The Regulator for Charities in England and Wales
Link to main consultation paper
Link to consultation summary
1. Should CRB checks on trustees be carried out by charities wherever they are legally allowed, not just in the limited circumstances where they are legally required?
2. If not, in what circumstances do you consider that CRB checks should be carried out?
3. Should trustees of charities with general objects which do occasional but regular work with children or vulnerable adults get CRB disclosures for trustees wherever this is legally allowed? If not, what would be an appropriate approach?
4. Where only some of a charity’s trustees have direct contact with vulnerable beneficiaries, do you think that only those trustees with contact should be CRB checked or should all the trustees be checked?
5. Are other safeguards in place which you believe ensure that trustees are unable to abuse their positions and which mean that CRB checks are not necessary?
6. Should trustees ensure that wherever enhanced checks are legally allowed they are carried out (rather than standard checks)?
7. In the case of both new and existing charities, should a trustee that has already been CRB-checked in another capacity (for example because they are a teacher) be checked again as part of the process of appointing trustees?
8. The CRB recommends that the following factors should be considered in making judgements about portability: the length of time since the disclosure was issued; the level of disclosure; the nature of the position for which the disclosure was issued; and the nature of the position for which the individual is applying. Are there other factors that you think are important?
9. How often should CRB checks be carried out on trustees?
10. Should there be different periods of validity for CRB disclosures for trustees in different circumstances (for example, dealing with different groups of vulnerable beneficiaries)? If so, which groups should be checked more often and at what intervals?
11. Does the Commission’s policy of asking to see CRB disclosures before registering a charity help to safeguard vulnerable beneficiaries?
12. Does this approach cause an unreasonable administrative burden for charities?
13. In your view, what information should the Commission seek to reassure itself that CRB disclosures have been obtained when registering charities (for example, a disclosure, a letter from a registered body or a self declaration that the trustee is not disqualified)? Please provide reasons.
14. Is supplying the original CRB disclosure to the Commission more burdensome than supplying a copy of a letter from a registered body? If so, why?
15. Are you asked to provide original CRB disclosures for charity trustees to any other regulator? If so, please specify.
16. Were you previously aware of our guidance Registering as a charity: evidence of CRB disclosures?
17. Is the guidance clear and helpful? What could we do to improve it?
18. Were you previously aware of our guidance Finding new trustees: what charities need to know?
19. Is the guidance clear and helpful? What could we do to improve it?
20. Do you agree that it is appropriate to monitor that CRB checks are carried out for existing charities through the annual return?
21. Do you think that the Commission is duplicating regulation carried out by registered bodies, the CRB or any other regulators?
22. What do you think of the proposal that instead of seeing a CRB disclosure, the Commission could rely on information (such as a copy of a letter) from a registered body as assurance that CRB checks have been carried out appropriately?
23. Do you think the system of registered and umbrella bodies works well and are you aware of any problems?
If you have used an umbrella body to obtain CRB checks:
24. Was it easy to find an umbrella body?
25. Did the umbrella body interpret the disclosure information on your charity’s behalf or pass you the disclosure to consider?
26. Have you had to pay umbrella bodies to obtain CRB checks? Roughly how much did this cost?
If you represent an umbrella body:
27. Do you normally pass disclosure information to your charity clients or do you take decisions about the information on their behalf? If this varies, please indicate roughly the percentage split between the two approaches?
28. We think that trustees of charities whose beneficiaries include children or vulnerable adults should be subject to monitoring under the Safeguarding Vulnerable Groups Act. This would mean that their criminal records and other relevant information would be regularly checked by the CRB. Do you agree? If not, why not?
29. Charities will probably need to nominate a person responsible for checking that each trustee is regularly monitored by the CRB. What do you think would be the best way to check that this nominated person is also subject to monitoring by the CRB?
Please tell us about any other issues to do with carrying out CRB checks on trustees that have not been covered and which you think are important.
This Annex contains a number of terms which are explained more fully in the glossary of terms in Annex D.
This annex focuses on how CRB checks apply to charity trustees and does not cover requirements for other volunteers and staff working for charities, nor does it cover requirements for other types of organisations. For more information on these requirements please visit: http://www.crb.gov.uk.
