Disclosure and Barring Service (DBS) checks

Disclosure and Barring Service (DBS) checks
Registration under the Health and Social Care Act 2008
Disclosure and Barring Service (DBS)
checks (formerly criminal record (CRB) and
barring checks)
June 2013
Summary
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Disclosure and Barring Service (DBS) checks
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1. What is the role of the Disclosure and Barring Service (DBS)?
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2. Why are DBS checks important?
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3. What type of checks can be made?
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4. What is the difference between a criminal record check and a barred list check?
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5. What is a standard DBS check?
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6. What is an enhanced DBS check?
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7. When can someone apply for an enhanced DBS check without barred list
information?
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8. What is an enhanced DBS check with barred list information?
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9. Who can apply for an enhanced DBS check with barred list information?
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Registration with CQC
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10. Who needs a DBS check when registering with CQC?
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11. How does someone applying to become a registered person apply for a CQC
countersigned DBS check?
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12. What is CQC’s approach to applications for registration from people who have
committed offences?
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13. Portability: can DBS checks be used for more than one application for registration?
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Providers’ own DBS checks on staff
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14. What are health and adult social care providers expected to do when employing
new staff?
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15. How do providers ask for a DBS check?
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16. How do providers apply for barred list checks?
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17. What if a provider needs a new member of staff to start work urgently?
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18. What are the Adult First supervision arrangements for new staff in a
domiciliary care agency?
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19. Who does the DBS send the certificates to?
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20. Where do the police send further relevant information?
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21. Do providers new to registration have to apply for retrospective DBS checks
on their staff?
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22. Are retrospective checks needed for staff who have been employed for a long
period without having a check and who fall within the criteria for a DBS check?
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23. Do providers have to get a criminal record check on staff recruited from abroad? 18
24. How does CQC check if DBS checks have been carried out?
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25. Do DBS checks have to be renewed?
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26. Are providers responsible for making sure that staff supplied from an agency
have had a DBS check?
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27. What arrangements are in place for people employed by NHS Professionals
(the NHS in-house staff agency)?
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28. Do students on placement need to have DBS checks?
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29. What arrangements are in place for NHS doctors in training?
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30. What happens if the DBS has any queries about an application?
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31. Can DBS checks be used for more than one job application? (this is sometimes
referred to as portability)
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32. Is there more CQC information about criminal record checks?
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Links to further information
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Appendix A: Legislative changes from 10 September 2012
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Appendix B: Regulated activity – adults
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Appendix C: Regulated activity – children
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Summary
There are two main situations when people working in health and adult social care
services registered under the Health and Social Care Act 2008 (HSCA) will need to
consider having DBS checks:
•
On registering with CQC.
•
When working in a health or social care service providing activities including
regulated activity as defined in the Safeguarding Vulnerable Groups Act 2006
(SVGA), which has been amended by the Protection of Freedoms Act 2012
(PoFA). This includes staff who provide health care in GP practices, other primary
medical services and dentistry.
This guidance will explain who needs to consider having a DBS check in each of the
above situations and the process for applying.
On 1 December 2012, the services of the Criminal Records Bureau (CRB) and the
Independent Safeguarding Authority (ISA) merged, and the Disclosure and Barring
Service (DBS) was created.
Please note:
1. ‘Regulated activity’ is a term common to both the regulation of care services under
the Health and Social Care Act 2008 (HSCA), and to the process of barring
people from certain types of work. The term means different things in the two
different contexts.
Regulated activities for the purposes of barring are defined in the Safeguarding
Vulnerable Groups Act (SVGA). In this guidance, ‘regulated activity’ refers to
those activities defined in the SVGA unless specifically described as a HSCA
regulated activity.
Appendices 2 and 3 provide detail of regulated activities defined in the SVGA.
2. In this guidance the term ‘registered person(s)’ refers to providers/managers
registered with CQC under the Health and Social Care Act 2008.
3. Text that links to other documents or websites is highlighted in blue and
underlined. Ctrl and click over this text to go to the linked document.
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Disclosure and Barring Service (DBS) checks
1. What is the
role of the
Disclosure and
Barring Service
(DBS)?
The role of the DBS is to help employers in England and Wales
make safer recruitment decisions and prevent unsuitable
people from working with vulnerable groups, including children.
The DBS was established under the Protection of Freedoms
Act 2012 and carries out the functions previously undertaken
by the CRB and ISA. It is a non-departmental public body and
provides a joined up service that combines criminal records
and barring functions.
The service and processes previously provided by the CRB
have not changed. In addition, the DBS maintains the barring
lists previously managed by the Independent Safeguarding
Authority (ISA).
When someone applies for a DBS check, the DBS checks the
police national computer to see if there are any convictions,
cautions, warnings or reprimands listed for the applicant. DBS
may also ask the police to consider if they have any local police
information about the person that is relevant to disclose. In
certain circumstances, and when it is applied for, the DBS will
provide information about whether the person is barred from
working with vulnerable groups, including children.
From 17 June 2013, the DBS only sends the certificate to the
person applying for the check (the applicant). Before this date,
they also sent a copy of the certificate to the person who
countersigned the application.
The DBS also has duties and powers to share information with
professional bodies such as CQC, the General Medical Council
and other organisations.
