Safeguarding Vulnerable Groups Bill [HL]

As my noble friend has just said, we are covering a number of terms in the amendments that probe at the meaning of ““frequently””, ““occasionally””, ““harm”” and ““neglect””. Perhaps I may first address Amendment No. 85, tabled by the noble Baroness, Lady Walmsley, which seeks to define ““occasionally”” and therefore, by implication, ““frequently””. As laid out in Schedule 3, engaging in regulated activity relating to children includes, for example, teaching, training, caring for, supervising, or advising children ““frequently””. Frequently undertaking a similar activity in relation to vulnerable adults is also classified as a regulated activity. Furthermore, the definition of regulated activity in relation to children covers engaging in such an activity even ““occasionally”” in one of the establishments specified in paragraph (3) of Schedule 3, which includes a school or a children’s home. An activity is also classified as a regulated activity relating to children if it is not an activity specified in paragraph 2(1) of Schedule 3, but still affords the employee frequent contact with children in a setting specified in paragraph 3. Any activity carried out in a care home exclusively for vulnerable adults that gives the employee opportunity for frequent contact with vulnerable adults is also a regulated activity. Clause 8(7), to which the amendment refers, makes it clear that an individual would not commit a criminal offence if he was not subject to monitoring were he to engage in an activity only on an occasional basis in relation to children specified in paragraph 2(1) of Schedule 3—that is, caring for, teaching, training and so on in an establishment specified in paragraph 3 of that schedule. In the information note, which I circulated prior to the Committee stage and to which the noble Baroness referred, we sought to get to grips with what these terms would mean. I stress that we will be issuing guidance to local authorities and others on how to interpret them. In paragraph 3 of that note, I said:"““In terms of the work that a barred person can do other than in a setting specified in paragraph 3(1) of Schedule 3 we broadly consider anything more than once a month or any contract that lasts longer than a week to be ‘frequent’””." So we are in the same ballpark as the noble Baroness. The note continues:"““In terms of the duties to check and ensure that a person is subject to monitoring that employers will be under we broadly consider anything more than once a month or any contract that lasts longer than a week to be ‘frequent’.""““In terms of the exceptions that there are for employers from the duties to check and to ensure that an individual is subject to monitoring when they are engaged in a setting specified in paragraph 3(1) of Schedule 3 we broadly consider anything happening less often than once a month and any contract shorter than a week to be ‘on an occasional basis’””." I repeat all that so that it is in Hansard for reference. The noble Baroness asked why we do not put that in the Bill. We have considered that, but we do not believe that it would be appropriate to set hard and fast definitions in the Bill—as I said, we will give guidance—not least because we believe that, if we were to do so, it could constrain and potentially distort the way that regulated activity is identified. For example, if an activity were performed five times in a year but on an intensive basis over a short period, so creating an opportunity for an abusive adult to build up a relationship with a child, we would not want that to be excluded from the definition of ““regulated activity””; nor, more importantly, would we wish employers to regard themselves as not being under a duty to consider whether they should regard that as a regulated activity—yet that would be the unfortunate effect of the amendment if we were to apply it in a hard and fast way in the Bill. A variety of factors must be weighed up in establishing whether an activity is performed only occasionally. We believe that a single, simple test of the number of times a year is not on its own sufficiently discriminating, although of course we accept that there must be some yardstick by which these judgments are generally made. Those are the ones which I set out in the notes and which I have now ensured are available in Hansard. As I said, we will set out in the guidance to be issued by my right honourable friend the Secretary of State both the indicative definitions of ““frequent”” and ““occasional”” and also the other factors that employers should take into account when making these judgments. I turn to Amendments Nos. 141 and 146 in the name of the noble Baroness, Lady Walmsley, concerning the issue of harm. This word is of relevance not only to local authorities, as suggested in the amendments, but to all bodies in the Bill that are under a duty to refer information on an individual to the IBB when they think that the harm test has been satisfied. Amendment No. 141 would seek to provide a comparator for determining whether harm is significant. As the noble Baroness said, the context for the wording that she has adopted in her amendment is Section 31 of the Children Act 1989. However, while we believe that this test is important in the context of that legislation, we do not think it will assist with Clause 30 in this Bill. In Section 31 of the Children Act, the comparison test is