1. Safeguarding Legislation and DBS Checks
By Christine Jackson and Laura Heeley

2. Background: Previous Legislation
Safeguarding Vulnerable Groups Act 2006 (“SVGA”)
Introduced the Vetting and Barring Scheme
“Regulated Activity” / “Controlled Activity”
Registration
Barring
Referring
Checking
CRB Checks
Worked alongside the SVGA

3. Protection of Freedoms Act 2012 (“PFA”)
Received royal assent on 1st May 2012
The PFA removed from the previous SVGA regime:
Controlled Activity
Registration and monitoring requirements
Additional information on CRB disclosures

4. Key Changes affecting the Sport Sector
The PFA introduced four changes that will have an impact on organisations in the sport sector:
1. New definition of Regulated Activity
2. Applicant only/Single Certificate
3. Updating Service (portability?)
4. Merging of the ISA and CRB to form DBS
In addition:
The DBS shall have a minimum age limit of 16.
Police must use a more rigorous “relevancy” test.

5. 1. NEW DEFINITION OF REGULATED ACTIVITY
What did the old law say?
Contact with children which is:
of a specified nature (teaching, training, care, supervision, advice, treatment or transport) OR
in a specified place (schools, children’s homes and hospitals, juvenile detention centres)
Happens frequently (once a week or more often)
Happens intensively (four days a month or more) or overnight

6. Contact with children which is:
of a specified nature (teaching, training, care, supervision, advice, treatment or transport) OR
in a specified place (schools, children’s homes and hospitals, juvenile detention centres)
Happens frequently (once a week or more often)
Happens intensively (four days a month or more) or overnight
The contact is “unsupervised”

7. Why is this relevant to you?
3. You are required by law to refer an individual to the DBS if you remove them from a Regulated Activity if they have harmed or pose a risk of harm to a child or vulnerable adult.
1. You may only request barred information on individuals “IN” Regulated Activity.
2. You must not knowingly employ a barred person in Regulated Activity.

8. Supervision PFA section 64(5):
“such day to day supervision as is reasonable in all the circumstances for the purpose of protecting any children concerned.”
What this means is left for you to decide.
The government has issued statutory guidance to help:

9. Statutory guidance
Is the individual supervised “on a regular basis” by a person who themselves is in Regulated Activity?
Consider:
the ages of the children (including whether ages differ widely);
the number of children an individual is working with;
whether or not other workers are helping to look after children;
the nature of the individual’s work (or, when in a specified place, the individual’s opportunity for contact with children);
how vulnerable the children are; and
how many workers would be supervised by each supervising worker.

10. Example 1
“Mr A helps coach children at his local cricket club. The children are divided into groups, with assistant coaches like Mr A assigned to each group. The head coach oversees the coaching, spends time with each group and has sight of all groups for most of the time.”
© Department for Education / Department of Health, Social Services and Public Safety (Northern Ireland), September 2012

11. Example 2
“Mrs B works as an ASA chaperone at club and county level. The ASA defines the role of chaperone as follows:
to act as a “responsible parent” for child swimmers;
to ensure their general care and well-being while on trips; and
to discuss any child welfare issues with the Welfare Officer and to assist the Welfare Officer as requested in child safeguarding matters.
The role may take place at home or away from the club base or at events which involve overnight stays.
Mrs B will work with other club officers but will not have any single person watching her or directing her in her role. Mrs B acts in this capacity twice a week.”
© Sport and Recreation Alliance, March 2013

12. Example 3
“Mr C is the sole member of staff working with a group at a sports club. The Director of the facility is present in the building and occasionally attends the session. The group change into their sports kit at the facility. A 15 year old boy with mild learning difficulties has expressed an interest in attending the session.”
© Sport and Recreation Alliance, March 2013

13. Example 4
“A dance club runs an annual concert with children aged 6-12 participating. The dance sessions leading up to the concert start in October and occur weekly up to the concert in December.
Adult members of the club are present to provide demonstrations of moves for the children. These adult members are acting in a teaching and training capacity but are always supervised by the two dance instructors present for each of the classes. One is the Director for the concert and one is the Choreographer.
The Director and Choreographer jointly run each rehearsal although they sometimes rehearse with separate groups within the class at opposite ends of a large hall.”
© Sport and Recreation Alliance, March 2013

14. How will this affect you?
You still can ask for a DBS check on individuals.
You cannot ask for a barred list check on individuals unless they are in Regulated Activity i.e. “unsupervised”.
You should have an appropriate definition of “supervision” for your organisation.
You still must refer an individual to the DBS if you remove them from Regulated Activity because they have harmed or may potentially harm a child or vulnerable adult.
You should decide how to communicate to your membership who will be defined in Regulated Activity.

