Scottish Government

Chapter 1: Introducing the PVG Scheme

1. The PVG Scheme ("the Scheme") is at the heart of the Protection of Vulnerable Groups (Scotland) Act 2007 ("the PVG Act"). This guidance explains what the Scheme is for, how it should be used, the information it collects and provides, and how it operates. It is produced by the Scottish Government under section 84 of the PVG Act to assist practical understanding of the legislation. It should be read alongside the PVG Act, as all legal rights and obligations are contained in the legislation and the guidance is an interpretive aid only.

2. This guidance does not contain an authoritative statement of the law. Interpretation of the law is ultimately a matter for the courts. Individuals will wish to consider carefully their own particular circumstances and may wish to take appropriate legal advice regarding matters covered by the guidance.

3. This introduction outlines a number of concepts and procedures that you will need to understand if you interact with the Scheme in any way. However it does not seek to explain these in detail. You should not rely solely on this introduction to give you a complete understanding of the Scheme, but refer to the more detailed chapters of the guidance, which in turn will refer you, where appropriate, to relevant sections of the legislation.

4. Please refer to the Glossary for explanations of the words and expressions that are in bold type. A key word or expression will be printed in bold at its first use in a paragraph. If it is used more than once in a paragraph, it will be in bold at its first occurrence only. The Glossary will help you to understand some of the key words and phrases used in this guidance.

Background

5. In 2002, in the Cambridgeshire village of Soham, Jessica Chapman and Holly Wells were murdered. The following year, Sir Michael Bichard opened an Inquiry with a remit to investigate police intelligence gathering and record keeping, and the way such information was shared and used for vetting individuals as part of child protection procedures.

6. The Bichard Inquiry Report, published in June 2004, made 31 recommendations. Recommendation 19, stated that "new arrangements should be introduced requiring those who wish to work with children, or vulnerable adults, to be registered." The PVG Act is the Scottish Government's response to that recommendation.

7. Separately, the UK Government passed the Safeguarding Vulnerable Groups Act 2006 ("the SVG Act") for England and Wales with certain provisions in that Act extending to Northern Ireland. The Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 replicates the provisions of the SVG Ac that do not extend to Northern Ireland. These pieces of legislation deliver the solution to recommendation 19 in these jurisdictions.

8. Sir Michael Bichard has said that he is satisfied that the approach used by the PVG Scheme and the SVG Scheme meets with the requirements of his recommendation.

Aims of the PVG Act and PVG Scheme

9. The PVG Act is the basis for:

• The PVGScheme,
• the disclosure records that are used to disclose information about someone's scheme membership, and
• the lists that are used to keep a record of those who are barred from doing regulated work.

10. The PVG Scheme replaces the previous disclosure arrangements under the Police Act 1997 (" the 1997 Act") for individuals working with vulnerable groups. The children's list that the PVG Act establishes replaces the list held under the Protection of Children (Scotland) Act 2003 (" PoCSA"). The PVG Act also establishes an adults' list in Scotland for the first time. The PVG Scheme is designed to prevent unsuitable people being recruited into, or remaining in, regulated work with children or protected adults.

11. Disclosure certificates under the 1997 Act provide a snapshot of a person's history at the point-in-time when the disclosure was requested. There is no ongoing updating of the information that was found at the time of checking. This meant that every time a person who had been checked moved on to similar work or even took up similar work at the same time as their main work (for example, a social worker who volunteered in the evenings at a youth club) they might have to get an entirely new disclosure check.

12. It is very important to remember that the 3 types of disclosures under the 1997 Act will still be used for positions not caught by the PVG Scheme. The basic check will be available for recruitment into any post not covered by the PVG Act or to which the exclusions and exceptions in the Rehabilitation of Offenders Act Order ([title] SSI 2010/ xxx) do not apply. The standard disclosure will be available for those posts to which the ROA Order applies, and the enhanced disclosure will be available for those posts excluded by that Order and additionally prescribed by the Regulations and Order made under the 1997 Act. There is more information in the Glossary about this.

13. The new PVG Scheme will change the procedure described in paragraph 11 and will introduce a system where, instead of having to start from scratch each time, it will be possible to access updated information. Under the new arrangements people will join the Scheme and will each have a membership record which will be updated as and when new information becomes available.