2. Why are DBS
checks
important?
DBS checks help to keep those who are known to pose a risk
to people who use CQC registered services out of the
workforce. Various inquiries into deaths and injuries of children
and people using health or social care services have shown the
importance of good recruitment practice. For example, the
Bichard inquiry stressed how important recruitment checks are
in keeping people safe.
However, DBS checks are only one aspect of ensuring
effective and safe recruitment practices and should not be used
in isolation. Providers should also use other mechanisms, such
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as checking employment history and any gaps, reviewing
references, etc. to assure themselves as far as possible that all
employees are of good character and are fit to work in their
health or adult social care service.
3. What type of
checks can be
made?
The following DBS checks can be made:
•
Standard check
•
Enhanced check
•
Enhanced check and barred list check (child)
•
Enhanced check and barred list check (adult)
•
Enhanced check and barred list check (child and adult).
4. What is the
difference
between a
criminal record
check and a
barred list
check?
A criminal record check will reveal information relating to a
person’s criminal record. This includes convictions, cautions,
reprimands and warnings. When an enhanced check is applied
for, the police may also disclose relevant local police
information.
5. What is a
standard DBS
check?
Standard DBS checks show convictions held on the police
national computer, including ‘spent’ convictions, together with
cautions, reprimands and warnings. Please note: a Court of
Appeal judgement in January 2013 stated that the disclosure of
all cautions and convictions on a DBS certificate was
incompatible with Article 8 of the Convention for Human Rights.
As a result, filtering rules for old and minor cautions and
convictions are being introduced. For more details see the DBS
website.
A barred list check will show if a person is barred, that is
prevented, from working in a regulated activity either with
children, adults, or both. To knowingly employ a person who is
barred by the DBS to perform a regulated activity is a criminal
offence.
A standard check does not show whether a person is barred
from working with children or adults. If the DBS receives an
application for a standard check that includes a request for a
check against the barred list, it will be halted and returned
unprocessed.
Under the Rehabilitation of Offenders Act 1974 (Exceptions)
Order 1975, healthcare organisations may request a standard
level check only where the position involves the individual
having “access to patients in the course of their normal duties”.
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There is further guidance on eligibility for NHS positions on the
NHS Employers website.
For more information about eligibility see the eligible positions
guide on the DBS section of the ‘gov.uk’ website. Additionally,
the Government are to publish a note setting out the
circumstances when an organisation can require a DBS check
at all levels. The DBS also intends to publish a ‘decision tree’
on its website to help organisations decide whether a member
of staff is eligible for a check and, if so, at what level.
6. What is an
enhanced DBS
check?
Enhanced checks contain all the information in a standard
check plus any local police information about the applicant that
the police believe is relevant and ought to be disclosed.
Since 10 September 2012, the police have had to apply a more
rigorous relevancy test before disclosing this type of
information. The police must now reasonably believe that the
information is relevant to the position the person is applying for.
Previously they only had to believe it might be relevant.
An enhanced check does not contain barred list information.
7. When can
someone apply
for an enhanced
DBS check
without barred
list information?
An organisation can require an enhanced check without a
barred list check for people who were in regulated activity
before 10 September 2012 but, due to legislative changes, the
activity they undertake is no longer defined as regulated
activity.
The Government will publish a note setting out the
circumstances when an organisation can require a DBS check
at all levels. The DBS also intends to publish a ‘decision tree’
on its website to help organisations decide whether a member
of staff is eligible for a check and, if so, at what level.
In the interim, to establish if this is the case for those working
with adults, providers need to consider if the person was
providing regulated activity as defined in the SVGA before it
was amended by the PoFA on 10 September 2012, but that
activity is no longer included in the definition.
If a person working with adults meets all the requirements
below, then an employer can request an enhanced check
without barred list information:
•
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The adults with whom the person works fall into the
definition of adults set out in section 59 of the SVGA
(before it was amended by the PoFA).
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8. What is an
enhanced DBS
check with barred
list information?
•
The person provides any of the regulated activities relating
to adults set out in Part 2 of Schedule 4 to the SVGA
(before it was amended by the PoFA).
•
The person undertakes the work regularly (the meaning of
this is set out in Part 3 of Schedule 4 to the SVGA (before
it was amended by the PoFA).
These checks contain information on cautions, convictions, 1
reprimands and warnings as well as any local police
information about the applicant that the police believe is
relevant and ought to be disclosed. In addition, they include a
check of the children’s, adults’, or children’s and adults’ lists.
Barred list information relates to the lists of people, held by the
DBS, who are barred from working in regulated activity.
Regulated activity for the purpose of this document refers to
activity as defined in the SVGA as amended by PoFA 2012.
At present, barred list checks cannot be applied for without an
application for an enhanced check, but this will change in the
future. A service is being developed that will enable a standalone check for barred list information. This service will only tell
the organisation if the applicant is, or isn’t barred. There is more
information on the DBS section of the ‘gov.uk’ website.
