The Regulator for Charities in England and Wales

Consultation on Criminal Records Bureau checks of trustees of charities Summary of responses

Contents

Introduction

On 14 February we launched a consultation on our policy of obtaining Criminal Records Bureau (CRB) checks on trustees of charities. The aim of the consultation was to seek views on our current policy of asking to see CRB disclosures when registering a charity working with either children or vulnerable adults, our associated policies and operational approach. Our Board considered the responses to the consultation at its meeting on 19th July 2007 (Open Board Meeting Paper - 07 OBM 27 - PDF 66kb) and agreed that as a result there would be some changes to our policy. The changes to our policy at registration came into effect on 1 October 2007 (see "Registering a charity: evidence of CRB disclosures"). We have also updated our guidance Finding new trustees: what charities need to know (CC30).

The responses

The consultation paper posed a number of questions and we encouraged respondents to respond just to those questions that they felt were most relevant to them and their organisations. The questions were grouped by themes and we have therefore summarised the responses in those themes below. A full list of the questions we asked is attached as Annex A and a list of respondents is attached as Annex B.

Where respondents provided comments about an issue without assigning a particular question number, we have dealt with the information as though they had answered the most relevant question, or otherwise in the “other comments” section below. In some cases we have included percentages in this summary. Where this is the case these figures are only intended to give a feel for the balance of opinion among those who answered particular questions.

Which trustees should be CRB checked? (Questions 1 – 5)

Our current position is that:

  • Trustees must be CRB checked where there is a legal requirement to do so; and
  • Trustees should be CRB checked where there is a legal entitlement to do so.

This policy is intended to protect children, trustees (who would be guilty of an offence if they appoint someone or fail to remove someone who is disqualified) and the charity’s good name.

A lot of the responses illustrated some confusion about the legal situation and the Commission’s policy in relation to CRB checks. Although this is a complex area of law, it did indicate that some of the Commission’s guidance is not sufficiently clear about the distinction between legal requirements and best practice advice.

We have considered on the whole which of the following categories each respondent falls into:

(a)  Those that wholly agree with our current position and think that wherever checks are available they should be carried out;

(b)  Those who feel that where there is a legal entitlement to check there should be discretion for charities to determine their approach – it should be optional; and

(c)  Those that feel that where there is a legal entitlement checks should never be carried out.

No respondents fell into category (c).

The key points made by those who fell into category (a), in support of our current policy, can be summarised as follows:

  • CRB checks can help to protect beneficiaries and trustees.
  • Current policy sends out a clear message.
  • Although the CRB check system is not ideal, other safeguards are limited.
  • Even where initially a trustee won’t have contact with beneficiaries, circumstances do change, so it is safer to carry out checks.
  • Trustees are in position of leadership, trust and respect. Having CRB checks follows naturally from trustees’ duty of care.
  • Although there are other safeguards, none replace CRB checks.

Despite these points, the majority of respondents to this question (59%) actually fell into category (b), taking the view that where there is a legal entitlement to carry out a CRB check on a trustee it is for the charity concerned to determine whether it is appropriate to carry out a check. Their key points can be summarised as follows:

  • Overuse of CRB checks ignores peoples rights – they are only supposed to be used when there is some risk that is sufficiently significant that it outweighs a persons right to confidentiality of personal information.
  • The approach must be based on proportionality and risk assessment.
  • Checks are only appropriate for those with direct or unsupervised contact with vulnerable beneficiaries. For a lot of trustees who are in very remote positions CRB checks are overkill and there is a  need to distinguish between charities providing services and those giving arms length grants.
  • CRB checks aren’t very effective and reliable as they become instantly out of date. This is a blunt instrument and is only one of a package of safeguards that charities can use. What is appropriate will depend on the circumstances. Other safeguards include recruitment practices, organisational policies on protection, officers tasked with safeguarding roles, ensuring trustees are accompanied by a CRB checked person if having access to beneficiaries.
  • Overuse of CRB checks could be used as tool for social exclusion. The voluntary sector has a long history of helping to rehabilitate offenders, but over use of CRB checks does not support this and can stigmatise people.
  • Charities are in the best position to know what is appropriate for their circumstances. A charity’s view that its own trustees shouldn’t be CRB checked should be respected, they are responsible for the decision.
  • Over use of CRB checks deters people from being trustees and volunteering.

Level of checks (Question 6)

Our current policy is that trustees should carry out an enhanced CRB check and/or check one or more of the lists of people barred from working with vulnerable people where this is legally allowed (rather than just a standard check).

