7.6 Disclosure and Barring

1. Introduction

Employers need to make sure, 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 adults, their carers and other family members, including children.

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

As well as thorough recruitment processes, ongoing training, staff supervision and appraisal programmes are all important 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 requests from organisations for criminal records checks (know as DBS checks) on individuals;
• deciding whether it is right that a person should be put on, or removed from, a barred list;
• placing or removing people from the DBS children’s barred list and adults’ barred list for England, Wales and Northern Ireland.

As well as processing requests and making decisions, the DBS maintains the adults’ and children’s Barred Lists (see Section 4, Barred Lists and Duty to Refer) which bar someone 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 disclosures

There are four types of disclosure:

• 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 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 Adult first check

See Types of DBS checks and how to apply (DBS)

DBS adult first is a service available to organisations who can request a check of the DBS adults’ barred list. Depending on the result, a person can be permitted to start work, under supervision, with adults before a DBS certificate has been obtained.

There are strict criteria:

• the role must require a criminal record check by law;
•  it must be eligible for access to the DBS adults’ barred list;
• the organisation must have requested a check of the DBS adults’ barred list on the DBS application form.

The DBS’ reply to an adult first check request will state either:

• option 1: ‘Registered body must wait for the DBS certificate’; or
• option 2: ‘no match exists for this person on the current adults’ barred list’

It will also state that it is only the first part of the criminal record check application process and that further information will follow.

f the adult first check indicates that the registered body must wait for the DBS certificate, it may indicate there is a match on the DBS adults’ barred list. However, further investigation will be required to confirm this and the organisation should wait to receive the certificate.

3.3 Update service

The DBS provides an online Update Service, to which staff or volunteers can subscribe and review annually for a small fee (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 (working with adults for example) 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 3.1 Types of Disclosures).

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.

4. Barred Lists and Duty to Refer

There are two barred lists maintained by the Disclosure and Barring Service covering 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 to work 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 referral flowchart.

5. Regulated Activity with Adults

See Regulated activity (adults) – Department of Health and Social Care

Regulated Activity is work which involves close and unsupervised contact with adults, and which cannot be undertaken by a person who is on the Disclosure and Barring Service’s Barred List for adults.

There are six categories of activity which fall within the definition of regulated activity (including anyone who provides day to day management or supervision of people carrying out these roles):

• providing health care;
• providing personal care (e.g. providing/training/instructing/or offering advice or guidance on 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 an adult’s age, illness or disability; or prompting and supervising an adult to undertake such activities where necessary because of their age, illness or disability);
• providing social work;
• providing assistance with cash, bills and/or shopping;
• providing assistance in the conduct of a person’s own affairs, e.g. by virtue of an enduring power of attorney;
• conveying / transporting an adult (because of their age, illness or disability) either to or from their place of residence and a place where they have received, or will be receiving, health care, personal care or social care; or between places where they have received or will be receiving health care, personal care or social care. This will not include family and friends or taxi drivers.

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 carry out regulated activity tasks, or for an employer / voluntary organisation knowingly to employ a barred person in a regulated activity role.