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DBS barring advice & representation

The Disclosure and Barring Service came into existence in 2012 and replaced two separate organisations:

  • The Criminal Records Bureau (CRB)
  • The Independent Safeguarding Authority (ISA)

It deals with

The Disclosure and Barring Service deal with determinations on whether an individual undertaking a regulated activity with either vulnerable adults or children should be barred from doing that activity.

This breaks down into the following considerations:

A person needs to be undertaking a regulated activity with children and/or vulnerable adults now, in the past or be likely to do so in the future. This is known as the test for regulated activity and the term itself is defined in guidance provided by the DBS:

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.

The following activities involving children (under 18 years old) 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;
  • Rraining 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
  • 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:
    • Driving a vehicle used only for children and their carers or supervisors

Or in respect of where the activity is done:

The places listed below will automatically make an activity regulated activity if it is carried out by the same person:

1. At one of the places

The places are:

  • Schools: includes, for example, teachers, cleaners and caretakers.
  • 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

2 – Once a week or more, on four days in a 30 day period or more;
3 – In connection with the purposes of the place; and
4 – It gives the person the opportunity to have contact with children in performing the activity.

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 (i.e. because of number 8, above)
  • 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.

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Regulated activities involving vulnerable adults

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:
    • General Medical Council
    • General Dental Council
    • General Optical Council
    • General Osteopathic Council
    • General Chiropractic Council
    • General Pharmaceutical Council
    • Pharmaceutical Society of Northern Ireland
    • Nursing and Midwifery Council
    • 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),
  • Healthcare 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.

The DBS may receive a referral to consider barring an individual from working with vulnerable adults and/or children in one of the following ways:

  • Autobar referral – this arises from a notification of a conviction or caution for specified ‘relevant offences’ which can then result in either:
    • Automatic barring without representations - meaning that the individual will be barred from regulated activity or
    • Automatic barring with representations – which provides the individual an opportunity of making representations that the DBS will consider before making a final determination of whether the person should be added to the barred list.
  • Consideration of whether to bar following disclosure of information on a criminal record certificate. This would follow an application for a certificate (required when working with children or vulnerable adults) that reveals a conviction, caution or other information which raises concern.
  • A referral from an employer, regulatory body or other organisation where there is a legal duty do so e.g. following dismissal from employment or disciplinary proceedings where there is harm or potential harm to a child or adult. This can include cases where somebody resigns from a post or activity before a safeguarding investigation is concluded. 

The objective of a barring consideration it to prevent unsuitable people working or having unsupervised contact with the vulnerable group. Following a referral, the DBS will write to the person concerned to inform them of the investigation and process (Notice of Investigation letter).

There is no need to respond to an initial notification because the DBS will then advise whether they are considering barring or taking no further action. However, there may be circumstances when it is prudent to make an initial response and provide information to assist the DBS in their inquiry.

If the DBS determine that the threshold may be met for barring then they will advise you that they are minded to bar and ask you to make representations (Minded to Bar letter). This will involve consideration of whether you have been in fact, are or maybe in the future involved in ‘regulated activity’ and whether the alleged conduct gives rise to a risk of harm to children or vulnerable adults (as per the referral for consideration of whether to add you to the children or adult barred list).

The letter will provide reasoning why it is considered appropriate that you should be added to the barred list. Responses should be provided normally within 8 weeks, but this is not something to leave until the last minute as evidence may need to be gathered to support representations against barring.

The consequence of being added to the barred list means that you will not be able to undertake work or voluntary roles involving regulated activity with either children, vulnerable adults or both. Anybody attempting to do so commits a criminal offence as does any organisation or employer who appoints somebody who is barred.

There is normally a minimum period of barring so the outcome can have very serious consequences on employment or volunteering. This minimum period is based in your age when barred:

  • Under 18 years - 1 year
  • 18 to 24 years - 5 years
  • 25 years or over - 10 years

Our specialist team are able to offer advice on making representations against barring and have wide experience of a range of scenarios which have led to consideration being given to making an entry on the barring lists.

They have successfully averted clients being added to the barred list who have come from backgrounds of foster care, care workers, doctors, nurses, midwives, teachers and members of religious groups.

They have also represented clients in barring appeals to the upper tribunal and Court of Appeal.

For advice on barring disputes contact our specialists on 0161 696 6159 or you can complete an online enquiry form and a member of the team will contact you directly.

Barring reviews

It is possible to ask the DBS to review a barring status on three grounds:

  • Where the role does not meet the test for regulated activity following changes to the definition in September 2012
  • Where certain statutory conditions are met
    • New Information has become available which was not considered
    • A material change in circumstances has occurred
    • An error was made by the DBS
  • The minimum period has expired
    • 1 year if barred under 18
    • 5 years if barred between the ages of 18-24
    • 10 years if barred when aged over 25.

Careful consideration needs to be given the proposed grounds for a review and evidence may need to be obtained in specific cases (for example a psychological risk assessment).

Our disclosure and barring disputes team can advise on whether there may be grounds to seek a review and what evidence is required.

Appealing to the Administrative Appeals Chamber of the Upper Tribunal against a barring decision by the Disclosure and Barring Service

There may be a right of appeal against a decision to add an individual’s name to the barring list preventing work with children or vulnerable adults or other regulated activity.

The first step in the procedure is to make representations against a minded to bar decision.

Once a decision has been made to bar, there is a period of up to 3 months to lodge an appeal against a decision at the Administrative Appeals Chamber of the Upper Tribunal.

The grounds of appeal must be either:

  • A point of law.
  • Any finding of fact which has been made on which the decision was based.

The grounds of appeal are therefore very akin to a public law type challenge.  Examples of where the DBS may be wrong in law can include:

  • They have not applied the correct law or have wrongly interpreted it.
  • There were procedural errors in making the decision.
  • There was insufficient evidence to support a decision that has been made.
  • An error on the facts.
  • Inadequate reasons for the decision being provided.
  • Section 4 (3) of the Safeguarding Vulnerable Groups Act 2006 provided that the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.

Permission to appeal must be obtained from the tribunal and relevant documents will need to be provided to the Tribunal Office with the application form and grounds of appeal.

Once permission to appeal has been granted, the case will proceed to a final consideration which may be on the papers.  An oral hearing can be requested if necessary.  If an oral hearing is arranged, then notice of this will be provided together with any requests for further information from the parties.

If the case is very complex then the hearing may occur with more than one tribunal member sitting.

If permission to appeal has been refused or permission has only been granted on limited grounds then you may apply in writing within 14 days of the decision for reconsideration at an oral hearing.

A refusal permission may also be set aside by an upper tribunal judge if it transpires that there has been a procedural irregularity in the proceedings and the judge considers that it is in the interest of justice to do so.  A common example of this is that if a document that is relevant to the proceedings has not been considered or inadequate notice of the proceedings was provided to a party.

An application to set aside must be made in writing within 1 month of the decision to refuse permission to appeal.

Appeals from the upper tribunal go to the Court of Appeal, (Civil Division) permission will again be required to proceed and strict time limits apply. If you require assistance in preparing an appeal against the finding of the Disclosure and Barring Service then please call us on 0161 696 6159

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