Who is eligible to access the DBS Service?
The ability for an employer, voluntary organisation, or licensing organisation to ask an individual to apply for a Disclosure and Barring Service (DBS) check, at either Standard or Enhanced level, is set out in legislation.
Eligibility is based upon the nature of the duties for the specific position. To be eligible for a DBS check a position must be:
- Listed in the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975 –this entitles the position to a Standard level check www.legislation.gov.uk/uksi/1975/1023/contents/made, and if
- Prescribed in The Police Act 1997 (Criminal Records) Regulations entitles the position to an Enhanced level check. www.legislation.gov.uk/uksi/2002/233/contents/made
Eligibility can also exist if the role involves regularly caring for, training, supervising or being solely in charge of persons under 18 and or vulnerable adults (within the meaning of section 59 of the Safeguarding Vulnerable Groups Act 2006). Furthermore, eligibility can exist if the role falls within Regulated Activity.
The definition of Regulated Activity has been amended. From the 10 September 2012 only those who fall within Regulated Activity can have an Enhanced check with the barred lists. If a role does not fall within the new definition but falls within the old definition then an Enhanced check can still be requested but without the barred lists. For information on the pre September 2012 definition of Regulated Activity please visit www.legislation.gov.uk/ukpga/2006/47/schedule/4
Regulated activity in relation to children from 10 September 2012
Regulated activity is work that a barred person must not do. The full, legal definition of regulated activity is set out in Schedule 4 of the Safeguarding Vulnerable Groups (SVG) Act 2006, as amended (in particular by, Section 64, Protection of Freedoms Act 2012). www.legislation.gov.uk/ukpga/2012/9/section/64/enacted
1. Regulated activity for children – Activities
The new definition of regulated activity relating to children comprises only:
(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: for example, schools, children’s homes, childcare premises. Not work by supervised volunteers;
(iii) Relevant personal care, for example washing or dressing; or health care by or supervised by a professional;
- Healthcare: if they are a regulated health care professional or are acting under the direction or supervision of one, for example doctors, nurses, health care assistants and physiotherapists
- Personal care: assistance with washing and dressing, eating, drinking and toileting or teaching someone to do one of these tasks
- (iv) Registered child minding; and foster-carers;
- (v) Moderating a public electronic interactive communication service likely to be used wholly or mainly by children, carried out by the same person frequently (once a week or more often), or on 4 or more days in a 30-day period.
2. Regulated activity in relation to children – Establishments
An activity is regulated activity in relation to children if carried out (subject to exceptions) in one of the following establishments:
(a) Schools (including Academies) (all or mainly full time, for children);
(aa) Pupil referral units (also known as Short Stay Schools) not falling within the above;
(b) Nursery schools;
(c) Institutions for the detention of children;
(d) & (e) Children’s homes;
(f) Children’s centres in England;
(g) Childcare premises (including nurseries)
The activity must be carried out:
- Frequently (once a week or more often), or on 4 or more days in a 30-day period;
- By the same person, engaged in work for or in connection with the purposes of the establishment; and
- Gives the person the opportunity, in their work, to have contact with children. Day to day management or supervision on a regular basis of a person providing the above regulated activity, (or an activity which would be considered regulated activity if they were not adequately supervised) for children is regulated activity for children.
Exceptions for establishments – not Regulated Activity
- Activity by a person contracted (or volunteering) to provide occasional or temporary services (not teaching, training or supervision of children).
- Volunteering, under day to day supervision of another person engaging in regulated activity.
- Activity by a person in a group assisting or acting on behalf of, or under direction of another person engaging in regulated activity.
- Childcare premises which are the home of a parent etc. of at least one child to whom the childcare or child minding is provided.
- For activity undertaken regularly in a number of different establishments, but only infrequently in each: each establishment is only arranging the activity infrequently, so each establishment is not a regulated activity provider in relation to that activity.
Supervision means day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned. The Department for Education have provided Statutory Guidance to describe the considerations an organisation should make when determining whether or not an individual is supervised to a reasonable level for the role. www.education.gov.uk/childrenandyoungpeople/safeguardingchildren/a00209802/disclosure-barringn.gov.uk/ukpga/2006/47/schedule/4
To be eligible for an Enhanced DBS check with a check of the children’s barred lists a person needs to be working in the SAME Specified Place, Frequently (once a week or more often or on 4 days or more in a 30 day period) and they MUST have the opportunity for contact with children or carrying out an UNSUPERVISED Specified Activity Frequently (once a week or more often or on 4 days or more in a 30 day period).
To clarify a person does not need to be carrying out an UNSUPERVISED Specified Activity with the SAME child or group of children.
Regulated Activity in relation to Adults from September 2012.
Changes from 10 September 2012
- There are no establishments (specified places) for adults.
- There is no longer a requirement to do activities a certain number of times before a person is engaging in regulated activity.
- Carrying out a regulated activity once is sufficient for persons to be
classed as being in regulated activity.
The definition of vulnerable adults in section 59 of the Safeguarding Vulnerable Groups Act 2006 has been repealed.
General points:
1. Regulated activity continues to exclude any activity carried out in the course of family relationships, and personal, non-commercial relationships.
A. Family relationships involve close family (e.g. parents, siblings, grandparents) and relationships between two people who live in the same household and treat each other as family.
B. Personal, non commercial relationships are arrangements where either no money changes hands, or any money that does change hands is not part of a commercial relationship (for example, gifting a friend money for petrol after they have driven you to the hospital), and the arrangement is made between friends or family friends.
2. An adult is a person aged 18 years or over.
3. A person whose role includes the day to day management or supervision of any person who is engaging in regulated activity, is also in regulated activity.
New scopes of regulated activity for adults
There are six categories within the new definition of regulated activity
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.
There will not be a definitive age at which someone meets the age test. The description used is that if, because of someone’s age, they are no longer able to do any of the activities themselves e.g. go shopping, get to the doctors, then someone who is asked by a third party to do that on their behalf can be in regulated activity.
To be eligible for an Enhanced DBS check with a check of the adults barred lists a person MUST be carrying out one of the six categories described above – once.
For more information on eligibility guidance please follow the attached link please www.homeoffice.gov.uk/publications/agencies-public-bodies/dbs/dbs-checking-service-guidance/eligibility-guidance?view=Standard&pubID=1089846
For more information regarding the changes to Regulated Activity from 10 September 2012 please follow the attached link www.homeoffice.gov.uk/agencies-public-bodies/dbs/about-us1/what-we-do/before-the-dbs
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