The law surrounding CRB checks is complex and it can be difficult for charities to understand how it applies to them. Each charity and its trustees have to decide whether they are legally entitled to carry out CRB checks and in some cases whether they are legally required to do so; where appropriate they must request these checks. It is important that trustees proactively consider these questions and seek advice (for example from a solicitor) if they are unclear when CRB checks are legally available or are required. This will help trustees to ensure that they are safeguarding vulnerable beneficiaries and are not breaking the law.
Because a CRB check might involve disclosing sensitive personal data about an individual, the law allows these checks only in certain circumstances. The only time that the term 'trustee' is specifically mentioned in the legislation on CRB checks is in relation to trustees of children’s charities. However other trustees may be entitled to a CRB check because the positions they hold involve contact with vulnerable people. For ease of reference we have used the term 'trustees' in setting out such entitlements throughout this document even where the law does not specifically refer to trustees. The law permits CRB checks in the following circumstances:
(i) for charities working with those under age 18, the following 'regulated positions' are entitled to be checked:
(ii) for charities concerned with the provision of care services for vulnerable adults, all trustees who have access to vulnerable adults who receive those services are entitled to be checked.
Certain explicit legal requirements mean that CRB checks must be carried out for some charities and specified trustee positions. In summary these apply to the following positions:
Relevant charities can ask trustees or applicants for trustee positions to apply for one of two types of CRB check. The type of check available will depend on the nature of the position. The two types of checks are:
(i) standard CRB check – this involves checking details of all convictions (spent and unspent), cautions, reprimands and warnings held on the Police National Computer; and
(ii) enhanced CRB check – this is for positions involving much more contact with children or vulnerable adults. These are people who regularly care for, train, supervise or are in sole charge of vulnerable people. These checks are the same as standard checks, but with an extra level of checking, of local police force records. This allows access to any information that, in the Chief Officer’s opinion, might be relevant – information that the police hold, but would not normally release.
As well as the standard or enhanced check on an individual’s criminal record, the CRB can find out whether an individual has been barred from working in certain positions. The Department for Education and Skills and the Department of Health hold this information in the following lists:
To get a CRB check, the trustee concerned must complete and sign an application to the CRB to make a 'disclosure' of any criminal, police or similar records held about them. For the CRB to process the application, it must be countersigned by a representative of an organisation that is registered with the CRB, known as a 'registered body'.
The individual applicant and the registered body both receive the resulting disclosure from the CRB. If a charity is itself a registered body it considers the information in the disclosure, helping it to decide whether to appoint the individual as a trustee. If a charity is not a registered body, it must find a registered body that provides these services on behalf of third parties. This is known as an 'umbrella body'2. In this case the charity can ask the umbrella body to pass it the disclosure so it can judge whether information on the disclosure affects its decision to appoint a trustee. Alternatively, it can ask the umbrella body to make the judgement.
Most trustees are volunteers and the CRB does not charge for disclosures about them. However, umbrella bodies normally charge a fee, so most trustees still have to pay for the checks.
An organisation can only become a registered body with the CRB if it meets certain criteria. It must:
The CRB will also check the identity and criminal records of representatives of the registered body itself. The CRB describes the role of a registered body as follows:
This provides a control mechanism, ensuring that only those who are entitled to request information from the CRB can do so. Also, because they must follow the Code of Practice to maintain their registered status, registered bodies and those to whom they disclose information must ensure that information is used fairly and sensitively. For example, registered bodies must have written policies on the recruitment of ex-offenders and must help staff to correctly interpret and use disclosure information. The CRB is responsible for the assurance of this scheme.
Several important pieces of legislation concern the protection of children and vulnerable adults. Below is a list of the most relevant pieces with a brief summary of the information that will interest charities.
The Police Act 1997
This Act established the CRB and set out the procedures for obtaining a CRB disclosure. It permits CRB checks to be carried out.
The Rehabilitation of Offenders Act 1974
This Act makes provision for certain convictions becoming spent and provides certain exceptions to these provisions.
The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975
This lists the excepted professions, offices and employments for which there is a legal entitlement to obtain CRB checks. It includes specified healthcare professionals.
The Protection of Children Act 1999
Section 7 of this Act states that a childcare organisation which is proposing to offer an individual employment in a childcare position has to ensure the person is not included in the Protection of Children Act List.
