Consultation on Draft Guidance and Draft Scottish Statutory Instruments

Transcription

1 Protection of Vulnerable Groups (Scotland) Act 2007 Consultation on Draft Guidance and Draft Scottish Statutory Instruments A submission by WRVS 25 January 2010 Introduction WRVS is a charity that wants every older person to have the opportunity and choice to live the life they want. We make sure older people can do so by delivering practical support through the power of volunteering. We also work to publicise and address the issues that affect older people. With 10,500 volunteers in Scotland and a paid workforce of around 65 north of the border, all working either directly or indirectly to support older people to stay independent, healthy, happy and connected in their own communities; support the endeavours of our NHS or support people and blue light services in disasters and emergencies; it is no surprise that WRVS has and has always had a keen interest in the provisions of the Protection of Vulnerable Groups (Scotland) Act 2007 (PVG). We are as keen as anyone to ensure that people who receive our services are, where apposite, adequately protected from harm and that we are enabled by the law to secure effective disclosure checks (as they are currently, generally known) for our staff and volunteers so that we may operate professionally, securely and just as important easily. WRVS believes that, broadly speaking, the new PVG checking scheme will support our way of working and signifies great progress in comparison with what has gone before. Obviously, the sheer number of WRVS volunteers means that the provision of free checks for volunteers that has always been a part of the proposals, remains pivotal. Without this continued provision we would be financially broadsided in a manner that could threaten the very existence of certain of our services. We wish to record again our support for free checks. WRVS has always supported the principles behind the PVG legislation. It has tended to be the detail and the knock on effects that have caused us concern. Such is the case with the subjects of this latest consultation, as outlined below:

2 Protection of Vulnerable Groups (Scotland) Act 2007 Draft Guidance WRVS was represented on the guidance group that advised the Scottish Government on the draft. Consequently, we do not feel it is appropriate for us to comment here beyond saying the following: A single guidance document, in any context on any subject, is unlikely to satisfy every member of every audience and changing one part to suit one constituency always risks confusing another. WRVS believes that the content and coverage of the single document being consulted upon should and understands that it will be presented on the planned PVG website in such a way as to support the needs of different groups, who will engage with PVG in different ways, so as to overcome the complaint that a single document will not suffice, without necessitating the production of dozens of different documents, each aimed at a different group or audience. We support the production of a limited number of hard copies of the guidance to meet the needs of those who, for whatever reason, may have a problem accessing web based resources. Documents and websites are essentially supports to self help activities. But most people respond best to learning led or at least facilitated by other human beings. WRVS is therefore adamant that, alongside documents and websites, there must be the provision of adequate training in the form of a flexible, short term, face to face programme designed to impart knowledge of PVG throughout the various types of groups that will engage with the new scheme. It should also be designed to ensure that this knowledge can be cascaded to other members of these groups, by those who directly engage in the programme and that it is presented in such a way to make it easily adaptable for use with different audiences. WRVS acknowledges that it has a responsibility to engage with training materials and opportunities in order that it may best comply with the scheme. Protection of Vulnerable Groups (Scotland) Act 2007 (Fees for Scheme Membership and Disclosure Requests) Regulations 2010 Rates Even accounting for our position on free checks noted above and the total number of our Scottish staff, we still consider the proposed fee levels ( 59/ 18/ 41) to be too high. While we understand that the principle that the state can charge for its services is well established and the practice has long existed, in this particular case, we do not feel it is appropriate that our charitable resources should be expended on this service to this level. It is not a question of affordability in absolute financial terms; it is a question of what is lost as a result of money spent in this way. We are an efficient organisation, comprising, in many senses, an archipelago of very effective services some of which operate on rather slender budgets and all of which are required to be self sustaining. As a result, even small diversions of funds can hurt us. We continue to advocate the levels proposed at the time of the initial consultation

3 on the matter (February 2008) which now means that all checks proposed to cost 59 would cost 25, those proposed at 18 would cost 10 and the proposed figure of 41 would drop to 15. Volunteers in Voluntary Organisations At first glance; regulation 6 apparently covers WRVS and many more such organisations besides. However, we are concerned that 6 (3) (c) could be interpreted to mean that services must benefit the general public as a whole as opposed to a group who form part of that general public, in WRVS s case, for example; older people. We know that is not the intention of the regulations. We suggest that, for the avoidance of doubt, the wording needs to be changed, perhaps to: for the benefit of members of the general public. On a related issue we share the concerns of the Scottish Council for Voluntary Organisations (SCVO) and others; that regulation 6 could be considered to amount to a statutory definition of the voluntary sector and come to be used as a default definition in other circumstances. We do not think that such a default definition is at all helpful and, to avoid any need for it, we support the proposal that checks should be free for all volunteers no matter what sort of organisation or sector they work for or in. There is nothing in the Act to prevent this from happening irrespective of what the Scottish Parliament may or may not have considered the then Scottish Executive s intention to be when the Parliament voted to pass what is now the PVG Act. In other words, the provision of free checks for volunteers in the voluntary sector is simply a policy consideration and, as such, can be changed by the Scottish Government without referral to the Parliament. Protection of Vulnerable Groups (Scotland) Act 2007 (Prescribed Services) (Protected Adults) Regulations 2010 WRVS is content that the draft regulations; read together with Section 94 and Schedule 3 of the PVG Act itself; bring our services within the ambit of the law so as to permit our volunteers, staff and service users to benefit from the protection the scheme will afford. We understand that under the current system, simply because of the volumes involved, when Disclosure Scotland gets a request for a check, it is obliged to assume that the person or organisation requesting the check ( the requester ), has established that the role actually qualifies for a check in law. We also understand that Disclosure Scotland (DS) will operate the PVG system on the same principle. In other words, DS will not be able to double check every single request to make sure the requester has got it right. The conditions which must be satisfied before DS (on behalf of Ministers) may make a disclosure (Sec. 52 et seq. of the Act) do not require DS to double check requests; rather they require appropriate behaviours of the requester. Nor have there been any regulations made under Sec. 57 (1) (b) placing further restrictions on when information may be disclosed.