The majority (63%) who answered this question agreed with our current position and felt that enhanced checks should be taken up wherever legally allowed. A number of responses mentioned that the additional information from local police forces (only provided through an enhanced check and on the version of the disclosure that the registered body or charity receives) is particularly valuable. The key points made in support of this position were:

  • Parents expect everything that can be done to be done.
  • Enhanced checks include local police knowledge which is valuable.
  • It is a preventative measure.
  • It is a form of defense against litigation.
  • It provides a better chance of ensuring people are protected.

Some respondents voiced concerns that enhanced checks are problematic for people who have been falsely accused of committing a crime and can be costly for charities where they are unnecessary.

Portability of disclosures (Questions 7 & 8)

Our current position is that a charity should decide whether a disclosure for a trustee is relevant and whether to accept it. However we advise that such a disclosure should not be more than three months old. In most cases we will be satisfied with a charity’s decision.

The majority of respondents to this question (67%) felt that a trustee that has already been CRB checked in another capacity should have a fresh check in relation to their trustee position. The reasons given included:

  • The checks become out of date quickly.
  • A lower level of check may previously have been carried out. For example a second check that was enhanced may reveal new important information that an original standard check would not have included.
  • Even if an enhanced check has been carried out the first time there are still problems. It is possible that the second employer would not receive the additional local police information, because this is retained by the employer and is not included on the individual’s own version of the disclosure.

Those that disagreed with this position did so on the basis that it is an extra burden for the charity and the individual to check again.

We asked whether people agreed that the following factors should be considered when making judgments about portability:

  • the length of time since the disclosure;
  • the level of the disclosure;
  • the nature of the position for which the disclosure was issued;
  • the nature of the position for which the individual is applying.

A majority of respondents to this question agreed with these factors.

Validity period for disclosures (Questions 9 & 10)

The vast majority of respondents to these questions (76%) agreed with our current position that recommends that checks should be carried out at least every three years on trustees. It was pointed out that this may not be possible for all charities to resource and some respondents suggested that this should be best practice advice. This position is consistent with the advice of the Commission for Social Care Inspection.

Of the respondents that disagreed with this position some felt it was unnecessary to have a position because this will not be an issue under the new vetting and barring scheme (although in fact it will remain an issue for enhanced disclosures).

How our policy applies at registration and evidence of CRB checks (Questions 11-17 & 22)

Our current policy is to ask to see disclosures for all trustees where CRB checks are legally allowed.

A small majority (55%) of respondents to this question felt that our current policy of asking to see disclosures at registration does help to safeguard vulnerable beneficiaries. This was largely on the basis that it was felt our policy sent out a clear message and could be preventative. However when asked whether supplying a disclosure to the Commission is an unreasonable burden a small majority (56%) answered “yes”.

We received a lot of comments illustrating problems with the Commission seeing disclosures, summarised below:

  • The Commission is seeing the individual’s version of the disclosure not the charity/registered body version which may have additional information for enhanced checks, so it’s making decisions on incomplete information.
  • The Commission’s request to see disclosures means that people in the charity see disclosures that they otherwise wouldn’t and small charities aren’t geared up to deal with sensitive information appropriately.
  • Disclosure is just a snapshot in time and not effective.
  • Process is tediously time consuming and causes significant delays to registration.
  • Commission does not have the power to prevent or delay registration on this basis. Not linked to registration function.
  • If people are intent on harm, bureaucracy won’t stop them.
  • The Commission doesn’t need to see disclosures it’s not part of its role.
  • It’s a disincentive to volunteering.
  • Charities own policies are more important in safeguarding.

Of the respondents expressing a view, the preferred form of evidence for the Commission to see appeared to be a letter from a registered body or a letter that contained a disclosure reference number (38% of all types of evidence chosen by respondents) .

The following issues with the Commission seeing letters from registered bodies were raised:

  • Not appropriate as registered bodies don’t always see disclosures and wouldn’t hold on to any information about the disclosure – only that it has been obtained.
  • Could result in fraudulent behaviour with no significant reduction in the administrative burden.
  • Should always ask to see originals to be as secure as possible.
  • Would only be of value if content validated.

When asked whether supplying disclosures to the Commission is more burdensome than supplying a copy of a letter from a registered body a majority (60%) felt that supplying disclosures is more burdensome. A large majority (82%) also reported that they are not asked to supply original disclosures to any other regulator.

One other suggestion made by respondents was that if the Commission records the name of the person who has been the subject of a CRB check, date of the disclosure and the disclosure number it can do future spot checks, possibly involving the CRB in this process.

