PI 02/14 Safeguarding of Children and Vulnerable Adult

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CONTENTS

1.Executive summary

Background

1.1The Disclosure and Barring Service (DBS) is a non-departmental government body that carries out the statutory functions previously undertaken by the Criminal Records Bureau and the Independent Safeguarding Authority (ISA), namely:

• processing requests for criminal records checks as defined by Part V of the Police Act 1997;
• deciding whether it is appropriate for a person to be placed in or removed from a barred list under the Safeguarding Vulnerable Group Act 2006 (SGVA) or Safeguarding Vulnerable Group Order (SVGO); and
• maintaining the DBS children’s barred list and the DBS adults’ barred list.

In relation to its barring functions, the role of the DBS is to make independent barring decisions on people whose actions or behaviour deem them unsuitable to work (paid or unpaid) in regulated activity with children and/or adults.

1.2The SVGA requires that convictions or cautions for relevant offences result in an automatic bar from working in regulated activity with children and/or adults. A list of these offences is at Annex A. Relevant offences are commonly referred to as autobar offences but may be referred to as either automatic barring offences (those which do not enable a person to make representations against their inclusion in the list(s)) or automatic inclusion offences (those which require the DBS to enable the person to make representations against their inclusion in the list(s)). The DBS has a duty to:

• bar any person who has accepted a caution for or been convicted of an automatic barring offence; and

• consider for barring any person who has accepted a caution for or been convicted of an automatic inclusion offence or has been referred to the DBS by an employer, a local authority, a professional regulatory body, oranother organisation that has removed or dismissed them from regulated activitybecause of the harm they have caused to a child or vulnerable adult or the risk of harm they might present.
• A new test for regulated activity (TRA) has been introduced which means that the DBS can only bar a person who is, has been, or may in future be, engaged in regulated activity with children and/or adults. Without this connection to regulated activity, the DBS is unable to place a person in a barred list. The only exception to this is where a person is cautioned for or convicted of an automatic barring offence and is not eligible to submit representations against their inclusion in the list(s). Guidance on the definition of regulated activity is at Annex B.1 for children and Annex B.2 for adults.
• The two barred lists maintained by the DBS replace previous barred lists in England and Wales[1] and Northern Ireland[2]. Secondary legislation required the ISA either automatically to include individuals from the old lists in the new lists or to look afresh at whether they should be included. The ISA, and subsequently the DBS, have completed this work.
• The DBS operates the barring scheme for England andWales and on behalf of Northern Ireland. A similar barring scheme, the Protecting Vulnerable Groups (PVG) Scheme, operates in Scotland and is managed by Disclosure Scotland, an Executive Agency of the Scottish Government. The two schemes are aligned and recognise each other’s barring decisions. A person barred in one jurisdiction will, therefore, be barred throughout the UK.
• Disqualification Orders were introduced under the Criminal Justice and Court Services Act 2000 and prevented individuals from working with children. The Criminal Justice Act 2003 amended the Disqualification Order regime and required those subject to an Order to be managed automatically under MAPPA. With the introduction of the SGVA, Disqualification Orders became redundant and the ISA, and subsequently the DBS, was required to consider those subject to a Disqualification Order for inclusion in the barred list(s). The legislation relating to Disqualification Orders has been repealed on a phased basis to coincide with the phased implementation of the DBS’ functions. The repeal of the legislation in England and Walesis now complete[3] and, as of 17th June 2013, no further Disqualification Orders will be made by the courts. The repeal does not, however, cause existing Disqualification Orders to lapse or disappear. Existing Orders will remain in force but any breach will be dealt with under the SVGA and not as a breach of the Disqualification Order.
• The Protection of Freedoms Act 2012 amended the SVGA to allowthe DBS to share barring information with prisons and providers of probation services. The SVGA,as amended, provides the DBS with the power to inform prisons and providers of probation services about information it believes to be relevant, provided it is for the purposes of the protection of children or vulnerable adults. It also places a duty on the DBS to provide prisons and providers of probation services, on request, with information about whether a person is in a barred list, provided that it is for the purposes of the protection of children or vulnerable adults. However, there is no similar provision within the legislation governing the PVG Scheme that enables Disclosure Scotland to share barring information with prisons or providers of probation services.

Desired outcomes

1.8 Enhanced risk assessment and risk management through access to information held by the DBS

• Better targeting of offenders to suitable employment and/or voluntary activities
• Appropriate allocation of offenders to Community Payback placements
• Appropriate proposals within pre-sentence reports by ensuring report writers do not propose Disqualification Orders

Mandatory actions

1.9 Report writers must no longer state in a pre-sentence report that a Disqualification Order should be considered for an offender convicted of a relevant offence against a child.

• Offenders subject to a Disqualification Order must continue to be managed under MAPPA
• If an offender who was believed not to meet the TRA discloses information that suggests they have in fact worked in regulated activity, or plan to do so in the future, the probation provider must consider sharing this information with the DBS.
• Barred status (including cases which are still pending or are subject to appeal) must be taken into account in the assessment and allocation of an offender to a suitable Community Payback placement; and when approving work (paid or unpaid) under the standard licence condition requiring an offender to undertake only such work (including voluntary work) approved by their supervising officer and to notify him or her in advance of any proposed changes.
• When an offender who is in the barred list(s) completes a community sentence or post-release licence, the supervising officer must remind them of their barred status and ensure they understand the implications of this.
• Information obtained from the DBS on the barred status of an offender and the barring decision must be taken into account when assessing or reviewing risk of serious harm and in the formulation and review of sentence plans and risk management plans.
• Any decision to pass on information received from the DBS to a third party must be considered on a case by case basis and must be compliant with NOMS policies, the Data Protection Act 1998, and based on an assessment of the relevance and appropriateness of the information. Where information is shared there must be a written auditable record.