For more information about the current definition of regulated
activity under the SVGA, see Appendices B and C and follow
the links below:
https://www.gov.uk/government/publications/dbs-regulatedactivity
http://www.education.gov.uk/childrenandyoungpeople/safeguar
dingchildren/a00209802/disclosure-barring
http://media.education.gov.uk/assets/files/pdf/r/regulated%20ac
tivity%20children%20full%20information%20ewni%20final%20
2012-06-01.pdf
1
Please note: A Court of Appeal judgement in January 2013 stated that the disclosure of all cautions and
convictions on a DBS certificate was incompatible with Article 8 of the Convention for Human Rights. As a
result, filtering rules for old and minor cautions and convictions are being introduced. For more details see
the DBS website.
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9. Who can apply
for an enhanced
DBS check with
barred list
information?
Only people undertaking a role falling within the definition of
regulated activity in the SVGA are subject to the barring
regime. Barred list information is not routinely given with an
enhanced check. The applicant must indicate whether or not
they will be working in a regulated activity with adults and/or
children when they request a check. If they are, they will be
eligible for a check of barred list information. Organisations can
only require staff or volunteers to apply for this type of check if
those staff or volunteers engage in 'regulated activity'.
The DBS can only bar a person from working in regulated
activity if it believes the person is, has been, or might in the
future be engaged in regulated activity. The only exception to
this is where a person is convicted of or cautioned in relation to
a prescribed offence 2. In this case, they would be automatically
included in the barred list and ineligible to submit
representations against their inclusion in the barred list.
Prescribed offences are the most serious offences.
Enhanced with barred list checks must only be applied to those
positions that fall under the revised definition of regulated
activity. Examples of positions that are unlikely to be eligible
under the revised definition of regulated activity are
administrators, receptionists, cleaners, chefs, catering staff,
laundry assistants and caretakers.
In all cases, employers will need to consider the roles and
responsibilities and level of contact with children and adults
before applying for a DBS check to make sure they apply for
the correct level of check. It is not enough to only consider the
job title. Eligibility is based on the activity undertaken by that
staff member or volunteer. If a provider has doubts about what
level of DBS check is appropriate, they can contact the DBS to
seek their advice.
2
See paragraph 7(1) of Schedule 3 to the SVGA, and regulation 5 and paragraph 3 of Schedule 1 to the
Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations
SI 2009/37.
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Registration with CQC
10. Who needs a
DBS check when
registering with
CQC?
Everyone applying to be registered persons (individuals, all
partners and registered managers) must obtain an enhanced
CQC countersigned DBS check with barring information before
submitting an application to register with us.
This is because once they are registered with CQC, people in
these roles will have statutory responsibility for the service to
the extent that they may be expected, at any time, to step in
and undertake the hands-on delivery of, for example, personal
care, or day-to-day management and oversight of the service
being delivered – both of which are regulated activities.
Nominated individuals are not registered with CQC and
therefore do not need a CQC countersigned DBS check as
part of the registration process. However, we expect providers
to look at the responsibilities and activities of nominated
individuals with people who use the service and carry out the
appropriate checks. Providers may be asked to provide
evidence of this.
11. How does
someone applying
to become a
registered person
apply for a CQC
countersigned
DBS check?
12. What is CQC’s
approach to
applications for
registration from
people who have
committed
offences?
The application process for a CQC countersigned DBS check
is an online process. The system can be accessed through
either our website or the Post Office website.
The online system will explain the process step by step.
After the applicant has completed the online form, they should
visit a post office with their proof of identity, address
documentation and appropriate fee (unless the applicant
satisfies the free of charge volunteer criteria). They should
take their referral letter with them. Once verified by the Post
Office, the electronic form will be countersigned by CQC and
sent to DBS. Applicants will be able to track the progress of
their application using the online tracking system on the DBS
website.
If an offence or other information is disclosed, this does not
necessarily mean that a registration will be refused.
We will consider each individual case fairly and take into
account whether the offence or other information indicates a
risk to people using the service.
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We will take into account the nature of the offence or other
information disclosed, the role the person is to fulfil, the type of
service for children or adults involved, and the circumstances
and needs of the children or adults likely to use the service.
Our decisions will be made on the basis of an assessment of
any risk to children or adults, rather than the simple fact that a
conviction or other information is disclosed. However, where
there is significant doubt, the decision will always favour the
welfare of the children or adults using the service.
We consider any information disclosed alongside the other
information submitted by applicants, which we obtain during
the registration assessment, in order to satisfy ourselves about
the applicant’s fitness and their compliance with the
requirements.
13. Portability: can
DBS checks be
used for more
than one
application for
registration?
People applying for registration with CQC can satisfy the
requirement for a DBS check if:
•
they are currently working in services regulated by CQC
AND
•
they can provide evidence of a CQC countersigned
enhanced check with barred list information that is less
than six months old.
If these requirements are satisfied no new certificate is
required.
The DBS launched the Update Service on 17 June 2013. The
Update Service will allow the applicant (the person who the
check is about) to apply for a DBS check only once and then, if
they subsequently need a further check of the same type, to
use their existing certificate.
To do this, the applicant would have to subscribe to the
Update Service and pay an annual subscription fee. The
organisation employing them would, with the person’s consent,
be able to check online to see if the information on their
certificate was still up to date. The intention is to avoid many
repeat applications. See the DBS section of the ‘gov.uk’
website for further details.
