DBS publishes Annual Report - Barred list grows by over 4,000

The Disclosure and Barring Service have released their detailed annual report, including granular data for their services provided. Unsurprisingly, Covid-19 has had an impact. 

The report unveils some interesting information, for example that 486,802 Fast Track Enhanced DBS Certificate applications were made for roles to support the Covid-19 response, including 66,720 vaccinators. It also showed that whilst the number of barred individuals grew from 77,921 to 81,941 only 139 appeals were lodged against decisions to place individuals on the barred list, despite the severe ramifications of those decisions. It is not clear from the report how many barring decisions were avoided by the individual making representations against such a decision.

The Disclosure and Barring Service is responsible for providing disclosure and barring functions for the workplace and voluntary sector. It maintains the adults' and children's Barred Lists (of individuals posing a potential risk to children and vulnerable adults) and issues certificates with information (including criminal records) to assist in deciding whether an individual should engage in regulated activity (certain positions of trust).

The Safeguarding of Vulnerable Groups Act (2006) and Protection of Freedoms Act 2012 together created the Independent Safeguarding Authority and merged it with the Criminal Records Bureau to create the Disclosure and Barring Service. The acts also envisaged, but never implemented, a duty to check an individual's barred status and/or obtain a DBS check to ensure that they are appropriate for a certain role. 

Instead, the scheme is enforced through a series of criminal offences designed to prevent barred individuals from working in regulated activities. The following are all criminal offences under the acts; engaging or offering to engage in regulated activity whilst barred from doing so, permitting an individual to engage in regulated activity which you know or have reason to believe they are barred from, and failing to provide specified safeguarding information to the DBS. Sanctions for those offences include unlimited fines and/or up to five years in prison. Where an organisation commits either of the latter offences, both the organisation itself and the officers responsible for the relevant decision may be liable. The DBS is not prescriptive in its remit, and so the scope of those who "engage" in "regulated" activity is ambiguous as a result, as is the definition of  "reason to believe". Deciding whether an individual is engaging in regulated activity is therefore an act of discretion, where many choose to undertake appropriate DBS checks before deciding whether to place someone in any position of trust. 

The above regime, criminal offences and barring implications (as well as options to challenge and appeal) are neither well known nor communicated in clear language. Whilst the purposive approach and wide remit of the DBS assists in achieving its aims of ensuring safeguarding, the ambiguous and retrospective nature of their interventions place a significant burden on many, especially those in industries whose activities may fall either side of "regulated activity". This is complicated further by the difficulties obtaining, handling and justifying DBS checks from a regulatory and data protection perspective. It is therefore disappointing that the annual report shows no intention for major reform to front load those responsibilities by implementing the intended duty or making clear who needs to obtain a check and when.