Archived decisions

Hampshire County Council

DRAFT - Corporate Criminal Records Bureau (CRB) Policy - DRAFT

June 2006

1. Introduction

Hampshire County Council complies fully with the CRB Code of Practice and we undertake to treat all applicants fairly and not to discriminate against anyone on the basis of conviction or other information revealed.

Having a criminal record will not necessarily prevent an individual from being employed by us. This will depend on the nature of the role, professional suitability and the circumstances, nature and background of the offences.

We also use the CRB service to support our corporate aims, specifically developing the quality of life in Hampshire through protecting vulnerable adults and children in our care.

The Council recognises that access to criminal record information has to strike a balance between the rights of children and the vulnerable in society, an individuals right to privacy and the rights of ex-offenders to become rehabilitated into society.

It is essential that confidential and sensitive information about an individual's criminal record is handled fairly and properly.

The policy will be owned by the Human Resources Department.

The policy will be reviewed at least annually.

2. Legislation - Important background information

This policy is underpinned by the following legislation / guidance

The Rehabilitation of Offenders Act (ROA) - 1974

Aimed at helping people who have been convicted of a criminal offence and who have not re-offended since. Once a conviction is `spent', a convicted person does not have to reveal it, in most circumstances.  However, if a person wants to apply for a position that involves working with children or vulnerable adults they are required to reveal all convictions (including driving offences), both spent and unspent on application. This also includes cautions, warnings and reprimands.

The Care Standards Act - 2000

Under the Care Standards Act 2000, the National Care Standards Commission (now the Commission for Social Care Inspection - CSCI) was made responsible for the regulation and registration of children's homes, care homes, nurses agencies and certain other establishments and agencies. Therefore, there are particular standards that these establishments must adhere to in terms of CRB disclosures at recruitment stage.

The Protection of Children Act (POCA) 1999 / The Children Act - 2004

"Children" are defined here as those people under 18 years of age.

The POCA ensures that those individuals who, during the course of their employment, have abused, neglected or otherwise harmed children in their care, or placed children in their care at risk of harm, are placed on to the Department of Health's POCA List, which is then checked by prospective employers.

If an individual is cautioned or convicted of a related offence, in their private life, then this will be highlighted on the "Convictions" section of their CRB disclosure certificate.

For those in the Education sector, an additional list is held by the Dept for Education and Skills (DfES), known as List 99.

It must be noted that currently, an individual placed on List 99 is not automatically placed on the POCA List. The current process of searching List 99 for individuals, does not automatically include a POCA List check.

However, a POCA List check using a CRB application form, does automatically include a List 99 check.

The Governments proposed Vetting and Barring scheme will merge the POCA list and List 99 to provide one list of those people who are banned.

The Protection of Vulnerable Adults (POVA) Scheme - 2004

"Vulnerable Adults" are defined here as those people aged 18 or over who are , or may be, in need of community care services by reason of mental or other disability, age or illness and who is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation

and

People with learning disabilities, mental health problems, older people and people with disability or impairment are included within this definition, particularly when their situation is complicated by additional factors, such as physical frailty or chronic illness, sensory impairment, challenging behaviour, drug or alcohol problems, social or emotional problems, poverty or homelessness.

The POVA Scheme ensures that those individuals who, during the course of their employment, have abused, neglected or otherwise harmed vulnerable adults in their care, or placed vulnerable adults in their care at risk of harm, are placed on to the Department of Health's POVA List, which is then checked by prospective employers.

If an individual is cautioned or convicted of the above, in their private life, then this will be highlighted on the "Convictions" section of their CRB disclosure certificate.

Safeguarding Vulnerable Groups Bill - March 2006

Under this new bill, the POCA List and List 99 will be brought together into one central database. It will also provide for a new list of people barred from working with vulnerable adults to replace the Protection of Vulnerable Adults list. Where evidence suggests that an individual poses a threat to both children and adults, they will be placed on both lists.

We understand that the Council will be able to check whether an individual is barred through a secure, instant, online check once an individual has been through the central vetting process.

For the first time, this will include people who have access to personal or sensitive information / data about children / vulnerable adults (e.g. Administrative staff who before may have not been checked).

The Council will be contacted by the Department of Health (DoH), or by the Department for Education and Skills (DfES) whenever possible if one of our existing employees on the scheme's list becomes barred.

