What is regulated work?
How will I know if a particular post is 'regulated work'?
Will there be circumstances where people who work with children or protected adults are not required to be PVG Scheme members?
Who is a child?
Who is a Protected Adult?
Is a protected adult the same as a vulnerable adult?
The PVG Act defines a child as an individual under the age of 18 and a protected adult as an individual aged 16 or over. Does this mean that a person who is aged 16 or 17 and in receipt of services is a Child or a Protected Adult?
What would happen in instances, for example, when a teacher is running an evening class for adults and say a 16 year old or an adult with a learning disability wish to attend? Does the teacher need to become a PVG Scheme member?
Will children be able to become PVG Scheme members - for example, in children's organisations, young people are facilitating participation events for other young people?
In some local community projects, adults with learning disabilities facilitate support groups and activities for other adults with learning disabilities. Should the adults who are facilitating these support groups and who are themselves protected adults, become PVG Scheme members?
How will people who are organising services directly - say employing a personal carer for themselves or a dependent, or a tutor for their child know that the person they employ is a PVG Scheme member?
Do parent council members have to join the PVG Scheme?
Are all host parents required to be PVG Scheme members?
What is regulated work?
Regulated work is defined by three basic principles
- It has to be work (i.e. not personal relationships)
- It has to be with either children or protected adults
- The work has to include
- A particular type of activity such as caring for or teaching a child or protected adult;
- Work in a particular establishment, such as a school or care home, which involves contact with children or protected adults
- Holding one of the specified positions, such as member of a children's panel or chief social work officer.
There are then further 'tests' which narrow this definition of regulated work.
1. Doing certain activities or working in particular establishments must be part of the employees normal duties, i.e. it should be something the employer would expect them to do as part of their job description
2. The activities are only regulated work where delivering them to children or protected adults is not incidental to delivering them to the general public, i.e. the activity should be aimed at the client group, or there should be a reasonable supposition that a large number of children or adults will take part in the activity
3. Work in a defined establishment is only regulated work if something permitted or required by that work gives the worker the possibility for unsupervised contact with a child or protected adult
This definition and the tests captures the type of work in which a post holder is responsible for the welfare and wellbeing of a child or protected adults, or where there is a level of trust between the worker and the child or protected adult.
It is intended to exclude positions where there is no possibility for contact or trust, or where contact is only fleeting.
The full details are set out in Schedules 2 (Children) and Schedule 3 (Protected Adults) to the PVG Act. Guidance and training materials are available on the Disclosure Scotland website.
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How will I know if a particular post is 'regulated work'?
It will not be possible to provide a definitive list of positions or types of employment that constitute regulated work. The roles and functions that people undertake tend to be flexible and any list would become out of date very quickly.
It is employers that are best placed to understand their services and therefore, which posts constitute regulated work. The PVG Act, its explanatory notes and the PVG Scheme guidance provide information to enable employers, self-employed persons, agencies and groups to establish which posts constitute regulated work and therefore fall within the scope of the PVG Scheme. The PVG Scheme Guidance in particular includes a number of case studies that will help inform employers. An online self assessment tool is also being developed that will help employers reach decisions on whether a particular post is or is not regulated work. This will also be available on the Disclosure Scotland website.
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Will there be circumstances where people who work with children or protected adults are not required to be PVG Scheme members?
All those who do regulated work with children and protected adults are eligible to become PVG Scheme members. However, there are a number of examples where joining the PVG Scheme will not be appropriate, as people may have significant contact with vulnerable groups, but not through work. For example, individuals wishing to adopt a child and those who live in the same house as foster carers and childminders cannot join the scheme for that reason alone. Likewise, people applying for a number of specific guardianship orders under the Adults with Incapacity (Scotland) Act 2000 should not join the PVG Scheme. In these cases, an enhanced disclosure with a check of the relevant list(s) should be carried out instead.
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Who is a child?
A child under the PVG Act is anyone under the age of 18.
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Who is a Protected Adult?
Section 94 of the PVG Act defines a "protected adult" as an individual aged 16 or over who is in receipt of one or more type of care, health or welfare service.
As all adults are likely to be protected adults at some time in their lives, section 94, which defines the exact nature of the services that make an adult protected, should be read together with Schedule 3, which outlines what constitutes regulated work. Only for the period of time when an adult is in receipt of one of these services, and where one of these activities is being carried out, is it deemed to be regulated work. An online self assessment tool is also being developed that will help employers reach decisions on whether a particular post is or is not regulated work. This will also be available on the Disclosure Scotland website.
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Is a protected adult the same as a vulnerable adult?
No. The term "protected adult" is a service based definition and therefore avoids labelling adults on the basis of having a specific condition or disability. A person will only be a protected adult for the duration that they are receiving the service. Therefore some adults will be protected most of the time (e.g. residents in a care home whilst in the care home) whereas others will only be protected for short periods (e.g. whilst receiving treatment at the dentist).
As a first step when determining whether staff are carrying out regulated work, an employer must identify the type of service that makes an adult "protected". An adult does not have protected status because they are receiving a service from someone else. It is the type of service that the group or organisation is providing, or contracted to provide, to the adult that matters. This means that there will be no need to ask intrusive questions about an individual's personal circumstances.
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The PVG Act defines a child as an individual under the age of 18 and a protected adult as an individual aged 16 or over. Does this mean that a person who is aged 16 or 17 and in receipt of services is a Child or a Protected Adult?
