Making barring referrals to the DBS

Introduction

Advice about when employers and volunteer managers can make a barring referral to the Disclosure and Barring Service (DBS).

This guide is not legal advice and doesn’t cover all aspects or examples of harm, referrals and barring. If you need legal assistance, you should speak with a legal advisor.

What is a referral?

A referral is information about a person. It tells us of concerns that an individual may have harmed a child or vulnerable adult, or put a child or vulnerable adult at risk of harm.

The referral duty doesn’t apply to family or personal arrangements, parents or members of the public. If a parent or member of the public has a safeguarding concern, they should contact the police, social services or the person’s employer.

These agencies can then investigate the allegation and

if appropriate make a referral to the DBS.

When a person has been referred, DBS consider if they need to be added to a barred list(s).

You can look at the referral flowchart to help you decide if you need to make a referral.

Who can make a referral?

Under legislation, the following can make referrals to the DBS:

• local authorities
• education authority in Northern Ireland
• health and social care bodies in Northern Ireland
• keepers of register in England, Wales or Northern Ireland
• supervisory authorities in England, Wales or Northern Ireland
• and

The power to refer happens when an organisation is not acting as a regulated activity provider. This will usually be when the organisation is undertaking their safeguarding role.

The power to refer can be used when an organisation thinks a person has either:

• harmed or poses a risk of harm to a child or vulnerable adult
• has satisfied the harm test; or
• has received a caution or conviction for a relevant offence and;
• the person they’re referring is, has or might in future be working in regulated activity and;
• the DBS may consider it appropriate for the person to be added to a barred list

Information about regulated activity

Guidance about regulated activity with children and regulated activity with adults is available from the Department for Education and the Department of Health and Social Care.

DBS have also produced some leaflets explaining regulated activity with children and adults.

Regulated activity in Northern Ireland

The definition of regulated activity for Northern Ireland is largely the same as in England, however there are some additional roles that aren’t included in the English definition. For information on the additional roles, please refer to our Regulated activity in Northern Ireland guidance.

Who has a legal duty to refer?

Regulated activity providers (employers or volunteer managers of people working in regulated activity in England, Wales and Northern Ireland) and personnel suppliers have a legal duty to refer to DBS where conditions are met. This applies even when a referral has also been made to a local authority safeguarding team or professional regulator.

A personnel supplier may be an employment agency, employment business or an educational institution and are described as:

• an employment agency that makes arrangements to either find a work-seeker employment with a hirer or to supply him to a hirer to employ
• an employment business that engages a work-seeker and supplies him to a hirer to work under a hirer’s control
• an educational institution if it makes arrangements to supply a student following a course at the institution to a regulated activity provider such as a school.

Legal duty to refer: the two conditions that must be met

If you are a regulated activity provider or fall within the category of personnel supplier, you must make a referral when both of the following conditions have been met:

Condition 1

• you withdraw permission for a person to engage in regulated activity with children and/or vulnerable adults. Or you move the person to another area of work that isn’t regulated activity.

This includes situations when you would have taken the above action, but the person was re-deployed, resigned, retired, or left. For example, a teacher resigns when an allegation of harm to a student is first made.

Condition 2

You think the person has carried out 1 of the following:

• engaged in relevant conduct in relation to children and/or adults. An action or inaction has harmed a child or vulnerable adult or put them at risk or harm or;
• satisfied the harm test in relation to children and / or vulnerable adults. eg there has been no relevant conduct but a risk of harm to a child or vulnerable still exists.or
• been cautioned or convicted of a relevant (automatic barring either with or without the right to make representations ) offence

Relevant conduct in relation to children

A child is a person under 18 years of age.

Relevant conduct is:

• endangers a child or is likely to endanger a child
• if repeated against or in relation to a child would endanger the child or be likely to endanger the child
• involves sexual material relating to children (including possession of such material)
• involves sexually explicit images depicting violence against human beings (including possession of such images)
• is of a sexual nature involving a child

A person’s conduct endangers a child if they:

• harm a child
• cause a child to be harmed
• put a child at risk of harm
• attempt to harm a child
• incite another to harm a child

Look at a list of examples of harm to children (PDF, 57.6 KB, 2 pages).

Relevant conduct in relation to adults:

A vulnerable adult is a person aged 18 years or over who is being provided with, or getting a service or assistance which is classed as regulated activity for adults.

Relevant conduct is:

• endangers a vulnerable adult or is likely to endanger a vulnerable adult
• if repeated against or in relation to a vulnerable adult would endanger the vulnerable adult or be likely to endanger the vulnerable adult
• involves sexual material relating to children (including possession of such material)
• involves sexually explicit images depicting violence against human beings (including possession of such images)
• is of a sexual nature involving a vulnerable adult

A person’s conduct endangers a vulnerable adult if they:

• harm a vulnerable adult
• cause a vulnerable adult to be harmed
• put a vulnerable adult at risk of harm
• attempt to harm a vulnerable adult
• incite another to harm a vulnerable adult

A person satisfies the harm test if they may:

• harm a vulnerable adult
• cause a vulnerable adult to be harmed
• put a vulnerable adult at risk of harm
• attempt to harm a vulnerable adult
• incite another to harm a vulnerable adult

Look at a list of examples of harm to vulnerable adults (PDF, 56.3 KB, 1 page).

What is harm?

This is not defined in legislation. DBS view harm as its common understanding or the definition you may find in a dictionary.

Harm is considered in its widest context and may include:

• sexual harm
• physical harm
• financial harm
• neglect
• emotional harm
• psychological harm
• verbal harm

This is not a fully comprehensive list, harm can take many different forms.

What is the harm test?

A person satisfies the harm test if they may harm a child or vulnerable adult or put them at risk of harm. It is something a person may do to cause harm or pose a risk of harm to a child or vulnerable adult.

Must I make a referral?

If you engaged a person to work in regulated activity, you have a legal duty to refer where the relevant conditions are met.

The duty to refer applies even when a report has been made to another body such as a local authority safeguarding team.

The duty to refer applies irrespective of whether another body has made a referral to the DBS in relation to the same person.

This helps to make sure the DBS have all the relevant information to consider a case. DBS can then make a fair, consistent and thorough decision about whether to bar a person from working with vulnerable groups.

A person who is under a duty to refer and fails to refer to us without reasonable justification is committing an offence. If convicted they may be subject to a fine up to £5,000.

Can I make a referral to the DBS if the legal conditions are not met?

There could be times when you consider that you should make a referral in the interests of safeguarding children or vulnerable adults even if you have not removed the person from working in regulated activity.

This could include acting on advice of the police or a safeguarding professional, or in situations where you don’t have enough evidence to dismiss or remove a person from working with vulnerable groups.

DBS are required by law to consider any and all information sent to us from any source. This includes information sent to us where the legal referral conditions are not met.

DBS will use legal powers and barring processes to determine whether the person should be barred from working in regulated activity with children and / or vulnerable adults.

If you want to make a referral to us where the referral conditions are not met, you should do so in consideration of relevant employment and data protection laws.

You may want to seek your own legal advice in relation to these cases.

Referrals for automatic barring offences

Anyone convicted or cautioned for certain serious offences will, subject to the consideration of representations where permitted, be barred from working in regulated activity with children and/or vulnerable adults.

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Help with referrals

You can call us on 03000 200 190 if you need help or advice.