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Providers’ own DBS checks on staff
14. What are
health and adult
social care
providers
expected to do
when employing
new staff?
All health and social care providers registered with CQC,
including dental and primary medical services, are responsible
for checking the suitability of their staff.
We expect providers to undertake checks at the appropriate
level for staff and volunteers who are eligible for them. They
should consider the eligibility of everyone employed, 3
including: contracted staff, temporary staff, bank staff,
practitioners working under practising privileges, volunteers,
students and learners, and contractors. In general and dental
practices, as well as GPs and dentists, this is likely to include
health visitors, nursing staff, and dental technicians. It may also
include front office reception staff, depending on their duties,
which can vary greatly depending on the size of the practice.
The NHS Employers organisation has produced some Q&As
and a decision tree tool to support the decision-making process
in respect of staff and volunteers in the NHS. This is on the
tools and resources page of its website. The DBS also intend
to publish a ‘decision tree’ to help organisations decide if
members of staff are eligible for a check and, if so, at what
level.
In all settings, the eligibility for checks and the level of that
check depends on the roles and responsibilities of the job.
Providers should risk-assess different roles and look at their
responsibilities and activities to determine if staff are eligible for
a DBS check and to what level. We would expect providers to
be able to show they have undertaken this risk assessment,
especially where they have decided not to undertake a check.
CQC has the power to take enforcement action if providers
decide not to take up DBS checks on eligible staff, or if the
provider cannot provide sufficient evidence of seeking
appropriate assurances that a check has been undertaken. We
would take enforcement action in circumstances where, in our
view, people using the service are considered to be at risk
because of the decision not to undertake these checks and
where it is an indication of poor recruitment procedures. We
will take a fair and proportionate approach and consider
providers’ risk assessments when making our decision.
3
Guidance about compliance: Essential standards of quality and safety (Appendix A).
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If an employer or supplier of staff knows, or has reason to
believe, that a person is barred from a regulated activity, it is
an offence to permit or supply them to engage in that regulated
activity. CQC will take action if providers knowingly employ a
person who is known or believed to be barred.
Providers registered to carry on care services often delegate
staff recruitment and vetting to specialist staff or departments,
but accountability for making sure that recruitment practice
meets all legal requirements rests with the registered person.
Having a criminal conviction does not in itself make a person
unsuitable for work in health or social care. If a DBS check
discloses a conviction or other relevant information, the
employer has to decide whether the person is suitable to be
employed in their service. When doing so, they need to assess
the potential risks, taking into account the nature of the
information, how old it is and its relevance to the activities the
person would undertake and the circumstances and needs of
the people using the service.
DBS checks are only one aspect of ensuring effective and safe
recruitment practices. Providers should also use other
mechanisms, including checking employment history and gaps
and reviewing references. This way, they can assure
themselves as far as possible that all employees are of good
character and are fit to work in their service.
The decision about whether or not to employ a person should
be taken in the context of the provider’s responsibility for the
wellbeing of the people who use the service. Information about
the recruitment of ex-offenders is provided on the DBS pages
of the ‘gov.uk’ website.
15. How do
providers ask for
a DBS check?
Applications for a DBS check are made on forms that are
available from the DBS. Some employers and ‘umbrella bodies’
also keep a supply of forms.
Umbrella bodies are organisations that are registered with the
DBS to countersign applications for other employers. There is
a list of umbrella bodies on the DBS website.
After an applicant has filled in a form, an authorised person
must countersign it before it is sent off.
There are two ways to get an application form countersigned
by an authorised person:
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1. Large service providers that submit at least 100 applications
a year can apply to become a ‘registered body’ (these are
organisations that have registered directly with DBS to use
its services). Authorised ‘counter-signatories’ in registered
bodies can countersign applications from potential staff.
Applications to become a registered body should be made
to the DBS, not to CQC. You can get more information from
the DBS pages of the ‘gov.uk’ website
2. Providers can ask an ‘umbrella body’ to countersign and
send in applications for them.
An authorised counter signatory in the umbrella body or
registered body countersigns the form to make an official
declaration regarding the person’s identity. However, umbrella
bodies or registered bodies can authorise a separate ‘evidence
checker’ to carry out first-stage identity checking, which may
include a face-to-face check. When the authorised counter
signatory has signed the form, they then send it off to the DBS.
CQC is not an umbrella body and cannot countersign forms for
people who have applied to work in a health or adult social
care service.
16. How do
providers apply
for barred list
checks?
The employer or the umbrella body (or registered body on their
behalf) will ask for a check of the children’s and/or adults
barred lists when making an application to the DBS for people
engaging in regulated activity.
Adults
For those who want to work or be a volunteer in regulated
activity, carry on or manage a regulated health or social care
service for adults, we expect a check to be made of the adults
barred list. When verifying applications, the counter signatory
will check box X65 on the new DBS application form to ask for
the check to be made.
Children
For those applying to work or be a volunteer in regulated
activity, carry on or manage a service that works with children,
we expect a check to be made of the children’s barred list.
When verifying applications, the counter signatory will check
box X64 on the new DBS application form to ask for the check
to be made.
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Working with adults and children
Where applicants want to work or volunteer in a regulated
activity with both adults and children, the counter signatory will
check boxes X64 and X65 when verifying applications.
