Disclosure and Barring Service
The Disclosure and Barring Service (DBS) which was created in December 2012, is responsible for maintaining the lists which contain the details of individuals barred from carrying out regulated activity with children and vulnerable adults. The DBS is also responsible for determining who should be included in those lists and barred from carrying out regulated activity. This section explains the work of the DBS, the different types of disclosure, who can request and access DBS records and how to use the Update Service.
Members should also read the criminal records section.
The Disclosure and Barring Service have updated their update service applicant guide and issued a new employers guide. This follows a request from the REC to provide clarification of the circumstances in which Status checks can be carried out on the certificates of applicants who have DBS certificates at different levels and which include different workforce checks.
The REC had been alerted to the fact that there was confusion in particular about the ability to carry out Status checks on candidate certificates which include both adult and child workforce checks if the candidate would only be undertaking work involving one or other workforce. It is now clear that an employer cannot carry out a Status check in that situation.
What is the position with DBS checks following the Department for Education's call for retired teachers to return to schools to help with staffing shortages?
The REC has been liaising with the Department for Education (DfE) since this call to action was announced. We have set the out issues that supply agencies will face when it comes to meeting their statutory obligations, particularly in relation to obtaining suitable references, DBS checks and delays with processing certificates.
DfE have confirmed that they are currently preparing guidance for agencies on all of the issues raised.
In the meantime and on the point of DBS checks, they have confirmed the following to REC:
DfE has had reassurance from the DBS that there are currently no delays and checks are taking up to 14 days, often quicker, where there is no criminal information disclosed.
We have confirmed with the DBS that the e-bulk result gives one of the following messages:
• The check is clear
• Await sight of the paper certificate
The requirement placed on schools and colleges is that they obtain written notification that the relevant checks, which includes the DBS check have been carried out and if there is any criminal disclosure information this is notified to the school.
So, in cases where the first ‘clear’ result is given then it is safe to proceed with placement of the individual based on that information.
What is the Disclosure and Barring Service?
The Disclosure and Barring Service (DBS) was established under the Protection of Freedoms Act 2012. It has taken on the functions of the Independent Safeguarding Authority and is merged with the Criminal Record Bureau. This safeguarding regime was created as a result of the Bichard enquiry into the Soham murders. One of the key findings from the enquiry was the fact that while a number of different agencies held information about Ian Huntley, which raised concerns, the absence of a centralised organisation that could bring all of that information together meant that it was not possible to gain the whole picture with regard to these concerns.
The DBS is responsible for maintaining both the children’s barred list and the adult’s barred list which contain the details of those barred from carrying out regulated activity with children and vulnerable adults, respectively. The DBS is also responsible for determining who should be included in either or both lists and barred from carrying out regulated activity.
What provisions remain in place?
Offences – engaging in regulated activity:
It is an offence for anyone who is barred to seek or to take up a ‘regulated activity.’ Similarly it is an offence to knowingly engage someone who is barred, in a regulated activity and it is an offence for a personnel supplier to knowingly supply a person who is barred to carry out regulated activity.
Referral duties:
Certain parties such as employment agencies and employment businesses, clients who engaged in regulated activity (schools, and nursing homes for example) and some professional bodies have a legal obligation to report safeguarding concerns to the Disclosure and Barring Service about individuals. Failure to do so where required is a criminal offence.
What changes were introduced on 10 September 2012
Under the previous Vetting and Barring Scheme the following changes were introduced: (please note that these changes apply equally under the Disclosure and Barring Service, which was implemented in December 2012)
- The definition of regulated activity was revised with the result that fewer people will be within scope of the safeguarding regime moving forward.
- Controlled activity was removed from the safeguarding regime.
- There is no longer a requirement for those carrying out regulated activity to register with the DBS. This registration process actually never commenced but this has now been permanently removed from the safeguarding regime.
- The statutory power (in the Police Act) under which the police could previously provide ‘additional’ or ‘brown envelope information’ in connection with an enhanced disclosure was removed. However the police can still disclose such information if they ‘reasonably believe’ the information to be relevant.
What changes were made to the DBS from 17 June 2013?
On 17 June 2013 the DBS launched its new Update Service for applicants.
The Update Service removed the need for applicants to apply for a new criminal records certificate each time they move roles.
Instead applicants that choose to subscribe to the Update Service are provided with a DBS certificate which is kept up to date meaning that they will be able to take it from role to role as long as they are working within the same workforce. I.e. if an applicant has a certificate to work with children they will be able to move within roles working with children.