15. 2. APPLICANT ONLY / SINGLE CERTIFICATE
What did the old law say?
When an individual requested a CRB disclosure for a role in an organisation two disclosures were released by the CRB: one to the individual and one to the organisation.
What has changed?
From Spring 2013 only one copy of the DBS disclosure will be released and this will be sent to the individual.
This means organisations will be relying on individuals to send the disclosure on to them.

16. the individual applies for the new disclosure; and
Exception
In respect of individuals who are in regulated Activity, you may request a copy directly from the DBS where:
You become aware that a disclosure is no longer current and you ask the individual to request a new disclosure;
the individual applies for the new disclosure; and
21 days have passed since the disclosure was issued to the individual and you still have not received it from them.

17. What can you do next?
Where the disclosure is clear of information you will have to decide whether or not you want to ask the individual to send the disclosure to you (NB there may be errors on the disclosure).
Where there is content on the disclosure you will want to have procedures in place which allow you to see this in order to assess whether the individual can take up a role in your organisation.
You will have to decide when you will require an individual to send in their disclosure and how long you should wait or chase them for it.

18. How will this affect you?
You will need to put in place rules and regulations that set out:
how you will get disclosures from individuals;
when you will require individuals to pass disclosures on to you;
how you will ensure individuals do not take up Regulated Activity roles without you first inspecting their disclosure; and
how long you will wait for a disclosure before you suspend an individual from involvement in your organisation.
You will need to decide whether you continue to manage decisions on disclosures centrally.
Consider using an umbrella body to obtain easier access to information concerning when disclosures have been issued.

19. 3. UPDATING SERVICE (PORTABILITY?)
What did the old law say?
An individual holding several roles that required a disclosure was required to have separate disclosures for each of their roles with different organisations.
What has changed?
In Spring 2013 a new system will be introduced which individuals can choose to join, allowing them to hold one disclosure for multiple roles.

20. How will this work?
The individual will be issued with a disclosure and then will need to choose to join the Criminal Records Status Check (“CRSC”) scheme.
A member of the CRSC scheme will be issued with a disclosure and a unique number.
The disclosure can be shown to multiple organisations, who can check that it is up-to-date by logging on to a portal and using the unique number.
The portal will tell you when a disclosure is not current, but not what information needs to be updated. You would need to ask the individual to request a new disclosure and then send it to you.

21. Limitations Dependent on membership.
Different disclosures will still be needed for different types of work.
It is up to you to monitor the portal to ensure that disclosures are current.
You won’t know if the content you see on an existing disclosure is tailored for a specific role or if there are omissions.
The Government will charge an annual subscription fee of around £10 to those individuals wishing to become members of the CRSC scheme (although the scheme will be free for volunteers).

22. How will this affect you?
As the CRSC scheme is optional you will need to find a way of managing two systems where some individuals’ disclosures can be checked for updates and others’ cannot.
You will need to decide how often you will check existing disclosures on the portal to ensure that they are up-to-date, and whether this will be done manually or with a computer system.

23. 4. MERGING OF THE ISA AND CRB TO FORM THE DBS
On 1st December 2012 the CRB merged with the ISA to form the Disclosure and Barring Service (“DBS”).
From 1st March 2013, only DBS application forms will be processed.
The services provided have not changed other than being provided under a new name and logo.
There are some changes to terminology and all documents will be rebranded with the DBS logo.

24. Terminology “Barred List Check”
Belongs to the DBS and is a check against the list of individuals barred from working in Regulated Activity. As such, organisations may only request barred list checks for individuals who will be working in Regulated Activity.
“DBS Enhanced Check”
Includes a check of the Police National Computer (“PNC”) and any local police information, using the “relevancy test”. It will not tell you whether or not a person is barred, although it may well reveal information on which a barring decision was made.
“DBS Standard Check”
A check of the PNC, not appropriate for anyone working with children or vulnerable adults.

25. Eligibility for DBS Checks
As discussed earlier, those individuals that are in Regulated Activity are eligible for both a DBS enhanced check and barred list check.
The SRA has provided a flowchart to help you to determine when individuals are in Regulated Activity and which DBS checks are available in different scenarios. Everyone should have a copy in their hand out pack.

26. Key Things to Take Away
Be mindful of the new definition of “Regulated Activity” and when you may ask for a barred list check.
You should have an appropriate definition of “supervision” for your organisation.
You need to review your rules and regulations in light of the fact that from now on only one copy of the DBS disclosure will be released and this will be sent to the individual.
Be mindful of the new CRSC scheme currently being introduced as you may have to manage two systems for CRB disclosures.
You will need to decide how often you will check on the CRSC portal whether existing disclosures are up-to-date.

27. Workshop locations