The New Direct Payment Framework Safeguarding considerations © Belinda Schwehr 2009

Copyright Statement This presentation has been collated from course content produced by Belinda Schwehr and is reproduced with the author’s consent. Belinda Schwehr Care and Health Law

Dodgy people looking to work... We have spent 10 years revving up to proper regulation of domiciliary care The expense has now been deemed to be too great in view of the numbers needed to do this work A proposed amendment in the Lords to the ISA scheme, to require all direct payment clients’ workers to be CRB’d, was defeated by government. Trusting people’s relatives and friends to make good decisions about strangers, is the preferred policy answer – even where the client lacks capacity! 3© Belinda Schwehr, 2009

What does the government think? 4© Belinda Schwehr, 2009

What does the government think? 5© Belinda Schwehr, 2009

What does the government think? 6© Belinda Schwehr, 2009

What does the government think? 7© Belinda Schwehr, 2009

Vetting and Barring and how it will help protect those spending PBs The Safeguarding Vulnerable Groups Act provides the legislative framework for the new Independent Safeguarding Authority scheme. The new arrangements will be introduced in phases from Autumn 2009/10. The Act defines the scope of the scheme and provides that certain activities in relation to vulnerable groups are regulated. The ISA list will replace the POVA list. The Act enables local authorities in their safeguarding role to refer any individual to the ISA. Currently only CSCI and employers who are regulated can refer employees to the POVA list. A regulated activity is an activity of a specified nature that involves contact with vulnerable adults frequently, intensively and/or overnight. Adult Protection Teams in local authorities have a legal obligation to refer relevant information to the ISA. Employers and service providers of regulated and controlled activity (regulated activity providers) have a legal obligation as above. Anyone doing a regulated activity must be registered with the ISA for monitoring. Domestic employers such as parents will be able to check whether private tutors, nannies, music teachers and care workers are barred. 8© Belinda Schwehr, 2009

The structure of the scheme Those who are closely working, or applying to work, with children or vulnerable adults will be required to make an application to the Secretary of State to be "subject to monitoring". This will cover everyone engaging in what the Act refers to as "regulated activity" with the permission of a "regulated activity provider". The intention is that employers engaging individuals in "controlled activity" will also in most cases need to ensure that they are subject to monitoring, although this requirement will be placed on employers through regulations. The Act allows for the phasing in of applications from existing members of the workforce. There are a series of criminal offences to: a. prevent barred individuals from engaging in regulated activity in relation to children or vulnerable adults b. ensure that people permitted to engage in regulated activity in relation to children or vulnerable adults with the permission of a "regulated activity provider" are subject to monitoring c. ensure that relevant employers check an individual's status in the scheme before permitting an individual to engage in regulated activity in relation to children or vulnerable adults 9© Belinda Schwehr, 2009

Regulated activity relating to vulnerable adults Each of the following is a regulated activity relating to vulnerable adults if it is carried out frequently by the same person or the period condition is satisfied— (a) any form of training, teaching or instruction provided wholly or mainly for vulnerable adults; (b) any form of care for or supervision of vulnerable adults; (c) any form of assistance, advice or guidance provided wholly or mainly for vulnerable adults; [ie ongoing brokerage, perhaps?] (d) any form of treatment or therapy provided for a vulnerable adult; (e) moderating a public electronic interactive communication service which is likely to be used wholly or mainly by vulnerable adults; [ie chatrooms] (f) driving a vehicle which is being used only for the purpose of conveying vulnerable adults and any person caring for the vulnerable adults pursuant to arrangements made in prescribed circumstances; 10© Belinda Schwehr, 2009

Vulnerable adults defined for the purpose of this Act 59 (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 person exercising functions for the purposes of Part 1 of the Criminal Justice and Court Services Act 2000 (c. 43), (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 subsection (9), (i) payments are made to him (or to another on his behalf) in pursuance of arrangements under section 57 of the Health and Social Care Act 2001 (c. 15), or (j) he requires assistance in the conduct of his own affairs. 11© Belinda Schwehr, 2009

Who is, and who is not, a regulated activity provider? (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. … [ie he is the boss, and organises others to do the care….] (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. [ie buying your own care] (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. [ie individuals buying care for their family or friends do not have to check, but can do so if they want to] 12© Belinda Schwehr, 2009

Other broad let-outs 58 Family and personal relationships (1) This Act does not apply to any activity which is carried out in the course of a family relationship. (2) This Act 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. 13© Belinda Schwehr, 2009

So where does the SVGA get us to, for the purposes of personalisation? Anyone receiving care in their own home would be ‘vulnerable’ Anyone providing frequent care, supervision or advice, with the permission of a RAP, would have to become subject to monitoring. A Local Authority could report anyone, even a direct payments worker, to the Barring Board BUT ‘RAP’ status does not attach to anyone getting care or advice for themselves – so a new DP worker who has never been subject to monitoring won’t be obliged to become registered with the ISA to do their job, because they are not doing the job ‘with the permission of a regulated activity provider’! A DP client could look to see if the person they want to employ was barred at some earlier point A person buying care for a family or friend is not a RAP, so is not obliged to check that the person is subject to monitoring or barred; and nor are they obliged to buy care from a person who is subject to monitoring A non-individual (ie a corporate structure) buying or organising care for a family member or friend is a RAP, so would have to check that a potential worker was not barred, and could not employ a person to offer to a client, unless the worker was subject to monitoring. 14© Belinda Schwehr, 2009

When must information be referred? Local authorities (in their social services capacity), professional bodies and supervisory authorities must refer where an individual who is working closely with vulnerable groups has harmed, or may harm a vulnerable adult or they think that the ISA may consider it appropriate to bar the individual. If new information comes to light, leading the ISA to bar an existing member of the scheme from working in regulated activity, all employers with relevant interests will be notified that this person is no longer a member of the ISA scheme. This means that the employer will be required to remove the person from regulated activity. Query whether this covers direct payments clients’ workers 15© Belinda Schwehr, 2009