The DBS removed certain specified old and minor offences from DBS certificates in line with legislation introduced in May 2013.
Before an organisation considers asking a person to apply for a criminal record check through the DBS, they are legally responsible for ensuring that they are entitled to submit an application for the job role. This means that if you are a countersigning officer you must satisfy yourself that the position is eligible under the current legal provisions before you countersign each application form. As your Umbrella Body, onlinedbs.co.uk countersigns your applications on your behalf and will contact you if a query arises regarding eligibility.
It is important to note that a DBS check does not provide evidence of a person’s right to work, you may also need to complete a right to work check on the person to make sure they are eligible to work in the UK.
What defines Regulated Activity?
Any individual undertaking a Regulated Activity, either through employment or as a volunteer, will require an Enhanced DBS Disclosure.
- Unsupervised activity involving contact with children or vulnerable adults that is of a specified nature (e.g. training, teaching, care, supervision, advice, medical treatment or, in certain circumstances, transport) on a frequent, intensive and/or overnight basis.
- Activity involving contact with children or vulnerable adults in a specified place. e.g. schools, children’s homes, childcare premises.
Recruitment of Offenders Exceptions Order 1975
The Exceptions Order to the Rehabilitation of Offenders Act 1974 (ROA) sets out those occupations and positions exempt from the provision 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 a general guide only and should not be regarded as definitive interpretation of the Act. If an individual’s job role is not directly included in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 then it would not be automatically eligible for a disclosure.
The Rehabilitation of Offenders Act 1974 (ROA) was introduced in order to protect individuals who are convicted of minor, one time offences, from future discrimination. The ROA enables certain 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, obtaining insurance, or when involved in criminal or civil proceedings. Once a conviction has become spent, the individual can for most intents and purposes, truthfully declare that they do not have a criminal record.
Employers cannot legally ask candidates about spent convictions, and cannot consider spent convictions in their recruitment decisions.
The exceptions will not advise whether any specific role must have a DBS certificate. Any mandatory requirements will exist in legislation and guidance specific to your employment sector, so you will need to explore this independently.
Exemption from the Recruitment of Offenders Act
Certain positions are exempt from the Rehabilitation of Offenders Act. For these exempted positions, employers are entitled to enquire about spent convictions. For some positions, it is a legal requirement for the employer to enquire about spent convictions before hiring the individual.
Typically, a position is considered exempt because it involves frequent contact with children and/or vulnerable adults. In some cases, positions that entail certain types of authority, or individuals with access to certain sensitive information are also considered exempt. This ruling is intended to protect children, other vulnerable groups, and the public from individuals that hold positions of authority over them.
In order to be eligible for a Standard or Enhanced Disclosure, an individual must be involved in working with children or vulnerable adults and meet one or more of the below provisions. Please note that in order for individuals to qualify for a Standard or Enhanced Disclosure, it is not sufficient for these individuals to simply have access to or contact with children or vulnerable adults.
Further, to qualify for an Enhanced Disclosure, staff would need to be working in a position which involve regularly caring for, training, supervising, or being in sole charge of children or, a person aged 16 or over who fits the DBS definition of a vulnerable adult.
Working with Vulnerable Adults – Enhanced Disclosure
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 Disclosure. 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. and in consequence of a condition of a type listed in paragraph 2. and has a disability for at type listed at paragraph 3.
- The services are:
- accommodation and nursing or personal care in a care home;
- personal care or support to live independently in his or her own home;
- any services provided by an independent hospital, independent clinic, independent medical agency or National Health Service body;
- social care services; or any services provided in an establishment catering for a person with learning difficulties.
- The conditions are:
- a learning or physical disability;
- a physical or mental illness, chronic or otherwise, including an addiction to alcohol or drugs;
- a reduction in physical or mental capacity.
- The disabilities are:
- a dependency upon others in the performance of, or a requirement for assistance in the performance of, basic physical functions;
- severe impairment in the ability to communicate with others;
- impairment in a person’s ability to protect him or herself from assault, abuse or neglect.
The above disabilities exclude an adult with one or more of the following disabilities (unless that person has another disability):
- Irlen syndrome
- Auditory processing disorder
Working with Vulnerable Adults – Standard Disclosure
The level of check is relevant when any employment or other work which is concerned with the provision of care services to vulnerable adults, and 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 that are in receipt of such services, in the course of his normal duties.
- Care services in the context of a Standard check means:
- accommodation and nursing or personal care in a care home (where care home has the same meanings as in the Care Standards Act 2000);
- personal care or nursing or support for a person to live independently in his own home social care services;
- any services provided in an establishment catering for a person with learning difficulties.
- Vulnerable adult in the context of a Standard check, means a person aged 18 or over who has a condition of the following type:
- a learning or physical disability;
- a physical or mental illness, chronic or otherwise, including an addition to alcohol or drugs or a reduction in physical or mental capacity.
