Disclosure (Scotland) Bill: partial BRIA

4. Options

The proposals within the Bill that will have an impact on businesses are:

Mandatory Scheme

The Bill will make the PVG Scheme mandatory for certain roles that involve working, paid or voluntary, with protected adults and children. The current scheme is not mandatory.

Time-limited scheme membership

The Bill will introduce a time-limited, renewable scheme membership. Currently the PVG scheme membership is a lifetime membership where the scheme member is subject to continuous checking of records held on police criminal history systems to discover new vetting information, including other relevant information (“ORI”).

Regulated roles

Many of our stakeholders expressed that they understood what was meant by ‘regulated work’ but, on closer examination, there were common misconceptions about how to apply this term in practice. This has resulted in a number of employers trying to put all employees into the PVG Scheme or not classifying the right roles as requiring PVG membership. This means there are people working with protected adults and children who are not in the PVG Scheme who should be, also it has resulted in people being in the scheme who should not be. This could lead to people inadvertently committing offences, as it is an offence to request a PVG scheme record where someone is not doing regulated work. The Bill proposes to replace the concept of ‘doing regulated work’ with a schedule of activities which will always be present in ‘regulated roles’, to bring greater certainty around who qualifies for PVG scheme membership. The requirement of scheme membership will be placed on those who exercise power or influence over children and protected adults. This is the guiding principle on which the schedule of activities is based and it is expected that the schedule will give us the flexibility to respond to changing employment landscapes.

Accredited bodies

Accredited bodies will replace ‘registered persons’, under the 1997 Act, as the bodies eligible to access Level 2 disclosures. A disclosure request must be countersigned by an accredited body to be valid. An individual can apply without an accredited body to obtain a certificate confirming their PVG scheme membership status (called a confirmation of scheme membership).

Under the current system, an organisation which uses basic disclosures as part of their recruitment process can enrol with Disclosure Scotland as a ‘responsible body’ which simply means that they are provided with a credit facility which they are entitled to use. Disclosure Scotland offers these businesses the ability to obtain basic disclosures for a large number of job applicants using special arrangements that allow for bulk applications. This is known as Business 2 Business, or B2B for short. The Bill will bring responsible bodies within the remit of accredited bodies, and they will be subject to the same fees and responsibilities as registered persons.

Barring provisions

Under the current system, when an individual is placed under consideration for listing they are not barred from doing regulated work during the period of the consideration.

The Bill proposes that Disclosure Scotland is given new powers to impose certain conditions on people who are being considered for listing. For example, if Disclosure Scotland considered there to be a safeguarding concern, conditions - such as restricted duties or preventing an individual from working with certain age groups - could be imposed.

The Bill also proposes to end the system of court referrals. This is not considered to be necessary in light of the mandatory scheme. However, the referral system is otherwise being enhanced by giving new powers to the police to make referrals if they discover someone who is doing a regulated role without being a scheme member. Local authorities and integration joint boards are also given new referral powers, largely to ensure that referrals can be made where harmful behaviour is carried out by a self-employed individual in the care sector.

Digital delivery

Disclosure Scotland want to move the disclosure system, which is currently an onerous, paper-based system, to a flexible, user-centred digital system. The detail of how this will operate in practice will be developed in close consultation and engagement with those who use the services.

The Bill provisions will support the development of a new digital system. The implementation of increased digital services will over time modernise and simplify the disclosure system. The design principle is that customers should only need to know the role they want to do and the system should take care of guiding them to the appropriate disclosure.

All products will be available as a digital certificate following an online application which the applicant can elect to share with third parties, such as a prospective employer.

Option 1 – Do nothing

Option 2 – Introduce the Disclosure (Scotland) Bill

The Bill, together with the wider review, presents proposals for improving and simplifying the disclosure regime in Scotland. This assessment provides only summary costs and savings for each option. Detailed calculations are provided in the Financial Memorandum, which can be found on the Scottish Parliament website under the Disclosure (Scotland) Bill.

Sectors and groups affected

As of May 2019, there were 1,240,343 members of the PVG Scheme. The membership landscape of the PVG Scheme is varied and includes doctors, nurses, teachers, sports coaches, care assistants and volunteers doing regulated work with children and protected adults. The public sector, third sector and the voluntary sector will all be affected by any changes to the current disclosure regime.