14. The PVG Scheme:

• helps to ensure that those who carry out certain activities with children and protected adults through paid and unpaid work do not have a known history of harmful behaviour,
• provides membership for people working with children and/or protected adults, meaning that if they become unsuitable during their employment, they can be quickly identified and appropriate action taken,
• is designed to be quick and easy to use, reducing the need for members to complete a detailed application form every time a disclosure request is made,
• is designed to work closely with arrangements that have been put in place elsewhere in the UK, and to prevent cross-border loopholes developing, which might be exploited by those who would harm vulnerable people, and
• allows personal employers to confirm that an individual they wish to employ is a member and so not unsuitable for that type of work.

Who should join the Scheme?

15. Existing workers in both paid and unpaid posts need take no action with regards to the Scheme at present. They should wait until their employer or voluntary organisation asks them to join. But those entering regulated work for the first time, and those already in regulated work, but changing jobs, should expect to be asked by their employer or organisation to join the Scheme. Standard and enhanced disclosures under the 1997 Act are no longer available for people in these circumstances. In other words, the PVG Scheme replaces those enhanced disclosures for people doing work with children and adults at risk.

Making an application to the Scheme

16. When an individual wishes to join the Scheme, they will need to fill in a detailed application form and provide proof of identity. They may apply:

• via an employer for whom they are already doing paid or unpaid work,
• via a potential employer, to whom they have applied to do paid or unpaid work,
• unilaterally, that is on their own account as an individual, without any particular employer in mind, or
• via a relevant regulatory body, for example, the General Teaching Council for Scotland, where that body has made scheme membership a condition of registration.

17. The type of application will determine who should authenticate the identity of the applicant and whether or not the application needs to be countersigned. For unilateral applications, Disclosure Scotland will carry out authentication and copies of supporting documentations should be provided with the applications. This type of application does not require countersigning.

18. If you are apply to join the PVG Scheme with a job in mind, then your prospective employer will verify that identity documentation has been shown to them and countersign the form. For paid work, that will usually be your prospective employer. If you are volunteering for regulated work in the voluntary sector in Scotland, the Central RegisteredBody inScotland ( CRBS) will be able to countersign the form as long as the organisation is enrolled with CRBS for that purpose. Disclosure Scotland will still carry out authentication checks in the background and might, in exceptional cases, request copies of supporting documents from applicants.

Granting or refusing scheme membership

19. When an application to join is received, Disclosure Scotland creates a unique scheme membership record for the applicant and searches for vetting information from a range of sources. In the vast majority of cases, no vetting information will exist. But if any relevant vetting information is found, then it will be taken into account as part of the consideration process by staff at Disclosure Scotland. That first stage will be to determine whether or not it would be appropriate for the applicant to be placed under consideration for listing. Applicants who are not placed under consideration for listing will join the Scheme.

20. For people placed under consideration for listing, the outcome still might be that they can join the Scheme. The other outcome is that the person is considered to be unsuitable. If that happens they will be placed on the relevant list or lists which will mean they are barred from working with either children, protected adults or both. Being barred means that a person cannot start working with these vulnerable groups. (Scottish Ministers will have to make a provision under 35(2) of the 2007 Act to ensure that persons, who are barred, are removed from the working with vulnerable groups if they are already working with the group to which the barring relates.)

21. If someone applies to join the Scheme and is considered to be unsuitable, then his or her name will be added to one or both of the lists of those barred from doing regulated work with vulnerable groups. The PVG Act creates one list to bar unsuitable individuals from working with children and one list to bar unsuitable individuals from working with protected adults.

Issuing disclosures

22. If the applicant is not considered to be unsuitable, Disclosure Scotland then issues the appropriate disclosure record to show the individual is a scheme member:

• If the individual applied via an organisation, copies of their scheme record are sent to the individual and the organisation and, if appropriate, any relevant regulatory body that the individual has indicated they hold a current registration with,
• If the individual applied unilaterally, on their own account, without an employer or job in mind, the individual receives a scheme membership statement, or
• If the individual applied via a personal employer, a scheme membership statement is issued to the personal employer and to the individual.

