Changes to rules on disclosure and barring

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Safe recruitment is a constant concern for schools and an ever-changing statutory regime and lack of guidance don’t help. With new changes in force since September and more expected this spring, Dai Durbridge offers his advice.

An important change in force since September affects the definition of Regulated Activity, which governs who can work or volunteer with children.

Prior to September the position was relatively simple for schools – all staff and volunteers at a school were engaged in Regulated Activity as long as they undertook the role at least four times in a 30-day period.

In an attempt to scale back those caught by the term, the government changed the definition to exclude supervised volunteers. The practical impact of this change is that schools are no longer required to undertake vetting checks and cannot access the Children’s Barred List to check if the supervised volunteer is barred.

Barred individuals are not allowed to engage in Regulated Activity, but as the role of supervised volunteer is no longer defined as Regulated Activity, those barred from working with children are able to volunteer in your schools. While it is accepted that supervising volunteers can negate immediate risk, what seems to be ignored is the risk of grooming – inappropriate relationships being formed on the school site but exploited far from it.

Most children view an adult in school as trustworthy and in a position of authority and this legal change provides those deemed unsuitable to work with children with an opportunity to engage with them.

We await statutory guidance on how schools are expected to manage this risk, with a consultation due in early 2013. Until that guidance is issued, schools need to make their own decisions on how they manage this potential risk. Some are opting to change their policy to state that all volunteers will be unsupervised, thus allowing them to obtain the appropriate vetting checks. While this may defeat the government’s aim, it is perhaps a sensible option.

December 1 saw the launch of the Disclosure and Barring Service (DBS), the body formed following the merger of the Independent Safeguarding Authority (ISA) and the Criminal Records Bureau (CRB). This sensible move introduces some new safeguarding terminology: CRB checks are now DBS checks and your duty to refer conduct to the ISA is now a duty to refer to the DBS.

In the spring, more practical changes are expected, including making DBS checks portable and providing the individual with a right to seek a review of the content of an Enhanced DBS check. The positive changes are welcomed, but they are accompanied by some risk.

Right of Review

This is a sensible change that allows an individual to challenge the additional information set out in his/her DBS check. So that the cat is kept firmly in the bag, DBS checks will then be sent to the individual only, leaving it for that individual to show the DBS check to the school.

As the school is not receiving the DBS check from a reliable source (the DBS itself, for example), this does open up a risk of fraud and while it is accepted that such a risk is small it will be those with something to hide that seek to exploit it.

A better approach would have been to allow a period of time to elapse once the check has been sent to the individual, after which the check is then sent directly to the school by the DBS. With this change yet to come into force, it is hoped that the government will revisit this change to add in this simple safeguard.

Portability

More positively, DBS checks are set to become portable, with an online system which will allow schools to confirm whether the hard copy DBS check produced by the staff member is still accurate. The online check will operate as a signposting system only, stating that there is “no new information” if the DBS check is accurate or “apply for a new certificate” if there is additional information to add.

This simple system will also afford schools the opportunity to register an interest in their staff and volunteers so that any change in the DBS check are automatically notified to the school. The details are yet to be set out, but this is good progress that will impact positively upon recruitment timescales and staff management.

For 2013 the important next step must be for the government to provide new statutory guidance on recruitment, vetting and barring to replace Safeguarding Children and Safer Recruitment in Education 2007, a document at least two years out of date. From there, let us hope for a period of stability.

  • Dai Durbridge is a partner in the education team at Browne Jacobson and specialises in safeguarding.


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