As well as PVG scheme members, individuals request basic, standard and enhanced disclosures under the 1997 Act. These can be requested for a variety of reasons and employment sectors, for example, solicitor, door attendant, adoptive parent, store worker etc. The landscape for all disclosure products is wide and far reaching. In 2018 there were 308,427 requests for basic, standard and enhanced disclosures.

The Bill will have the greatest impact on the individuals who use the disclosure regime, particularly PVG scheme members.

Option 1 – Do nothing

Option 1 would meet the Government’s commitment to review the PVG Scheme, however, doing nothing would mean that no action would be taken to resolve any the issues highlighted by stakeholders.

Mandatory Scheme

Non-mandatory membership of the PVG Scheme; the Scheme would continue to be available to people doing ‘regulated work’, however, there would be no legal requirement to be a member of the scheme if working with protected adults or children. There would be no requirement for employers to ask for a PVG disclosure, although they would still have the risk of employing someone who is barred, which is an offence. Disclosure Scotland would need to find another way of ensuring that those who should be scheme members are although, with no levers to ensure it, under the current system this has been difficult.

Time-limited membership

The Scheme will continue to be a life-time scheme membership. This would result
in the Scheme continuing to inflate in size. When the PVG Bill was introduced it
was thought that around one million people would be in the PVG Scheme, but
there are presently just over 1.22 million scheme members and, without introducing time-limited membership, it is forecasted to rise to 1.49 million people by the end of March 2022. Recent attempts to get scheme members to leave the scheme when they are no longer continuing regulated work has had very little impact. Disclosure Scotland would need to develop a process to remove members from the Scheme. There are few legislative options to remove people from the scheme, and to date, the options tried have been unsuccessful.

Regulated roles

The Scheme would continue to operate under the model of ‘regulated work’. Under the current system the definition of regulated work in the PVG Act allows for generic criteria to be applied to a wide spectrum of job and roles and this can make it difficult for the employers to assess whether the role is regulated work. There is a risk that the current definition of regulated work is too restrictive and difficult to apply in practice, leading to people who should be in the Scheme not being members. For instance, the Scottish Parliament’s Health and Sport Committee found in their report that there were variations in practice between sports clubs and bodies regarding whether or not coaches could work/volunteer in a limited capacity without a PVG check having been completed. The Health and Sport Committee stated these variations in practice could well be effecting the overall value of the PVG scheme as a child protection measure.

Accredited bodies

Registered persons and responsible bodies would continue. Responsible bodies would not be constrained by the current legislation in the same way registered persons are. Disclosure Scotland would not assess whether an employer is eligible to become a ‘responsible body’. Another solution would be required to ensure responsible bodies operate appropriately, without legislative levers this would be difficult.

Barring provisions

There would be no change to the current barring provisions. It would not be possible to impose conditions on individuals under consideration for listing, thereby leaving a potential safeguarding gap. Disclosure Scotland would continue to receive court referrals for individuals who are not in the PVG scheme or who have no intention of doing regulated work. Police and local authorities would not be able to make referrals, which could result in a safeguarding risk.

Digital Delivery

The system would continue to be paper-based, with some limited digital aspects that can be delivered under the existing legislation.

Option 2 – Introduce the Disclosure (Scotland) Bill

The Bill makes provisions for a number of amendments to the current disclosure regime in Scotland, improving the system for individuals and organisations alike.

Mandatory Scheme

It would become an offence for an individual to do a regulated role without being a PVG scheme member. It would be an offence for employers to employ someone in such a role without first confirming their membership of the PVG Scheme.

Time-limited membership

Five-year time limit on membership. This may be linked to a fixed fee for each scheme membership period. Updates would not exist in their current form and no additional fee would be charged for them.

Regulated roles

Replacing the concept of ‘doing regulated work’ with a schedule of activities giving rise to ‘regulated roles’ that trigger mandatory PVG scheme membership (voluntary and paid). This will simplify the system for the majority of individuals and organisations using the current system.

Accredited bodies

Replace ‘registered persons’ and ‘responsible bodies’ with accredited bodies. Any organisation requesting Level 1 disclosures or wishing to use the B2B service is brought within the scope of an accredited body and is subject to regular suitability checks from Disclosure Scotland.

