1 Background to the PVG Scheme
1. The PVG Scheme is Scotland's response to the principal recommendation of the Bichard Inquiry Report which was undertaken following the tragic murders in Soham in 2002. This recommendation called for a registration system for all those who work - whether paid or unpaid - with children and protected adults in the UK that would confirm that there is no known reason why an individual should not work with these groups. This is achieved by Disclosure Scotland maintaining a list of people who are barred from working with children and a list of people who are barred from working with protected adults. The PVG Scheme was established by the Protection of Vulnerable Groups (Scotland) Act 2007.
2. The Scottish Government is committed to helping local communities flourish and become stronger, safer places to live. The PVG scheme, which is run by Disclosure Scotland, strengthens protection for vulnerable groups, reduces bureaucracy and provides a more efficient system. Other types of disclosure will still continue to be available for people doing other types of work which do not involve working with children or protected adults.
What is a Protected Adult?
An individual aged 16 or over who is provided with particular services further defined at section 94 of the Protection of Vulnerable Groups (Scotland) Act 2007
An important principle underpinning PVG is that a person is a protected adult by virtue of a service they receive, not because of a particular condition or disability, and that they are a protected adult only while receiving that service. In that sense, all of us may at one time or another be a protected adult: for example, when receiving medical treatment.
What the PVG Scheme does:
- for the first time in Scotland, have a list of people who are barred from working with protected adults;
- help to ensure that those who have regular contact with children and protected adults through paid and unpaid work do not have a known history of harmful behaviour;
- quick and easy to use, reducing the need for PVG Scheme members to complete a detailed application form for every new job;
- for the first time all personal employers, including those employing a PA (by means of sources such as ILF, or Direct Payments from their Council or those who are self funding) are able to choose to request proof of scheme membership;
- strike a balance between proportionate protection and robust regulation and make it easier for individual employers to determine who they might safely employ.
3. The PVG Scheme is run by Disclosure Scotland which receives and considers referrals and take decisions, on behalf of Scottish Ministers, about those people who may be unsuitable to work with children or protected adults.
4. PVG is a membership scheme which ensures that people who are barred from working with certain vulnerable groups are not able to do so. Disclosure Scotland will maintain lists of people who are barred from working with children and those who are barred from working with protected adults. A person who is barred from working with one group is not necessarily barred from working with the other group.
5. It is illegal for a person to undertake regulated work if they are barred from doing so, and illegal for an organisation to employ a barred person in regulated work. It is not an offence for a personal employer to employ a barred individual to do regulated work, but it is an offence for a barred individual to do regulated work.
6. It is not a legal requirement that a person doing regulated work is a member of the PVG scheme. However, the only way for a person to prove that they are not barred is to become a member of the PVG scheme.
7. One of the key principles of the PVG scheme is proportionality. Not everyone who will come into contact with a protected adult will be required to be a scheme member. Determining whether or not an individual will be carrying out "regulated work" is key to deciding whether or not they should become a scheme member. [please refer to page 9 for further information about "regulated work"]
PVG Scheme Membership
8. The process of becoming a PVG scheme member is similar to the process for obtaining an enhanced disclosure. When asking an employee to undertake regulated work that individual should apply to become a member of the scheme.
9. Disclosure Scotland will keep the individual's PVG Scheme membership and vetting information up to date. This process is called continuous updating and is one of the biggest differences between existing disclosures and the PVG Scheme as this means access to disclosure records is much faster because all the information is already held by Disclosure Scotland. If, at any point, the information suggests that the PVG Scheme member may have become unsuitable to do regulated work with children or protected adults, then they will be placed under consideration for listing.
10. One of the benefits of the new PVG scheme is that it will link individuals to various organisations. This means that any organisation with an interest in an individual will be notified by Disclosure Scotland if the person is listed or placed under consideration for listing.
11. Another important change introduced by the PVG scheme is that the decision about whether the information on a person's disclosure makes them unsuitable to work with vulnerable groups will now be made by Disclosure Scotland (i.e. if Disclosure Scotland list the individual they are barred from regulated work). This will result in greater consistency and confidence in the system. Disclosure Scotland will make decisions about whether or not an individual is unsuitable to work with protected groups and will bar them from doing so, however, other decisions relating to the individuals suitability for a certain job will be for the employer to determine. For example, a person who has applied for regulated work which includes driving but who has driving convictions (which would not normally mean someone was barred from regulated work) may not be suitable for that job, this is a decision which will need to be taken by the employer.
Referrals by Organisations
12. For the PVG scheme to run as intended, it is necessary for organisations to tell Disclosure Scotland where it believes an individual may be unsuited to doing regulated work. Organisations should make a referral to Disclosure Scotland when certain criteria are met:
- An individual doing regulated work has done something to harm a child or protected adult; and
- The impact is so serious that the organisation has (or would) permanently remove the individual from regulated work.
13. If an organisation believes that an individual has committed behaviour that is harmful to a protected person, then the organisation has a duty to refer the individual to Disclosure Scotland, who will carry out a fair and thorough assessment. During that process the individual who is being assessed will be able to submit written representations and will be made aware of all the information being considered as part of the assessment. During the assessment process an individual will be able to continue working with protected groups - only if a decision is made to bar them will they be unable to carry out regulated work. However, during an assessment process all interested organisations and groups will be made aware that the individual's PVG status has changed. There will also be an appeals process so that an individual can challenge a decision to list them.
