Elizabeth Prochaska, Consultant in Child Protection Unit at Farrer & Co, has kindly permitted us to cross-post “Criminal records checks – getting it right” first published on the website of Farrer & Co in April 2017
In January, the DBS announced the results of its initial compliance inspections of registered bodies and identified inappropriate barred list checks as one of its biggest areas of concern. The DBS has been visiting registered bodies since March 2016 and checking compliance with the DBS code of practice. The inspections revealed that registered bodies are requesting barred list checks when they are not required. The DBS said: ‘This is an offence and may result in an RB receiving information they are not legally entitled to see and the applicant being inappropriately investigated for trying to work in an activity they are barred from.’
In the experience of the CPU, the problem of ‘over-compliance’ is a common one. Organisations often feel that they ought to err on the side of caution when checking staff and volunteers, but they should be aware that making a barred list check when it’s not required is unlawful. Barred lists checks are additional to an enhanced DBS check and they are only required when the person is working a role that involves ‘regulated activity’ (see the DfE guidance on what this covers).
The DBS has said that it will be circulating a questionnaire to determine registered bodies’ compliance. It will offer support to non-compliant organisations, but if they fail to improve, the DBS has the power to suspend or cancel their registration. Obtaining an unlawful barred list check can also breach the Data Protection Act and lead to action against registered bodies by the Information Commissioner. It’s important that registered bodies get it right and only apply for DBS checks when the person’s role requires it.
The rules on DBS checks are set out in the DBS code of practice and workforce guidance. These aren’t as user-friendly as they could be and we recommend using them in conjunction with the DBS eligibility checker.
This month there’s also been a development in the visa rules on overseas criminal records checks for people from outside the European Economic Area applying to work in an educational role. The Home Office has introduced a requirement that an overseas criminal record certificate will be required from any country where the applicant for a visa has worked for 12 months or more in the 10 years prior to their application.
The new rules will assist schools to comply with their safer recruitment obligations because they should be able to use the certificate obtained in the immigration process to satisfy the requirement in Keeping Children Safe in Education (September 2016), which requires schools to “make any further checks [on individuals who have lived or worked outside the UK] they think appropriate so that any relevant events that occurred outside the UK can be considered” (Paragraph 114). However, we note that the new visa requirement only requires a check to be carried out where the person has lived abroad for more than 12 months in the last 10 years. We know that some schools have implemented the recommendation in the Davies Review into Southbank International School that schools request overseas checks for staff who have lived or worked abroad for more than 3 months since the age of 18. These schools will need to be careful that they do not solely rely on the certificates obtained for the visa and check whether the applicant has lived abroad for shorter periods.
As these developments show, DBS requirements and expectations do change and all organisations should check the DBS website regularly to ensure that their practices are compliant and up to date.
Cite this article as: Elizabeth Prochaska, “Criminal records checks – getting it right” in Law & Religion UK, 20 April 2017, http://wp.me/p2e0q6-9lE