Should the Council dismiss an individual because they have evidence that he / she is a risk to children or vulnerable adults, then the Council will report this to the appropriate bodies.

The Data Protection Act 1998

Underpins the way in which CRB information will be applied for, used, stored, destroyed and shared. Information will only be used for the specific purpose for which it was requested and for which the applicant's / employee's full consent has been given - for example, to make a recruitment decision, or, following a positive re-check, to make a decision to keep an individual in post.

CRB information will be kept securely, in lockable, non-portable storage containers with restricted access.

Further detail on HCC's approach to Data Protection can be found here :

· Link to Data Protection Information

Freedom of Information Act 2000

The FoIA is part of the Government's `modernisation' drive intended to generate renewed levels of interest in public affairs. It comes into force on 1 January 2005 and gives anyone the right to access recorded information held by a public body.

However, providing CRB information to anyone except the individual, or others associated with managing or hiring the individual constitutes a breach of confidence and also contravenes the data protection act.

3. CRB Related Organisations - Important Background Information

Criminal Records Bureau

The CRB is an agency of the Home Office. It provides a service called Disclosure. This is a carefully regulated one-stop shop service that enables organisations to gain access to important criminal and other information for recruitment and licensing purposes.

The CRB helps us perform better by providing information on candidates who have convictions or who are unsuitable for certain kinds of work. In doing this it particularly helps to provide protection for children and other vulnerable members of society.

The Disclosure Service

The CRB disclosure service carry out the checks and provide individuals and their employers with disclosure certificates.

The Commission for Social Care Inspection (CSCI)

The CSCI brings together the work previously undertaken by the Social Services Inspectorate, the SSI / Audit Commission joint review team and the social care functions of the old National Care Standards Commission.

When making inspections, they use the standards laid down by the Department of Health's, "National Minimum Standards".

The inspectorate's activities include :

· Carrying out local inspections of all social care organisations - public, private, and voluntary - against national standards and publish reports.

· Registering services that meet national minimum standards.

· Carrying out inspections of local social service authorities.

· Publishing the star ratings for social services authorities.

The Department for Education and Skills (DfES)

The DfES provide policy regarding school staff and CRB checks, and they also maintain List 99.

4. Which staff should be CRB checked ?

The CRB are specific about the categories of staff that should be checked. The CRB list those job roles that should be checked, and are exempt under the Rehabilitation of Offenders Act.

By being exempt, it is legal for the Council to ask questions about a person's spent and unspent convictions (including driving offences), cautions, warnings and reprimands.

If a job cannot be linked to a category then it is illegal for the Council to ask a person to complete a CRB form, because it contravenes the Rehabilitation of Offenders Act, which protects the person from revealing or admitting past convictions. It also contravenes the Data Protection Act, which allows a person's data to remain private unless the job role is specifically excempt.

The CRB job category codes can be found on their website :

· Link to CRB Category Codes

The most common codes are :

01 - A position which involves working with children(aged under 18)

10 - A position which involves working with vulnerable adults (aged 18 and over)

More detailed information about what is meant by "working with" is on the CRB website. It is important to get the definition correct and be sure that someone requires a CRB check. If a manager is unsure, then they should contact their HR Adviser.

Please see Appendix 1 for a list of roles in the Council which require a CRB check. (Table currently being worked on)

5. Should staff be checked at Standard Level or Enhanced Level ?

The CRB provide policy on this under their Category Codes information (see 4 above).

For staff who work within Social Care, there are clear details as to what Level a particular job should be checked. These are defined by the Department of Health's National Minimum Standards :

· Link to National Minimum Standards

The Commission for Social Care Inspection (CSCI) also provide detailed information on what staff need what level of check :

· Link to Detailed Information on Social Care Roles

Within Education, the DfES state that people should only be checked when they are a new appointment, or have a break in service of more than 3 months, or if they have not previously been eligible for a Disclosure and move to work that involves significantly greater responsibility for children than in their present position. All checks will be at an Enhanced Level.

There is also other useful guidance from the DfES :

· Link to Detailed Information on Education roles

· Link to Education Personnel Services (EPS) website for further guidance for schools

6. Which staff can start without a CRB check having been received ?

Within Social Care, any employee who is due to work in "Children and Families" and needs a CRB check, must not commence employment without a CRB disclosure being received.

