The SVGA (2006) Act was passed to help avoid harm, or risk of harm, by preventing people who are deemed unsuitable to work with vulnerable adults or children gaining access to them through their work. As a result of the Act, the Independent Safeguarding Authority (ISA) was established to oversee a proposed new Vetting and Barring Scheme (VBS) in England, Wales and Northern Ireland which was to subject all those working with vulnerable groups to registration and continuous monitoring for any new criminal record information.
However, In June 2010 the coalition government announced its intention to remodel the Vetting and Barring Scheme to what they referred to as ‘common sense’ levels. As a result, the new Protections of Freedoms Act (2012) repealed Chapter 1 Part 5 of the SGVA (2006) pertaining to registration and continuous monitoring, and the Vetting and Barring Scheme was dropped.
On 1 December 2012 the ISA merged with the Criminal Records Bureau (CRB) to become the Disclosure and Barring Service (DBS). The DBS continues to be responsible for the functions previously carried out by the CRB and ISA with the exception of the Vetting and Barring Scheme.
The Disclosure and Barring Service (DBS) formerly Criminal Records Bureau (CRB)
The DBS is a non-departmental public body of the Home Office. The DBS helps employers make safer recruitment decisions and prevent unsuitable people from working with vulnerable groups. The DBS search police records and, in relevant cases, barred* list information, and then issue a DBS certificate to the applicant. The DBS is responsible for:
- processing requests for criminal records checks (DBS checks)
- deciding whether it is appropriate for a person to be placed 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.
Enhanced DBS check eligibility
Not everyone who comes into contact with children and adults at risk is eligible for an Enhanced DBS check. Enhanced DBS checks are primarily required for dance practitioners working with children and young people. The criteria to follow to ascertain whether a check is required for work in the child or adult workforce is Regulated Activity (see definition below).
Regulated Activity definitions for work with vulnerable groups
Work with children is referred to as work in the ‘Child Workforce’ by the DBS. Work with Adults (previously known as Vulnerable Adults) is referred to as work in the ‘Adult Workforce’ by the DBS. If a DBS check is required for work in either or both groups then this distinction would be made at the time of applying.
Regulated Activity
Working with children (Child Workforce)
The Protection of Freedoms Act (2012) established a minimum age of 16 years for an individual who can apply for an Enhanced DBS check on the grounds that those under the age of 16 years should not be left unsupervised in a position of authority with other children or adults.
When working with children and young people, the requirement for an Enhanced DBS check is determined by whether a person works in ‘Regulated Activity’ (work that a barred* person must not do). Regulated Activity excludes family arrangements; and personal, non-commercial arrangements.
Regulated Activity in relation to children comprises, in summary:
- (i) unsupervised activities: teach, train, instruct, care for or supervise children, or provide advice/guidance on well-being, or drive a vehicle only for children;
- ii) work for a limited range of establishments (‘specified places’), with opportunity for contact: e.g. schools, children’s homes, childcare premises. Not work by supervised volunteers;
Work under (i) or (ii) is regulated activity only if done regularly:
- (iii) relevant personal care, e.g. washing or dressing; or health care by or supervised by a professional;
- (iv) registered childminding; and foster-carers.
Activity under iii and iv does not have a time or frequency restriction (any frequency)
- Moderating a public electronic interactive communication service likely to be used wholly or mainly by children and carried out by the same person frequently. Except activity by a person who does not have access to the content of the matter or with users of the service.
- Driving a vehicle being used only for conveying children and their carers or supervisors under a contract or similar arrangement when carried out by the same person frequently.
Useful definitions
- 'Any frequency' means that doing the activity once or more is regulated activity.
- 'Supervision' as defined in statutory guidance on supervision.
- 'Regularly' means once a week or more, or four or more times in any 30-day period or overnight.
- 'Overnight' means once or more between 2am and 6am with the opportunity for face-to-face contact with children.
Working with adults at risk (Adult Workforce)
Regulated activity no longer labels adults as ‘vulnerable’. Instead, the definition identifies the activities which, if any adult requires them, lead to that adult being considered vulnerable at that particular time. Regulated Activity refers only to work of a ‘personal’ nature (such as toileting, washing, collecting a pension), even if the contact with the adult happens only once. Therefore, it is unlikely that a dance practitioner will be eligible for an Enhanced DBS check - including Adult barred list check - in relation to the work that they do with adults because teaching/leading is not considered Regulated Activity in the Adult Workforce.