It is important to note that a disclosure record will only be sent to an employer at this stage if a disclosure request is made as well as an application to join the scheme.

23. The disclosure contains the individual's scheme membership number. The scheme member should keep a careful note of this number as it will speed up any future applications made to Disclosure Scotland at a later date. The scheme record should be securely stored by the scheme member, as subsequent employers may ask to see it.

The types of PVG Act disclosure records

24. A PVG Act disclosure record is any one of the three records issued by Disclosure Scotland. These are: the scheme record (in the 2007 Act this is the scheme record, see section 52), the scheme record update (in the 2007 Act this is the short scheme record, see section 53) and the scheme membership statement (in the 2007 Act this is the statement of scheme membership, see section 46).

25. The scheme record shows:

• the scheme member's statement of scheme membership, and
• any vetting information gathered by Disclosure Scotland about the scheme member.

"Vetting information" is:

• convictions that are recorded in UK criminal record databases,
• non conviction information held by a local police force that might be relevant to the regulated workforce to which the application relates,
• whether the scheme member has been required to register under the Sexual Offences Act 2003, and
• whether the scheme member is subject to certain prescribed civil orders.

26. The civil orders that can be included on the scheme record are:

• a risk of sexual harm order or an interim risk of sexual harm order made under the Protection of Children and Prevention of Sexual Offences (Scotland) 2005,
• a sexual offences prevention order or an interim sexual offences prevention order made under the Sexual Offences Act 2003 ("the 2003 Act"),
• a foreign travel order made under the 2003 Act, or
• a notification order or interim notification order made under the 2003 Act.

27. A scheme record update does not contain vetting information. It will only show:

• the statement of scheme membership,
• when the scheme record was last disclosed,
• if vetting information shows on the scheme record, and
• whether or not vetting information has been added or removed from the scheme record since it was last disclosed, and the date of that change being made. It does not show the details of any change.

28. Lastly, the scheme membership statement will show:

• the type of regulated work that the applicant has joined the Scheme to do,
• that the applicant is not barred from regulated work of that type,
• if Scottish Ministers are considering listing the applicant for that type of regulated work, and
• if the Independent Safeguarding Authority is considering listing the applicant for that type of work.

The scheme membership statement is an integral part of, and appears on both the scheme record and the scheme record update.

Continuous updating

29. This is one of the biggest differences between what happened previously and what will happen under the Scheme. Once a person is a member of the Scheme, their scheme membership record will be kept updated by Disclosure Scotland. Any new vetting information gathered by Disclosure Scotland will be added to the record. Any new vetting information that comes to light about a scheme member will be assessed. If the information suggests that the scheme member may have become unsuitable, then they will be placed under consideration for listing.

30. If a scheme member is placed under consideration for listing, any organisation(s) the individual is known to be working for and any relevant regulatory bodies they are known to be registered with will be notified of this change in the Scheme member's status. If the consideration leads to the scheme member being barred then it will be an offence for the individual to do regulated work in the field to which the bar relates and for any organisation to offer regulated work to them. It is a defence for the organisation to prove that it did not know and could not reasonably be expected to know that the person was barred from regulated work.

Scheme record update

31. This is also a major change. Once a person is a member of the Scheme, they are known to Disclosure Scotland. If they change jobs or take on additional voluntary work in the same workforce, rather than have to complete a detailed application, they can apply for a scheme record update. Alternatively, the new organisation might be content to rely upon the existing evidence about scheme membership presented by the person.

Personal employers

32. Personal employers can make use of the Scheme even though they are not entitled to request an individual's scheme record if they themselves are countersigning the request. This is because only a registered person or countersignatory can countersign the request for the disclosure of a scheme record. However, as a personal employer can ask the exempted question, this means that if a registered person is willing to countersign the request on their behalf then access to an individual's scheme record would be possible.

33. Ordinarily, the personal employer should ask to see the individual's scheme membership statement. This shows that the individual is a member of the Scheme to work with children, protected adults or both. It therefore demonstrates that the individual is not barred from regulated work in the relevant field. It will also show if the person is currently under consideration for listing.

