The Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions) Order 2009

• Citation: S.I. 2009/12
• Sections: 14

Section 1 Citation, commencement and interpretation

(1) This Order may be cited as the Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions) Order 2009 and comes into force seven days after the day on which it is made.

(2) In this Order—

“ the Act ” means the Safeguarding Vulnerable Groups Act 2006;

“the 1999 Act ” means the Protection of Children Act 1999 ;

“the 2000 Act ” means the Care Standards Act 2000 ;

“the 2002 Act ” means the Education Act 2002 ;

“the relevant period” means the period starting on the day on which this Order comes into force and ending on the day on which section 3 of the Act comes into force for all purposes.

Section 2 Consideration of cases arising before the relevant period

(1) The Secretary of State must refer a person (X) to IBB if each of the following conditions is satisfied.

(2) The first condition is that before the start of the relevant period—

(a) X has been referred to the Secretary of State by virtue of a provision specified in paragraph (5), or

(b) information relating to X has been provided to the Secretary of State or the Welsh Ministers in accordance with a provision specified in paragraph (6).

(3) The second condition is that X is not provisionally included in the list kept under—

(a) section 1 of the 1999 Act, or

(b) section 81 of the 2000 Act.

(4) The third condition is that before the start of the relevant period the Secretary of State has not sent a notice to X inviting X to make representations as to why X should not be—

(a) included in the list kept under section 1 of the 1999 Act;

(b) included in the list kept under section 81 of the 2000 Act;

(c) made subject to a direction under section 142 of the 2002 Act.

(5) The provisions are—

(a) section 2 , 2A or 2D of the 1999 Act;

(b) section 82, 83 or 84 of the 2000 Act.

(6) The provisions are—

(a) regulation 4 or 6 of the Education (Supply of Information) (Wales) Regulations 2003 ;

(b) regulation 4 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 .

Section 3 Consideration of cases arising during the relevant period

(1) This article applies during the relevant period.

(2) Paragraph (3) applies if, by virtue of a provision specified in paragraph (13), a person must or may—

(a) refer a person to the Secretary of State;

(b) provide information relating to a person to the Secretary of State.

(3) The referral is to be made, or the information provided, to IBB instead of to the Secretary of State.

(4) Accordingly, a requirement in any enactment or subordinate legislation that the event specified in paragraph (5) be notified to a person also applies to a referral made to IBB in accordance with paragraph (3).

(5) The event is the referral of a person to the Secretary of State by virtue of a provision specified in paragraph (13).

(6) The Welsh Ministers must refer to IBB any information that they receive, in accordance with regulation 4 or 6 of the Education (Supply of Information) (Wales) Regulations 2003, on a ground—

(a) that a person is considered to be unsuitable to work with children;

(b) relating to the person’s health where a relevant issue is raised.

(7) In paragraph (6) “relevant issue” has the same meaning as in regulation 3 of those Regulations.

(8) In relation to a person in relation to whom information is provided to IBB in accordance with paragraph (3), Schedule 1 to the Education (Prohibition from Teaching or Working with Children) Regulations 2003 has effect as if—

(a) in paragraph 7 of Part 1, for “of the Secretary of State’s functions under section 142 of the 2002 Act” there were substituted “by the Independent Barring Board established under section 1 of the Safeguarding Vulnerable Groups Act 2006 of its functions under Schedule 3 to that Act”, and

(b) in paragraph 7 of Part 2, for “of the Secretary of State’s functions under section 142 of the 2002 Act” there were substituted “by the Independent Barring Board established under section 1 of the Safeguarding Vulnerable Groups Act 2006 of its functions under Schedule 3 to that Act”.

(9) Subject to paragraph (12), section 2B of the 1999 Act and section 85 of the 2000 Act must be ignored.

(10) Paragraph (11) applies if it appears to the Secretary of State that a person who held a relevant inquiry has found a person guilty of relevant misconduct.

(11) The Secretary of State must refer the person to IBB unless the Secretary of State is satisfied that IBB—

(a) is considering the case of the person, and

(b) is aware of the relevant misconduct.

