Regulated activity

Introduction

Regulated activity for the purposes of this guidance is defined in Schedule 4 of the Safeguarding Vulnerable Groups Act (2006), as subsequently amended by the Protection of Freedoms Act (2012). It relates to those activities for, towards and/or on behalf of anyone who at that time of receiving any the activities may be considered vulnerable. Revised definitions of regulated activity were introduced on September 10th 2012. Please note: This document only looks at this revised definition of regulated activity.

What is the relevance of Regulated Activity?

Regulated activity is important for two reasons:

  1. Enhanced check for regulated activity
  2. Barring

Enhanced disclosures

If a person is engaging in, or applying to engage in regulated activity, it is possible for the provider (an employer or voluntary organisation) to carry out an enhanced check, including a check as to whether that person is included in either or both barred lists. This is now known as an “enhanced check for regulated activity”.

However, even if a position now falls outside the revised definition of regulated activity, it may still entitled to an enhanced check (now known as an “enhanced DBS check”). This is because the previous employment and voluntary roles which were subject to the Rehabilitation of Offenders Act (Exceptions Order) and the Police Act 1997 have not changed. Therefore employers and voluntary organisations are still entitled to request an Enhanced DBS Check where the role meets the “old” definition of regulated activity, but are only entitled to request an enhanced check for regulated activity where the position meets the new definition.

Barring

If a person is ‘barred’, it is illegal for them to apply for, offer or engage in regulated activity. It is also illegal for an organisation to knowingly appoint a barred person to engage in regulated activity. The organisation that bars people was the Independent Safeguarding Authority (ISA), but since December 2012 this role is carried out by the Disclosure and Barring Service (DBS) (which has merged the CRB and the ISA).

What is regulated activity?

In very general terms, ‘regulated activity’ is concerned with activities which are seen as placing someone in a vulnerable position, for example through a relationship of trust or dependency. There are different definitions of regulated activity, depending on whether an activity involves children or adults.

Children – Activities

A child is defined as anyone under the age of 18. It is important to note that any family or personal, non-commercial arrangement is excluded from regulated activity.

The following activities are regulated even if only performed once:

Relevant Personal Care:
– helping a child with eating or drinking because of their illness or disability;
– helping a child with toileting (including menstruation), washing, bathing or dressing because of their age, illness or disability;
– Prompting with supervision in relation to the above two examples, without which the child is unable to decide;
– Training or advice in relation to the above two examples.

Healthcare:
– Only if provided by a healthcare professional or provided under the direction or supervision of a healthcare professional. This includes providing professional first aid e.g. St John’s ambulance officer.
– Whether concerned with mental or physical health.
– Including psychotherapy or counselling but not life coaching.

Registered Childminding:
– This has to be subject to compulsory or voluntary registration under the Childcare Act 2006.
– The family/personal arrangement exception (explained above) may be relevant here.

Fostering:
– Not care arranged by family members and not care without any reward.
– A Local Authority can still foster a child with a barred person who is, or lives with, a relative of the child.

Day to day management/supervision on a regular basis of a person who provides regulated activity is also regulated activity (including management of those people who would be in regulated activity if not for the supervision exemption)

The following activities are regulated activities if performed by a person:
– once a week, or more;
– on four days in a 30 day period, or more; or
– once overnight (any time between 2am and 6am with an opportunity for face to face contact with children):-

Unsupervised teaching, training, instruction, care or supervision of children:
– If the teaching, training, instruction, care or supervision of children is supervised to a “reasonable” day to day level, it is not classed as regulated activity. Statutory guidance on what this means with examples is available from the Department for Education (DfE) website here.

Advice/guidance provided wholly or mainly for children relating to their physical, emotional or educational well-being:
– Not legal advice.
– If a person is providing advice or guidance to a colleague who is under 18 and the work is not regulated activity, this is not regulated activity (eg a supervisor at a department store who manages someone under 18)

The following activities are regulated activities if performed by a person:
– once a week, or more; or
– on four days in a 30 day period, or more:

Moderating a public electronic interactive communication service likely to be used wholly or mainly by children:
– For example, an IT worker moderating a children’s chat room/forums. However, this activity is not regulated activity if the person does not have contact with users or access to the content.

Driving a vehicle used only for children and their carers or supervisors
– A coach driver who takes children on residential trips will be performing regulated activity “if the driving is arranged through the school”

Children – Places (Establishments)

In addition to the above definition of regulated activity based on the activity, the places listed below will automatically make an activity regulated activity if it is carried out by the same person:
– At one of the places;
– Once a week or more, on four days in a 30 day period or more;
– In connection with the purposes of the place; and
– It gives the person the opportunity to have contact with children in performing the activity.

The places are:

Schools:
– The Home Office has stated that “all staff on school payrolls will remain in regulated activity”. This therefore includes, for example, teachers, cleaners and caretakers.
– The Home Office has also said, “if [a sixth form college] is wholly or mainly for under 18 year olds then it is within regulated activity”.
Academies
Pupil Referral Units (Short Stay Schools)
Nursery Schools
Institutions for the detention of children
Children’s homes
Chlidren’s centres (in England)
Childcare premises
Any of the above places will also make day to day management/supervision of a volunteer activity (which would be Regulated Activity if unsupervised) regulated activity if carried out at that place.