Applicants will need to pay an annual fee of £13 to use the service. The benefit to employers is that they are be able to use the online services provided by the DBS to check if the information on the certificate presented to them by the individual is up to date. Employers can carry out this check for free but must have the applicant’s consent to do so.
The new update service should go a long way to resolve the problems around portability of certificates. It is up to applicants whether they subscribe to the online service but there are obvious benefits for applicants as they will be able to avoid the cost and inconvenience of applying for repeated certificates.
Important additional information
At the same time as the Update Service went live the DBS implemented two key other changes:
- Importantly, it will cease to issue copies of DBS certificates to counter signatories and registered bodies. The certificate is issued solely to the applicant.
- Changes were made to the disclosure application form. Specifically the ‘Position Applied For Field’ will now require the following information to be provided:
You should now include one of the following phrases in x61 line 1:
- ‘Child Workforce’. Use this for any position that involves working/volunteering with children.
- ‘Adult Workforce’. Use this for any position that involves working/volunteering with adults.
- ‘Child and Adult Workforce’. Use this for any position that involves working/volunteering with children and adults.
- ‘Other Workforce’. Use this for any position that does not involve working/volunteering with Children or Adults e.g. security guard.
X61 Line 2: Enter a description of the ‘Position Applied For’ up to 30 characters.
What changes were made to the DBS rules from 28 November 2020?
New DBS filtering rules come into effect on 28 November 2020
The filtering rules came into force on 29 May 2013. Before the filtering rules were introduced, if a role was ‘exempt’ from the Rehabilitation of Offenders Act 1974 (ROA), the employer was entitled to know about the candidate’s full criminal record history. Therefore, all convictions, cautions, reprimands and final warnings held on the Police National Computer (PNC) were disclosed on standard and enhanced DBS checks until a person reached 100 years of age.
The filtering rules changed questions an employer can ask an individual in relation to convictions and cautions which is usually done by a self -declaration in an application form. The filtering rules also changed what is disclosed on a Standard or Enhanced DBS certificate.
However, the filtering rules did not go far enough and were challenged in the courts in January 2019. The Supreme Court ruled that certain aspects of the filtering system were disproportionate, and amendments had to be made. Changes to the filtering rules will be implemented on 28 November 2020 where cautions and convictions that are eligible to be filtered will not appear on standard or enhanced DBS certificates.
From 28th November 2020:
· warnings, reprimands and youth cautions will no longer be automatically disclosed on a DBS certificate
· the multiple conviction rule has been removed. This means that if an individual has more than one conviction, regardless of offence type or time passed, each conviction will be considered against the remaining rules individually, rather than all being automatically disclosed
Employers and recruiters must change the question for roles that are subject to standard or enhanced DBS checks as follows:
Do you have any convictions or cautions (excluding youth cautions, reprimands or warnings) that are not ‘protected’ as defined by the Ministry of Justice ? (Y/N)
The amendments to the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (2013 and 2020) provides that when applying for certain jobs and activities, certain convictions and cautions are considered ‘protected’. This means that they do not need to be disclosed to employers, and if they are disclosed, employers cannot take them into account.
The REC model registration form and criminal convictions form will be updated to reflect these changes.
DBS will update their question on the application form to remove the reference to ‘reprimands or final warnings’. DBS has published guidance on how they will apply the new DBS filtering rules when issuing standard or enhanced DBS certificates which you can access using this link https://www.gov.uk/government/publications/dbs-filtering-guidance/dbs-filtering-guide
What is the Update Service?
Applicants can subscribe to the Update Service which will keep their DBS certificate updated, enabling them to use the same certificate when they move around different roles in the relevant workforce.
An employer/prospective employer /employment business or anyone who is entitled to apply for a DBS certificate will be able to use the free DBS on line checking service to see whether the certificate is up to date or whether any new information has been added since the certificate was issued. This is referred to as a Status check.
Who is entitled to carry out a Status check?
It is not necessary to be registered with the DBS to carry out the Status check, but any organisation doing so must be entitled to apply for a DBS certificate in relation to the applicant at the same level of the Status check. However the applicant individual must give their consent for the Status check to be carried out. Note that the individual will at any time be able to check who has carried out a Status check.
The Status check must be carried out by a person who is entitled to ask an exempted question of the applicant.
An exempted question is a valid request for a person to reveal information about their criminal convictions (including spent convictions) as permitted under the Rehabilitation of Offenders Act (ROA) 1974 Exceptions Order 1975.
Anyone carrying out a Status check must comply with the DBS Code of Practice.
How is the Status check carried out?