17. What if a
provider needs a
new member of
staff to start work
urgently?
New members of staff who are going to work in regulated
activity with adults can begin work before their DBS certificate
has arrived, using the ‘Adult First’ system. But this should only
happen if the safety of people using the service would be put at
risk if the person wasn’t started in their role. Providers must be
able to demonstrate sound reasons for not waiting for the full
DBS check before a person takes up post.
Adult First is a service that allows an individual to be checked
against the adults' barring list while waiting for the full DBS
check to be completed. It can only be used where the registered
umbrella body has payment on account arrangements with the
DBS and email facilities. The DBS also needs to have received
an application for an enhanced check with barred list information
in order to process an Adult First check.
There is no equivalent ‘quick check’ of the children's barred list
so an Adult First check is not appropriate if a person intends to
work with both children and adults. Those working with both
groups will need to wait for the certificate to be returned to find
out whether a person is barred from working with children.
For services registered with CQC under HSCA, arrangements
are covered under the Guidance about Compliance: Essential
standards of quality and safety as follows:
Outcome 14 covers induction arrangements that apply to all
workers regardless of whether they start work before a DBS
certificate is received:
• All staff receive a comprehensive induction that takes
account of recognised standards within the sector and is
relevant to their workplace and their role.
• It is undertaken when they start their job and is completed
before they are allowed to work unsupervised.
• It includes at least:
o the aims, objectives and purpose of the service;
o information on the people whose care, treatment and
support they will be involved in providing, and any
specific communication needs;
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o the rights of people who use the service;
o the policies and procedures of the service;
o the action to be taken in an emergency;
o health and safety risk assessments;
o how to report an incident;
o the arrangements for their own support and supervision;
o the support and safety arrangements of lone working,
where this applies; and
o the arrangements for reporting where the service falls
below essential standards of quality and safety.
Under Outcome 12A, staff working with adults can only start
work before a DBS certificate is received provided they have
been subject to an Adult First check (which confirms that they
are not barred) and subject to the following safeguards:
•
An appropriately qualified and experienced member of
staff is appointed to supervise them.
•
Wherever it is possible, this supervisor is on duty at the
same time as the new worker, or is available to be
consulted; and
•
New workers do not escort people away from the premises
unless accompanied by a member of staff for whom a full
and satisfactory DBS certificate has been received.
Further safeguards apply to particular types of service – see
questions below.
Adult First process
The applicant should complete a DBS application form and
pass it to a counter signatory in the normal way, asking for an
Adult First check.
The counter signatory completes an online Adult First
application form as well as checking the applicant’s identity,
then signs the DBS application form and sends it off.
The details on the DBS application form must match exactly
those on the online Adult First application. The form will be
rejected if they do not.
The DBS compares the applicant’s details on the paper form
with those in the online Adult First application before checking
the Adults Barred List. They must match exactly.
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There is no equivalent check to Adult First For people who
have applied to work with children. However, within the NHS,
employers may appoint a person before receiving the DBS
certificate but only in exceptional circumstances. That is, where
there is an urgent need to appoint because of the risk to patient
safety. Decisions to appoint before receiving the certificate
should be made only after a risk-based assessment, and
safeguards should be put in place to manage that person.
18. What are the
Adult First
supervision
arrangements for
new staff in a
domiciliary care
agency?
Outcome 12D of the Essential standards of quality and safety
covers the additional safeguards that we expect to be in place
if a worker starts before a DBS certificate is received:
•
The provider should contact people using the service, or
their representative, at weekly intervals to monitor their
satisfaction with the care provided by the new worker and
any complaints that may arise.
•
The provider should inform people using the service, or
their representative, about the outstanding information, and
tell them when it is received.
•
The provider should end the new worker’s contact with
people using the service where the registered person
considers that the outstanding information (when received)
is not satisfactory.
There is no requirement for the staff member to be directly
supervised provided they have completed their induction.
Where a new member of staff is to care for or support children
in a regulated activity, a satisfactory enhanced and barred list
check must be received before they begin to do so.
19. Who does the
DBS send the
certificates to?
Before 17 June 2013, the DBS sent a copy of the certificate to
both the applicant and the counter signatory. If the counter
signatory was an umbrella body the employer could ask them
to forward a copy to them.
The DBS now only sends a copy of the certificate to the
applicant – the employer and the registered/umbrella body will
not receive a copy. They will need to ask the applicant to see
their certificate and to keep a record of the relevant details.
See question 20 below for more information.
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20. Where do the
police send
further relevant
information?
On 10 September 2012, the Government repealed the
provisions that allowed for police to disclose information
separately from the certificate. This was commonly referred to
as ‘brown envelope’ information. Instead, local police use their
common law powers to disclose information directly to the
employer/registered umbrella body where they feel it is
necessary. They can contact employers or counter signatories
directly on a force-by-force basis.
Information that the police pass directly to employers must not
be revealed to the applicant or another person who is not
involved with the recruitment decision without the permission of
the Chief Police Officer. It is an offence to do so. There will be
no central mechanism for this as the information is held locally
by each force and they will decide if, and how, it is released.