An employee who is due to work in Adults services may be eligible to start in employment prior to a full CRB being available. This is provided that a POVAFirst check is carried out. POVAFirst checks can only be carried out on certain posts.

More information about POVAFirst can be found in Appendix 2.

In Education, the DfES strongly recommend that Disclosures are obtained on staff before they take up post. However, they recognise that in certain exceptions staff may need to be employed at short notice. In these circumstances, head teachers have the discretion to employ staff who have not yet received their Disclosure, provided that

(a) they have been checked against the DfES's List 99

(b) all other relevant pre-appointment checks have been carried out on them

(c) they do not have unsupervised access to children (and vulnerable adults in the case of residential schools) until their full disclosure is received.

7. Casual Staff and Volunteers

It is highly recommended that all casual staff and volunteers who require a CRB check receive their clearance before they commence work.

Where there is a break in their service of 6 months or more, then a fresh CRB check must be applied for.

Casual staff / volunteers : This section will be raised at final CMT approval stage, as a decision needs to be made, one way or another, about how often staff under this job type should be checked.

8. Service providers to the Council

Managers who have a responsibility in securing services for the Council (or on behalf of the Council's service users) must take responsibility for ensuring that the service provider has clear vetting procedures where their role comes under one or more of the CRB's categories (see 4 above). Where possible, these procedures should be explicitly written into a Service Level Agreement.

This is particularly relevant in the Social Care and Education sectors, where Care Agencies and other Recruitment Agencies may provide temporary agency bank staff to work in residential homes, day services or schools.

Within schools, E-Teach, who maintain the supply teacher list for Hampshire Schools, undertakes CRB disclosures on behalf of the Council. The schools recruitment team hold a list of other agencies who have agreed to follow the Council's terms and conditions, including CRB disclosures. Ultimately, head teachers should check with the agency before accepting the member of staff.

With the increasing number of workers coming from abroad, managers must satisfy themselves that service providers have also undertaken overseas checks for each country that the person may have inhabited.

9. Checking Staff From Overseas

The CRB can only check applicants from the date they arrive in the UK.

Therefore we must use the CRB guidelines on the web and use the CRB's faxback service for more information from the appropriate overseas authority.

· Link to Checking Overseas Candidates

· Link to the CRB's Overseas Fax Back Service

If the country required is not listed on the Fax Back Service, the applicant must contact the relevant embassy in London and ask for a letter or certificate that shows they do not have a criminal record, this is sometimes known as a "good conduct bond".

If the applicant is has lived in several countries, then all countries must be checked.

If there is a fee payable, then the applicant must pay this fee. Re-imbursement will be at the discretion of the individual's line manager.

For overseas queries, the Council can email [email protected] for further advice.

10. Responsibilities

· All CRB Applicants must

(a) Tell the manager if they have a spent or unspent conviction (including driving offences), cautions, warnings or reprimands.

(b) Complete the CRB form accurately in accordance with CRB applicant guide

· Link to Applicants Guide on Completing a CRB Form

(c) Ensure that they have sufficient ID documents

Whoever signs Section X of the CRB application form must :

(a) Identify if the role requires a CRB check.

(b) Ensure that all ID is original, appropriate and relevant. A list of ID can be found in the above Applicants Guide.

(c) Complete Section X of the application form accurately.

· Countersignatory Responsibilities

(a) A Countersignatory is a person within a Registered Body who is registered with the CRB to countersign applications and receive the Disclosure certificate that is sent to them.

(b) They have ultimate responsiblity for applying for a disclosure under the Rehabilitation of Offenders Act.

(c) They should sign Section Y of the CRB application form in line with Countersignatroy guidelines

· Link to CRB Countersignatory Information Pack

11. Storage, Handling, Use, Retention and Disposal of Disclosures

General Principles

The Council acknowledges the CRB Code of Practice regarding the correct handling, use, storage, retention and disposal of Disclosures and Disclosure information.

We also acknowledge our obligations under the Data Protection Act and other relevant legislation pertaining to the safe handling, use, storage, retention and disposal of Disclosure information.

Storage & Access

Disclosure information will not be kept on an individual's personal file. It will be kept separately and securely, in lockable, non-portable, storage containers with access strictly controlled and limited to those who are entitled to see it as part of their duties. Where CRB checks are carried out as part of pre-appointment checks, the manager will receive notification from the Resourcing Centre / School Support Team, confirming the outcome of the disclosure.