(12) In paragraphs (10) and (11) “relevant inquiry” and “relevant misconduct” have the same meaning as in—

(a) section 2B of the 1999 Act;

(b) section 85 of the 2000 Act.

(13) The provisions are—

(a) sections 2, 2A and 2D of the 1999 Act;

(b) sections 82, 83 and 84 of the 2000 Act;

(c) regulation 4 of the Education (Prohibition from Teaching or Working with Children) Regulations 2003, as modified by this Order.

Section 4 Functions under section 142 of the Education Act 2002 during the relevant period

(1) This article applies during the relevant period.

(2) Subject to paragraphs (3) to (5), the following provisions in section 142 of the 2002 Act must be ignored—

(a) in subsection (2), paragraphs (a) to (c);

(b) subsection (3);

(c) in subsection (4), paragraphs (a), (b), (d) and (e).

(3) Paragraph (2) does not apply in relation to a person (X) where, before the start of the relevant period, the Secretary of State or the Welsh Ministers—

(a) had given X the right to make representations, or

(b) had otherwise exercised functions under section 142 of the 2002 Act in relation to X.

(4) Paragraph (2) does not apply for the purposes of article 6.

(5) Paragraph (2) does not apply for the purposes of construing a reference in any enactment or subordinate legislation to work to which section 142 of the 2002 Act applies.

(6) The Education (Prohibition from Teaching or Working with Children) Regulations 2003 have effect as if—

(a) in regulation 4, paragraphs (1)(a)(ii), (2)(a)(ii) and (3) were omitted, and

(b) in paragraph 12 of Part 1 of Schedule 2, for “an offence if he has been”, there were substituted “an offence if he does not satisfy any of the criteria prescribed for the purposes of paragraph 1 or 2 of Schedule 3 to the Safeguarding Vulnerable Groups Act 2006 and he has been”.

Section 5 Consideration by IBB

(1) For the purposes of this Order, Schedule 3 to the Act has effect subject to the following modifications.

(2) In paragraph 1, for sub-paragraphs (2) and (3) substitute—

(2) If IBB is satisfied that this paragraph applies to the person it must include the person in the children’s barred list.

(3) In paragraph 2, for sub-paragraphs (2) and (3) substitute—

(2) If IBB is satisfied that this paragraph applies to the person it must—

(a) include the person in the children’s barred list;

(b) give the person an opportunity to make representations as to why he should be removed from the children’s barred list.

(4) In paragraph 3(4), for the words “, having considered whether to make a disqualification order, decided not to” substitute “considered whether to make a disqualification order”.

(5) In paragraph 7, for sub-paragraphs (2) and (3) substitute—

(2) If IBB is satisfied that this paragraph applies to the person it must include the person in the adults’ barred list.

(6) In paragraph 8, for sub-paragraphs (2) and (3) substitute—

(2) If IBB is satisfied that this paragraph applies to the person it must—

(a) include the person in the adults’ barred list;

(b) give the person an opportunity to make representations as to why he should be removed from the adults’ barred list.

Section 6 Effect of listing by IBB: children

(1) This article applies if IBB, in exercise of its functions under this Order, includes a person (X) in the children’s barred list.

(2) Subject to paragraph (4) X must be treated for all purposes as if X—

(a) is included in the list maintained under section 1 of the 1999 Act;

(b) is subject to a direction under section 142 of the 2002 Act.

(3) Accordingly, a reference in any enactment or subordinate legislation to a person included in that list or subject to such a direction includes a reference to a person included in the children’s barred list.

(4) Paragraphs (2) and (3) do not apply for the purposes of—

(a) section 1(3) or 4 of the 1999 Act;

(b) section 144 of the 2002 Act;

(c) article 2 or 3 of the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008 .

Section 7 Effect of listing by IBB: adults

(1) This article applies if IBB, in exercise of its functions under this Order, includes a person (X) in the adults’ barred list.