The person carrying out the Status check must have the applicant’s consent. It will be necessary to:
- Check the applicant’s identity (see DBS guidance)
- Have sight of the applicant’s DBS Certificate
- Check that the name on the certificate matches the applicant’s identity
- Comply with the DBS Code of Practice
The person carrying out the check can go onto the DBS website to access the Update Service to check whether the information on the certificate is up to date.
The following information will need to be provided:
- DBS Certificate number
- Current name of the Certificate holder as given on the Certificate
- Certificate holders date of birth
The person carrying out the check will then be presented with a legal declaration. It will only be possible to proceed from this point if the person carrying out the Status check is able to accept the declaration which is a confirmation that the person has the consent of the applicant to carry out the Status check and is entitled to ask an exempted question, or seek an enhanced criminal record certificate of the applicant in accordance with the Police Act 1997.
What results could the Status Check provide and what do the results mean?
- The Certificate did not reveal any information and remains current as no further information has been identified since its issue.
This means that the certificate that the applicant has was blank and contained no information about the applicant.
Or
That no new information has been found and added to the certificate since it was issued.
Action: the certificate is up to date and can be accepted as valid, there is no need for the applicant to apply for a new certificate.
- This Certificate remains current as no further information has been identified since its issue.
This means that the Certificate did reveal information about the applicant but no new information has been found or added to the certificate since it was issued.
Action: the certificate is up to date and can be accepted as valid, there is no need for the applicant to apply for a new certificate.
- This Certificate is no longer current. Please apply for a new DBS check to get the most up-to-date information.
This means that new information has been found since the certificate was issued.
Action: it will be necessary for the applicant to apply for a new DBS check to see the information.
- The details entered do not match those held on our system. Please check and try again.
This could mean that the applicant has not subscribed to the update Service or he or she has removed their certificate from the Update Service.
Or
Incorrect information has been inputted by the person carrying the Status check.
How will recruiters be able to show that the DBS check has been carried out if the certificates are no longer issued to countersignatories?
DBS have suggested that a screen print be taken when the Status check is carried out. It is also permissible to take and retain a copy of the applicant’s DBS certificate.
It will be necessary for employment agencies and employment businesses to retain records that show that they have complied with the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
What is meant by ‘relevant workforce’?
It will be necessary to identify which workforce the applicant will be/is working with. The options are below:
- Child Workforce (if carrying out regulated activity relating to children)
- Adult Workforce (if carrying out regulated activity relating to adults)
- Child and Adult Workforce (if carrying out regulated activity relating to both children and adults)
- Other Workforce (if the work involves work with neither children nor adults).
It will be necessary to specify which of these categories apply when completing the DBS application form.
What is a ‘regulated activity?’
The Disclosure and Barring Service only applies to activities that are defined as regulated activity within the legislation. Regulated activity is divided into activity that relates to children and activity that relates to adults. Anyone who carries out such activity is eligible for an enhanced criminal records disclosure.
What is regulated activity relating to children?
Activities carried out anywhere:
The following activities if carried out on a frequent basis (once a week or more often) or on more than 3 days in any 30 day period) or overnight (between the hours of 2 am - 6 a.m. constitute regulated activity:
- (Unsupervised) teaching, training, instructing care or supervision
- Providing advice or guidance ( excluding legal advice)
- Driving a vehicle exclusively for children or anyone who is supervising or caring for children
The following activities are also regulated activity however infrequently they are carried out:
- Providing relevant personal care ( for example washing, bathing, dressing)
- Providing health care (all forms of health care) provided by or under the supervision of a health care professional
Relevant personal care is:
- physical assistance which is given to a child who is in need of it by reason of illness or disability and is given in connection with eating or drinking (including the administration of parenteral nutrition),
- physical assistance which is given to a child who is in need of it by reason of age, illness or disability and is given in connection with-
(i) toileting (including in relation to the process of menstruation), - (ii) washing or bathing, or
(iii) dressing, - the prompting (together with supervision) of a child, who is in need of it by reason of illness or disability, in relation to the performance of the activity of eating or drinking where the child is unable to make a decision in relation to performing such an activity without such prompting and supervision,
- the prompting (together with supervision) of a child, who is in need of it by reason of age, illness or disability, in relation to the performance of any of the activities listed in paragraph (2)(i) to (iii) where the child is unable to make a decision in relation to performing such an activity without such prompting and supervision,
- any form of training, instruction, advice or guidance which--
(i) relates to the performance of the activity of eating or drinking,
(ii) is given to a child who is in need of it by reason of illness or disability, and
(iii) does not fall within paragraph (3), or - any form of training, instruction, advice or guidance which--
(i) relates to the performance of any of the activities listed in paragraph (2)(i) to (iii),
(ii) is given to a child who is in need of it by reason of age, illness or disability, and
(iii) does not fall within paragraph (4).