The Care Standards Act 2000
Section 89 of this Act states that a person who provides care to vulnerable adults and who is proposing to offer an individual employment in a care position has to ensure that person is not included in the Protection of Vulnerable Adults List.
The Education (Independent School Standards)(England) Regulations 2003
This requires the Secretary of State for Education to undertake a CRB check on the proprietor of an independent school – this may mean a sole proprietor or a governing body, trustees or directors.
The Criminal Justice and Court Services Act 2000
This states that some positions which involve working with children are 'regulated positions'. Section 36 of this Act states which positions these are and includes members of a governing body of an educational institution and a charity trustee of a children’s charity. It defines a children’s charity as being one which has workers in regulated positions. It makes it an offence to offer employment to a person disqualified from working in a regulated position and for such a disqualified person to apply for or accept a regulated position.
The Safeguarding Vulnerable Groups Act 2006
Phased implementation of this legislation will begin in 2008. It introduces a new vetting and barring scheme for those who work closely with children or vulnerable adults. A new Independent Barring Board will maintain a children’s barred list and a vulnerable adults barred list. These will supersede the Protection of Children Act List, the Protection of Vulnerable Adults List and List 99.
The Act gives the Commission the power to check these lists. It also makes it an offence for a person who is on the children’s barred list to act as a trustee of a children’s charity and for a person who is on the vulnerable adults’ barred list to act as the trustee for a vulnerable adults’ charity. The Act enables the Secretary of State to prescribe in secondary legislation that a trustee of a children’s or vulnerable adults’ charity must have been vetted and not be barred by the new vetting and barring scheme and to prescribe arrangements for checking that a person has been through this vetting process where appropriate.
Children’s charity
A children’s charity is a specific term defined in The Criminal Justice and Court Services Act 2000. It is a charity which has individuals as workers who normally include individuals working in regulated positions. The term 'regulated position' is also defined in that Act, and is one which involves working with children. An individual is a worker in a charity if s/he does work under arrangements made by the charity but this does not include any arrangements made for purposes which are merely incidental to the purposes for which the charity is established.
Regulated position
A person disqualified from working with children is not allowed to work in a regulated position as defined by The Criminal Justice and Court Services Act 2000. There are various types of regulated position, including:
Childcare organisation
This is defined by the Protection of Children Act 1999. It is an organisation which “…is concerned with the provision of accommodation, social services or health care services to children or the supervision of children” and “whose activities are regulated by or by virtue of any prescribed enactment; and which fulfils such other conditions as may be prescribed”.
Childcare position
This is defined by the Protection of Children Act 1999. It is a position which is a regulated position for the purposes of Part II of The Criminal Justice and Court Services Act 2000, including a regulated position at a school which is a children’s home for the purposes of the Care Standards Act 2000, but not one which involves work to which section 142 of the Education Act 2002 applies. This therefore excludes most work involving education at a school or further education institution.
List 99
This is a list of individuals barred from working in schools, further education colleges and local education authority services. It also includes some people who are not subject to a full bar but are subject to restrictions. List 99 is the commonly used term for information held under section 142 of the Education Act 2002.
Protection of Children Act list
This list includes details of people who are barred from working with children.
Protection of Vulnerable Adults list
This list includes details of people who are barred from working with vulnerable adults.
Exempt charities
These charities have charitable status. The general law of charity declared in the Charities Acts applies to exempt charities and so they are subject to the jurisdiction of the court, but they are exempt from many provisions in the Charities Acts and do not come under the control of the Commission. They are not permitted to register.
They are exempt because Parliament has been satisfied that there are sufficient other arrangements in place to carry out the objects of the trusts and it would be superfluous to submit them to the control of the Commission.
Exempt charities are listed in Schedule 2 to the Charities Act 1993. They include some universities, schools and museums.
Excepted charities
These are charities which are excepted by order or regulation from certain obligations imposed by the Charities Acts. These are excepted from registration but the Commission can register them at the request of the charity.
