Now changed to Disclosure and Baring Service

Salford CVS

Soham Murders and Crimes like it have been the momentum for the build up of practice and legislation to protect the vulnerable which is called Safeguarding.

LegislationBefore an Employer considers asking a person to make an application for a DBS check, they are legally responsible for ensuring that they are entitled to ask that person to reveal their conviction history.

The ground zero on this is the Rehabilitation of Offenders Act(ROA) 1974 – a person with a criminal record is not required to disclose any spent convictions unless the position they are applying for, or are currently undertaking is listed as an exception under the act

Police Act 1997Part V of this act brought forward the provisions of the Criminal Records access that we have today. Introduction of the CRB certificateCreation of the Criminal Records Bureau (CRB)The concept of Enhanced checks

In March 2002 the first CRB certificates were issued, plus the CRB Code of Practice was issued giving guidance and rules to who and how people should be checked

Safeguarding Vulnerable Groups Act 2006In part a reflection on recommendations coming from the Bichard Inquiry into the Soham Murders:Introduction of the concept of constant vetting for working with vulnerable groups (ISA registration scheme)Creation of the Independent Safeguarding Authority (ISA)Established legal requirement to be checked in certain ‘regulated’ rolesIn July 2010 the ISA registration scheme was put on hold and eventually abolished with the Protection of Freedoms Act 2012

Protection of Freedoms Act 2012In part a reflection of recommendations based in ‘A common sense approach’ by Sunita Mason - Part V of this act sees:Change in who should be CRB checked (roles, age, etc.)Creation of a new organisation the Disclosure and Barring Service (merger of CRB & ISA)Change in who receives a certificateStart of change on what appears on a certificate (removal of certain historic crimes, new evaluation of local information)

Court of Appeal Judgement 2013In Feb 2013 Court found that the disclosure of all cautions and convictions on DBS certificates an infringement of article 8 of the Human Rights Act – the right to a private life:Legislative change to what appears on a certificateNew Filtering system to be used to decide what needs to be declaredChange in terms of the ROA (Exceptions) Order 1975 in terms of what you can ask an employee to declare

Criminal Record Filtering This was introduced in May 2013“Filtering” aims to establish what is old/minorChange in what criminal activity appears on the Disclosure CertificateList of over 700 specified offences that will always stay on (Murder, Rape, Sexual Assault, etc.) A prison sentence over 4 years will never be filtered Offences eligible for filtering are:Common Assault, drunk and disorderly conduct,harassment, theft (no violence), motoring offences, drugs that involve possession

What is the difference between spent and unspent convictions?Unspent is regarded as the time of disposal/length of sentence and the length of time after the disposal/length of sentence that would be considered a rehabilitation period

Spent is regarded as the time after the rehabilitation period

The rehabilitation period can vary according to the nature and length of the conviction and the age of the convicted at the time

Timescales for spent convictions

Sentence in prison of over 4 years is never spentSentence > 6 months < 30 months = sentence + 7 yearsSentence < 6 months and less than 30 months =sentence + 4 yearsLess than 6 months = sentence + 2 yearsFines = 1 year but under 18 = 6 monthsProbation order or community order = length of order + 1 yearConditional discharge = Length of orderAbsolute discharge = none spent immediatelyCautions, Warnings, Reprimands = Spent upon issue

Rules around DBS checkingThere are specific rules in relation to the Criminal Record Checking process these are based in legislation and the DBS ‘Code of Practice’ – Some inspectorate regime (Ofsted) also have rules that require following.Has to be a specific eligible role and employer* (ROA – Exceptions Order 1975)Applicant has to be 16 or overNeeds to go through a ‘registered body’Does not have an expiry date

Rules around DBS checkingHas specific rules around the definition of a volunteer – “A person who is engaged in any activity which involves spending time, unpaid, doing something which aims to benefit someone other than, or in addition to close relatives”

Has a defined process for applicationIt is a transaction, free checks are subsidised by paid checksCan not be applied for speculatively – there must be an eligible role, task or activity

How many types of DBS checks are there?

