What is the Disclosure and Barring Service?

The DBS can affect all of us working within the law as we all work with clients who are employers, those who are employed and working with “vulnerable groups” such as the elderly or children or clients who belong to a “vulnerable group”.

Lawyers themselves can be subject to Disclosure and Barring Service (“DBS”) checks when applying for jobs.

Many of you will not be aware of the DBS and this article aims to provide an explanation for lawyers practising in England, Wales and Northern Ireland.

As of 1 December 2012, the DBS replaced the Criminal Records Bureau and the Independent Safeguarding Authority, combining these two organisations.

Its aim is to assist potential employers to make safer decisions when deciding to recruit to their organisation and to prevent “unsuitable people” from working with vulnerable groups.

The DBS:

· processes requests from registered employers for criminal record checks (now known as DBS checks);

· decides whether a person ought to be placed or removed from a “barred list” (the children’s barred list or the adults’ barred list) following a referral; and

· places people on or removes people from the barred lists

It carries out requests from registered employers by searching police records and information contained on the barred list and issues a DBS certificate to the applicant.

What happens if an organisation refers someone to the DBS?

If an employer, or often a regulatory body such as the SRA for example, is concerned that a person has either caused harm or is a potential risk to a person within a vulnerable group, a referral may be made to the DBS.

Employers must refer the person to the DBS if such concerns exist whilst regulatory bodies are not obligated to do so.

If you or one of your clients has been referred to the DBS, he/she must have been (or might be in the future) engaged in “regulated activity” with children or vulnerable adults.

Information is provided to the DBS:

Following an application for an enhanced disclosure/relevant information from the update service.

Through a discretionary process where any member of the public, employers, regulatory bodies and other organisations refer the person to the DBS when the person has been dismissed from his/her position, following harm to a child or vulnerable adult where there was or is a risk of harm;

Through the autobar process where a person has either received a caution or been convicted of a “relevant offence” or been issued with a Risk of Sexual Harm Order and the DBS has been provided with information by the Home Office.

Once the DBS has decided that a case has been appropriately referred to them under the Safeguarding Vulnerable Groups Act 2006, it gathers information from the referring organisation.

The DBS has no powers to conduct its own investigations and therefore must rely upon investigations done by the referring organisation. It does, however, have the power to ask for specific information from organisations and if such information is requested, organisations are obliged to provide it.

If a person has convictions, police cautions or a finding against them by a regulatory body, the DBS must regard these as facts but it can also make additional findings of its own.

Once all the information is obtained and assessed by the DBS, the allegations are reviewed and the DBS decides whether or not “relevant conduct” is proven on the balance of probabilities or whether the “risk of harm” has been made out.

At this point, the case will either be referred to the Structured Judgment Process or closed with no further action.

The Structured Judgment Process is an evaluation of the risk of harm where “relevant conduct” is looked at in terms of the presence of or absence of long-term risk factors for harmful behaviour in the future. This internal risk assessment tool aims to help the DBS to decide on the risk of harm the person presents.

This tool can only be considered once relevant conduct has been made out as having occurred on the balance of probabilities or one of the Risk of Harm categories have been satisfied.

If the person in question provides representations to the DBS at this stage, the case must be reassessed. At this point, a new Structured Judgment Process can be completed to take the person’s representations into account.

If, after all of this information is received, the DBS feels that a risk of harm to a vulnerable group has been identified and barring the person is an appropriate action to take, it may include them in a barred list. Alternatively, the case can be closed at this stage with no further action.

If the DBS decides to include the person in a “barred list”, the person is informed in writing of this decision and then has eight weeks in which to make representations to the DBS.

Solicitors can assist the person concerned in drafting written representations. Oral representations can also be made if the DBS considers this necessary to protect Human Rights.

If representations have not been made in time or an extension has not been granted by the DBS, the person will be included in the barred list.

If representations are made, the case is reassessed and a final decision is made. The decision to bar a person should not be a punishment; it is based on the requirement to ensure that vulnerable adults and children are safeguarded.

The person is notified of the final decision and of their right to appeal in writing.

The decision making process for autobar cases, with or without representations, is slightly different to that explained above which relates to the procedure in a discretionary case. More information on this can be found at www.gov.uk /dbs

Reviews

If a person is barred, he/she has the right to request a review after a minimum time period has elapsed, depending on the age of the person when they were barred. The DBS will agree to a review if the person’s circumstances have changed so that a bar is no longer appropriate but the person will not be removed from the list unless the risk has diminished and the DBS is satisfied as such.

On 10 September 2012, the DBS were granted new powers to review a bar at any time and it can remove a person from the barred lists upon review if appropriate.

People can also be removed from the barred list if they have not previously engaged in regulated activity with the group they are barred from working with and there is no suggestion that they will do so in the future.

Appeals

If the DBS has included a person in a barred list (other than an autobar without representations) or if the DBS has not removed a person from the barred list following a review, that person can appeal on grounds of either an “error of fact” or an “error of law”. Such appeals are held by the Administrative Appeals Chamber of the Upper Tribunal or the Care Tribunal in Northern Ireland.

Summary

As should be clear from this article, the DBS can potentially affect all of us as solicitors, whether it is our clients who are at risk of being included in the barred list for vulnerable adults or children or whether we, as solicitors are at risk of being included in the barred list ourselves.

This article has aimed to aid understanding of the DBS by providing an overview of this organisation. However, this is only an overview and should you require any further information on this subject or how to assist your clients (or yourself) in avoiding an inclusion in a barred list, we would be happy to assist you further. Please do not hesitate to contact Ms Charlotte Ellis on 0161 827 9500 or at [email protected] should you require any further assistance.