Chris Payne explores the important differences between the old and new systems of criminal records and barred lists checks in this three-part article. This 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.

Regulated activity

Checks against the Disclosure and Barring Service (DBS) barred lists can only be made for applicants who will be carrying out “regulated activity”. It is actually illegal under the Protection of Freedoms Act 2012 to make a barred list check for any position that falls outside the definition of regulated activity. It is therefore important to understand what is now meant by “regulated activity”. It should be noted that, in this context, it is not the same as “regulated activity”, which is used to decide whether a service requires registration with the Care Quality Commission (CQC). For DBS purposes, regulated activity refers to the paid or unpaid jobs that people carry out when providing defined services.

The term refers to those roles and responsibilities that lead to an adult being considered vulnerable at the particular time that the activity is being carried out. This applies to voluntary as well as paid work. The setting of the activity, and whether the user has the mental capacity, does not affect the definition (regulated activity therefore can be carried out in domiciliary care and in care homes). There is also no requirement for a person to carry out the activities a certain number of times before they are seen to be engaging in regulated activity, which was a feature of the previous definition.

Personal care is clearly the category of regulated activity relating to most care service work with adults. This is accordingly described in terms of anyone who provides an adult with physical assistance with eating or drinking, going to the toilet, washing or bathing, dressing, and oral care or care of the skin, hair or nails because of the adult’s age, illness or disability. However, a person who provides physical assistance only by cutting a person’s hair, eg a visiting hairdresser, will not be performing a regulated activity (and will not require a barred list check).

Also described as regulated activity is the prompting and supervision of an adult who, because of their age, illness or disability, cannot make the decision to eat or drink, go to the toilet, wash or bathe, get dressed or care for their mouth, skin, hair or nails, eg someone with dementia who might lack the mental capacity to make these decisions.

Additionally, anyone who trains, instructs or provides advice or guidance, which relates to eating or drinking, going to the toilet, washing or bathing, dressing, oral care or care of the skin, hair or nails to adults who need it because of their age, illness or disability, is providing regulated activity, eg senior care staff and managers.

It is important to note that providing personal care does not include, for example, a visiting beauty therapist to a care home, a volunteer who might prepare and serve a meal, but who does not feed/prompt/supervise/train/instruct someone to eat, and a person who provides IT skills to a class of adults with learning difficulties.

Anyone who provides day-to-day assistance to an adult because of their age, illness or disability, where that assistance includes at least one of the following, is in regulated activity: managing the person’s cash; paying the person’s bills; or shopping on their behalf. For example, a care worker or allocated volunteer, but not family member or friend acting informally, who collects shopping lists and the cash to pay for the shopping from older adults’ homes, who then does the shopping on their behalf, would be engaging in regulated activity. However, someone who helps a disabled person simply compile their weekly shopping list is not in regulated activity.

Reasons for restricting barred list checks

As a result of a review carried out in 2010–2011, it was decided to reduce the number of jobs requiring the most stringent checks and vetting to those that have the most frequent and generally continuing day-to-day contact with service users. This has been achieved by redefining the idea of and the posts covered by the new definition of regulated activity. For example, for people who work in close contact with service users, but who are always doing it under supervision, they are not included in the definition of regulated activity. Therefore they do not require a barred list check. This would apply to some trainees and volunteers, work experience students and apprentices.

It was decided to abandon any attempt to define all the other jobs that might be carried out in connection with the carrying out of regulated activity as needing a barred list check. Thus there is no longer any idea of “controlled activity” (covering people who had less contact with children and vulnerable adults than those engaged in “regulated activity”). It was similarly decided to abandon the plan to have a compulsory register of those working with vulnerable groups so that their activities could be subject to continuous monitoring.

Staff who carry out non-regulated activity, such as cooks, catering, cleaning and maintenance staff, will have sufficiently frequent contact with service users to warrant enhanced criminal records checks as before. However, employers can no longer ask for a barred list check in respect of non-care posts that fall outside the definition of regulated activity, nor can they make referrals to the DBS barred lists if people in these kinds of posts have been dismissed for misconduct.

It remains to be seen whether this narrowing of the scope of the barred list will create gaps in the safeguarding provision. For example, under these arrangements, it would seem possible for someone from a non-care role (dismissed for misconduct causing harm) to be appointed in a care role elsewhere at some point in the future, since they would not be on any barred list. There could also be some difficulty in deciding whether some staff roles fall within the definition of regulated activity. For example, in some care homes, catering staff might be actively involved in feeding residents, thereby carrying out regulated activity; in others their roles might be limited to meal-time preparations, and serving and clearing away, arguably falling outside the definition of regulated activity. Managers who are uncertain about whether a given role falls inside or outside the definition, and are therefore eligible for a barring list check, will need to seek guidance from the DBS.

Last reviewed 5 June 2013