(2) Subject to paragraph (4) X must be treated for all purposes as if X was included in the list kept under section 81 of the 2000 Act.

(3) Accordingly, a reference in any enactment or subordinate legislation to a person included in that list includes a reference to a person included in the adults’ barred list.

(4) Paragraphs (2) and (3) do not apply for the purposes of—

(a) section 81(3), 86 or 87 of the 2000 Act;

(b) article 4 of the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008.

Section 8 Information provided to IBB

(1) This article applies for the purpose of IBB’s functions under this Order.

(2) A person who holds records of convictions or cautions for the use of police forces generally must make those records available to IBB.

(3) In its consideration as to whether a person should be included in the children’s barred list IBB shall consider the information specified in paragraph (4).

(4) The information is any information that it receives in relation to the person from whatever source or of whatever nature.

(5) In its consideration as to whether a person should be included in the adults’ barred list IBB shall consider the information specified in paragraph (6).

(6) The information is any information that—

(a) it receives by virtue of article 3(3) in its application to the provisions set out in article 3(13)(b);

(b) it has considered in relation to its consideration as to whether the person should be included in the children’s barred list.

(7) Paragraphs (3) and (5) do not, without more, require IBB to give a person the opportunity to make representations as to why that person should not be included in a barred list.

Section 9 Information provided by IBB

(1) IBB may provide to either of the persons specified in paragraph (2) any information specified in paragraph (3).

(2) The persons are—

(a) the Secretary of State for the purposes of his functions under the Teachers’ Pensions Regulations 1997 , Part V of the Police Act 1997 and article 10;

(b) the Scottish Ministers for the purposes of their functions under Part V of the Police Act 1997.

(3) The information is—

(a) information provided to IBB under paragraph 20 of Schedule 3 to the Act;

(b) the fact that a person is included in a barred list under the Safeguarding Vulnerable Groups Act 2006 (Transitional Provisions) Order 2008;

(c) the fact that a person is included in a barred list otherwise than as described in sub-paragraph (b);

(d) the fact that IBB is considering including a person in a barred list;

(e) the personal details of any person referred to in sub-paragraph (b), (c) or (d);

(4) In paragraph (3) “personal details” includes the name (including any former name or alias), address, gender and date of birth of a person together with such further details as IBB consider are necessary to identify the person in question.

(5) IBB may, at the request of a person (X) who meets the requirement specified in paragraph (7), inform that person whether a person (Y) falls within paragraph (6).

(6) Y falls within this paragraph if Y is—

(a) included in the list kept under section 1 of the 1999 Act;

(b) subject to a direction under section 142 of the 2002 Act;

(c) included in a barred list.

(7) The requirement is that X satisfies IBB that X has a legitimate interest in knowing whether Y falls within paragraph (6).

(8) If IBB—

(a) knows or thinks that a person appears on the register of teachers maintained under section 3 of the Teaching and Higher Education Act 1998 , and

(b) becomes aware of relevant information relating to that person,

it must provide that information to the General Teaching Council for England or General Teaching Council for Wales , as the case may be.

(9) In paragraph (8) “relevant information” is information which—

(a) relates to the protection of children or vulnerable adults in general, or

(b) is relevant to the exercise of any function of the General Teaching Council for England or the General Teaching Council for Wales,

and includes information specified in paragraph (3).

Section 10 Information provided by the Secretary of State

(1) The Secretary of State may, at the request of a person (X) who meets the requirement specified in paragraph (2), inform that person whether a person (Y) falls within article 9(6).

(2) The requirement is that X satisfies the Secretary of State that X has a legitimate interest in knowing whether Y falls within article 9(6).

Section 11 Application of articles 12 to 14

(1) Articles 12 to 14 apply in relation to a person falling within paragraph (2).

(2) A person falls within this paragraph if—

(a) the person has been referred to IBB in accordance with article 2 or 3(3);

(b) information relating to the person has been provided to IBB in accordance with article 3(3).