It is the responsibility of the provider, NOT the umbrella body,
to decide if a person is suitable to work in the service if relevant
information is disclosed. They will need sufficient information
from the umbrella body to make their decision.
21. Do providers
new to
registration have
to apply for
retrospective DBS
checks on their
staff?
As described above, we expect providers to undertake checks
at the appropriate level for staff and volunteers who are eligible
for them.
There is no legal requirement to carry out retrospective or
periodic DBS checks. But employers can ask staff and
volunteers to apply for a DBS certificate whenever they think it
is necessary. When considering the appropriateness of a
check, providers should consider roles and responsibilities of
the job taking into account whether the person is working in
SVGA regulated activities.
It is an offence to permit or supply a person to engage in
regulated activity from which they are barred if the employer or
supplier knows or has reason to believe that the person is
barred. CQC will take action if providers are knowingly
employing a person who is known or believed to be barred.
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22. Are
retrospective
checks needed for
staff who have
been employed
for a long period
without having a
check and who
fall within the
criteria for a DBS
check?
As above, the onus is on the provider to ensure they have
robust recruitment procedures and systems in place so they are
assured their staff are fit to practise. The changes to DBS
arrangements do not put in place any new requirements in
relation to periodic or retrospective checks. As always, the
decision about checks should be based on risk and made at a
local level.
23. Do providers
have to get a
criminal record
check on staff
recruited from
abroad?
Registered providers are expected to apply the same process
for staff recruited from abroad as they would for other staff.
Employers must do all they can to ensure that people they
appoint from overseas are suitable to work with adults who use
care services and/or children. The DBS cannot access criminal
records held overseas. However, it is still recommended that
employers undertake DBS checks in case a person is barred,
has a criminal record in the UK, or comes from a country where
the DBS does have information sharing arrangements.
If a provider is recruiting people from overseas and wishes to
check their overseas criminal record, they need to contact the
relevant foreign embassy. There is more detail on the DBS
section of the ‘gov.uk’ website.
It is important that employers check thoroughly that overseas
job applicants have the necessary permits to work in a UK care
setting. Employers may be breaking the law if they do not
make sure that workers from overseas have all the right
documents. There is information about this at the UK Border
Agency’s website.
24. How does
CQC check if DBS
checks have been
carried out?
Our inspectors check compliance with Regulation 21 of the
Health and Social Care Act 2008 (Regulated Activities)
Regulations 2012. This includes checks that providers and
managers of registered establishments and agencies have
made the appropriate DBS and other checks when:
•
recruiting staff and other workers, or
•
moving staff to new jobs that require DBS checks or
•
when staff are undertaking a regulated activity under the
SVGA 2006.
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They do this by selecting a sample of staff records to inspect,
to confirm that appropriate checks have taken place.
Providers do not need to retain original DBS certificates for the
purposes of inspection. CQC has an agreement that for social
care services, the top third of the DBS certificate can be
retained for 12 months or until inspectors have seen them.
Keeping this part of the certificate is for evidence that a
certificate has been obtained. They must be destroyed after we
have seen them. However, it should only be retained if it does
not include details of offences. (In exceptional circumstances
where a large number of offences are listed, these may
continue onto the reverse of the top third section; in these
circumstances the top third should not be retained once the
recruitment decision has been made.)
From 17 June 2013, the certificate is only sent to the applicant.
We will continue to look at the top third of certificates where they
are available. We will not expect to see hard copies of a single
certificate, but will want to see records kept by the provider.
Providers will need to ask a person to see their certificate and
record, and to keep the relevant details as listed below:
•
The date of issue of the check.
•
The full name and date of birth of the subject.
•
The type of check requested.
•
Whether the children's and/or adults barred list was
checked and the outcome.
•
The position for which the check was requested.
•
The unique reference number of the check.
•
The details of the employment decision taken, and
•
Any additional information that may require periodic
checks to be made.
If, following risk assessment, a decision is taken not to apply
for a DBS check, then the reason why should also be recorded.
Although we would not routinely expect to see hard copies of
certificates, we have the power to use our discretion to ask for
any relevant documents where we have concerns. This may
include the DBS certificate. Decisions on whether it is necessary
to see the actual DBS certificate should be made on a case-bycase basis. The decision should be based on whether it is
necessary for us to carry out our functions, and our inspectors
/assessors should follow the 'necessity test' in the Code of
Practice on Confidential Personal Information when making a
decision.
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Other staff records are also required to demonstrate
compliance with schedule 3 of The Health and Social Care Act
2008 (Regulated Activities) Regulations 2010 – see the
schedule for details.
25. Do DBS
checks have to be
renewed?
There is no requirement for a service that directly employs its
own staff to repeat DBS checks within a set period. For
example, there is no blanket rule such as re-checking all
employees every three years. However, employers can recheck their staff whenever they think it is necessary. Any
additional checks should be proportionate to risk.
Further checks on staff depend on whether the registered
person judges that this is necessary or advisable after a certain
period. When making their decision they should undertake a
risk assessment taking into account the work staff do, the
potential scope for abuse, and the stability of the workforce.
Agencies supplying temporary staff to health and social care
services may wish to carry out a DBS check on their staff every
12 months. Work placements can accept this rather than
having to do their own checks, but they must get written
confirmation from the agency that a satisfactory check has
been received (see question 26 below).