Type of DBS checks

Basic Check (disclosure Scotland)Standard DBS ChecksEnhanced DBS checkEnhanced DBS check with Children and/or Adult barred list check(s)

Basic Checks

Processed through Disclosure Scotland £25.00Can be done on any employeeChecks against the Police National Computer (PNC)Only shows unspent criminal convictions

Standard ChecksPositions included in ROA exception orderDiscloses spent and unspent convictions held on the PNC*Mainly for stated excepted job roles that do not require extensive or specific contact with vulnerable groupsAvailable to check those that work directly and regularly with the vulnerable and children but do not meet the criteria for ‘Regulated activity’E.G. – Revenue and customs officers, people applying for licences to sell alcohol, Vets, Chartered Accountants, Legal Executives……. *subject to filtering

Enhanced checksPositions included in ROA exception order and Police Act RegulationsDiscloses spent and unspent convictions held on the PNC* plus information held on local police filesFor job roles that do not fall into the definition of regulated activity but were regarded as such under the previous rulesFor job roles who work directly and regularly with the vulnerable and children (E.G. – Supervised school volunteer, Course teachers for vulnerable adults……etc)Does not check against barred listsElement of choice as opposed to ‘must check’*subject to filtering

Enhanced check with Barred List checksPositions included in ROA exception order and Police Act Regulations and must meet the definition of Regulated ActivityDiscloses spent and unspent convictions held on the PNC*(subject to filtering) plus information held on local police files. In addition records check against ISA barred listsE.G. – All regulated activity roles Some extra positions included (Fostering and Adoption roles, Leadership roles)

Definition of Regulated Activity - AdultsRegulated Activity is about activity (not job titles) and if any adult requires regulated activities they will be considered vulnerable at that time – no label as a ‘Vulnerable Adult’ because of characteristics or circumstance6 categories of Regulated Activities for AdultsNo frequency test for activity – doing activity once triggers

Definition of Regulated Activity - Adults1.Providing healthcare2.Providing personal care3.Providing social work4.Assisting with general household matters (paying bills)5.Assisting in conduct of people’s own affairs (legal)6.Conveying adults to, from or between places where they receive regulated activities7.Managing the above staff who are in regulated activity

Definition of Regulated Activity - AdultsProvide HealthcareIncludes psychotherapy, counselling and first aid but does not include workplace first aiders, members of peer support groups or life coachingProvide Personal CarePhysical assistance with food, going to the toilet, washing or bathing, dressing, oral care or skin care, nails or hair (but not hair cutting) because the adults age, illness or disability – including those that instruct, train, supervise or advise on the above

Definition of Regulated Activity - AdultsProvide Social workIncludes those that manage or supervise any person engaging in regulated activityAssist with general household mattersAssist with managing cash, paying bills, shopping on their behalf due to a person’s age, illness or disabilityAssisting in the conduct of people’s own affairsAdvocacy, legal representation

Definition of Regulated Activity - AdultsConvey adults to, from, or between places where they receive regulated activityIncludes hospital porters, patient transport service drivers and assistants, ambulance technicians and emergency care assistants

Definition of Regulated Activity - Children3 areas of definition relating to children1.What they do (activities)2.Where they work (establishments)3.Who they are (specified positions)

Definition of Regulated Activity – ChildrenThe same areas as adults plus3 areas of definition relating to children

What they do (activities)•Unsupervised activities: teach, train, instruct, care (all forms) for or supervise children, or provide advice/guidance, moderate a public electronic interactive service or drive a vehicle only for children (brings in taxi services)•Carried out on a frequent, intensive or overnight basis*•A reasonably supervised person doing the above is not engaging in regulated activity

*frequent is more than three times per month on an on-going basis, intensive is more than 3 times in a month, overnight is between 2am and 6am

Definition of Regulated Activity - Children3 areas of definition relating to children

Where they work (establishments)•Schools, nurseries, childcare premises, children’s homes and children’s centres•Carried out on a frequent, intensive or overnight basis•A reasonably supervised volunteer doing the above is not engaging in regulated activity, however paid employment working in these establishments is classed as regulated activity

Definition of Regulated Activity - Children3 areas of definition relating to children