Section 12 Teachers’ pensions - entitlement to payment of retirement benefits

(1) The Teachers’ Pensions Regulations 1997 (“the 1997 Regulations ”) have effect subject to the provisions of this article.

(2) In regulation E4 Case C is met if the requirements of paragraph (4)(a) to (d) of that regulation are met and—

(a) the Secretary of State has notified the person in writing that the requirements specified in paragraphs (3) and (4) below are met, or

(b) the requirement specified in paragraph (7) below is met.

(3) The requirement is that IBB has not included, and is not considering including, the person in a barred list.

(4) The requirement is that neither the General Teaching Council for England nor the General Teaching Council for Wales has made a prohibition order in relation to the person on the grounds—

(a) of unacceptable professional conduct, or

(b) that the person has been convicted (at any time) of a relevant offence.

(5) The General Teaching Council for England and the General Teaching Council for Wales must, at the request of the Secretary of State, inform the Secretary of State whether they have made a prohibition order in relation to a particular person on the grounds—

(a) of unacceptable professional conduct, or

(b) that the person has been convicted (at any time) of a relevant offence.

(6) In paragraphs (4) and (5) “unacceptable professional misconduct”, “relevant offence” and “prohibition order” have the same meaning as in Schedule 2 to the Teaching and Higher Education Act 1998.

(7) The requirement is that IBB has included, or is considering including, the person in a barred list but the Secretary of State is satisfied that there are exceptional circumstances relating to the person which make it appropriate that the person should fall within Case C.

(8) Accordingly, in Case C the entitlement takes effect—

(a) where, immediately before the person became incapacitated the person was in excluded employment, on the day after the last day of the person’s excluded employment; and

(b) in any other case, as soon as the person falls within the Case or as soon as the person would have fallen within the Case had there not been a requirement that the Secretary of State notify that person that the requirements specified in paragraphs (3) and (4) are met,

or (in all cases), if later, 6 months before the date of the last of any medical reports considered by the Secretary of State in determining under regulation H9 of the 1997 Regulations that the person had become incapacitated.

(9) In paragraph (8) “excluded employment” has the same meaning as in the 1997 Regulations.

Section 13 Modifications to the General Teaching Council for England (Disciplinary Functions) Regulations 2001

(1) The General Teaching Council for England (Disciplinary Functions) Regulations 2001 have effect subject to the modifications set out in this article.

(2) Regulation 9 has effect as if—

(a) for paragraph (1)(b) there were substituted—

(b) the Independent Barring Board established under section 1 of the Safeguarding Vulnerable Groups Act 2006 (“IBB”) has included or is considering whether to include a registered teacher in either of the barred lists maintained under section 2 of that Act

(b) in paragraph (3), for “the Secretary of State for his consideration” there were substituted “IBB”;

(c) in paragraph (4), for “the Secretary of State for his consideration” there were substituted “IBB”;

(d) in paragraph (5), for “the Secretary of State for him to consider the further exercise of his own powers” there were substituted “IBB”.

Section 14 Modifications to the General Teaching Council for Wales (Disciplinary Functions) Regulations 2001

(1) The General Teaching Council for Wales (Disciplinary Functions) Regulations 2001 have effect subject to the modifications set out in this article.

(2) The English text of regulation 9 has effect as if for paragraph (1)(b) there were substituted—

(b) the Independent Barring Board, established under section 1 of the Safeguarding Vulnerable Groups Act 2006, has included, or is considering whether to include, a registered teacher in either of the barred lists maintained under section 2 of that Act

(3) The Welsh text of regulation 9 has effect as if for paragraph (1)(b) there were substituted—

(b) bod y Bwrdd Gwahardd Annibynnol, a sefydlwyd o dan adran 1 o Ddeddf Diogelu Grwpiau Hawdd eu Niweidio 2006, wedi cynnwys, neu ei fod yn ystyried a ddylid cynnwys, athro cofrestredig neu athrawes gofrestredig yn unrhyw un o’r rhestrau gwahardd a gynhelir o dan adran 2 o’r Ddeddf honno