DBS Legislation

 

Additional Information

Enhanced checks may contain 'additional' information. Occasionally the Chief Police Officer may, if thought necessary in the interests of the prevention or detection of crime, release 'additional' information to the Countersignatory only, in the form of a separate letter and should not be revealed to the applicant.

Approved Information

Enhanced checks may contain 'approved' information. This is non-conviction information provided by the police from their local records. The Chief Police Officer in each force will decide what, if any, information to provide. The DBS will print this information on both the applicant's and the Countersignatory's copy.

Caution

A caution is a formal warning about future conduct given by a senior police officer, usually in a police station, after a person has committed an offence. It is used as an alternative to a charge and possible prosecution.

Children

The Criminal Justice Court Service Act (CJCSA) defines a child as someone who is under 18 (under 16 if the child is employed).

Criminal Justice and Court Services Act 2000 (CJCSA)

The child protection provisions in Part II of the CJCSA 2000 are part of an integrated system for the protection of children.

Criminal Record

A record of convictions held on the Police National Computer for individuals convicted of crimes.

Department for Education and Skills (DfES)

Government department responsible for creating opportunity, realising potential, and achieving excellence for all (formerly the Department for Education and Employment).

Department of Health (DH)

Government department responsible for protecting and improving the nation's health and ensuring that our health and social services are high quality, fast, fair and convenient.

Disclosure

The term that is used to describe the service provided by the DBS and the document issued to the applicant and Registered Body when a DBS check has been completed.

Disclosure Application Reference Number

The specific reference number allocated to each Disclosure application by the DBS.

Disclosure Scotland

This is the equivalent of the Criminal Records Bureau but for Scotland.

Enforced Subject Access

Under current legislation, individuals can exercise their right to apply for access to information held on them including criminal record information under the 'subject access' provisions of the Data Protection Act 1998. Currently, some employers seek to obtain this information about employees and potential employees by compelling them to exercise their rights under the Data Protection Act. This process is known as 'Enforced Subject Access' and is undesirable because details of all convictions are revealed. Most employers are not entitled to ask for this information under the Rehabilitation of Offenders Act (ROA) 1974.

Enhanced DBS Check

Also referred to as an Enhanced Disclosure. These are for posts that involve a far greater degree of contact with children or vulnerable adults. In general the type of work will involve regularly caring for, supervising, training or being in sole charge of such people. Examples include a Teacher, Scout or Guide leader. Enhanced checks are also issued for certain statutory purposes such as gaming and lottery licences.

This level of check involves an additional level of check to those carried out for the Standard DBS check - a check on local police records. Where local police records contain additional information that may be relevant to the post the applicant is being considered for, the Chief Officer of police may release information for inclusion in an Enhanced check. Exceptionally, and in a very small number of circumstances (typically to protect the integrity of current police investigations), additional information may be sent under separate cover to the Countersignatory and should not be revealed to the applicant.

Excepted Professions

Positions of trust set out in the Exceptions Order to the Rehabilitation of Offenders Act (ROA) 1974, where an employer or organisation is entitled to ask a candidate to reveal details of all convictions, whether spent or not.

Exceptions Order

The Exceptions Order to the Rehabilitation of Offenders Act (ROA) 1974 sets out those occupations and positions exempt from the provisions of the ROA. These are generally positions of trust, where there is a valid need to see a person's full criminal history in order to assess their suitability for a position. This information is intended as general guidance only. It must not be regarded as a definitive interpretation of the Act. Anyone requesting further guidance should seek legal advice.

Exempted Question

An exempted question is a valid request for a person to reveal their full criminal history (including spent convictions) and is made possible by virtue of the Exceptions Order to the Rehabilitation of Offenders Act (ROA) 1974.

Information held under Section 142 of the Education Act 2002

This list was previously called 'List 99'. This list is maintained by the Department for Education & Skills (DfES) and contains the details of teachers who are considered unsuitable or banned from working with children in education.

Local Police Records

Police records, not held on the Police National Computer, containing non-conviction information.

Police Act 1997

The piece of legislation that brought about the DBS.

Police National Computer (PNC)

A national police database that contains information about criminal records i.e. convictions, cautions, reprimands, and warnings.

Portability

Portability refers to the re-use of a DBS Disclosure, obtained for a position in one organisation and later used for another position in another organisation.

This practice is no longer endorsed by the DBS due to the risks factors involved.

