Vetting and barring: Judge fears ISA scheme could breach rights

Social care staff barred from working with children and vulnerable adults may be unable to exercise their right to a fair appeal hearing when the system changes next year, a senior judge has warned.

David Pearl, the principal judge of care standards for England and Wales, said individuals would not be able to challenge the judgement of the Independent Safeguarding Authority if they considered sanctions to be too harsh.

The ISA’s vetting and barring scheme will come into force in October 2009. But, under the Safeguarding Vulnerable Groups Act 2006, appeals will be allowed only on points of law or findings of fact.

Unlike people placed on the current Protection of Children Act and Protection of Vulnerable Adults lists, which the ISA scheme replaces, they will be unable to appeal against decisions on grounds of suitability and proportionality.

Contrary to human rights convention

In an interview with Community Care, Pearl, former president of the Care Standards Tribunal, said: “This provision appears to be contrary to article six of the European Convention on Human Rights – the right to a fair trial. It will almost certainly be an issue that the tribunal will have to consider.”

Appeals against the ISA will be heard in a new upper tribunal, set up last month as part of an overhaul of the tribunal system.

Pearl will sit on the upper tribunal.

A Department for Children, Schools and Families spokesperson said the appeal system for the ISA scheme complied with the Human Rights Act. “This was tested exhaustively during the passage of the legislation,” she said.

Tribunal ‘has required powers’

She added that the purpose of the tribunal was not to “make a similar expert professional judgement” to the ISA and insisted it had “all the powers it needs to overturn any unsound barring decisions”.

Terry Dadswell, head of advice and representation, at the British Association of Social Workers, urged the government to review the legislation.

“If the ISA’s role is to determine suitability, that should be challengeable,” he said.

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More information

Independent Safeguarding Authority

Vetting and barring scheme – information from the Every Child Matters website

Vetting and barring scheme – information from the Department of Health website