DBS Referrals and Barring Decisions: A brief guide for those who have been referred.

The DBS

The Disclosure and Barring Service is an executive, non-departmental public body, sponsored by the Home Office. One of its main, but perhaps lesser known, functions is to maintain the Adults' and Children's Barred Lists. DBS powers and procedures are governed by the Safeguarding Vulnerable Groups Act 2006.

DBS Referrals

There are duties on regulated activity providers and personnel supplier, as well as a discretion for some public bodies and keepers of registers, to refer individuals and provide information to the Respondent if certain conditions are met. Condition 1 is that permission to engage in regulated activity has been withdrawn (eg by dismissal or redeployment). Condition 2 is that the referrer believes the person has harmed, or put at risk of harm, a vulnerable adult or child. This is described as "relevant conduct". Alternatively condition 2 is met if the person has been cautioned or convicted of a relevant offence.

Autobar Process

Receiving a caution or conviction for certain specified offences will lead to automatic inclusion on both registers ("Autobar"), whether or not the person is engaged in regulated activity. Inclusion on the lists is not discretionary and there is no right of appeal.

For some other offences, there is a discretion about inclusion on the Barred Lists ("Autobar with representations"). These are treated under the discretionary barring process.

Discretionary Barring Process

When the DBS receives information that a person has harmed a vulnerable adult or child, put them at risk of harm, attempted to harm them or incited another to harm them, and has been or might in future be engaged in regulated activity, the DBS is under a statutory obligation to consider whether or not it is appropriate to include them within the Adults' and/or Children's Barred Lists. Harm is interpreted widely and may include sexual, physical, financial, emotional or psychological harm.

Under the discretionary barring process, the DBS will write to an individual to inform them that a referral has been received. At this stage, representations are not invited.

At stage one, there is an initial case assessment, considering whether the person has been or might in the future be engaged in regulated activity. The DBS will then consider whether the referred person appears to have engaged in relevant conduct and poses a risk of harm to vulnerable groups.

At stage two, the DBS can require certain organisations to provide information, but they do not conduct an "investigation". The DBS is required to treat cautions and convictions as fact. The DBS is not bound by not guilty verdicts. Although DBS is to have regard to such verdicts, the standard of proof for DBS findings, the balance of probabilities, is lower than the criminal standard.

Findings of fact from competent bodies, including statutory healthcare regulators, are given special status and the DBS does not usually go behind them. The DBS can however make additional findings to those of the regulators. A finding of no case to answer at Case Examiners, for example, may not lead to the DBS taking "no further action". Where there is a concurrent investigation by a competent body, the DBS is unlikely to await the outcome of a fitness to practise process before the statutory regulators before moving to a barring decision.

The DBS will formulate their own allegations based on the evidence provided to them and assess whether the allegations can be proven and whether or not the safeguarding concerns are likely to satisfy the criteria for relevant conduct. DBS decisions should be made on the balance of probabilities, more likely than not.

At stage three, the DBS will undertake a risk assessment. This often follows their internal risk assessment tool, the Structured Judgment Process, to determine the level of concern in relation to specified risk factors: pre-dispositional factors; cognitive factors; emotional factors; and behavioural factors.

Once all the relevant material has been gathered and considered, alongside the risk assessment, the DBS will take no further action or make a "Minded to Bar" decision. Reasons should be given for the DBS decision, with reference to the evidence considered. All evidence considered should be annexed to the Minded to Bar letter.

Representations

Once a Minded to Bar letter has been received, representations are invited. They are usually made in writing. Strict time limits are imposed requiring a response within a specific time, usually eight weeks. Extensions to the time limit can be requested. It is advisable to seek out legal advice to assist in making representations.

Referred persons should consider providing a witness statement outlining their position on the allegations. If evidence to dispute the factual allegations is available (eg from local investigations, other witnesses etc), it should be provided alongside the representations. Representations often include any challenges to the DBS findings in relation to fact and risk, challenges to the findings of relevant conduct, evidence of reflection, further training, testimonials and address the findings related to the appropriateness and proportionality of inclusion on the barred lists.

Challenges to police cautions or convictions cannot be made in representations. Referred persons are also prevented from making representations that findings of fact made by a competent body were incorrectly made.

Once received, the DBS ought to undertake a comprehensive reconsideration of the findings of fact, risk, appropriateness and proportionality.

A referred person will then be notified of the DBS Final Decision and whether they have been included within the Adults' and/or Children's Barred List.

Appeals

A barred person has three months within which to lodge an appeal against the barring decision to the Upper Tribunal. There is no automatic right to appeal. Permission must be sought. Grounds of appeal are limited to material mistakes made by DBS on a point of law or finding of fact. Permission to appeal will only be granted if it is arguable with a realistic prospect of success that the DBS erred materially in law or arrived at a decision based upon a material error of fact.

You are strongly advised to seek specialist legal advice if you wish to challenge an appeal against a barring decision. Such advice should be sought as soon as possible after a Final Decision letter is received.

Please feel free contact the clerks via clerks@crucible.law to obtain a quotation for advice and representation related to a DBS referral, Minded to Bar letter or Final Decision letter.