Working with Children
Staff must be working in a regulated position as defined by section 36 (1) (c) of the Criminal Justice and Court Services Act (CJCSA) 2000, i.e. a position whose normal duties involve caring for, training, supervising or being in sole charge of children.
The regulated positions are specified below:
- A position whose normal duties include work in the following establishments exclusively or mainly for children:
- an institution which is exclusively or mainly for the detention of children;
- a hospital which is exclusively or mainly for the reception and treatment of children;
- a care home, residential care home, nursing home or private hospital which is exclusively or mainly for children;
- an educational institution;
- a children’s home or voluntary home or a home provided under section 82(5) of the Children Act 1989.
- A position whose normal duties include work on day care premises.
- A position whose normal duties include caring for, training, supervising or being in sole charge of children.
- A position whose normal duties involve unsupervised contact with children under arrangements made by a responsible person.
- A position whose normal duties include caring for children under the age of 16 in the course of the children’s employment.
- A position a substantial part of whose normal duties includes supervising or training children under the age of 16 in the course of the children’s employment.
- One of the following positions:
- a member of the governing body of an educational institution;
- a member of a relevant local government body;
- a director of social services of a local authority;
- a chief education officer of a local education authority;
- a charity trustee of a children’s charity;
- a member of the Youth Justice Board for England and Wales, the Children’s Commissioner for Wales or deputy;
- a member or chief executive of the Children and family Court Advisory and Support Service (CAFCASS).
For these purposes, a person is a member of a relevant local government body if:
- he/she is a member of, or of an executive of, a local authority and discharges any education functions, or social services functions of a local authority, he/she is a member of an executive of a local authority which discharges any such functions;
- he/she is a member of a committee of an executive of a local authority, or area committee or any other committee of a local authority which charges any such functions.
- A position whose normal duties include supervising or managing an individual in his work in a regulated position. This relates to the immediate supervisor or manager only.
- Work in a further education institution where the normal duties of that work involve regular contact with persons aged below 18.
NHS Employers are aware that DBS are receiving numerous applications for trades and maintenance workers, amongst others, for those working in a general NHS setting. Examples of this would include service engineers, electricians, plumbers, window cleaners, gardeners, staff who work in a hospital cafe or shop, sales reps and clinical specialists who train staff to use equipment.
It is important to note that these positions are not covered under the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, so if this person is carrying out this type of role in a general capacity, there is no eligibility for any level of DBS Check.
Under the Exceptions Order, NHS organisations may request a standard level DBS check for any such positions in a general NHS setting only where the individual will have access to patients in the course of their normal duties.
Examples where a Standard level DBS check can be requested:
Where a maintenance worker carries out work on wards or patient areas and therefore allows them to have contact with patients as part of their normal duties:
- Catering staff who are required to serve meals to patients;
- Porters who transport patients.
For clarity, here are some examples where a DBS check cannot be requested:
- Where a maintenance worker is required to carry out a service on equipment on a hospital site but their role does not actually allow them to have contact with vulnerable groups;
- Coffee bar workers or shop workers, as they are not providing health care and any access to patients is incidental and purely as a consequence of the patient making a choice to use those retail services;
- Cleaning operatives who do not work in patient areas
In relation to contract tendering, NHS Employers have provided this advice for organisations:
“Not all contractors are required to have a DBS check. The trigger for a Standard DBS check is dependent on whether or not they will be providing health services and have access to patients while carrying out their duties”
The DBS is aware that increasing numbers of applications are being submitted for tradespersons and maintenance workers, for example, the position of electrician, plumber, photocopier engineers. None of these positions are listed in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, so if a person is carrying out this role in a general capacity, there is no eligibility for a DBS check.
Department for Education (DfE)
The DBS has confirmed with the Department for Education (DfE) that there is an entitlement in relation to these posts when the work involved is carried out on school premises, but only in limited circumstances as detailed below.
Organisations faced with the decision on whether they are entitled to undertake a DBS check on this type of role may be inclined to assume that they are entitled in all cases where there is a school involvement. However, it should be understood that to meet the current definition of regulated activity, and enable an application to be submitted for an Enhanced DBS check including a check of the ISA children’s barred list, the work of the tradesperson must meet all of the following criteria:
- the work has to be carried out at a school regularly (once a week or more or on four days or more in a single month or overnight);
- the work has to take place regularly on the SAME school premises. For example, a tradesperson who works in several different schools, but only works in the same school once a fortnight, is not in regulated activity;
- the work has to involve the opportunity for contact with children at the school. If the work is done out of hours when no children are on site, or on a part of the site which is separated from areas where children have access, it is not regulated activity.
Where a school uses a trades / maintenance worker who works (i) regularly and (ii) at the same school and (iii) has opportunity for contact with children, then this would be considered as carrying out a regulated activity.
If you need to apply for DBS checks for your employees or volunteers, or are unsure if you can, please contact us for further help or complete our online registration form to start making DBS checks today.