Health care:
"health care" includes all forms of health care provided for children, whether relating to physical or mental health and also includes palliative care for children and procedures that are similar to forms of medical or surgical care but are not provided for children in connection with a medical condition.
"health care professional" means a person who is a member of a profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002.
Activities carried in certain places:
Activities other than the ones listed above that are carried out in specified places will amount to regulated activity if undertaken on a frequent basis (once a week or more often) or on more than 3 days in any 30 day period) or overnight (between the hours of 2 am - 6 a.m.) and provide an opportunity to have contact with children.
The specified places include:
- Schools
- Pupil referral units
- Nursery schools
- Children’s detention centres
- Children’s centres
- Childcare premises
The revised definition provides that anyone undertaking such activities on an occasional or temporary basis under day to day supervision is not carrying out regulated activity. This also applies to voluntary workers.
- Regulated activity also includes child minding and the provision of foster care.
What is regulated activity relating to adults?
Anyone undertaking the following activities in relation to an adult is carrying out regulated activity:
- Provision of health care by or under the supervision of a health care professional
- Provision of personal care (e.g. assistance in eating, drinking, washing, bathing, dressing) to person who requires it due to age, illness or disability
- Provision of social work to a client or potential client
- Provision of assistance in general household matters (for example managing money/paying bills, doing shopping) for those who require assistance by virtue of age, disability or illness
- Provision of assistance to conduct affairs (under a power of attorney
- Providing transport to a person who requires the service due to age, illness or disability.
For further information, please see: A guide to adult workforce roles for registered bodies and employers.
What does ‘supervision’ mean?
Some activities carried out in relation to children will only amount to regulated activity if carried out on an unsupervised basis. For example if a person who volunteers to read to children in a school on a one off basis is supervised by a teacher, this is not regulated activity. If the reading is not supervised this will be regulated activity. The legislation specifically provides that the person who is doing the supervision must be a person who carries out regulated activity and the supervision must be carried out on a day to day basis.
The legislation states that the Government has a legal obligation to provide statutory guidance to regulated activity providers (such as schools) and personal supplies including employment agencies and employment businesses) that will assist them to determine whether supervision is adequate.
What is the definition of ‘child’?
A ‘child’ is defined as any person who has not attained the age of 18, with the exception of 16 and 17 year olds at work.
What is the definition of ‘vulnerable adult’?
A person who is the recipient of any of the activities that falls within the definition of ‘regulated activity relating to adults’ because of their age, illness or infirmity is regarded as a vulnerable adult.
Does the Disclosure and Barring Service apply to recruiters?
Under the DBS a number of obligations will be imposed on ‘regulated activity providers’ and ‘personnel suppliers’ meaning that employers who are engaged in ‘regulated activity’ such as schools, providers of care homes etc are within scope. The definition of ‘personnel suppliers’ includes both employment agencies and employment businesses (as defined under the Employment Agencies Act) so recruiters as well as their clients come within scope of the DBS.
Does the DBS only apply in England?
The Scheme covers England, Wales and Northern Ireland. Scotland has a separate scheme which is called the Protecting Vulnerable Groups Scheme.
What changes were introduced in the first phase of implementation of the VBS on 12 October 2009?
Changes to the barring lists
The three previous barred lists - Protection of Children (POCA), the Protection of Vulnerable Adults (POVA) and List 99, were replaced with the Children Barred list and the Adult Barred list for those barred from working with children and vulnerable adults respectively. The definition of ‘regulated activity’ came into effect and the rules which determine who can have an enhanced DBS check carried out have been amended to extend eligibility to anyone who carries out a ‘regulated activity.’ An enhanced DBS check reveals whether an individual is on the relevant barred list. A standard disclosure will not provide this information.
Offences – engaging in regulated activity:
It became an offence for anyone who is barred to seek or to take up a ‘regulated activity.’ Similarly it is an offence to knowingly engage someone who is barred, in a regulated activity and it is an offence for a personnel supplier to knowingly supply a person who is barred to carry out regulated activity.
Referral duties:
Certain parties such as employment agencies and employment businesses, clients who engaged in regulated activity (schools, and nursing homes for example) and some professional bodies now have a legal obligation to report safeguarding concerns to the Disclosure & Barring Service about individuals. Failure to do so where required is a criminal offence.
What are the referral duties and do these apply to recruiters?