Barring provisions

Disclosure Scotland are able to impose standard conditions on scheme members when considered necessary for public protection, or where conditions are otherwise in the public interest. New referral powers for the police and local authorities will help to close safeguarding gaps.

Digital delivery

Develop an online application and access system where digital information is owned by the individual who will be able to securely route or share it with any employer or any other person they choose to provide it to, for example, a voluntary organisation.

Benefits

Option 1 – Do nothing

As there would be no action, there would be no significant benefits to the issues identified by stakeholders, including businesses. However, the status quo would remain, organisations would have some knowledge of the existing system and how it works. They would not have to familiarise themselves with a new system and adjust their internal processes to ensure they are in line with new legislation. There would also be no additional administrative burden due to a time-limited membership or standard conditions.

Option 2 – Introduce the Disclosure (Scotland) Bill

Mandatory Scheme

A mandatory scheme will address safeguarding gaps in the current regime as identified by the Health and Sport Committee. Disclosure Scotland will be able to monitor compliance with all organisations in which people are in regulated roles with children or protected adults. Organisations will have greater confidence in the PVG Scheme.

Many organisations and individuals already believe that the Scheme is mandatory, which can cause uncertainty and distrust for the general public when they are unsure if someone has gone through a check. This can undermine confidence in organisations and the Scheme itself. It can also leave individuals unsure about the operations of the Scheme when they move between organisations which follow different procedures.

There is a significant safeguarding risk that concerns key stakeholders and public confidence in the potential for an employer which does not use the Scheme to hire someone who is unsuitable to undertake regulated work, resulting in harm to vulnerable groups.

A mandatory scheme would remove the variations in use of the Scheme from organisation to organisation and assist in understanding and compliance with better safeguarding.

Time-limited scheme membership

Under the current lifetime membership, those joining the Scheme tend to remain in it long after they no longer do regulated work, or fail to inform Disclosure Scotland when they are no longer involved in regulated work with a particular organisation. Introducing a time-limited membership period ensures that account information will be accurate as members will be required to review their information prior to each renewal or, if no longer in regulated work, will be encouraged to leave the Scheme. This will reduce occasions where organisations are contacted by Disclosure Scotland unnecessarily as a result of out of date account information. This will create a saving for organisations both in staff time and administration costs.

A time-limited membership also ensures that the Scheme self-adjusts to the right size because people who do not need to be in it have the incentive and easy ability to leave. Organisations will benefit from this as it will prevent the Scheme from unnecessarily growing in size which would have further cost implications.

Regulated roles

Many of Disclosure Scotland’s stakeholders expressed that they understood what was meant by ‘regulated work’ but, on closer examination, there were common misconceptions about how to apply this term in practice. The current system is onerous and complex, our proposals aim to simplify the system, making it easier for applicants and employers to navigate. The new system proposes to reduce the administrative burden on organisations by guiding them to the correct disclosure products, as well as delivering it in a more accessible manner.

The Bill proposes to replace the concept of ‘doing regulated work’ with a schedule of activities which will always be present in ‘regulated roles’, to bring greater certainty around who requires PVG scheme membership. The requirement of scheme membership will be placed on those who exercise power or influence over children and protected adults. This is the guiding principle on which the schedule of activities is based and it is expected that the schedule will give us the flexibility to respond to changing employment landscapes.

Accredited bodies

This will tighten the security of the B2B service to assure the protection of personal data whilst still allowing for the efficient delivery of the service.

Barring provisions

Introducing standard conditions will result in an additional level of protection to ensure children and the vulnerable are protected from harm. During consultation organisations also stated it would help them better manage risk on a case-by-case basis.

It is anticipated that imposing standard conditions closes the safeguarding risk where a self-employed person could be under consideration for barring but no employer or statutory authority might exist who could constrain or limit their exposure to vulnerable groups for the time of that consideration. For example, a self-employed football agent with a previous conviction for grooming children in order to engage in sexual activity with them, could choose to join the PVG Scheme in order to work with children. There would be no employer to notify of the consideration for barring status and during that period the individual might have privileged and unsupervised access to children where they hold a position of trust and influence over them. Disclosure Scotland could impose a condition requiring the football agent to provide information relating to any regulated role which that scheme member is carrying out, or is to carry out. This would enable Disclosure Scotland to share important information with the child (or a person with parental responsibilities if appropriate), including notification that the football agent is being considered for barring and provide details of any conditions imposed. Conditions will also be notifiable to Police Scotland for the purposes of the prevention and detection of crime.