The majority of people who are protected adults will be over the age of 18. However, there will be circumstances where a 16 or 17 year old is in receipt of care services and is therefore both a child and a protected adult. This does not create any particular difficulty. It means that an employee who, as part of their normal duties, works with a people who fall into both categories may need to be a member of the PVG Scheme in respect of both types of regulated work.
PVG Scheme membership in respect of both client groups, where this is necessary, can be achieved through a single application to join the scheme (the applicant will simply tick both boxes for work with children and protected adults) and it is not proposed to charge a higher fee for applications to join both workforces at the same time.
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What would happen in instances, for example, when a teacher is running an evening class for adults and say a 16 year old or an adult with a learning disability wish to attend? Does the teacher need to become a PVG Scheme member?
The definition of regulated work in the PVG Act work has a "normal duties" and "incidental" test for activities. This means, broadly speaking, that not all individuals who come into contact through their work with protected adults or children should be PVG Scheme members.
Assuming protected adults or children are not the target audience, then the contact will be deemed to be incidental. For example, a yoga teacher who advertises a local class for adults would not be expected to be a PVG Scheme member if, for example, an adult with a learning disability or a 16 year old wishes to join the class. Only where the work with a child or protected adult is part of the employee's normal duties, and where those duties are aimed at either protected adults or children, should the teacher become a PVG Scheme member. The guidance and training materials on Disclosure Scotland's website include a number of case studies that help to illustrate this. In addition, a self assessment tool is also being developed that will help employers reach decisions on whether a particular post is, or is not, regulated work. This will also be available on the Disclosure Scotland website.
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Will children be able to become PVG Scheme members? For example, in children's organisations, young people are facilitating participation events for other young people.
A child will be able to become a PVG Scheme member if doing regulated work. Organisations requesting membership of the PVG Scheme for a child should first liaise with and seek consent from the parent or guardian of that child. This will ensure that the parent or guardian is aware of the request and can respond as appropriate.
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In some local community projects adults with learning disabilities facilitate support groups and activities for other adults with learning disabilities. Should the adults who are facilitating these support groups and who are themselves protected adults, become PVG Scheme members?
Any person doing regulated work with protected adults should become a PVG Scheme member. This also applies to people who are themselves protected adults.
However, it should be noted that work done in the course of a personal (or family) relationship for no commercial consideration is specifically excluded from the scope of regulated work ( section 95 of the PVG Act refers) so in such instances, people would not become PVG Scheme members.
The PVG Act should therefore not be perceived as a possible barrier to natural friendship or support between adults.
It will be important for the organisation to consider whether the support group meets as peers to help and advise one another or whether it is an organised, regulated service that invites other people to join and benefit from it. Regulations define what constitutes a welfare service and this is explained in the guidance on Disclosure Scotland's website.
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How will people who are organising services directly, say employing a personal carer for themselves or a dependent, or a tutor for their child know that the person they employ is a PVG Scheme member?
Personal employers, such as a person employing a personal carer or a parent employing a private tutor or sports coach for their child, can ask to see a PVG Scheme Membership Statement. The statement will confirm that their prospective employee is a member of the PVG Scheme and is therefore not barred from doing regulated work. A personal employer will be able to countersign an application for a PVG Scheme Membership Statement and would then receive a personal copy of the statement.
If a person is provided with a community care service and a local authority has made a direct payment, commonly known as self directed support ( Section 94(c)(ii) of the PVG Act), then they are a protected adult. If the protected adult then employs an individual to act as a personal assistant or to provide some other form of support, the employee will be able to become a PVG Scheme member, as would any other person employed in a caring role such as a home help or a social care assistant.
However there are exceptions. Section 95 of the PVG Act states that a person employed within a family relationship is exempted from the meaning of 'work'. Neither is it work where it is done in the course of a family or personal relationship for no commercial consideration. In these circumstances, the person would not be undertaking regulated work.
It is important to note that personal employers, unlike organisational employers, will not be committing an offence by employing a barred person in regulated work, although the barred person would be committing an offence by seeking regulated work. There is no legislative requirement that a personal employer checks for PVG Scheme membership although funding organisations (such as local authorities funding self-directed support) may require it as a condition of the funding arrangement.
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Do parent council members have to join the PVG Scheme?
Parents who are doing work in school which involves caring, teaching, instructing, training, supervising or being in sole charge of children will rightly be within scope of the PVG Scheme. Other parents who are working, e.g. attending a parent council meeting, would only be in scope if anything permitted or required through this work gave them the opportunity for unsupervised contact with children.
It is important to remember that the parent must be doing work with children before any of the PVG legislation could have a bearing. Parents attending parents' evenings or visiting the school for any reason in their capacity as a parent are not doing work and are, therefore, outside the scope of the PVG Scheme.
The Scottish Government believes that it should be possible in most cases to make arrangements for parent council members to avoid unsupervised contact with children and thereby not join the PVG Scheme.
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Are all host parents required to be PVG Scheme members?
No. Host parents are eligible to become PVG Scheme members, but whether PVG Scheme membership is appropriate will very much depend on the circumstances in which hosting takes place.
The Scottish Government wants hosting arrangements to be quick and efficient to organise, avoiding any inappropriate deterrent to potential host parents from disclosure requirements. However, there is also a need to ensure the protection of children in situations where they are particularly vulnerable. The Scottish Government wants to ensure the legislation strikes the right balance between being proportionate and ensuring robust protection. The best way to achieve this is to leave it to the discretion of organisations to determine for themselves whether they want to require PVG Scheme membership for host parents. They can make this decision based on local circumstances and their view on the balance between flexibility and risk.
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