As the DBS has an obligation to maintain the barred lists there is a legal requirement for certain parties to refer information to the DBS about individuals who have either harmed or placed at risk of harm a child or vulnerable adult. These duties apply to ‘personnel suppliers’ which includes employment agencies and employment businesses.
In cases where an employment business supplies or introduces a work-seeker to a client and the client subsequently removes the work-seeker from carrying out ‘regulated activity’ because the client believes that the person has engaged in ‘relevant conduct’ or the ‘harm test’ is satisfied, (see below) the employment business or agency must provide information to the DBS about that this matter.
Additionally if the employment business or employment agency decides to withdraw its services from the work-seeker because it believes that the work-seeker engaged in ‘relevant conduct’ or that the ‘harm test’ is satisfied, the employment business or agency must provide information to the DBS about this.
The duty to refer information to the DBS also applies in respect of a work-seeker who pre-empts the decision to remove him from carrying out regulated activity by leaving of his own accord.
What is ‘relevant conduct’?
‘Relevant conduct’ is defined as:
- Conduct which endangers a child or vulnerable adult or is likely to endanger a child or vulnerable adult
- Conduct which, if repeated against a child or vulnerable adult would endanger or would be likely to endanger him
- Conduct involving sexual material relating to children (including possession of such material)
- Conduct involving sexually explicit images depicting violence against human beings
- Conduct of a sexual nature involving a child or vulnerable adult.
What is the harm test?
A personnel supplier’ has a duty to refer information to the DBS if the ‘harm test’ is satisfied, i.e. the personnel supplier or the client (as applicable) thinks that that the person may:
- Harm a child or vulnerable adult
- Cause a child or vulnerable adult to be harmed
- Put a child or vulnerable adult at risk of harm
- Attempt to harm a child or vulnerable adult
- Incite another to harm a child or vulnerable adult.
Failure to make a referral is an offence which carries a fine of up to £5,000.
Regulated activity providers, i.e. your clients who are responsible for the management and control of the ‘regulated activity’, a school for example also have duties to refer safeguarding information to the DBS.
How do I make a referral and what information do I need to provide to the DBS?
The DBS has produced guidance on making referrals which can be found here. There is also a specimen referral form available.
What about the Conduct Regulations?
Recruiters must bear in mind the interaction of the Safeguarding Vulnerable Groups Act 2006 with the Conduct of Employment Agencies and Employment Businesses Regulations.
Regulation 20(2) states that an employment business must inform the hirer and terminate the supply of a temp if it receives information ‘which gives it reasonable grounds to believe that a work-seeker is unsuitable for the position.’
Regulation 20(3) states that if an employment business receives information ‘which indicates that a work-seeker may be unsuitable for the position with the hirer….but where the information does not give reasonable grounds to believe that the work-seeker is unsuitable’ it must inform the client and then make enquires about the suitability of the temp for that position. If as a result of those enquiries the employment business has reasonable grounds to believe that the temp is not suitable for the position, it must then terminate the supply.
In either of these cases, if the supply of the temp is terminated due to the temp’s unsuitability under the Safeguarding Vulnerable Groups Act 2006 there would be a duty to refer this to the DBS.
Regulation 20(4) of the Conduct Regulations applies to employment agencies. It requires an agency to notify a client if it receives information about a work-seeker it has introduced to the client, which indicates that the work-seeker ‘is or may be unsuitable’ for the position. This obligation applies if the employment agency receives such information within three months from the date of the introduction. If the reason for the unsuitability is due to safeguarding issues under the Safeguarding Vulnerable Groups Act 2006 and the client subsequently dismisses the work-seeker from the ‘regulated activity’ (or would have done if the work-seeker had not resigned), this arguably would also trigger the duty for the employment agency to make a referral.
In this regard it is important to note that although the Conduct Regulations impose a three month limit on the period that the employment agency is required to notify its client about information received about a work-seeker, there is no similar provision in the Safeguarding Vulnerable Groups Act 2006. This means that if the employment agency is advised by the client of a safeguarding issue which leads to a candidate being withdrawn from a ‘regulated activity’ even after three months, there may still be an obligation for the agency to make a referral.
Do recruiters need to refer information to the DBS if the client has already made a referral?
Yes, where the conditions are met the recruiter must still refer information to the DBS even if the client has done so. Under the Safeguarding Vulnerable Groups Act 2006 there are a number of different parties who may be required to make a referral to the DBS. These include professional bodies, clients who are managing the regulated activity and recruiters who have supplied or introduced the work-seeker to carry out the work. Each has their own legal duty to refer information and may be guilty of an offence if no referral is made even where someone else has also made a referral.
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