Positions of Trust

Roles that involve working with children and other vulnerable groups, that the DBS is dedicated to protecting.

Independent Safeguarding Authority (ISA)

In October 2009, increased safeguards were introduced;

The three barred lists (POCA, POVA and List 99) were replaced by two new barred lists, the Children's and Vulnerable Adults' barred lists, managed by the ISA.

Standard DBS checks no longer reveal information held on the old or new barred lists; a check of these new lists can only be made as part of an Enhanced DBS check.

The eligibility criteria for Enhanced DBS checks was extended to include anyone working in a regulated position.

Employers, social services and professional regulators have a duty to refer to the ISA any information about individuals who may pose a risk ensuring potential threats to vulnerable groups can be identified and dealt with.

There will be criminal penalties for barred individuals who seek or undertake work with vulnerable groups and for employers who knowingly take them on.

However there will be no such eligibility in the case of those making private arrangements to carry out regulated activity, such as parents employing a piano teacher for their child.

From 26 July 2010, if you are self employed, work with either children or vulnerable adults and meet the requirements for regulated activity, you can and may choose to register with the ISA. It is not a mandatory requirement to do so, but you may be asked by potential employers to confirm that you are registered to work with children or vulnerable adults.

For example, you may be a tutor carrying out private tuition at family homes; the persons responsible for a child or vulnerable adult to whom you are providing lessons are entitled to ask whether you are registered with the ISA before employing you and not being registered may affect their decision to do so.

Rehabilitation of Offenders Act (ROA) 1974

The Rehabilitation of Offenders Act (ROA) 1974 enables some criminal convictions to become 'spent', or ignored, after a 'rehabilitation period'. A rehabilitation period is a set length of time from the date of conviction. After this period, with certain exceptions, an ex-offender is not normally obliged to mention the conviction when applying for a job or obtaining insurance, or when involved in criminal or civil proceedings.

Rehabilitation Period

A rehabilitation period is a set length of time from the date of conviction. After this period, with certain exceptions, an ex-offender is not normally obliged to mention the conviction when applying for a job or obtaining insurance, or when involved in criminal or civil proceedings.

Reprimand

A reprimand has replaced the caution for young people aged under 18. A young person given a second formal warning about future conduct is given a final warning.

Spent Conviction

The Rehabilitation of Offenders Act (ROA) 1974 sets out to make life easier for many people who have been convicted of a criminal offence and who have since lived on the right side of the law. A person convicted of all but the most serious criminal offences and who receives a sentence less than 2.5 years in prison, benefits from the Act if they are not convicted again during a specified period. This is called the rehabilitation period. In general terms, the more severe a penalty is, the longer the rehabilitation period. Once a rehabilitation period has expired and no further offending has taken place, a conviction is considered to be 'spent'. Once a conviction has been spent, the convicted person does not have to reveal it or admit its existence in most circumstances, including, for example, when applying for a job. In most circumstances, an employer cannot refuse to employ someone, or dismiss them, on the basis of a spent conviction. There are some exceptions to the general principle that spent convictions do not have to be declared. When assessing the suitability of a person for a position of trust, an employer is entitled to ask a candidate to reveal details of all convictions, whether spent or not. This is, in part, to ensure that children and other vulnerable groups are adequately protected from those in positions of authority over them. These positions of trust, or excepted professions, are set out in the ROA Exceptions Order.

Standard DBS Check

Also referred to as a Standard Disclosure. These are primarily for posts that involve working with children or vulnerable adults. Standard checks may also be issued for people entering certain professions, such as members of the legal and accountancy professions. The Standard check contains details of all convictions held on the PNC including current and 'spent' convictions as well as details of any cautions, reprimands or final warnings. If a position involves working with children, the DBS check will indicate whether information is held on three government lists of those who are banned from working with children or the vulnerable.

Umbrella Body

An Umbrella Body is a Registered Body that provides access to the DBS to other non-registered organisations.

Unspent Conviction

A conviction is described as unspent if the rehabilitation period associated with it has not yet lapsed. A rehabilitation period is a set length of time from the date of conviction, according to the sentence imposed.

Volunteer

The DBS defines a volunteer to be 'a person who performs any activity which involves spending time, unpaid (except for travelling and other approved out-of-pocket expenses), doing something which aims to benefit someone (individuals or groups) other than or in addition to close relatives'.

Vulnerable Adults

The DBS has two definitions of a vulnerable adult, one that is entitled to an Enhanced Check and one for a Standard check.