appropriate because the threshold for intervention under that section is that a child is suffering, or is likely to suffer, significant harm. However, the harm test under Clause 30 of this Bill makes no reference to the harm having to be deemed significant. An additional condition in Clause 30(4) on the local authority’s duty to refer seeks to minimise the circumstances in which potentially trivial cases of harm are referred. I shall elaborate on that shortly. But, as the harm test contains no reference to the harm needing to be significant, we believe that this amendment would be unnecessary. Amendment No. 146 would provide a definition of ““harm””—again, by reference to the Children Act 1989, as amended by the Adoption and Children Act 2002. We are concerned that, by defining the word as suggested, we may unnecessarily restrict the circumstances in which local authorities could refer information to the IBB. That may mean that important evidence is lost that might otherwise have been critical in a barring decision. Instead, we believe it right for ““harm”” to take on its normal meaning so that a special definition is not required in the Bill. The normal meaning of ““harm”” would include damage to a child or vulnerable adult’s mental or emotional state as well as physical harm. In the case of vulnerable adults, that may also include harm incurred through financial loss. In addition, there are explicit provisions in the Bill designed to ensure that the IBB is not over-burdened with referrals on the basis of trivial harm. In relation to local authorities, an additional condition in Clause 30(4) upon their duty to refer is that they should do so only when they think that the person is engaged or may engage in a regulated or controlled activity, and that the IBB may consider it appropriate for the person to be included on a barred list. We intend to support local authorities in making these decisions by providing them with guidance on the sort of situations that could occur. On Amendment No. 142, in the names of the noble Lord, Lord Laming, and my noble friend Lord Harris, local authorities have a key role to play in the effective functioning of the new vetting and barring scheme. Under the clause to which this amendment refers, they are under a duty to refer information to the IBB if they think that one of the various routes to barring listed in Schedule 2 applies to a particular person. That includes if the local authority thinks that the harm test is satisfied. We entirely appreciate the rationale behind the amendment that seeks to modify the harm test to cover future acts of omission as well as commission, but we believe that this specific amendment is not necessary because it is covered by the wording of the Bill. Local authorities will, subject to the additional condition in Clause 30(4), be in a position to refer prescribed information to the IBB, not only on the basis of evidence of behaviour but also if the local authority thinks the harm test, as set out in subsection (3), is satisfied. That is satisfied when the local authority thinks that the person may harm, cause to be harmed, put at risk of harm, attempt to harm or incite another to harm a child or vulnerable adult. This is intended to capture those circumstances in which the local authority has clear evidence that an individual has an inclination to cause harm which has not yet been acted upon. In this situation, the local authority must refer the prescribed information, such as medical evidence, to the IBB so that the individual can be considered for barring. This criterion of risk of harm is crucial to increase the safeguards for vulnerable groups, even though it may apply in only a small number of cases. The amendment would make it clear that the harm test would be satisfied not only when a local authority thinks an individual may in the future harm a child or vulnerable adult but also where it thinks that as a result of something that that individual will in future fail to do, a child or vulnerable adult may be harmed. But we do not believe that there is a need to modify the harm test explicitly so that future acts of omission will cause the test to be satisfied. As it is drafted in the clause, we believe the harm test already makes provision for capturing potential future omissions. Clause 30(3)(c) states that the harm test is that the person may,"““put a child or vulnerable adult at risk of harm””." We believe that covers future acts of omission so that the child or vulnerable adult may be placed at risk of harm regardless of whether this is because of something an individual will proactively do or that they will fail to do in the future. Were there to be an individual for whom evidence suggested that he would be incapable of acting in a given situation, that individual could still be said to be putting a child or vulnerable adult at risk of harm. For example, an individual whose psychological evidence suggests that he may have proclivities not to look after a vulnerable adult properly—not to provide them with sufficient foods and fluids, for instance, as in the case of neglect that the noble Lord, Lord Laming, raised—would be putting a vulnerable adult at risk of harm, and that would be covered by the Bill. I hope that this shows that a potential failure to do something as well as a positive action is covered by the harm test as drafted, and that this meets the concerns of the noble Lord and my noble friend.