Handling

In accordance with the Police Act 1997, Disclosure information will only be passed to those who are authorised to receive it in the course of their duties.

We maintain a record of all those to whom Disclosures or Disclosure information has been revealed and we recognise that it is a criminal offence to pass this information to anyone who is not entitled to receive it.

Usage

Disclosure information is only used for the specific purpose for which it was requested and for which the applicant's full consent has been given.

Retention

Once a recruitment (or other relevant) decision has been made we do not keep the original Disclosure Certificate or any copy for longer than 6 months as required by CRB. Throughout this time the conditions regarding safe storage and strictly controlled access will prevail. The date of check, level, disclosure number and date of notification by the CRB will be entered on to the SAP HR System for monitoring purposes. It will not carry any details of cautions, warnings or convictions.

Where a positive disclosure is received, then a Decision Sheet will be completed, as a record of why the individual was subsequently employed, or not offered the position. This will be held in a sealed envelope on the person's personnel file. See Appendix "X" for the Decision Sheet.

Disposal

Once the retention period has elapsed, we will ensure that the Disclosure Certificate is destroyed by secure means.

The Council will not keep any photocopy or other image of the Disclosure or any copy or representation of the contents of a Disclosure.

However, notwithstanding the above, for tracking, monitoring, financial and audit purposes, we may keep a record of the :

· date of issue of a Disclosure.

· the name of the subject.

· the level of Disclosure requested.

· the position for which the Disclosure was requested.

· the unique reference number of the Disclosure.

· the details of any decision taken.

12. Dealing with Positive Disclosures

A positive disclosure is a certificate that shows cautions, warnings or convictions. They may show spent convictions and also unspent convictions, and for Enhanced checks, they will also show information that a police force deems relevant to disclose based on the nature of the job that the individual will be employed to do. (? do we want this to be known to all ?)

Before a decision is reached on whether to offer or confirm employment to an individual, the individual will be offered the opportunity to discuss the content of the disclosure with the recruiting manager.

Using the Decision Sheet (see Appendix 3), the manager will make a balanced decision on whether they are satisfied to employ the person / service provider, based on :

· whether they are barred from appointment under POCA, POVA or List 99

· whether the conviction is relevant to the position

· the circumstances surrounding the offence, and explanation offered by the candidate

· the seriousness of the offence

· the length of time since the offence occurred

· whether there is a pattern to the offending behaviour, or whether it was a one-off

· whether the applicant's circumstances have changed

Further discussion should take place regarding :

· whether the applicant disclosed the conviction(s) / cautions, warnings or reprimands at application or at interview stage

· what level of supervision will the post-holder receive

· does the post involve responsibility for finance or items of value

· will the nature of the role allow the applicant to potentially re-offend

The line manager will make the overall decision about whether to employ or not employ the person.

The information will be recorded on a decision sheet (See Appendix 3) and be stored on the person's file.

13. Portability

Portability refers to the re-use of a CRB Disclosure, obtained for a position in one organisation and later used for another position in another organisation.

This practice is no longer endorsed by the CRB due to the risks factors involved. Where the Council wishes to accept previously issued Disclosures, DMT for that sector will carry out a formal documented risk assessment in partnership with the Strategic HR Manager for their sector, in order to fully understand the risks involved.

The overriding consideration will be the safety of vulnerable groups, not convenience, speed or cost.

The CRB provide detailed notes on how risk assessments should be carried out :

· Link to CRBs Portability Process

For Social Care roles, in Adults Services, CSCI refer to the Care Standards Act, in that a fresh CRB check must be carried out and therefore there is no portability permitted.

However, in Childrens Services (including schools) the DfES state that an organisation can accept a previous CRB check provided that :

· the CRB check was not done more than 3 months ago (?)

· there has been no break in service

· the individual will not have significantly more access to children in their new role

For other departments, regardless of the outcome of a risk assessment, a previous CRB will not be accepted if it is more than 6 months old. This is because previous organisations should not hold that certificate for more than 6 months.