ENHANCED

A person who regularly cares for, trains, supervises or is in sole charge of vulnerable adults of the following description is entitled to an:

ENHANCED CHECK

A vulnerable adult for the purposes of an Enhanced Check is a person aged 18 or over who receives services of a type listed in paragraph 1) below and in consequence of a condition of a type listed in paragraph 2) below, has a disability of a type listed at 3) below.

1) The services are:

  1. accommodation and nursing or personal care in a care home,
  2. personal care or support to live independently in his or her own home,
  3. any services provided by an independent hospital, independent clinic, independent medical agency or National Health Service body,
  4. social care services; or
  5. any services provided in an establishment catering for a person with learning difficulties.

2) The conditions are:

  1. a learning or physical disability,
  2. a physical or mental illness, chronic or otherwise, including an addiction to alcohol or drugs; or
  3. a reduction in physical or mental capacity.

3) The disabilities are:

  1. a dependency upon others in the performance of, or a requirement for assistance in the performance of, basic physical functions,
  2. severe impairment in the ability to communicate with others, or
  3. impairment in a person's ability to protect him or herself from assault, abuse or neglect.

STANDARD

1) Any employment or other work which is concerned with the provision of care services (2) to vulnerable adults (3) and which is of such a kind to enable the holder of that employment or the person engaged in that work to have access to vulnerable adults in receipt of such services in the course of his normal duties.

2) "Care services" means

  1. accommodation and nursing or personal care in a care home (where "care home" has the same meaning as in the Care Standards Act 2000);
  2. personal care or nursing or support for a person to live independently in his own home;
  3. social care services; or
  4. any services provided in an establishment catering for a person with learning difficulties.

3) "Vulnerable adult", in the context of a Standard check, means a person aged 18 or over who has a condition of the following type:

  1. a learning or physical disability;
  2. a physical or mental illness, chronic or otherwise, including an addiction to alcohol or drugs; or
  3. a reduction in physical or mental capacity.

Warning

A young person given a second formal warning about future conduct is given a final warning. A reprimand has replaced the caution for young people aged under 18.

Working with children

The definition of this term is in two parts:

  1. a child care position within the meaning of the Protection of Children Act. The Criminal Justice and Court Services Act (CJCSA) 2000 replaces the original definition in the Protection of Children Act with 'regulated position' for the purposes of Part II of the 2000 Act. Within the 2000 Act, section 36 sets out what the regulated positions are for the purposes of Part II of the Act; or
  2. a position in which employment or further employment is prohibited or restricted by regulations made under section 218 of the Education Reform Act 1988.

This guidance only relates to Enhanced Disclosures

Enhanced Disclosures may contain 'approved' information. This is non-conviction information provided by the police from their local records. The Chief Police Officer in each force will decide what, if any, information to provide. The DBS will print this information on both the applicant's and the Countersignatory's copy.

Occasionally the Chief Police Officer may, if thought necessary in the interests of the prevention or detection of crime, release 'additional' information to the Countersignatory only, in the form of a separate letter.

Where the police issue a separate letter, the Countersignatory's copy of the Enhanced Disclosure will contain the following words 'Please refer to letter sent under separate cover', printed under the 'date of issue' on the Disclosure.

Please note, the applicant's copy of the Disclosure will not refer to this information. Please do not share this information with the applicant.

Confidentiality

The letter, containing the additional information, should be handled, stored, retained and used in exactly the same way as any other Disclosure information and in accordance with the Code of Practice and other guidance. However, in addition to this, the information contained within the letter must never be revealed to the applicant or be shown to the applicant or to any other person not involved with the recruitment decision.

Criminal Offence

It is a criminal offence under the Police Act 1997 to reveal the information contained within the letter to the applicant or another person who is not involved with the recruitment decision, without the written permission of the Chief Police Officer.

Making an informed decision

If, after receiving a letter containing the additional information from a Chief Police Officer, you decide to withdraw the provisional offer of appointment, the applicant will need to be informed of that decision. It may be that you can justify such a decision based on the information contained on the Enhanced Disclosure; or it may be that it is the information contained in the separate letter that makes the person unsuitable.

In this circumstance, the conversation with the applicant may be difficult to conduct and recruiters may wish to take professional advice before proceeding. Further advice and guidance is available from the Chartered Institute of Personal Development (CIPD).

It will perhaps be sufficient for recruiters to explain that, having taken up a number of references and enquiries, it has been decided not to confirm their offer.

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