34. A personal employer cannot make a referral to Disclosure Scotland. If a personal employer has concerns about the conduct of an employee, or believes someone working for them, or applying to work for them, may be barred from such work, then they should discuss their concerns with the police.

Keeping information up to date

35. Individuals should keep their scheme membership details up to date. Ensuring Disclosure Scotland has, for example, a current home address, telephone number or e-mail address means that contact can be made quickly in the event of any query about scheme membership.

36. More importantly, the PVG Act requires a scheme member to notify two types of changes: 1) a change in the member's name, and 2) the issue of a full gender recognition certificate. For these two changes only, the failure to do so, without reasonable excuse, within 3 months of the change happening means that the scheme membership will have committed an offence.

37. Disclosure Scotland will also maintain a record of all the organisations that have an interest in a scheme member. This might include employers, voluntary organisations and relevant regulatory bodies. Consequently, it would be helpful for a scheme member to notify Disclosure Scotland if they cease to work for a particular organisation. If that happens, Disclosure Scotland will seek confirmation from the organisation. Once that is received, the organisation will be removed from the scheme membership record.

38. Knowing the organisations for whom you do regulated work is also important if your scheme membership status changes and you are placed under consideration for listing or are listed (and therefore barred). This is because Disclosure Scotland should notify these organisations so that they are aware of this change of status.

Challenging the accuracy of information

39. Individuals may request a review of any information in their scheme record including the vetting information. A review of conviction information can be requested on the grounds of accuracy, for example, conviction 'y' on my scheme record does not belong to me. A review of non-conviction information can be requested on the grounds of accuracy and relevance to the regulated work performed by the scheme member.

40. If the request is about the information provided by a police force, Disclosure Scotland will contact the police force or forces that provided the information with details of the dispute. Only if the police force agrees to amend the information will Disclosure Scotland be able to amend the scheme record. In all cases where a scheme record is corrected, Disclosure Scotland will issue new disclosure records to the scheme member and organisations with whom they know the person is doing regulated work and that received an inaccurate version of the disclosure record. There will not be a charge for the disclosures that are reissued. The disputes procedure is set out on the Disclosure Scotland website at: www.disclosurescotland.co.uk.

Breaking the law

Individuals doing regulated work while barred

41. It is not compulsory for an individual who wishes to do regulated work to become a member of the Scheme, but it is an offence for an individual who is barred to undertake regulated work. The only way to confirm that an individual is not barred from regulated work (and so ensure an offence is not unknowingly committed (by the organisation)) is to confirm they are a member of the Scheme.

42. Personal employers, such as parents or others buying care services directly, will not be breaking the law by employing someone who is barred, although they are encouraged to make use of the Scheme in any case, as it reassures them that an individual is not barred from regulated work. However, a person who is barred from regulated work and who seeks, or agrees to do, regulated work for any organisation or employer, including a personal employer, is committing an offence.

Confidentiality

43. There is a wider range of potentially sensitive information available than there was before. When Disclosure Scotland is trying to decide if someone should be barred, as well as taking into account the vetting information, they will be able to take account of information from employers, relevant regulatory bodies, for example, the General Teaching Council for Scotland and, in the longer term, local councils. Because of this sensitivity, eligibility for scheme membership is strictly limited to people whose actual or potential position involves doing what is called regulated work. It should be noted that the Scheme will not record information about an individual's professional competence, only whether the individual's conduct indicates that they may be unsuitable to work with vulnerable groups as defined by the PVG and SVG Acts.

44. The information contained in an individual's scheme record is sensitive and personal. Organisations and personal employers may not and cannot attempt to access any of it (in whatever format either is permitted to do so) without that individual's consent. Requests for the disclosure of a scheme record, scheme record update or disclosure of scheme membership must always be initiated by the individual to whom they relate.

45. An individual will not be breaking the law by choosing to share their own disclosure record with anyone, and in certain circumstances, the type of disclosure request will result in an output to both the applicant and an employer or organisation. Notwithstanding that, individuals cannot be forced to show a disclosure record to anyone. If they do decide to share it, they should be careful to ensure that the person or organisation asking for it will use it carefully and keep it securely. Secure storage means, for example, that the record should be stored in a locked and non-moveable storage unit to which people in general do not have access.