CRB checks cannot be transferred from one Registered body to another where :

a) the new role requires a check at a higher level, or

b) where the new role involves responsibilities not previously checked (eg moving from Children's Services to Adults Services or moving from a children's school to a residential school with vulnerable adults - where both examples require someone who was checked against the POCA list to be newly checked against the POVA list)

14. Re-checking CRBs

Whilst there is no legal requirement or mandatory period of time when an individual should be rechecked, a new CRB must be gained where an individual moves to a new position that :

a) requires a check at a higher level, or

b) involves responsibilities not previously checked (eg moving from children's services to adults services - POCA to POVA).

With regard to Schools / Educational establishments staff, the DfES state that:

" It is not necessary for those staff that have obtained a Disclosure since March 2002 to be re-checked. It is only in the event of the following situations that a new Disclosure is necessary and should be applied for immediately:-

· If they are taking up a post with significantly greater responsibility for children.

· If they have had a break in service for three months or longer since March 2002.

· If you have concerns about their suitability to work with children"

For non-Schools staff, a re-check will take place every 3 years, from the date of issue of the previous disclosure certificate where a member of staff / job group :

· provides direct care to vulnerable people or groups, or

· has direct physical access to children or vulnerable adults on a one-to-one basis,

Where this is not the case, the frequency of re-checking will be decided upon by the relevant department's DMT upon recommendation from the appropriate line management team.

Supporting the re-checking process

The Employment Practice Centre will be responsible for supporting the re-checking process by :

· advising line managers on correctly completing the appropriate sections of the CRB application form (e.g. ID documentation required)

· liaising with the manager should an individual's disclosure come back as `positive'

The HR Service Centre will support the re-checking process by :

· counter-signing CRB application forms

· tracking the CRB through the process as required

· informing the manager of the outcome of the CRB

· storing the CRB certificate in line with the Storage policy

The cost of each check will be borne by the employing department, not Human Resources. (To be decided at CMT level)

Should any additional resource be required to help with the high volume of CRB re-checks, this will be sought and costs borne by the employing department (What about HR resource ?)

APPENDIX ONE

List of HCC Staff who Require a CRB Check

(to follow)APPENDIX TWO

POVA First CHECKS

What is a POVA First Check ?

POVA stands for Protection Of Vulnerable Adults. The POVA list is a national database, and contains names of people that have been found to abuse vulnerable adults. The POVA database can be checked by the CRB, to ensure that an applicant who we wish to appoint is not on the list.

A POVA First check should not be considered a replacement for a full and thorough CRB check.

What roles in the Council does this cover ?

POVA First checks can be applied for, for any role that includes personal care.

When can we apply for a POVA First check ?

1. When we receive a fully completed Appointment Form from the recruiting manager AND

2. When the CRB in Liverpool receive a fully completed CRB form for the applicant, from the council.

When can somebody start in post ?

1. When we receive a POVA First clearance from the CRB AND

2. When 2 satisfactory references have been received (one to be from last / most recent employer) AND

3. When medical clearance has taken place through the Occupational Health Unit

While someone has a POVA First check, but has not yet received a full CRB disclosure, are there any procedures we must adhere to ?

1. For domiciliary carers (Home Carer, CRA, Team Leaders etc)

(a) a named person (e.g. a team leader) should be available for the employee to contact whilst they are on a visit

(b) the named person must carry out a minimum of one observation of the employee at work

2. For residential carers

(a) a named person (e.g. an asst. unit manager / unit manager) who is qualified and experienced must be on duty with the new employee at the same time, in order to supervise the new member of staff until their induction is completed AND their full CRB has come through. More than one named person can supervise the new employee, to cover rosters as appropriate.

APPENDIX THREE

Criminal Records Bureau - Positive Disclosure Decision Sheet

A positive disclosure is a certificate that shows cautions, warnings or convictions. They may show spent convictions and also unspent convictions, and for Enhanced checks, they will also show information that a police force deems relevant to disclose based on the nature of the job that the individual will be employed to do. (? do we want this to be known to all ?)

Before a decision is reached on whether to offer or confirm employment to an individual, the individual must be offered the opportunity to discuss the content of the disclosure with the recruiting manager.

Using this decision sheet, the manager will make a balanced decision on whether they are satisfied to employ the person / service provider.

Decision : Employ* / Do not employ* / Employ with adjustments to role* ( *circle )

If a decision is made to employ with adjustments to role, please list adjustments on the reverse of this form.

Line Manager Name : Signature : Date :