Vulnerable groups
For the purposes of this consultation document vulnerable groups means children and vulnerable adults. 'Children' are persons under the age of 18 years. There are three different definitions of 'Vulnerable adults' depending on what type of check is being carried out, set out in detail below:
1. Definition of 'Vulnerable Adult' for Standard CRB Check
'vulnerable adult' means a person aged 18 or over who has a condition of the following type:
(i) a substantial learning or physical disability;
(ii) a physical or mental illness or mental disorder, chronic or otherwise, including an addiction to alcohol or drugs; or
(iii) a significant reduction in physical or mental capacity.
2. Definition of 'vulnerable adult' for enhanced CRB check
'vulnerable adult' for the purpose of an enhanced CRB check means a person aged 18 or over who satisfies all of the following three requirements:
1) s/he is receiving one or more of the following services:
(a) accommodation and nursing or personal care in a care home;
(b) personal care or nursing or support to live independently in his own home;
(c) any services provided by an independent hospital, independent clinic, independent medical agency or National Health Service body;
(d) social care services; or
(e) any services provided in an establishment catering for a person with learning difficulties.
2) s/he is suffering from one of the following conditions:
(a) a learning or physical disability;
(b) a physical or mental illness, chronic or otherwise, including an addiction to alcohol or drugs; or
(c) a reduction in physical or mental capacity.
3) in consequence of the condition in (2), s/he has one of the following disabilities:
(a) a dependency upon others in the performance of, or a requirement for assistance in the performance of, basic physical functions;
(b) severe impairment in the ability to communicate with others; or
(c) impairment in a person's ability to protect himself from assault, abuse or neglect.
3. Definition of 'vulnerable adult' in definition of 'Care position' for POVA (Protection of Vulnerable Adults) list search
The definition of 'care position' does not actually refer to the term 'vulnerable adult' although it is in a part of the Care Standards Act 2000 headed “Protection of Children and Vulnerable Adults”. The definition of 'vulnerable adult' here is:
'vulnerable adult' means –
(subsection (7)(e) refers to “any person who carries on a scheme under which an individual agrees with that person to provide support, care or accommodation to an adult who is in need of it.”)(a) an adult to whom accommodation and nursing or personal care are provided in a care home;
(b) an adult to whom personal care is provided in their own home under arrangements made by a domiciliary care agency;
(c) an adult to whom prescribed services are provided by an independent hospital, independent clinic, independent medical agency or National Health Service body; or
(d) an adult to whom support, care or accommodation is provided by an individual (not being a relative of that adult) under the terms of an agreement between that individual and a person within subsection (7)(e).(section 80(6))
This annex estimates the costs of complying with the Commission’s interim registration policy in financial terms. It is not possible to value the benefits in a comparable way, as our policy is designed to increase the protection of vulnerable beneficiaries.
The table below summarises the costs to charities of complying with our current interim policy, compared to the costs of the previous policy. It does not include costs that would have been incurred without the policy, for example where other regulation makes it compulsory to obtain a CRB disclosure.
The table also includes estimates of the effect of two relevant provisions in the Charities Act 2006: the changes to the general registration threshold and to the position of excepted and exempt charities.
Below the table are the figures and assumptions on which the table is based. Where we did not have firm evidence in this area we have made assumptions. For this reason the figures in the table are only indicative at this stage but we will try to provide more robust costings in the future.
The CRB does not charge for disclosures for volunteers. As almost all trustees are volunteers it is assumed that trustee disclosures are free to charities, except for the cost of umbrella bodies. They will involve cost to the CRB. This paper does not cover the CRB’s costs but you should note that they are a factor in setting CRB charges for other disclosures.
The figures in this paper do not all represent actual expenditure by charities. Much of the cost is a valuation of the time spent by trustees and other volunteers. In many cases the actual expenditure may be limited to relatively small items such as postage and stationery.