Digital delivery

A user-designed, digital-by-preference system will reduce the need for employers to spend time ordering, completing, scanning and mailing paper forms. An online application process more focussed on individual responsibility will reduce the processing requirements of employers in the long term. The system will be designed working with both individuals and employers to ensure digital solutions are accessible and meet the requirements of those using it. While the Bill itself does not require a digital system, the legal provisions will support the development of an online platform. There will still be an option to engage in a non-digital way for those who cannot, or prefer not to, use the new digital system.

Costs

Option 1 – Do nothing

Current costs for operating the disclosure regime continue, with no potential for savings. There could be increased costs to businesses in continuing with the primarily paper-based system. A continually increasing scheme member size will result in the cost of administrating the scheme continuing to go up.

There is a risk of reputational damage, as a non-mandatory scheme could result in a business employing someone who is barred. Possible GDPR/ECHR implications are also present for employers as they may be provided with information they are not entitled to due to inaccurate scheme membership or registered body details.

Option 2 – Introduce the Disclosure (Scotland) Bill

Mandatory Scheme

For many organisations the move to a mandatory Scheme itself will have a minimal cost implication. It is an existing requirement of many businesses and all professional regulatory bodies (such as the General Teaching Council for Scotland) that individuals should have the right level of disclosure for their role, including those requiring PVG scheme membership.

A mandatory scheme will only draw in a minority of eligible organisations which do not currently use it. It will have an impact on Scottish based organisations who deploy people who are ordinarily resident in the UK to do work overseas which would be a regulated role if the activity were done in Scotland. For organisations that have never used the Scheme before, they will have to register as accredited bodies at a cost. If they chose to pay for scheme membership for their employees, they will incur scheme membership costs (costs have yet to be set but for indicative purposes the current fees are £59 for a full PVG scheme record and £18 for any additional update).

Time-limited scheme membership

Disclosure Scotland believe that the cost of administrating a time-limited scheme membership for their employees will be minimal as individual scheme members will be responsible for renewing their membership. Concerns were raised during our engagement with regards to the administration costs of chasing up individuals membership. This was highlighted by NHS organisations and their experience of following up with individuals failing to get their Nursing and Midwifery Council registration renewed. However, Disclosure Scotland believe there will be no additional burden from the current scheme for businesses. Currently Disclosure Scotland need to contact organisations for updates about whether scheme members are still working for them. These checks are required to ensure safeguarding and will be required if a scheme member does not renew their scheme membership.

The current system is paper-based, which is time-consuming and complex, and can often result in recurring engagement with the applicant to ensure the information being submitted to Disclosure Scotland is correct. Disclosure Scotland believe that the movement to a more individual focused regime and the digital delivery of the scheme will result in savings for employers.

Although the Bill itself does not set specify fees, it does give Ministers powers to charge fees for various disclosure products and services. There are also existing powers in the 2007 Act which allow Ministers to set fees. Ministers may choose to attribute a fee to the time-limited Scheme membership.

The following examples are for illustrative purposes to show some varying costs for one scheme member over a 20 year working period, depending on how they use the current scheme and a five year membership with current fees. It should be noted if an employer asked for a full scheme record, rather than a scheme record update for an individual, this would cost another £59. This is not a scenario set out in the below table.

	Membership	Update	Updates[2]	Renewals	Total
Option 1 – Do nothing	£59	£18	0	0	£59
Option 1 – Do nothing (with updates)	£59	£18	6	0	£167
Option 2 – five year membership	£59	£0	No limit, subject to fair use	3	£236

The current legislation is silent on who should pay the fee, this will not change under the new system. Although not set out in the Bill, our policy intent is that the scheme member would be expected to pay, reflecting the emphasis that it is the disclosure subject who is empowered by many of the policies contained in the Bill.

