We have successfully applied to have our client removed from the Disclosure and Barings Services’ (DBS) Barred lists.

The client had been placed on the barred list under the former Department of Education and Skills (DfES) list 99 procedure.

The client had never been convicted of any criminal offence, but was simply the subject of a spurious allegation from over 15 years previously.

The government has significant powers to disclose information, and take barring decisions about individuals, even where no actual criminal conviction has taken place.

If the DBS believe that an allegation made against you is more likely to be true than not, and if it is necessary and proportionate to do so in their view, you will be placed on either the children or adults, or both, barred lists.

Our client had lived for many years under the shadow of the allegation, and the fear that he would be arrested again for a perceived infraction of the barring requirements. Eventually the fear outweighed his concern, and he approached us to try to have himself removed from the list.

After obtaining the file of evidence from various sources, we were able to identify some serious defects in the way the original barring decision had been made. We also argued that continuing to bar our client was disproportionate, unnecessary, and plainly unfair.

We managed to persuade the DBS, within a relatively short period of time, that the client ought to be removed from the children’s bared list.

Now that the client is removed from the barred list, we are now applying for the expungement of all police records related to the allegations.

Even if an accused is removed from the barred list, the police may still disclose information on an enhanced DBS certificate, which can jeopardise an employment opportunity.

We have had significant success in expunging police records, including police cautions.

Along with applying for the expungement of police records, we also have significant success in appealing disclosures of information on enhanced DBS checks.

Please get in touch today to discuss any police records or DBS case. We are often able to offer reasonable fixed fees or competitive hourly rates.

What is considered Regulated Activity with children is a complex area of law and is set out in the Safeguarding Vulnerable Groups Act (SVGA) 2006 Schedule 4.

The rules were significantly amended in 2012 by the Protection of Freedoms Act. The feeling was that SVGA went too far in defining regulated activity and the amendments brought in some practical changes to the law. The government’s new emphasis was in presuming those working with children were to be trusted and that the existing rules over-emphasised protection by the state:

We are scaling back regulated activity to focus on work which involves close and unsupervised contact with vulnerable groups including children. The current definition of regulated activity would, over time, cover over 9 million people; in the new definition, it will be closer to 5 million (Changes to disclosure and barring: What you need to know – HM Government)

We set out some general information below, but we do not include all relevant grounds or information and we do not endorse you taking any action based on this information. The rules are complex and in case you have any doubt please get in touch for advice specific to your case.

Activities

Schedule 4 sets out in detail the situations in which activity is considered regulated. If an activity is not regulated, then there is no entitlement to a DBS barred list check.

Any form of teaching, training or instruction of children or any form of care for or supervision of children if carried out “frequently” or over a certain period and is not “merely incidental” to teaching, training, instruction, care or supervision of persons who are not children is considered regulated activity. What “frequently” is for the purposes of the Act and the “period condition” is explained below.

Any form of advice or guidance provided wholly or mainly for children is regulated activity, if the advice or guidance relates to their physical, emotional or educational well-being of children and is frequent/satisfies the “period condition” unless the care or supervision is merely incidental to care for or supervision of persons who are not children. Legal advice is however specifically excluded.

Moderating a “public electronic interactive communication” likely to be used wholly or mainly by children is regulated activity if frequent/ satisfies the period condition. It is not regulated if the person does not have access to content or contact with users.

If is also regulated to drive “a vehicle which is being used only for the purpose of conveying children and any person supervising or caring for the children pursuant to arrangements made in prescribed circumstances”. The frequency and period condition must also be satisfied.

“Frequently” is defined by the Department of Education as being carried out by the same person once a week or more often. The “period condition” is on 4 or more days in a 30-day period, or overnight. If overnight it only needs to be once and the person carrying out the activity does so at any time between 2 a.m. and 6 a.m, and the activity gives the person the opportunity to have face-to-face contact with children.

Certain activities are regulated and have no requirement for frequency/the period condition.

