Last reviewed 31 May 2013

Chris Payne explores the important differences between the old and new systems of criminal records and barred lists checks in this three-part article. Here, he discusses what has changed in criminal records checks; the second part looks at the new definition of “regulated activity” and new restrictions to barred lists checks; and the third part looks at referrals to the barred lists.

The Disclosure and Barring Service (DBS) came into operation in December 2012. It replaced the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA) by merging their respective functions into a single organisation.

The DBS operates under the Protection of Freedoms Act 2012 and the Safeguarding of Vulnerable Groups Act 2006. Its purpose is similar to that of the ISA, which is to make sure that people at risk are kept safe from being harmed by the paid carers or volunteers appointed to help and support them. This is achieved in the first instance by checking whether applicants for these roles have a criminal record that might make them unsuitable, and by checking that they have not already been barred from working with vulnerable people.

The key to understanding the changes made to the checking and barring system is the Protection of Freedoms Act 2012. This aims to balance the responsibilities of care providers as employers, to keep the people who use their services safe from harm, and the right of individuals to be seen as trustworthy rather than as potential criminals, which was a criticism of the previous safeguarding model. The Safeguarding of Vulnerable Groups Act 2006, which provided the statutory framework for the ISA, still applies in parts, but has been heavily amended.

What has changed?

To understand the changes it is necessary to understand the Government’s reasons for them, which are to reduce “unnecessary” public spending and “red tape”, and to take a “common sense approach” to checking and vetting. The object is to have procedures that are fair, efficient and proportionate to what is deemed necessary to keep vulnerable people safe.

At first sight, the new system might appear similar to the old with the main differences being organisational as a result of the coming together of the CRB and the ISA. However, there are other important differences, which have implications for the recruitment and selection policies and procedures of care services, in the event of their having to refer someone for consideration on a barred list.

Criminal records checks

DBS guidance makes it clear that it is an employer’s responsibility to determine whether any position they seek to fill requires the checking of a person’s criminal record. An employer should not take for granted that they must carry out a criminal records check, but should make sure that the post which is being advertised is eligible for such a check. This is a different emphasis on the previous position and is in line with the policy aim of increasing employers’ and individuals’ responsibilities and judgment in determining who they should employ.

Care providers are perhaps less affected by this change of emphasis as most of the positions in their services will continue to meet the eligibility criteria for enhanced DBS checks. They will also need to carry out rigorous checks in line with the Care Quality Commission’s (CQC) Essential Standards of Quality and Safety.

The minimum age for which someone can apply for a DBS check is now set at 16 years. This means that young people under 16 in work experience in a care service setting will not need a DBS check.

To apply for enhanced disclosure, the application continues to be made through a registered body, which checks the identity of the person making the application and makes sure that the category of employment is one that is entitled to apply for the appropriate disclosure.

A DBS check currently produces two certificates: one that is sent to the organisation making the check, and another to the applicant. This is set to change so that there will be a single certificate sent only to the applicant, which he or she will produce as requested or required. The DBS has a fee structure for carrying out checks and the issuing of certificates, which can be found on its website.

The DBS is introducing a free online tracking service to allow applicants and “countersignatories” to follow the progress of their criminal record check application through the various stages of the checking process, without needing to contact the DBS.

An online update service is also planned. This will enable organisations to check online to see whether there is any new criminality information on a DBS certificate since the first check. This should avoid the need to make unnecessary repeat applications. At this point in time, the position of those posts that require three-yearly checks by the CQC is unclear, and further guidance can be expected when the new tracking system becomes operational.

DBS Adult First continues the service from the previous system, which enables a person to start work before he or she has obtained a DBS certificate, which is essential for that position. It applies mainly to adult care services and does not apply to posts involving work with children. Providers should follow DBS procedures, which are similar to those developed by the ISA.

The central idea in line with the Protection of Freedoms Act 2012 thinking is that, because a person might have a criminal record, this does not make him or her unsuitable for employment in a care service in some capacity. Only people on a barred list are completely disallowed to engage in regulated activity. Accordingly, managers must make their own decisions in relation to their safe recruitment and selection policies about the impact of an adverse DBS disclosure, by carrying out a risk assessment. They must then decide whether the person is safe to be employed to work with or on behalf of vulnerable people.

Managers should not underestimate the impact of this change, even though it is one of emphasis rather than substance, to what has gone before. This created an almost total risk-averse expectation, which was endorsed by inspectors. Of course the greater discretion that employers and managers now have might also create greater uncertainty, and much will depend on the quality of the risk assessments in individual cases.

The position of volunteers

Part of the thinking behind the Protection of Freedoms Act 2012 was that the vetting and barring scheme proposed for the ISA was too stringent in relation to volunteering and would deter people from taking up voluntary work with children and adults.

Volunteering England offers some useful guidance on the checking of volunteers. Care services that make use of or seek to make use of volunteers have to evaluate carefully the roles and tasks expected of their volunteers when agreeing to their employment, before deciding whether a DBS check is necessary. Some volunteer tasks will fall within the definition of “regulated activity” and therefore could require a full check. However, if the volunteers are always carrying out their activities under supervision, then this should not be necessary.