Who they are (specified positions)•Registered Childminders•Foster Carers (plus adults living in the same household)•Managers or Supervisors of people carrying out Regulated Activity related to children

Who qualifies for Enhanced checks without barred list checks? Those in non-regulated work but qualified under the old rules (e.g. reasonably supervised volunteers in schools, reasonably supervised workers at youth clubs, sports centres, trainers and supervisors of vulnerable adults etc.)Not those in ‘Controlled Activity’ this has been abolished (staff with access to records, on-site non direct or face-to-face workers )Those who don’t meet the frequency tests

Common Errors

• People make assumptions on who requires a DBS check and so request a check to be on the safe side – It is illegal to DBS check somebody who is not eligible due to their role

• Checking people who do not meet the frequency test e.g. one off volunteering.

• Checking people who’s role is with the general public not a specific client group e.g. receptionists, library assistants

• People can’t arrange their own checks – a DBS check belongs to the employing organisation not the individual applicant and can only be processed for specific roles. Checks can’t be done speculatively “I am thinking of volunteering with children, so I best get a DBS check done on myself”

Identity Documents

September 2012 saw the revised listing of approved documents and how they can be used

4 possible combinationsRoute 1 – 3 items, 1 must be from Group 1Route 2 – 3 items, 1 must be from Group 2a plus external ID validation check (additional charge) 2 from 2a or 2bRoute 3 – 5 items, 1 must be UK birth certificate – 4 from 2a or 2bRoute 4 – No ID, must have fingerprints and photographs taken by police

Do’s & Don’ts

Do ensure that you see identity documents that confirm name, age and address of the applicantDo take control over your application process, insisting that the applicant conforms to the rulesDon’t complete section Y this is for the registered body onlyDo remind the applicant that they will need to bring their certificate into the appropriate person to see it, in order to be approved to work

The Update ServiceSummaryThe ‘Update Service’ is a new subscription service that lets individuals keep their DBS Certificates up-to-date so they can take it with them when they move jobs or roles.

You, as an employer, can then carry out free, online, instant checks to see if any new information has come to light since the Certificate’s issue – this is called a Status check.

The Update ServiceFor ApplicantsDBS certificate registration schemeAllows you to keep your certificate ‘up-to date’To take it with you from role to role in the same workforceEasy to join, easy to manageYours is the only certificateFree for Volunteers£13 per year for Non-Volunteers

The Update ServiceFor EmployersDBS certificate checking systemAllows you to check online the validity of a registered DBS certificateEasy to use, easy to understandOnline check is free to access

The Update ServiceBenefitsSave you timeOne certificate maybe all you needMay be able to take it from role to roleYou are in control of your certificate – it’s yoursOnline checks of DBS certificates is quickPotential reduction in number of application forms to complete over timeSavings in time and costsLess Bureaucracy

The Update ServiceHow do I join?Via www.gov.uk/dbs-update-service Join with application form number or DBS certificate number (within 14 days of issue)Some personal details* (full name, date of birth, etc.)Answer whether it is a volunteer position (?)Make payment / set up subscription

*the information must match that on the certificate and so amendments to the certificate post joining must also be amended on the account

The Update ServiceHow to conduct a Status CheckEstablish your right to check and get consentGo to and search for DBS Update Service – www.gov.uk/dbs bookmark the linkEnter organisational details and name detailsEnter DBS certificate informationAgree with legal declarationReceive online result

The Update ServiceHow to understand the result of a Status CheckYou will receive one of four results

i.This Certificate did not reveal any information and remains current as no further information has been identified since its issue.

ii.This Certificate remains current as no further information has been identified since its issue.

iii.This Certificate is no longer current. Please apply for a new DBS check to get the most up-to-date information.

iv.The details entered do not match those held on our system. Please check and try again.

The Update Service – things to considerThe applicant can see who has checked their certificate and how often (from their account) So recheck fairly!You should consider how you organise your consent policy and your status check frequency processEncourage staff to subscribe or consider paying for their subscription when it is time for their DBS recheckCheck policies are up to date and in line with the changesBe prepared to run a multi-faceted process – it’s a choice to join