|
Cost for charities |
Cost to the Charity Commission | |||
|
Number of charities affected
|
Costs attributable to the Commission’s policy |
Average cost per charity
|
||
|
Annual cost |
Annual cost | |||
| 1. Previous policy: Self declaration made at registration – that disclosures have been obtained |
3,000 |
£581,400 |
£194 |
£5,400 |
| 2. Current interim policy: Disclosures obtained and supplied to the Charity Commission |
3,000 |
£738,900 |
£246 |
£108,000 |
| 3. Charities Act – Change A: General registration threshold to be changed to £5,000 | ||||
| (i) Compulsory registrations |
2,400 |
£590,400 |
£246 |
£86,400 |
| (ii) Assume 50% voluntary registrations |
2,700 |
£664,200 |
£246 |
£97,200 |
| 3. Charities Act – Change B: Changes to excepted and exempt charities | ||||
|
One-off costs |
One-off costs | |||
| (i) Compulsory registration |
11,000 |
£4.9 million |
£445 |
£792,000 |
| (ii) Estimated 11,000 voluntary registrations |
11,000 |
£4.9 million |
£445 |
£792,000 |
Under our previous policy (before June 2006) we advised that all trustees eligible for CRB disclosures should obtain them, but we did not ask to see these. Instead we asked each trustee to confirm to us that they were not disqualified from holding the trustee position in question. We have estimated the following costs for charities of our previous policy:
| Cost to the sector of the policy: | £581,400 |
| Cost per charity caught by the policy: | £194 |
| Cost per disclosure: | £39 |
These figures and assumptions are explained in steps (a) – (e) below.
(a) Number of disclosures we are requesting under our interim registration policy
Using information from our charity database and the recent experience of our staff who deal with charity registration, we estimate that we receive 2,400 – 3,600 applications a year for charity registration from charities working with vulnerable beneficiaries, and who should, under our policy, obtain CRB disclosures. Taking the mid-point of this range, we have assumed 3,000 charity applications for the purposes of these calculations.
We estimate an average of five trustees per charity. Therefore we estimate that our previous policy led us to receive a total of 15,000 disclosures a year.
(b) External charges for charities to obtain disclosures
We assume that all trustees are volunteers and so the CRB does not charge them for disclosures.
We assume that 50% of applications for CRB checks are countersigned by registered bodies and so the charities making the applications do not need to engage umbrella bodies and do not incur a charge.
We looked at a random sample of 40 of the umbrella bodies through the CRB’s website and at how much they charge for their services. On this basis we assume that the average cost for an umbrella body, when used, is £10. If 50% are not charged, this gives an average charge of £5 to obtain a disclosure.
(c) Other work involved for charities to obtain disclosures
Work for applicant – applying to the CRB for a disclosure involves filling out a form, providing identification, and other administrative tasks such as posting the form. We estimate that on average this would take 2.5 hours per application.
Work for the charity– telling the prospective trustee they must get the CRB disclosure, then considering information in the disclosure and/or liaising with the umbrella body takes time. It may be possible to inform all trustees at the same time and to liaise with the umbrella body over more than one disclosure at a time. We estimate that this work takes 30 minutes per disclosure when establishing a charity.
This means that each disclosure involves a total of three hours’ work. If as above, we assume each charity has five trustees, it takes 15 hours’ work to have all its trustees CRB checked.
(d)Total cost to charities working with vulnerable beneficiaries of obtaining CRB disclosures for all trustees
The usual rate we use for the cost of trustee time is £16.23 per hour. If we assume it takes 3 hours work per disclosure this is a cost of £49 per disclosure.
The standard overhead cost used for trustee work is 0.3 of the hourly rate. If we add this, it results in a cost of £63 per disclosure.
We must also add the £5 average charge per disclosure identified in (b) above. This leads to an overall average cost of £68 to obtain a disclosure.
For a charity with five trustees the total cost to the charity is therefore £340.
For the sector (3,000 charities) the total cost is £1.02m.
(e) Adjustment to remove costs not attributable to Charity Commission policy
We need to remove disclosure-related costs that charities would incur regardless of our policy.
Preliminary research indicates that an overall 43% of relevant charities obtain disclosures regardless of our policy. We assume that this includes all cases where other regulations require disclosures.
Again assuming there are 3,000 relevant charities, 1,710 (57%) of these obtain disclosures because of Commission policy. If as calculated in (d) above the total cost to each charity is £340, this means the overall cost to the sector of our previous policy is an estimated £581,400.
We have divided this cost by the number of charities to which the policy applies to get the cost of £194 per charity and by the number of disclosures to get the cost of £39 per disclosure.
Under our interim policy we also ask to see original CRB disclosures rather than accepting a declaration from trustees. We have estimated the following costs for charities which are attributable to the Commission’s current interim policy:
| Cost to the sector of the policy: | £738,900 |
| Cost to each charity the policy applies to: | £246 |
| Cost per disclosure: | £49 |
We explain how we have arrived at these figures in (a) and (b) below.