46. An example of where an individual might be asked to produce their disclosure record is when they are a scheme member and are seeking regulated work of the type to which the record relates. In that case, the most recent scheme record update could be shown to the new organisation or personal employer. That would show if there had been any changes to the applicant's scheme record since the date that the scheme record was last disclosed. If there had been a change, then an employer (who is a registered person), could ask the person to make a request for a scheme record.

47. Any organisation or personal employer who receives a copy of an individual's disclosure to help them make a recruitment decision can use it only for that purpose. They must not use it for a purpose other than the reason it was originally requested. Usually this will be part of the process of deciding on that individual's job application. The organisation or personal employer is not allowed to pass it on to anyone not involved in making the decision. If they do so they will be committing an offence that upon conviction can be punished by a fine, up to six months in prison, or both.

48. They are also not allowed to retain the disclosure record indefinitely. It should be securely destroyed no later than 90 days after the recruitment decision has been made. The organisation can retain details of when the check was made, the disclosure reference number, the date of the check and for whom it was carried out. Failure to destroy disclosure records after 90 days is a breach of the Code of Practice and while there is not a criminal offence for doing that, you could be denied access to disclosure information in the future.

How the PVG Scheme works with the rest of the UK

49. The PVG Scheme is for individuals doing regulated work in Scotland only. But it is designed to work closely with arrangements that are in place elsewhere in the UK. The SVG Act introduced a scheme that is similar to that established by the PVG Act, and is the basis for the arrangements operating in England and Wales. Part of the SVG Act also extends to Northern Ireland, and the remaining provisions for the scheme in Northern Ireland are provided by the Safeguarding Vulnerable Groups (Northern Ireland) Order.

Sharing barring information

50. Arrangements in both schemes ensure that once an individual is placed on a List as being barred from regulated work in one jurisdiction, they are automatically barred in the other. So a decision by Disclosure Scotland to place someone on one or both barred Lists would have the effect of barring them from that work to which the listing relates across the UK. Similarly the equivalent decision by the Independent Safeguarding Authority ( ISA), which does broadly similar work for England and Wales and Northern Ireland, would bar someone from the relevant regulated work in Scotland.

Sharing background information

51. When someone applies to join either or both of the SVG or PVG Schemes, this triggers background checks in both jurisdictions to check if the applicant is known to the other jurisdiction and if so why. The same information-sharing process applies whenever the consideration process in either scheme results in someone actually being listed, or if a decision is taken to de-list an individual. The purpose of this is to make sure that it is not possible for an individual to be considered for listing by both schemes on the basis of the same set of information.

Moving around the UK

52. While it is only possible to be listed once in respect of each workforce, the rules about joining the two schemes are different. To do any work within the meaning of the SVG Act in England, Wales or Northern Ireland you must be a member of the SVG scheme. If not, you will have committed an offence. In Scotland, however, you can do regulated work as defined in the PVG Act without being a PVG scheme member. These differences mean that if you do work in both jurisdictions in posts that are covered by the legislation mentioned above, then you must apply to join the SVG scheme and you will be eligible to apply to join the PVG Scheme.

53. Disclosure Scotland cannot gather information on individuals from overseas. For advice on dealing with instances where overseas information might be required, refer to the Criminal Records Bureau's overseas advice web page: http://www.crb.org.uk/Default.aspx?page=2243.

54. The scheme in England, Wales and Northern Ireland, as in Scotland, allows individuals to join even while they are not currently working with vulnerable groups. This is useful for anyone who wishes to have their scheme membership established in advance of applying for work in the future.

Why join both schemes when they share information anyway?

55. The legislation in Scotland is different from that in the rest of the UK. A person cannot do work within the meaning of the SVG Act or The Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 unless he or she joins the SVG Scheme. However, a person can do regulated work within the meaning given in the PVG Act without joining the PVG Scheme (unless they are barred). It is possible for someone who works throughout the UK in employment that is covered by the meanings in the 2 Act and the Order to be a member of both schemes.

56. In general, individuals must comply with the legislation in the jurisdiction in which they work, with certain limited exceptions.