However, in circumstances where an employer chooses to reimburse a member’s fees, changes to the fee structure such as option 2 (five year membership) could increase their expenditure, although in some cases their expenditure could actually reduce. This is because the real position is not as straightforward as the table above. The scheme at present is not fully portable and a care worker who moves between local authorities or a nurse who moves between health boards may well be asked to reapply to the Scheme repeatedly at the cost of another £59. The extent to which expenditure will change will be determined by the level at which fees are eventually set.

A real life example of this is a current scheme member who is a care worker working with protected adults. This scheme member made eleven applications for an update of their scheme record in a five year period (between 1^st April 2014 and 1^st April 2019) for different organisations. Each update cost £18 (£198 total). The scheme member also made four full scheme record applications during this time for different organisations at a cost of £59 each (£236 total). The total cost in using this scheme membership, over the five year period, was £434. This shows that individuals can benefit from the recurring membership that allows them to access and disclose their information at no extra cost over that five year period. Analysis so far shows that 210,790 scheme members have requested at least one additional full scheme record at £59 and 433,890 scheme members have requested at least one additional updated scheme record at £18. Further work is being undertaken by analysts to determine how many have requested more than one additional scheme record or scheme record.

The current intention is to adopt a fee structure for PVG scheme membership that most accurately reflects the full cost of providing the service, i.e. full cost recovery. Fees will be set in regulations which will require further consultation prior to being laid before Parliament. Stakeholder engagement will continue to help determine appropriate fees and payment methods, exploring options which might provide more flexibility in how people can pay for their disclosure.

Regulated roles

There will be a requirement for organisations to understand and apply the concept of regulated roles, however, for the majority will not be required to do this as the role they are looking at will be on a list and no assessment will be required. It is expected that the new regime will streamline the disclosure process and provide an electronic facility for requesting and sharing information which should cut administration costs for employers. There could be a cost of updating internal policies.

Accredited Bodies

The fees associated with being a registered person or countersignatory have remained static since 2011. It is intended that there will be a small fee increase in line with inflation which will mean that accredited bodies will pay an annual registration fee of £100 (currently £75 for registered bodies), with four additional countersignatories included. It would be £20 (currently £15) to add additional countersignatories. This is not expressly provided for in the Bill, as fees are set in regulations.

As of April 2019, there are 1,688 responsible bodies who will now fall within the remit of accredited bodies. These bodies will be impacted as they will now have to pay the fees set out above. Responsible bodies already incur an administrative cost in discharging their duties set out in the OPA (operational agreement they sign with Disclosure Scotland) and many of these duties replicate those within the code of practice. There may also be a small administrative burden on these organisations in ensuring the discharge of any additional duties appropriately.

3,935 organisations are currently registered as accredited bodies and will see a small increase in registration fees from £75 to £100. Registered bodies already incur administration costs in relation to discharging their registration duties set out in the code of practice, these duties will remain.

Barring provisions

There could be an administrative burden on some organisations in ensuring the conditions are met. Some volunteer-led organisations and smaller businesses have expressed concern that standard conditions may impact their workforce as they may not have the resources to oversee conditions placed on scheme members. Disclosure Scotland currently considers around 3,000 people per year for listing, but standard conditions will only be imposed in the most serious cases, and it is anticipated that there will be less than 100 cases per year, 3% of the cases considered for listing. Due to the small number of cases, it is anticipated that the administrative burden on employers will be minimal and will have huge safeguarding benefits.

Local authorities will continue to need to be in a position to provide information to Disclosure Scotland and comply with requests for further information in respect of any particular case. The proposals within the Bill give local authorities a power to refer when acting in a role other than as regulated role provider, i.e. when undertaking a safeguarding role. For example, a personal employer may have recruited an individual to provide personal care services through self-directed support, then, following an adult protection investigation, the local authority may consider it appropriate to refer the individual to Disclosure Scotland due to the concerns raised during their investigation. There was significant support for this from local authorities during engagement sessions as well as the formal public consultation. The number of additional referrals for this proposal alone are not expected to be high. The proposals within the Bill will not increase the burden on local authorities to provide information to Disclosure Scotland. Indeed, it is expected that the new Scheme will streamline the request and submission of information and provide an online facility which should cut administration costs for employers.

Digital delivery

It is expected that the new regime will streamline the disclosure process and provide an online facility for requesting and sharing information which should cut administration costs for businesses, local authorities and health boards.