevant to that investigation are the reason, or one of the reasons, for the keeper thinking that the harm test is satisfied.
4C
For the purposes of paragraph (4B), a relevant registration decision is a decision, however expressed—
a
to refuse to register a person in a relevant register,
b
to remove a person from a relevant register,
c
to suspend a person's registration in a relevant register (whether for a specified period or pending the outcome of an investigation or the final determination of proceedings),
d
to make a person's registration in a relevant register conditional on the person's compliance with specified requirements (whether for a specified period or pending the outcome of an investigation or the final determination of proceedings),
e
to annotate a person's entry in a relevant register with a record of a formal caution or warning, or
f
to agree with a person's undertakings in respect of that person's future conduct, if those undertakings are recorded in the relevant register.
5
A keeper of a relevant register may provide F64ISA 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 1) occurring before the commencement of this Article, and
b
the condition in paragraph (4) is satisfied.
6
For the purposes of paragraph (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 1.
7
In this Article—
a
a relevant register is a register appearing in column 1 of the following table, and
b
in relation 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 |
|---|---|
| The General Teaching Council for Northern Ireland |
| The registrar appointed under Article 9(1) of that Order |
| The registrar of the General Medical Council |
| The registrar appointed under section 14 of that Act |
| The registrar of the General Optical Council |
| The Registrar of Osteopaths |
| The Registrar of Chiropractors |
| The Northern Ireland Social Care Council |
| The registrar appointed under Article 4 of that Order |
| The registrar appointed under Article 4 of that Order |
8
The Secretary of State may by order amend the table in paragraph (7) by inserting an entry or amending or omitting an entry for the time being contained in the Table.
Registers: duty to provide information on requestI2944
1
This Article applies if F67ISA 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
F67ISA 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 paragraph (2).
4
References to a relevant register and the keeper of a relevant register must be construed in accordance with Article 43(7).
Registers: notice of barring and cessation of monitoringI3045
1
Paragraph (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 Article 30.
2
The Secretary of State must—
a
notify the keeper of the register of the circumstances mentioned in sub-paragraph (a) or (b) (as the case may be) of paragraph (1), and
3
If F68ISA—
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 paragraph (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 paragraph, relevant information does not include—
a
information that any of the events mentioned in paragraph (1)(a) and (b) has occurred in relation to the person;
b
the information mentioned in paragraph (2)(b);
c
information falling within paragraph 19(5) of Schedule 1.
6
In this Article—
a
a relevant register is a register appearing in column 1 F69. . . of the table in Article 43(7), and
b
in relation 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 England and Wales or Scotland which the Secretary of State specifies by order as corresponding to a barred list.
Registers: power to apply for vetting informationI3146
1
If the keeper of a relevant register applies to the Secretary of State for information within paragraph (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 paragraph is—
a
whether B is barred from regulated activity relating to children or vulnerable adults,
b
whether F70ISA is considering whether to include B in a barred list in pursuance of paragraph 3 or 5 or 9 or 11 of Schedule 1,
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 Article 28(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 Article 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 Article—
a
a relevant register is a register appearing in column 1 F71. . . of the table in Article 43(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 paragraph (2)(e) “simultaneous application” means an application made simultaneously with B's monitoring application under Article 28.
6
The Secretary of State may by order amend this Article for the purpose of altering the information within paragraph (2).
7
The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article.
Supervisory authorities: duty to referI3247
1
A supervisory authority must provide F72ISA 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 1 applies to the person,
b
that the person has engaged in relevant conduct (within the meaning of paragraph 4 or 10 of Schedule 1) occurring after the commencement of this Article, 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 1 applies) that F72ISA may consider it appropriate for the person to be included in a barred list.
5
The supervisory authority may provide F72ISA 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 1) occurring before the commencement of this Article, and
b
the condition in paragraph (4) is satisfied.
6
Paragraph (1) does not apply if the supervisory authority is satisfied that F72ISA already has the information.