Resource Impact

1.10 Barring information received from the DBS will feed into existing public protection processes, including safeguarding and the review of assessment and risk management plans (receipt, analysis and acting upon information about contact, context, behaviour and risks from any third party). There should, therefore, be minimal resource impact on staffcarrying out probation functions as a result of this Instruction.

2.Operational instructions

Disqualification Orders

2.1As the repeal of the legislation meansno further Disqualification Orders will be made by the courts,report writers must no longer state in a pre-sentence report that a Disqualification Order should be considered for an offender convicted of a relevant offence against a child.

2.2Existing Disqualification Orderswill not lapse as a result of the repealand offenders subject to an Order must continue to be managed under MAPPA.

2.3Supervising officers should:

• Ensure that the offender understands the requirements of the Order and the reasons for its imposition

• Ensure that the offender is not involved in any work with children, whether paid or voluntary, or in any training for such work

• Re-issue the written notice of disqualification when the offender completes a community sentence or post-release licence, and remind them of the terms of the Order.

Information on barred status

2.4The probation provider may seek information from the DBS on anoffender’s barred status in the case of offenders who have been:

• cautioned for or convicted of an automatic inclusion offence (index or previous) (see Annex A for list of relevant offences); or

• assessed as posing a risk of serious harm to children or vulnerable adults and their known employment history or qualifications suggest they may have engaged in regulated activity with children and/or adults or may seek to do so in the future.

Requests should not be made in respect of offenders cautioned for or convicted of automatic barring offences (see para 1.2 above) as a person who commits one of these offences is not eligible to submit representations against their inclusion in the list(s) and will, therefore, be barred. Confirmation of barred status should be requested from the DBSvia secure email to ing the template letter at Annex C. As barred status relates to the work a person may or may not undertake, it has been agreed with the DBS that confirmation of barred status will be sought only at the point when an offender’s employment, training or education needs are being assessed or considered.

2.5The DBS response will indicate whether the offender is in the children’s barred list, the adults’ barred list or in both lists. If a barring decision has not yet been made, the response will state “linked interest”. This means that the DBS has registered the interest in the offender and will notify the probation provider of the barring decision once made. The response will be sent via secure email.

2.6Where a person cautioned for or convicted of an automatic inclusion offence has not been barred because they do not meet the TRA (see para 1.3 above), the DBS can review the case if they receive information indicating that the person may have engaged, or may in future engage, in regulated activity. If an offender who was believed not to meet the TRA discloses information that suggests they have in fact worked in regulated activity, or planto do so in the future, the probation provider must consider sharing this information with the DBS.

2.7Barred status can change as a person included in the barred list(s)has the right to seek an appeal to the Upper Tribunal Administrative Appeals Chamber (England and Wales) and the Care Tribunal (Northern Ireland). Appeals can be lodged with the Tribunal only on the grounds that the DBS has made an error of fact or an error in law. A barred person who had the right to make representations can also seek a review of their inclusion in the barred list(s) if they can demonstrate to the DBS that their circumstances have changed significantly in such a way that it is no longer appropriate for them to be in the list(s). Minimum barred periods before a person can seek a review are:

• one year - where a person has not reached the age of 18;
• 5 years - where a person was barred after the age of 18 but who has not reached the age of 25; and
• 10 years – where a person was barred at the age of 25 or above.

If the probation provider has reason to believe the barred status of an offender has changed, confirmation shouldbe obtained from the DBS.

2.8It is a criminal offence for a person who has been placed in a barred list(s) knowingly to work or to seek to work in the regulated activity from which they have been barred. It is also an offence for a person knowingly to permit someone to engage in regulated activity from which they have been barred. Barred status (including cases which are still pending or are subject to appeal) must, therefore, be taken into account when:

• approving work (paid or unpaid) under the standard licence condition requiring an offender to undertake only such work (including voluntary work) approved by their supervising officer and to notify him or her in advance of any proposed changes; and
• assessing and allocating an offender to a Community Payback placement.

The Community Payback Operating Manual requires that offenders should not be allocated to a work placement which involves any activity which could be interpreted as direct personal care or supervision of any a child or vulnerable adult.

2.9When an offender who is in a barred list(s) completes a community sentence or post-release licence, the supervising officermust remind them of their barred status and ensure they understand the implications of this.

2.10Barred status only prevents a person undertaking regulated activity with children and/or adults: it does not prevent a person from undertaking other forms of work (paid or unpaid) that brings them into contact with children and/or adults. Also, the DBS can bar a person only if it believes they are, have been or might in the future be, engaged in regulated activity[4]. Report writers will, therefore, still need to consider proposing a prohibited activity requirement in cases where an offender is barred and the court indicates a community order or a suspended sentence order is being considered. Similarly, the supervising officer will still need to consider whether a prohibited activity additional licence condition is necessary and proportionate in the case of an offender on licence who has been barred.

Sharing of information relevant to barring decisions

2.11The DBS does not have an investigatory function but, as part of its decision-making process, it can seek relevant information from other organisations, agencies and bodies. This can include, for example, police reports, court documents, competent body findings, adult social care or children’s services reports, and employer disciplinary hearing records. It may, therefore, approach a probationprovider for disclosure of relevant information on an offender, for example from sources such as pre-sentence reports and OASys. Any requests should be considered on a case-by-case basis and in compliance with information sharing policies and data protection principles. In doing this, it is important to bear in mind that the DBS is carrying out a statutory function with the purpose of preventing crime (harm to children and vulnerable adults). It may be necessary to extract from or redact records to ensure that only information that is relevant and proportionate to the function of the DBS and to safeguarding and prevention of crime purposes is disclosed.