However, an activity at one of the above places will not be regulated activity if:
– Performed by someone in a group assisting, acting on behalf of or under the direction of another person who is performing regulated activity.
– Volunteering under day to day supervision of another person who is performing Regulated activity.
– Performed by someone contracted/volunteering to provide occasional or temporary services (except for teaching, training or supervision of children).
– Performed at a childcare premises, which is the home of a parent/guardian of at least one child who is being cared for/minded.
– Performed in a number of the above places, but only infrequently in each place.

Activities which may involve children in places other than those listed above will not automatically qualify as regulated activity. With the example of a sports venue, the Home Office guidance contrasts this to a school because parents must send their children to school and therefore parents can expect stricter rules. A child does not have to attend a sports venue and therefore it is not one of the places making an activity automatically regulated activity. Guidance on the activity performed (see above), rather than the nature of the establishment, should instead be consulted.

Adults

As with regulated activities involving children, activities carried out in the course of family and personal, non-commercial relationships are excluded from the definition of regulated activity. Statutory guidance on regulated activity (adults) is available from the Department of Health (DH) website here.

However, in contrast to the definitions regarding children, with regulated activity involving adults there are no special rules regarding places or frequency, if you undertake any of the below roles once, you are undertaking regulated activity. There are six specific categories of activity to consider with adults. An adult is now classed as vulnerable only when they are receiving any of the following regulated activities. An activity will also be regulated if it involves the day to day management/supervision of a person performing an activity within any of the six categories below:

Healthcare provided by a healthcare professional
– A person who provides healthcare under the direction/supervision of a healthcare professional will also be performing a Regulated activity (with an exception of peer support groups, see below)
– A healthcare professional is someone regulated by one of the following:
o General Medical Council
o General Dental Council
o General Optical Council
o General Osteopathic Council
o General Chiropractic Council
o General Pharmaceutical Council
o Pharmaceutical Society of Northern Ireland
o Nursing and Midwifery Council
o Health and Care Professions Council
– Healthcare can relate to physical or mental health and includes palliative care. Examples provided by the Home Office include taking blood from a donor, providing psychotherapy or counselling (including over the phone) and first aid if performed on behalf of an organisation whose purpose is to provide first aid (e.g. St John’s Ambulance),
– Health care does not include, for example, life-coaching, being a shop’s designated first aider, being a member of a peer support group such as Alcoholics’ Anonymous; even if supervised by a health care professional, or being a receptionist in a GP surgery or dental practice.

Relevant Personal Care:
– Anyone who provides an adult with physical assistance with eating or drinking, going to the toilet, washing or bathing, dressing, oral care or care of the skin, hair or nails because of the adult’s age, illness or disability, is providing regulated activity. However, a person who provides physical assistance only by cutting a person’s hair will not be performing a regulated activity.
– Anyone who prompts and then supervises an adult who, because of their age, illness or disability, cannot make the decision to eat or drink, go to the toilet, wash or bathe, get dressed or care for their mouth, skin, hair or nails without that prompting and supervision, is providing regulated activity.
– Anyone who trains, instructs or provides advice or guidance which relates to eating or drinking, going to the toilet, washing or bathing, dressing, oral care or care of the skin, hair or nails to adults who need it because of their age, illness or disability, is providing regulated activity.
– Providing personal care does not include, for example, a beauty therapist who visits a day care centre and provides manicures for people who would like one rather than who need one due to age, illness or disability, a volunteer who prepares and serves a meal but who does not feed/prompt/supervise/train/instruct someone to eat and a person who provides IT skills to a class of adults with learning difficulties.

Social Work:
– A person providing social work in relation to adults who are clients, or potential clients, who are assessing or reviewing the person’s need for health, education or social services and is providing ongoing support is engaged in regulated activity.

Assistance with household matters:
– This will only be regulated activity if provided because of a person’s age, illness or disability and involves managing that person’s cash, paying that person’s bills or shopping on their behalf.
– This would include collecting money and shopping for someone, but would not include only helping a person to write a shopping list.
– The general exception for family and personal, non-commercial arrangements may be relevant here, explained above.

Assistance in the conduct of an adults own affairs:
– If a person provides assistance in the conduct of an adults own affairs, for example, being appointed as an independent Mental Health Advocate, having lasting power of attorney under the Mental Capacity Act 2005 or receives payments on behalf of that person under the Social Security Administration Act 1992, is engaging in regulated activity.

Transporting / Conveying
– Any driver/assistant who transports an adult because of their age, illness or disability to or from places where they have received, or will be receiving, health care, personal care or social work, are in regulated activity.
– This includes hospital porters, Patient Transport Service providers and assistants and Ambulance Technicians.
– There is an exception for licensed taxi drivers regardless of the purpose or destination of the journey undertaken. or licensed private hire drivers.
– An arrangement such as taking a friend to a hospital appointment would also not be within Regulated activity, as part of the general exception regarding personal relationships.

Further information

This information should be read in conjunction with other sections of this site, in particular the section on the Disclosure & Barring Service.

There are plans in the near future for Government to introduce an online tool to assist individuals and organisations to establish what is and isn’t regulated activity.

The Department for Education are responsible for the policy relating to regulated activity (children). Visit education.gov.uk.

The Department of Health are responsible for the policy relating to regulated activity (adults). Visit dh.gov.uk.