Please check updates on the DBS website about the
introduction of the Update Service which is expected on 17
June 2013. The intention is to reduce the number of new
applications required.
26. Are providers
responsible for
making sure that
staff supplied
from an agency
have had a DBS
check?
Yes. Providers must obtain and keep written confirmation from
an employment agency that eligible members of staff that are
supplied to them have had a satisfactory DBS check at the
right level for their role.
27. What
arrangements are
in place for people
employed by NHS
Professionals (the
NHS in-house
staff agency)?
The NHS in-house staff agency (NHS Professionals) has
special arrangements with the DBS. If an existing NHS
employee registers with NHS Professionals, or joins the bank
staff scheme of the NHS organisation that employs them, the
employer does not have to obtain new a DBS check where
these have already been carried out by the substantive NHS
employer.
As the provider is ultimately responsible for the safety and
wellbeing of people in their care, it is their responsibility to
make sure that the legal requirements and robust and effective
arrangements for recruiting staff are satisfied.
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However, if a person leaves the NHS and breaks their service,
and then applies to the trust’s bank or NHS Professionals, we
expect a new DBS check at the right level to be applied for.
28. Do students
on placement
need to have DBS
checks?
Students over 18 years of age undertaking vocational
placements in health or social care settings are likely to be
eligible for an enhanced and barred list check. Whatever the
level of check the student is eligible for, we expect providers to
undertake them following a risk assessment. Providers should
risk-assess the roles and responsibilities to determine which
checks are appropriate and to what level. We would expect
providers to be able to show that they have undertaken this risk
assessment, especially if they have decided not to undertake a
check.
The check may be obtained by the educational establishment
at the start of the course, but the health or social care provider
should obtain written confirmation of this. We expect written
confirmation to state which level of check the student has had
and whether or not it is satisfactory. Providers are ultimately
responsible for the safety and wellbeing of people in their care
and should assure themselves that the checks are satisfactory
and the person is not barred.
See our guidance on DBS checks and work placements in
adult social care settings.
The minimum age at which someone can apply for a DBS
check is 16. However, to safeguard people using their services,
we expect providers to undertake a risk assessment before
taking anyone under the age of 16 on work experience. The
assessment should carefully consider what roles and tasks
would be appropriate for them and what level of supervision
would be required.
29. What
arrangements are
in place for NHS
doctors in
training?
Special arrangements in the NHS Employment Check standards
allow for DBS checks to be undertaken once every three years
for doctors on educationally-approved training rotations. This
would only be where there is evidence of a satisfactory DBS
check obtained by an NHS employing organisation in the
previous three years and where the new post does not change
the level of check required (for example a paediatric post that
requires a check against the Children’s Barred list). Please see
the NHS Employers website for more details.
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30. What happens
if the DBS has any
queries about an
application?
The DBS will contact the counter signatory directly (normally by
letter). The counter signatory or another member of staff acting
on their behalf will then contact the applicant to explain the
problem and try to resolve the query.
31. Can DBS
checks be used
for more than one
job application?
(this is sometimes
referred to as
portability)
Depending on their role and activities, new entrants to the
workforce in services regulated by CQC are expected to obtain
a new DBS check where eligible.
People taking up a new position who are currently working in
services regulated by CQC can satisfy the expectation that
they will have an appropriate DBS check if they can provide
evidence of a check, at the right level for their role, that is less
than three months old at the point of application.
People supplied by an employment agency can satisfy the
expectation that they will have an appropriate DBS check if
they can provide evidence of a check, at the right level for their
role, that is less than 12 months old.
The portability section of the DBS page on the gov.uk website
describes some of the risks and limitations of portability.
Where people take up a new role or go to a new location but
stay with the same employer with no break in service, a new
DBS check is not necessary provided that a check has
previously been obtained at the appropriate level. Some
examples where this applies include:
•
A care assistant employed by a large corporate provider
moves from working in care home A to care home B.
•
A consultant with practising privileges who has been
checked to work in independent hospital A also starts
working in hospital B, which is part of the same group of
hospitals owned by the organisation running hospital A.
The DBS will launch the Update Service on 17 June 2013. The
Update Service will allow the applicant (the person who the
check is about) to apply for a DBS check only once and then, if
they subsequently need a further check of the same type, to
use their existing certificate. To do this, the applicant would
have to subscribe to the Update Service and pay an annual
subscription fee. The organisation employing them would, with
the person’s consent, be able to check online to see if the
information on their certificate was still up to date. The intention
is to avoid many repeat applications. See the DBS section of
the gov.uk website for further details.
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32. Is there more
CQC information
about criminal
record checks?
There are some frequently asked questions (FAQs) available
on our website.
Links to further information
CQC website
Post Office
UK Border Agency
NHS Employers
DBS
CQC FAQs
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Appendix A: Legislative changes introduced on 10
September 2012 that affect the Disclosure and Barring
Service
The Protection of Freedoms Act 2012 amended the Safeguarding Vulnerable Groups
Act 2006. There have been subsequent changes to the Police Act 1997 and regulations
made under that Act, and the Rehabilitation of Offenders Act 1974 (Exceptions) Order
1975 on which the disclosure and barring service is based.