We asked whether people were aware of our guidance on registering as a charity and whether it is clear and helpful. Only a small majority were aware of the guidance. A large majority (79%) said that they found it clear and helpful.

Although the responses to this specific question suggest people are content with our guidance, some of the responses to the consultation in general illustrated confusion about the law and the Commission’s policy on CRB checks for trustees. We will revisit the guidance to ensure it is as clear as possible.

Respondents did make a number of suggestions about how it should be improved which we will take into consideration when we update this guidance.

How our policy applies to trustees of existing charities (Questions 18-20)

We asked whether people were aware of our guidance on checking new trustees of existing charities Finding new trustees: what charities need to know CC30 and whether the guidance is clear and helpful.

A large majority of respondents were aware of the guidance and all those who commented on the contents of the guidance did agree that it was clear and helpful. However some of the responses illustrated confusion about the law and the Commission’s policy on CRB checks for trustees so we will revisit the guidance to ensure it is as clear as possible. There were also a number of suggestions about how it could be improved which we will take into consideration when we update this guidance.

We also asked whether it is appropriate to monitor whether CRB checks have been carried out for existing charities through the annual return. Our proposals to monitor registered charities through the reporting of serious incidents in the annual return were very well received, with 96% of respondents who answered this question supporting our proposals. In fact a number of respondents felt that this was the only check needed (i.e. no registration checks). The following key points were made:

  • If it is just about answering a question on whether disclosures were obtained we can answer this in the annual return. If it is about asking staff to provide trustees' disclosures, may not be able to do this due to restrictions on how long we can keep these.
  • Information must be treated at appropriate level within the Commission and be dealt with sensitively.
  • In addition the Commission should monitor whether child protection policies have been implemented appropriately, should not just focus on CRB checks.
  • It should just be focused on those trustees for whom checks are a requirement, not discretionary.
  • It should be restricted to those trustees whose role brings them into direct contact with children or vulnerable adults.
  • Agree to this as an interim solution. Once the vetting and barring scheme is in place an initial check is all that will be necessary.
  • Most practical way to monitor. Disclosure number should be entered on annual return and also should carry out random spot check.
  • But only as long as checks on annual returns are done, otherwise it's pointless bureaucracy.
  • With appropriate guidance provided in the online annual return section of the website.
  • Also on appointment of new trustees and ensure that trustees carry out their requirements re CRB checking all volunteers, employees etc.
  • Important to match type of work to the requirement or not for CRB disclosure. Type of work is more important than size of organisation.

Reviewing our policy – considering the role of registered and umbrella bodies (Questions 21 & 23 – 27)

We asked whether by seeing disclosures the Commission is duplicating regulation already carried out by other regulators. Most respondents who answered this question felt that the Commission is carrying out dual regulation in this way. Key points included:

  • Why is the Commission focusing on this but no other legislation?
  • Not part of the Commission’s role, particularly at registration.
  • Yes, but better to be safe than sorry.
  • For independent schools DfES has responsibility and the Commission’s policy is inconsistent – need one set of rules.
  • Registered bodies were created as an interface between the CRB and organisations needing disclosures – why does the Commission need to be involved?

We asked questions about the way in which the system of registered and umbrella bodies works. Almost twice as many people said that the system of registered and umbrella bodies does work well, as opposed to those who answered that it didn’t.  

The majority (56%) of respondents to the question about how easy they found it to find an umbrella body reported that they had found it easy. Some of these respondents had made use of the umbrella body search facility on the CRB website.

Of those who had used an umbrella body we then asked whether that umbrella body had interpreted the disclosure information on the charity’s behalf. The vast majority (83%) of respondents to this question said that the umbrella body had not interpreted the information but had passed this to the charity to interpret itself.

The reported costs of using umbrella bodies varied but of those who responded, the most commonly reported cost is £10 per disclosure.

Future changes – the Safeguarding Vulnerable Groups Act 2006 (Questions 28 and 29)

The Safeguarding Vulnerable Groups Act 2006 includes a new vetting and barring scheme for those who work closely with children or vulnerable adults. It will be introduced in phases from autumn 2008.

In the consultation we asked whether people agreed that trustees of charities whose beneficiaries included children or vulnerable adults should be subject to monitoring under the Safeguarding Vulnerable Groups Act. A majority (73%) of those answering the first question agreed that trustees should be subject to monitoring under the new vetting and barring scheme.

Points of support included:

  • It would mean we could clearly say it’s a legal requirement rather than spending time trying to explain why it should be done and would overcome resistance.
  • It avoids new checks every three years.
  • It removes questions of portability.