(a) Additional work for charities
This interim policy leads to additional costs to charities. These arise from a few simple actions, which may be handled centrally by the charity or individually by each trustee. We assume that to submit the disclosure to us and answer any queries we may have about it takes an average of 30 minutes per disclosure.
This means that the new interim policy requires an extra 30 minutes’ work for a charity for each disclosure, which using the hourly and overhead rates we used in 1(d) above, is an additional cost of £10.50 per disclosure or £52.75 for a charity with five trustees.
If we add this to the figures calculated for our previous policy, this means the cost per disclosure has risen to £78.50, the average cost for a charity with five trustees is £394 and the total cost for the sector (3,000 charities) is £1.18m.
(b) Adjustment to remove costs not attributable to Charity Commission policy
Again we need to identify how much of this cost results directly from our policy. We should therefore remove 43% of the total cost of obtaining disclosures as in 1(e) above as this percentage would be spent on disclosures regardless of our policy.
Our interim policy costs more because it requires all charities to submit the original disclosures to us. This applies to a charity whether or not it is obliged to obtain disclosures or would otherwise have done so regardless of our policy.
We have divided this cost by the number of charities to which the policy applies to get average costs attributable to our policy of £246 per charity and £49 per disclosure.
If we continue with our current interim policy, costs will change as a result of two changes brought about by the Charities Act 2006.
Change A: General registration threshold to be changed to £5,000
(i) We estimate that raising the general threshold for charity registration will reduce the number of compulsory registrations with the Commission by 20%.
On the basis of our estimate in 1(a) above, we expect to see 15,000 disclosures per year. A 20% reduction would mean we asked to see 12,000 disclosures a year from 2,400 charities.
Using the average cost per charity of £246 as explained in 2(b) above, this gives a total cost of £590,400.
(ii) We estimate that half of the charities between the old and new thresholds will decide to register voluntarily. Therefore 2,700 charities would submit13,500 disclosures a year to us at a total cost of £1.06m.
Again using the average costs from 2(b), this gives a total cost of £664,200.
Change B: Changes to excepted and exempt charities
(i) We estimate that 11,000 relevant currently exempt and excepted charities will have to register. This will be a one-off exercise that we understand will happen over a period of around six years after the changes take effect. The figures in this section are for the total cost rather than annual costs.
Because of the type of charity involved we estimate that the average number of trustees will be higher than usual and assume an average of 10 trustees per charity, meaning this will involve 110,000 disclosures.
We also believe that the nature of the charities means they will obtain more disclosures regardless of Commission policy, and assume this will apply to 50% of charities.
On this basis the costs attributable to our policy would be:
This gives a total cost of £4.9 million with an average cost per charity of £445.
(ii) We also believe that the above changes will lead to a number of currently exempt and excepted charities registering voluntarily. It is difficult to know how many will wish to do so but it could be as many as are covered by (i) above.
We estimate it takes the equivalent of two full-time employees to deal with all aspects of checking disclosures. This includes:
We estimate the cost for checking five disclosures is £36. On the basis that there are 3,000 relevant charities, the cost for the current interim policy is £108,000.
The previous policy only involved checking that self declarations had been made. We assume this is approximately 5% of the costs of the current policy, which is £5,400.
Change A: General registration threshold to be changed to £5,000
(i) A 20% reduction in applications for registration due to the change in the general registration threshold leads to annual costs of £86,400.
(ii) 50% of charities between old and new thresholds register voluntarily - leads to annual costs of £97,200
Change B: Changes to excepted and exempt charities
(i) Compulsory registration after changes to exempt and excepted charities leads to one-off costs of £792,000.
(ii) Voluntary registrations after the above changes are difficult to predict but could be at least as much as in (i) above.
Copy of Monitoring Form - English PDF (36kb)
1. List 99 is the commonly used term for information held under section 142 of the Education Act 2002.
2. There is a searchable database with details of these bodies on: http://www.crb.gov.uk.
3. Under the Rehabilitation of Offenders Act (ROA) 1974 Exceptions Order 1975.
4. Part of the frequently asked questions section on: http://www.crb.gov.uk.