The changes introduced by the Protection of Freedoms Act 2012 include:
•
A new definition of regulated activity.
•
The provision of statutory guidance on the supervision in relation to working with
children.
•
The introduction of a minimum age at which someone can apply for a DBS check
and apply to become a counter signatory.
•
Repeal of registration and monitoring.
•
Repeal of additional (‘brown envelope’) information.
•
Repeal of controlled activity.
•
A more rigorous relevancy test for the police when they release locally held
information through an enhanced check.
•
A new right of review for applicants of information released by the police.
•
People who do not fall within the new definition of regulated activity (from 10
September 2012) but are within the pre-September definition of regulated activity will
remain eligible for enhanced checks without barred list information.
The changes brought in by the Act also affect the work carried out by the Independent
Safeguarding Authority (ISA) which, from 1 December 2012, will be replaced by the
Disclosure and Barring Service (DBS). Specific changes are:
•
Most people will be barred from working with children and/or adults only if they have
engaged, are engaging or might in the future engage in roles which fall within the
new definition of regulated activity.
•
They will have greater powers to review a person’s inclusion on a barred list.
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Appendix B: Regulated activity – adults
The Protection of Freedoms Act 2012 amended the definition of regulated activity
relating to adults from 10 September 2012.
What has changed?
•
The new definition no longer refers to the word ‘vulnerable’ for regulated activity
relating to adults.
•
Regulated activity is not defined in relation to specified establishments (for example,
a care home). Instead, the focus is on the type of activities needed by the adult, not
where the activity takes place.
•
The frequency test has been removed – an individual only needs to engage in the
activities listed below once to be carrying out regulated activity relating to adults.
The regulated activity definition applies to the following activities:
•
Healthcare provided to adults by, or under the direction or supervision of, a
regulated health care professional,
•
Personal care for adults involving hands-on physical assistance with washing and
dressing, eating, drinking and toileting; prompting and supervising an adult with any
of these tasks because of their age, illness or disability; or teaching someone to do
one of these tasks.
•
Social work – provision by a social care worker of social work that is required in
connection with any health services or social services.
•
Assistance with an adult’s cash, bills or shopping because of their age, illness or
disability arranged through a third party.
•
Assisting in the conduct of an adult’s own affairs under a formal appointment.
•
Conveying adults on behalf of an organisation/third party for reasons of the adults’
age, illness or disability to or from a place where they receive healthcare, personal
care or social work.
What is not changing?
•
An adult is defined as a person aged 18 years or over.
•
A person whose role includes the day-to-day management or supervision of any
person engaging in regulated activity, is also in regulated activity.
•
Regulated activity relating to adults excludes any activity carried out in the course of
family relationships, and personal, non-commercial relationships.
The definition of regulated activity relating to adults is detailed in Schedule 4 to the
Safeguarding Vulnerable Groups Act 2006 and the Department of Health has produced
an accompanying note.
DBS Factsheets on Summary of Regulated Activity relating to adults will be published on
the DBS web pages (www.gov.uk/dbs) in late June 2013.
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Appendix C: Regulated activity - children
The Protection of Freedoms Act 2012 amends the definition of regulated activity
relating to children from 10 September.
The new definition of regulated activity relating to children applies to individuals
undertaking the following:
•
Registered childminders.
•
Registered foster carers.
•
The day-to-day management or supervision of any person engaging in regulated
activity. This also applies to someone who would be in regulated activity but for the
consideration of supervision.
Unsupervised activities
These activities are teaching, training, instructing, caring for or supervising children or
providing advice/guidance on wellbeing or driving a vehicle solely for children.
Supervision means day-to-day supervision as is reasonable in all the circumstances for
the purpose of protecting any children concerned.
The Department for Education has produced statutory guidance on supervision to
describe the considerations an organisation should make when determining whether or
not an individual is supervised to a reasonable level for the role.
Work for a limited range of establishments (specified places)
These establishments are as detailed in the page in this section Establishments for
regulated activity relating to children with the opportunity for contact with children,
including schools and children’s homes.
Work carried out by volunteers supervised to a reasonable level, in accordance with the
statutory guidance on supervision, in these establishments is not regulated activity.
However, a supervised paid employee working for a specified establishment does come
under regulated activity.
Work carried out involving either an unsupervised activity or in one of the listed
establishments is only regulated activity relating to children if done frequently or
intensively.
Frequently or intensively means carried out by the same person frequently (once a week
or more often), or on four or more days in a 30-day period (or in some cases overnight
between 2am and 6am, where there is opportunity for face-to-face contact).
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Health care
Health care for children provided by, or under the direction or supervision of, a regulated
health care professional.
This is regulated activity even if the activity is only carried out once.
Personal care
Personal care for children involving hands-on physical assistance with washing and
dressing, eating, drinking and toileting; prompting and supervising a child with any of
these tasks because of their age, illness or disability; or teaching someone to do one of
these tasks.
This is regulated activity even if the activity is only carried out once.
The revised definition of regulated activity can be found in Part V of the Protection of
Freedoms Act 2012.
DBS Factsheets on Summary of Regulated Activity relating to children will be published
on the DBS web pages (www.gov.uk/dbs) in late June 2013.
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