7
A supervisory authority is—
a
F73RQIA in respect of its functions under the 2003 Order;
b
an inspector appointed under Article 102 of the Education and Libraries (Northern Ireland) Order 1986 in the exercise of his functions.
F74c
the Charity Commission for Northern Ireland in respect of its functions under the Charities Act (Northern Ireland) 2008 (c.12)
8
Relevant evidence is evidence obtained by the supervisory authority in the exercise of the functions mentioned in paragraph (7).
9
The Secretary of State may by order amend paragraph (7) by inserting a sub-paragraph or amending or omitting a sub-paragraph for the time being contained in that paragraph.
10
For the purposes of paragraph (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 1.
Supervisory authorities: duty to provide information on requestI3348
1
This Article applies if F75ISA is considering—
a
whether to include in a barred list a person in relation to whom F75ISA thinks that a supervisory authority may have prescribed information;
b
whether to remove such a person from a barred list.
2
F75ISA 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 paragraph (2).
Supervisory authorities: power to apply for vetting informationI3449
1
If a supervisory authority applies to the Secretary of State for information within paragraph (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 paragraph is—
a
whether B is barred from regulated activity relating to children,
b
whether F76ISA is considering whether to include B in the children's barred list in pursuance of paragraph 3 or 5 of Schedule 1,
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 Article 28(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 paragraph is—
a
whether B is barred from regulated activity relating to vulnerable adults,
b
whether F76ISA is considering whether to include B in the adults' barred list in pursuance of paragraph 9 or 11 of Schedule 1,
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 Article 28(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 Article only if the information is required in connection with the exercise of a function of the supervisory authority mentioned in Article 47(7).
5
In paragraphs (2)(e) and (3)(e), “simultaneous application” means an application made simultaneously with B's monitoring application under Article 28.
6
The Secretary of State may by order amend this Article for the purpose of altering the information within paragraph (2) or (3).
7
The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article.
Supervisory authorities: notification of barring, etc in respect of childrenI3550
1
This Article 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 Article 30.
2
The Secretary of State must notify every interested supervisory authority of the circumstance mentioned in sub-paragraph (a), (b) or (c) (as the case may be) of paragraph (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 paragraph (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 paragraph (3)(a) only if the notification is required in connection with the exercise of a function of the supervisory authority mentioned in Article 47(7).
5
For the purposes of paragraph (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 paragraph (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 England and Wales or Scotland 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 Article.
8
The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article.
Supervisory authorities: notification of barring, etc. in respect of vulnerable adultsI3651
1
This Article 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 Article 30.
2
The Secretary of State must notify every interested supervisory authority of the circumstance mentioned in sub-paragraph (a), (b) or (c) (as the case may be) of paragraph (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 paragraph (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 paragraph (3)(a) only if the notification is required in connection with the exercise of a function of the supervisory authority mentioned in Article 47(7).
5
For the purposes of paragraph (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 paragraph (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 England and Wales or Scotland 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 Article.
8
The Secretary of State may prescribe the form, manner and contents of an application for the purposes of this Article.
Provision of information to supervisory authoritiesI3752
1
This Article applies if F77ISA has information that it thinks is relevant to a supervisory authority.
2
F77ISA 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 1 or information that any of the events mentioned in Article 50(1)(a), (b) and (c) or 51(1)(a), (b) and (c) has occurred in relation to a person.
F78Provision of information to the police
Art. 52A and preceding cross-heading inserted (30.11.2009) by Policing and Crime Act 2009 (c. 26), ss. 91, 116(1); S.I. 2009/3096, art. 2(b)
Provision of information to the police52A
1
ISA may provide any information it has to the chief constable of the Police Service of Northern Ireland F80, a chief officer of police or the chief constable of a police force in Scotland for use for any of the following purposes—
a
the prevention, detection and investigation of crime;
b
the apprehension and prosecution of offenders.
F81c
the appointment of persons who are under the direction and control of the chief constable or (as the case may be) chief officer;
d
any prescribed purpose
2
The power conferred by paragraph (1) does not limit any other power of ISA to provide information for any purpose or to any person.