4 So, when it comes to deciding whether a check is required, the onus rests on the requester and it is an offence to request a check when one is not required by law (Sec. 67 (1)); one potentially punishable by imprisonment or a fine. It is not clear, given the strictures on DS s time, how anyone will ever know that a request was made inappropriately but that is bythe by. WRVS s concern is that there is scope for contracting parties to disagree with our judgement on whether any of our staff or volunteers requires a check and ask us to get checks that the law does not require, on pain of refusing to engage with us or our volunteers. Supposing that such checks can be identified as unlawful (even if only by WRVS!), WRVS would then be in the invidious position, because of a contracting partner s intransigence, of risking breach of contract or of being unable to secure a contract because WRVS does not wish to commit an offence! To avoid this happening; we repeat our call for the Scottish Government to secure and publicise assurances from the various public authorities that may find themselves embroiled in this situation (most importantly Local Authorities and Health Boards) that they will, as a matter of practice, leave it up to the judgement of those with whom they contract (or otherwise engage with) as to which of their staff or volunteers require a check and, if there is any doubt, pledge to enter into appropriate discussions to come to an agreement over checking which does not place anyone in a position where they are being indirectly encouraged to commit an offence. It may seem to some that such assurances are unnecessary given the good nature of such public institutions but unfortunately many years of experience have demonstrated to us that there can be heavy handed approaches, largely fuelled by fear, that seek to have everyone and their dog checked and that, while the argument rages about who should get checked, services decline for want of attention or fall down for permission to start. Protection of Vulnerable Groups (Scotland) Act 2007 (Modification of Regulated Work with Adults) Order 2010 The draft regulations as written do not, in themselves, cause us any great concern with respect to applying them to our own trustees. That said; we do share the concerns of the Scottish Council for Voluntary Organisations (SCVO) and others; that a) charity trustees appear to qualify as a special case requiring checking whereas those in similar positions of management and control of organisations that are not charities (including organisations in the private sector) do not b) charity trustees of charities working with adults would, if the regulations were passed, come under a different set of legal rules from charity trustees of charities working with children. This seems inequitable and inexplicable and we suggest the two definitions are made to match one another.

5 With respect to point a), WRVS believes there should be a level playing field: either the Scottish Government should simply take out the charity specific provisions entirely including the coverage in Regulation 5 of posts which have responsibility for appointment, management and dismissal etc; or it should extend coverage of such posts to all organisations by inserting them as a further classification of regulated work with adults in the list given in Schedule 3 Part 2 of the Act. Whatever solution is decided upon, it does not seem logical that, within it, charity trustees of adults charities and charity trustees of children s charities should be treated differently. The anomaly noted in point b) should therefore be ironed out as part of the solution to point a). Protection of Vulnerable Groups (Scotland) Act 2007 (Unlawful Requests for Scheme Records) (Prescribed Circumstances) Regulations 2010 WRVS has always objected vehemently to the right bestowed upon third parties by Sec. 67 (3) (b) of the Act to request sight of a disclosure check undertaken with respect to an individual working or volunteering for an organisation (like WRVS) with whom the third party is contracting or otherwise engaging. We believe the scope for disagreement over employee suitability between the employer and the third party could be disastrous and lead to claims against the employer. However, we are where we are and in that context WRVS is mightily relieved that, in the case of adults, the provision is limited to health services and transport. That said, we would be amazed if the febrile atmosphere in which local authorities in particular and other public authorities in general appear to operate; where there is an abuser behind every bush, a lawyer around every corner and a journalist in every gutter; does not lead to a chorus of requests for this scope to be widened. We beg the Scottish Government not to widen the regulation further. It s going to be bad enough to deal with the tension this provision is going to generate as it is without any extension to it. For more information contact: Andrew Jackson Media and Public Affairs Manager WRVS in Scotland andrew.jackson@wrvs.org.uk WRVS is a charity registered in Scotland (SC ) and in England and Wales ( ). It is also a limited company registered at Companies House ( )