We also asked the best way to check the nominated person is subject to monitoring by the CRB. We have divided the responses into three main categories:

  • Matter for the charity (36%)
  • Charity Commission to do it (50%)
  • Matter for registered/umbrella bodies (14%)

We will share details of the responses to these questions with officials at the Department for Children, Schools and Families as they develop secondary legislation to implement the provisions of the Safeguarding Vulnerable Groups Act 2006.

Other comments

We received a response from the Office of the Information Commissioner which raised particular concerns about data protection issues relating to our policy of asking to see disclosures when registering a charity, including:

  • the Commission should not require charities to send the disclosure itself;
  • seeing all disclosures in all circumstances is unlikely to comply with the Data Protection Act; and
  • it is the charity itself which has the duty of care to ensure that appropriate recruitment decisions are taken.

Annex A

Consultation questions

Q1 Should CRB checks on trustees be carried out by charities wherever they are legally allowed, not just in the circumstances where they are legally required?

Q2 If not, in what circumstances do you consider that CRB checks should be carried out?

Q3 Should trustees of charities with general objects which do occasional work with children or vulnerable adults get CRB disclosures for trustees wherever this is legally allowed? If not, what would be an appropriate approach?

Q4 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?

Q5 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?

Q6 Should trustees ensure that wherever enhanced checks are legally allowed they are carried out (rather than standard checks)?

Q7 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?

Q8 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?

Q9 How often should CRB checks be carried out on trustees?

Q10 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?

Q11 Does the Commission’s policy of asking to see CRB disclosures before registering a charity help to safeguard vulnerable beneficiaries?

Q12 Does this approach cause an unreasonable administrative burden for charities?

Q13 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.

Q14 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?

Q15 Are you asked to provide original CRB disclosures for charity trustees to any other regulator? If so, please specify.

Q16 Were you previously aware of our guidance “Registering as a charity: evidence of CRB disclosures”?

Q17 Is the guidance clear and helpful? What could be do to improve it?

Q18 Were you previously aware of our guidance “Finding new trustees: what charities need to know”?

Q19 Is the guidance clear and helpful? What could we do to improve it?

Q20 Do you agree that it is appropriate to monitor that CRB checks are carried out for existing charities through the annual return?

Q21 Do you think that the Commission is duplicating regulation carried out by registered bodies, the CRB or other regulators?

Q22 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?

Q23 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:

Q24 Was it easy to find an umbrella body?

Q25 Did the umbrella body interpret the disclosure information on your charity’s behalf or pass the disclosure to you to consider?

Q26 Have you had to pay umbrella bodies to obtain CRB checks? Roughly how much did this cost?

If you represent an umbrella body:

Q27 Do you normally pass disclosure information to your charity clients or do you take decisions about the information in their behalf? If this varies, please indicate roughly the percentage split between the two approaches.
 
Q28 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 means that their criminal records and other relevant information would be regularly checked by the CRB. Do you agree? If not, why not?

Q29 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?

Annex B

List of respondents

Archbishops Council of the Church of England
Archie Gilmour
Association of Charitable Foundations (ACF)
Association of Charity Officers (ACO)
Association of Directors of Adult Social Services (ADASS) and Association of Directors of Children’s Services (ADCS)
Association of Governing Bodies of independent Schools (AGBIS)
Baptist Union of Great Britain         
Batley Grammar School Foundation
Bircham Dyson Bell
Cambridge Citizens Advice Bureau
Catholic Office for the Protection of Children and Vulnerable Adults (COPCA)
Changing Faces
Christian Camping International
Churches Child Protection Advisory Service (CCPAS)
Community Matters
Criminal Records Bureau (CRB)
Department for Education and Skills (DfES)
Emmaus UK
Friends of Hillside Gardens
Glimmer of Hope
Help the Hospices
Home-Start UK
Independent Schools’ Bursars Association (ISBA)
Information Commissioner
Jon Cunnington
Kimpton Players
Leonard Cheshire
Methodist Church of Great Britain
National Association for the Care and Resettlement of Offenders (NACRO)
National Confederation of Parent Teacher Associations (NCPTA)
National Council for Voluntary Youth Services (NCVYS)
National Council of Voluntary Child Care Organisations (NCVCCO)
National Society for the Prevention of Cruelty to Children (NSPCC)
NCH
Progress Recruitment
Resourcing the Community
St. John’s Hospice, Lancaster
Sue Roughton
Swindon Council
The Sea Cadets
Vernon Lane
Wales Council for Voluntary Action (WCVA)
WEC International

Two responses were received well after the closing date of the consultation and we have not included those responses in this summary or the analysis of consultation responses.