5.3 Disclosure and Barring

 1. Introduction

Employers need to ensure, to the best of their ability, that the people who they employ – as paid staff, volunteers or contractors – are committed to providing good quality care and support to children and families.

Carrying out robust criminal records checks is part of a number of safer recruitment measures which can help to prevent unsuitable people being employed to work with children.

Thorough recruitment processes, and ongoing training, supervision and appraisal programmes are also key to ensuring safer working practices.

 2. Disclosure and Barring Service

The Disclosure and Barring Service (DBS) helps employers make safer recruitment decisions. It is responsible for:

• processing and issuing requests for DBS checks on individuals;
• maintaining the Adults’ and Children’s Barred Lists;
• making decisions as to whether an individual should be included on one or both of these lists and then barred from working in a job that involves regulated activity.

 3. Disclosure and Barring Service Checks

The minimum age at which someone can be asked to apply for a criminal record check from the DBS is 16 years old.

Before an organisation requires a standard or enhanced check through the Disclosure and Barring Service, it is legally responsible for ensuring the job is eligible (see Eligibility, DBS).

The DBS eligibility tool can be used to determine what type of check a particular role could be eligible for: Find out which DBS Check is Right for your Employee.

3.1 Types of checks

There are four different types of checks:

• a basic check which shows unspent convictions and conditional cautions;
• a standard check which shows spent and unspent convictions, cautions, reprimands and warnings;
• an enhanced check which shows the same as a standard check plus any non-conviction information held by local police that’s considered relevant to the role;
• an enhanced check with a check of the barred lists which shows the same as an enhanced check plus whether the applicant is on the adults’ barred list, children’s barred list or both.

Under the Rehabilitation of Offenders Act 1974, many convictions or cautions become ‘spent’ after a specified length of time, known as the ‘rehabilitation period’. This means that once the rehabilitation period has been completed, they will not show on a basic DBS check. Applicants do not need to tell anyone about a spent conviction unless they are applying for a job where a standard, enhanced, or enhanced with barred lists DBS check is needed.

3.2 Update Service

The DBS provides an online Update Service, to which staff or volunteers can subscribe and renew annually for a small fee (this may be free for volunteers). This helps them keep their DBS certificate up to date, so it can be taken with them from one job to another, as long as they remain within the same workforce unless:

• an employer asks them to get a new certificate;
• they need a certificate for a different type of ‘workforce’ (for example, they have an ‘adult workforce’ certificate and need a ‘child workforce’ certificate);
• they need a different level of certificate (for example, they have a standard DBS certificate and need an enhanced one).

Employers can do immediate online checks of people who have registered with the Update Service. The Update Service is for standard and enhanced DBS checks only (see Section 3.1, Types of checks).

A new DBS check will only be required if the update service check indicates there has been a change in the person’s status, due to new information added.

3.3 If someone does not disclose their conviction/s as part of the application process

See also Disclosing your criminal record (Ministry of Justice)

Staff, including volunteers, who apply for posts that require a standard, enhanced or enhanced with barred lists DBS check must legally disclose a criminal conviction if the employer asks- even it if is ‘spent’. It is vital, therefore, that this is a standard question on application forms for such posts. If the employer asks the applicant and they do not disclose their conviction/s, the employer could later revoke the job offer or the employee could be dismissed if they have already commenced their employment. They could face a further conviction if they are found to have worked, or attempted to work, whilst barred from such positions (see Section 4, Barred Lists and Duty to Refer).

If an applicant discloses previous convictions, they can still be considered for the post They should be asked to meet with members of the interviewing panel to discuss the offences (with dates) for which they were convicted and any other relevant information that will help the panel make a decision their suitability for the post.

 4. Barred Lists and Duty to Refer

There are two barred lists maintained by the DBS, those who are:

• barred from working with children;
• barred with working with adults.

A person who is barred from working with children or adults commits a criminal offence if they work, volunteer or try to work or volunteer with the group from which they have been barred.

An organisation which knows they are employing someone who is barred from working with that particular group, will also be committing a criminal offence.

Legally an organisation must make a referral to the Disclosure and Barring Service if two conditions are met:

• Condition 1 – permission for the person to engage in regulated activity with children and/or vulnerable adults is withdrawn. Or the person is moved to another area of work that isn’t regulated activity. This includes situations when this action would have been taken, but the person was re-deployed, resigned, retired, or left.
• Condition 2- there are concerns the person has carried out one of the following:
  • engaged in relevant conduct in relation to children and / or adults. An action or inaction has harmed a child or vulnerable adult or put them at risk or harm or;
  • satisfied the harm test in relation to children and / or vulnerable adults. For example, there has been no relevant conduct but a risk of harm to a child or vulnerable still exists; or
  • been cautioned or convicted of a relevant (automatic barring either with or without the right to make representations) offence.

See the DBS Barring Referral Flowchart

 5. Regulated Activity with Children

Regulated activity is work which involves close and unsupervised contact with children and which cannot be undertaken by a person who is on the DBS Barred List. It includes:

1. Unsupervised activities: teaching, training, instructing, caring for or supervising children, or providing advice/guidance on well-being, or driving a vehicle only for children;
2. Work for a limited range of establishments (‘specified places’), with opportunity for contact: for example, schools, children’s homes, childcare premises. Not work by supervised volunteers.
   Work under (i) or (ii) is Regulated Activity only if done regularly (carried out by the same person once a week or more often or on 4 or more days in a 30-day period);
3. Providing relevant personal care (for example washing or dressing) or health care by or supervised by a professional.

There is a duty on a ‘regulated activity provider’ to find out whether a person is barred before allowing that person to carry out regulated activity tasks in their work.

It is a criminal offence for a person on one of the barred lists to take part in regulated activity, or for an employer / voluntary organisation knowingly to employ a barred person in a regulated activity role.

For more information, see Regulated Activity with Children (DBS)