There are six categories within the definition of Regulated Activity for adults. Those who provide:
- Healthcare: if they are a regulated health care professional or are acting under the direction or supervision of one, for example doctors, nurses, healthcare assistants and physiotherapists
- Personal care: assistance with washing and dressing, eating, drinking and toileting or teaching someone to do one of those tasks
- Social work: provision by a social care worker of social work which is required in connection with any health services or social services
- Assistance with a person’s cash, bills or shopping because of their age, illness or disability
- Assistance with the conduct of an adult’s own affairs, for example, lasting or enduring powers of attorney, or deputies appointed under the Mental Health Act
- Conveying: conveying adults for reasons of age, illness or disability to, from or between places where they receive healthcare, personal care or social work. This would not include friends or family or taxi drivers.
The guidance here is relating to Enhanced level DBS checks in every instance, and there are two levels of Enhanced check:
- Enhanced (not including barred* list checks) for people working in activities with children or adults at risk but not defined as Regulated Activity, having a certain level of contact that may or may not be unsupervised. Because this definition is broad, it is important to assess the specific role an individual undertakes.
- Enhanced (including barred* list checks) for people working in Regulated Activity with children or adults at risk. Enhanced with barred list check may be for Child, Adult or Child and Adult Workforce.
* A ‘barred’ individual is not permitted to engage in Regulated Activity. There are two barred lists; Child and Adult. A barred person is breaking the law if they seek, offer or engage in regulated activity with a workforce they are barred from. The DBS make a decision to include person on a barred list.
Employers
The final decision about eligibility for an Enhanced DBS check for staff members working with children, young people or adults lies in the hands of the employer who may request Enhanced DBS checks based upon careful risk assessment of the activities included in a role and referring to DBS guidance. The employer may then approach a DBS Registered Body to process DBS checks for them.
It is essential to remember that DBS checking is only one aspect of safeguarding. Employers should have a comprehensive safeguarding policy in place and should follow correct recruitment procedures, ensuring positions and/or roles meet the eligibility requirements.
Duty to Refer
Organisations with responsibility for providing services or personnel to vulnerable groups have a legal obligation to refer relevant information to the service. Referrals are made to the DBS when an employer or organisation, eg a regulatory body, has concerns that a person has caused harm, or poses a future risk of harm to vulnerable groups, including children.
Employers must refer someone to DBS if they:
- sacked them because they harmed someone
- sacked them or removed them from working in regulated activity because they might have harmed someone
- were planning to sack them for either of these reasons, but they resigned first.
Employers are breaking the law if they do not refer someone to DBS when they should.
Dance Practitioners
Individuals are not permitted to apply directly to the Disclosure and Barring Service for an Enhanced DBS check - they must approach their employer or a DBS Registered Body (such as People Dancing) who may request DBS checks for individuals working with children and young people. In the unlikely event of a dance practitioner requiring a DBS for the adult workforce, People Dancing are able to request this level of DBS check. Practitioners may seek further advice from a DBS Registered Body if they have had a request by an employer, or wish to clarify if their activities are eligible.
Note to examination candidates
Be careful not to make sweeping statements about DBS checks. Make sure you know the facts as they relate to your situation and your work. Not everyone who works with children, young people or vulnerable adults has to have a DBS check. Be very wary of gaining information from random websites. Check your sources carefully.
Legislation Protection of Freedoms Act 2012
www.legislation.gov.uk/ukpga/2006/47/contents
Further reading
www.gov.uk/government/uploads/system/uploads/attachment_data/file/119452/fact-sheet-part5.pdf
Legislation Safeguarding Vulnerable Groups Act 2006
www.legislation.gov.uk/ukpga/2012/9/contents/enacted
DBS
www.gov.uk/disclosure-barring-service-check
DBS guidance - Eligibility
www.gov.uk/government/uploads/system/uploads/attachment_data/file/409805/DBS_guide_eligibility_v7.pdf
Regulated Activity (Children)
www.gov.uk/government/uploads/system/uploads/attachment_data/file/316179/Regulated_Activity_in_relation_to_Children__DfE_.pdf
Regulated Activity (Adults)
www.gov.uk/government/uploads/system/uploads/attachment_data/file/249431/dbs-factsheet-regulated-activity-adults.pdf
Supervision
www.gov.uk/government/uploads/system/uploads/attachment_data/file/253564/Supervision_guidance.pdf
Duty to Refer
www.gov.uk/government/publications/dbs-referrals-form-and-guidance
Further information
Note: There are different rules for applying for a criminal record check in
Scotland and
Northern Ireland. Please see their websites for further guidance.
Legislation
www.legislation.gov.uk/ukpga/2000/43/contents