In last month’s newsletter, I explained the required process of referring an individual. This included when to refer, how to refer, who to refer to, the time restraints for referring and the penalties for not referring or delaying to refer. This article can be viewed on our website under April articles. This article explains the process followed by the DBS.
The Disclosure & Barring Service (DBS) follow a 5 stage process when dealing with cases they receive. There are two different kinds of cases; Auto bar - a case where a person has been cautioned or convicted for a relevant serious offence and is therefore barred (by law), and Referrals - when employers/past employers or other authorities report an incident or suspicion that an incident may occur (the Harm Test).
The Disclosure & Barring Service (DBS) follow a 5 stage process when dealing with cases they receive. There are two different kinds of cases; Auto bar - a case where a person has been cautioned or convicted for a relevant serious offence and is therefore barred (by law), and Referrals - when employers/past employers or other authorities report an incident or suspicion that an incident may occur (the Harm Test).
Stage One: Initial Case Assessment;
Firstly, they determine whether the case falls within their legal powers under the Safeguarding Vulnerable Groups Act 2006, i.e. is there evidence of relevant conduct or risk of harm to a child or vulnerable adult? If the initial case assessment criteria are met, the case then proceeds to the next stage. The individual receives a letter advising them who the DBS are and why they are writing to them.
Stage Two: Information Gathering & Assessment;
The DBS gather and consider the information about the case, including any relevant convictions or cautions. As they have no investigatory powers, they rely on the information provided by ex-employers and other organisations. Court findings, police cautions and findings of specified competent bodies are treated as fact. They also consider information provided from regulated activity such as the Police, General Teaching Council or the General Medical Council. When the referral has come from an ex-employer, they expect it to have supportive documentation, such as;
• Minutes from disciplinary hearings
• Witness statements
• Dismissal / suspension letter
• Adult social care or children’s services records in relation to any safeguarding investigation
• Details of any police involvement
Because the referred person no longer works for you, it is advisable that you maintain good records on your staff including information required when referring.
When all relevant information has been gathered and assessed, they will determine on the balance of probability whether a risk of harm has been established. Consideration is then given as to whether it may be appropriate to bar the person based on these findings. If so, the case proceeds to stage three.
Stage Three: Structured Judgement Process (risk analysis);
A case assessment using a structured judgement process (SJP) is undertaken. The SJP is an internal risk assessment tool developed to determine whether, based on all relevant information, there is a future risk of harm to children or vulnerable adults. If a risk of harm is determined and barring is a proportionate and appropriate response to that risk, the DBS will then be ‘minded to bar’. And the case progresses to stage four.
Stage Four: Representations;
The DBS then write to the person advising them of the ‘minded to bar’ decision and inviting them to make representation as to why they should not be barred. The DBS outlines the legal powers used and reasons for the decision. A copy of all of the information that they have relied upon to reach the ‘minded to bar’ decision is sent to the person. The person has eight weeks to provide written representation to the DBS. They may be assisted in their representation by, for example, a friend, relative, advisor, trade union representative or solicitor (Article 6 Human Rights Act).
(Take advice before submitting information on the referral form. It must be factual, accurate and you must be able to substantiate the information if required or tested).
Stage Five: Barring Decision;
If no representation has been received by the end of the eight week representation period, the person is barred from working with children and/or vulnerable adults. Where representation is received, the case is reassessed and a final decision is made. The person is notified in writing of the final decision and, where the decision is to bar the person, they are notified of their right to seek an appeal. Once barred, it is illegal for a person to work in regulated activity with children and/or vulnerable adults.
o Appeals
A barred person has the right to seek an appeal on the grounds of an ‘error of fact’ or an ‘error of law’. Appeals are dealt with by the Administrative Appeals Chamber of the Upper Tribunal or the Care Tribunal in Northern Ireland.
o Reviews
Any barred person who has made representations will also have the right to request a review of the DBS decision after a minimum barred period as follows;
• Aged under 18 when barred - 1 year
• Aged 18 to 24 when barred - 5 years
• Aged over 24 when barred - 10 years
Request for review must be made to the DBS. They will only agree to a review if the person can demonstrate that their circumstances have changed in such a way that they no longer pose a significant risk to children and/or vulnerable adults. A person can not be removed from the list unless the DBS are satisfied that the risk has diminished.
If you feel that your care home or nursery staff would benefit from one of our free training sessions at your next staff meeting (these usually take around 1 hour), then please get in touch. Managers and owners have reported an immediate change in the working attitude of staff following a training session.