PVG and Personal Employers
14. This guidance relates to the relevance of the PVG scheme to the employment of personal assistants by direct payment recipients. It does not relate to the purchase of support from a provider (including self-employed providers). There is an important difference in how the PVG scheme applies to personal employers (i.e., including people who receive direct payments and use them to employ a personal assistant). While it is illegal for a person to do this kind of work if they are barred, it is not unlawful for a personal employer to employ a barred person. This is to avoid criminalising a personal employer, and also allows for proportionality of safeguard. (It should be noted that it is still an offence for a barred person to take up this type of employment.)
15. A key purpose of the PVG scheme is to protect people. A personal employer can decide whether or not to ask a prospective personal assistant to join the PVG scheme or to provide proof of scheme membership. While it is not mandatory that a personal employer requires a personal assistant to be a scheme member, it is strongly recommended.
16. A personal employer is entitled only to see an employee's Scheme Membership Statement. (A Scheme Membership Statement confirms that the individual is not listed and barred from working with certain groups.) They are not entitled to ask for or see any other kind of scheme record, other than with the employee's consent. A Scheme Membership Statement confirms that the individual is not listed and barred from working with certain groups. A personal employer must not ask to see any other form of disclosure record for a purpose other than because the individual is doing regulated work for them. To do so is an offence.
17. The Scottish Government Self-directed Support survey 2010 http://www.scotland.gov.uk/Publications/2010/09/27093422/0 identified that 44% of the 3678 direct payment recipients in the year April 2009- March 2010 purchased support from a personal assistant. The majority of PAs are employed directly by people requiring support.
Types of Scheme Records
18. There are three types of scheme records available:
- Scheme Record - this is the replacement for current enhanced disclosure checks, and will be used by organisations when recruiting someone to do regulated work to join the PVG Scheme for the first time. This particular record will show all conviction information and if the individual is listed/under consideration for listing. The organisation must be a registered body or use an umbrella body to act as a registered body on their behalf. The cost for an individual to join the PVG scheme is £59.
- Scheme Record Update - this is a new type of disclosure which provides a quicker and cheaper method of checking that someone is a scheme member, without the need to request the individual's Scheme Record. An employer will be able to apply for a PVG Scheme Record Update if a person is a PVG scheme member already. It will confirm whether any information is held on the person's Scheme Record and whether there have been any changes since the last Scheme Record was issued. The cost of the Scheme Record Update alone is £18.
- Scheme Record [ if requested within 30 days of the Scheme Record Update] - in instances where a Scheme Record Update indicates that new information exists, then the employer will be able to request a full record. The cost of this is £41.
- Scheme Membership Statement (the only record a personal employer is entitled to see) - anyone who is self-employed, or wishes to join the scheme in anticipation of undertaking regulated work at some point in the future, can join the scheme. This only evidences that the individual is not listed or barred from undertaking regulated work. This type of record is also designed for the use of personal employers who employ someone to do regulated work for them and who wish to confirm that the individual is a PVG scheme member. As it is for sharing with personal employers, it does not contain vetting information. The cost of this is £59 [or £18 for existing PVG Scheme members].
Additional information that the Scheme Membership Statement includes is:
- the name, address, date of birth and PVG Scheme membership number of the individual;
- the unique disclosure record number; and
- the name and address of the personal employer on the personal employer's copy.
19. Once an application has been considered by Disclosure Scotland, so long as the individual is not barred, the appropriate scheme record will be issued to the applicant and to the relevant person in the registered body (or personal employer) who countersigned the application.
Defining Regulated Work
20. The Protection of Vulnerable Groups (Scotland) Act 2007 Act does not specify a list of positions, as the roles and duties that people undertake are flexible and any list would become out of date very quickly. What the 2007 Act does is provide information to allow individuals and organisations to establish which posts constitute regulated work.
21. It is the responsibility of employers to decide whether or not a person doing a particular role is doing regulated work and should be a member of the PVG scheme.
22. There is a five-step checklist to assist this process:
Q1 Is it work?
Q2 Who are they working with?
Q3 What do they do?
Q4 Is it their normal duties?
Q5 Are there any exceptions which apply?
23. Work is defined in the Act and is intended to cover a wide variety of circumstances, including paid and unpaid, formal and informal roles.
24. An individual may be doing regulated work with adults if their work involves any of the following activities as part of their normal duties:
- Caring for protected adults
- Teaching, instructing, training or supervising protected adults
- Being in sole charge of protected adults
- Providing assistance, advice or guidance to a protected adult or particular protected adults which relates to physical or emotional well-being, education or training
- Inspecting adult care services (including any premises used for the purposes of providing such services)
25. All of these activities, with the exception of inspections, must be carried out with "protected adults" for them to be regulated work. More details of who may be a protected adult is given in paragraphs 18 to 25 of the PVG Guidance but the situation is straightforward for direct payment users (as they will always be protected adults, see below).