Miscellaneous
Crown applicationI3853
1
Subject to the provisions of this Article, this Order and any regulations or orders made under it bind the Crown to the full extent authorised or permitted by the constitutional laws of Northern Ireland.
2
No contravention by the Crown of any provision of this Order or of any regulations or order made under it makes the Crown criminally liable.
3
Despite paragraph (2), this Order and any regulations or orders made under it apply to persons in Crown employment (within the meaning of the Employment Rights (Northern Ireland) Order 1996 (NI 16)) as they apply to other persons.
4
Paragraph (2) of Article 10 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 Article 27) in relation to the activity.
6
In paragraph (5) “body” includes office-holder.
Referrals: findings of fact immaterial54
1
For the purposes of the provisions mentioned in paragraph (2), it is immaterial whether there is a finding of fact in any proceedings.
2
The provisions are—
a
Article 37(3)(b) and (c);
b
Article 38(4)(b) and (c);
c
Article 41(2)(b) and (c) and (5)(a);
d
Article 43(2)(b) and (c) and (5)(a);
e
Article 47(2)(b) and (c) and (5)(a).
FosteringI3955
1
Despite Article 4, this Order applies to activity that is regulated activity by virtue of paragraph 1(5) of Schedule 2.
2
Paragraph (1) does not affect the operation of this Order in relation to any other activity that is carried out in connection with a foster child.
3
Paragraph (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 Article apply for the purposes of this Order.
6
A person fosters a child if he is a foster parent of the child.
7
A person is a foster parent if—
a
he is an authority foster parent within the meaning of Article 27(3) of the Children Order;
b
he is a person with whom a child has been placed by a voluntary organisation under Article 75(1)(a) of that Order;
c
he is a private foster parent.
8
A person is a private foster parent if he falls within paragraph (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 paragraph if—
a
he fosters the child privately within the meaning of Article 106(1) of the Children Order,
b
he would be so fostering the child but for Article 107(1) of that Order (minimum period of 28 days), or
c
(in the case of a child who has attained the age of 16) he would fall within sub-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.
Alignment with rest of UKI4056
1
The Secretary of State may, by order, make such provision (including provision amending any statutory provision, including this Order) as he thinks necessary or expedient in consequence of or having regard to any relevant England and Wales legislation or any relevant Scottish 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.
3
Relevant England and Wales legislation is any provision applying in England or Wales made by or under an Act of Parliament which the Secretary of State thinks—
a
corresponds to provision made by or under this Order,
b
makes monitoring provision, or
c
affects the operation of any provision made by or under this Order.
4
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 Order,
b
makes monitoring provision, or
c
affects the operation of any provision made by or under this Order.
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.
General
DamagesI4157
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 Articles 37, 38, 39, 41, 42, 43, 44, 47 and 48.
2
Paragraph (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 Order 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).
Orders and regulations58
1
Orders or regulations under this Order shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 shall apply accordingly.
2
Paragraph (1) does not apply to an order made under Article 1, including such an order which contains provision made under Article 61 (except paragraph (3) of that Article).
Transitional provisionI4259
Schedule 6 has effect.
Amendments and repealsI4360
1
Schedule 7 contains amendments.
2
Schedule 8 contains repeals.
Supplementary, incidental, consequential etc. provision61
1
An order or regulations under this Order may include—
a
such supplementary, incidental or consequential provision, or
b
such transitory, transitional or saving provision,
as the Secretary of State thinks necessary or expedient.
2
The Secretary of State may by order make such further provision as he considers appropriate—
a
for the general purposes, or any particular purpose, of this Order;
b
in consequence of any provision made by this Order;
c
for giving full effect to this Order or any provision made by it.
3
An order or regulations under this Order may amend, repeal, revoke or otherwise modify any statutory provision (including this Order).
4
Nothing in this Order affects the generality of the power conferred by this Article.
Words in Order substituted (12.10.2009) by virtue of Safeguarding Vulnerable Groups (Miscellaneous Provisions) Order (Northern Ireland) 2009 (S.R. 2009/305), art. 7(3)