Providing Personal Care to Children or Health Care

Personal Care is set out in paragraph 1 of the Schedule as the following:

(a) physical assistance which is given to a child who is in need of it by reason of illness or disability and is given in connection with eating or drinking (including the administration of parenteral nutrition),

(b) physical assistance which is given to a child who is in need of it by reason of age, illness or disability and is given in connection with—

(i) toileting (including in relation to the process of menstruation),

(ii) washing or bathing, or

(iii) dressing,

(c) the prompting (together with supervision) of a child, who is in need of it by reason of illness or disability, in relation to the performance of the activity of eating or drinking where the child is unable to make a decision in relation to performing such an activity without such prompting and supervision,

(d) the prompting (together with supervision) of a child, who is in need of it by reason of age, illness or disability, in relation to the performance of any of the activities listed in paragraph (b)(i) to (iii) where the child is unable to make a decision in relation to performing such an activity without such prompting and supervision,

(e) any form of training, instruction, advice or guidance which—

(i) relates to the performance of the activity of eating or drinking,

(ii) is given to a child who is in need of it by reason of illness or disability, and

(iii) does not fall within paragraph (c), or

(f) any form of training, instruction, advice or guidance which—

(i) relates to the performance of any of the activities listed in paragraph (b)(i) to (iii),

(ii) is given to a child who is in need of it by reason of age, illness or disability, and

(iii) does not fall within paragraph (d).

Health care provided by, or under the direction or supervision of, a health care professional is regulated activity.

“Health care” includes all forms of health care provided for children, whether relating to physical or mental health and also includes palliative care for children and procedures that are similar to forms of medical or surgical care but are not provided for children in connection with a medical condition.

Heath care that is not covered is health care not provided by, or under the direction or supervision of, a health care professional. A “health care professional” means a person who is a member of a profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002.

Childminding, namely those working on domestic premises, for reward, with a requirement to register, or under voluntary registration, is a regulated activity.

Fostering is also a regulated activity but exemptions exist in relation to family members of the child in certain circumstances.

 Exceptions

Activity by a person in a group assisting or acting on behalf of, or under direction of, another person engaging in regulated activity in relation to children is excluded. For example, a student helping a teacher.

Teaching, training or instruction of children and any form of care for or supervision of children (other than relevant personal care or of health care provided by (or under the direction or supervision of) a health care professional) is not regulated activity if the person is under reasonable day to day supervision by another person who is engaging in regulated activity. Day to day supervision is defined as being reasonable in all the circumstances for the purpose of protecting any children concerned.

The management or supervision of a person who would be carrying out regulated activity but are excluded due to their supervision, is a regulated activity relating to children.

Family and personal relationships are also excepted; namely any activity conducted in the course of a family relationship, or a personal relationship between friends for no commercial consideration.

Also excepted is a person who supervises a child in the course of the child’s employment. It is however regulated activity if the child is under 16 and it is carried out by an unsupervised person for “whom arrangements exist principally for that purpose.”

Along with defining specific activities, the Schedule to the SVGA also details that activity is regulated activity in relation to children if it is carried out in relation to particular establishments. These are:

•  schools (all or mainly full-time, for children) including alternative provision Academies
• pupil referral units
• nursery schools
• institutions for the detention of children
• children’s homes
• children’s centres in England
• childcare premises (including nurseries).

Slightly different establishments apply to Northern Ireland.

The activity must be frequent and or be according to the “period condition” as above.

The activity must be by the same person, engaged in work for or in connection with the purposes of the establishment and the activity gives the person the opportunity, in their work, to have contact with children.

Exempt is activity by a person contracted (or volunteering) to provide occasional or temporary services but not teaching, training or supervision of children.

Volunteers are exempt if they are under day to day supervision of another person engaging in regulated activity. Day to day management or supervision on a regular basis of a person providing a regulated activity (but for the fact they are supervised) for children is a regulated activity for children. Day to day supervision is defined as being reasonable in all the circumstances for the purpose of protecting any children concerned.

Childcare premises which are the home of a parent  of at least one child to whom the childcare or child minding is provided are exempt.

We are specialist DBS and regulated activity solicitors, if you have a question related to DBS disclosures, DBS barring decisions or any other barring and employment related enquiries, then please get in touch.

We are often instructed to appeal barring decisions, DBS certificates, remove arrest records and police cautions from the PNC, and advise employers on DBS and Department of Education rules and regulations.