I think this is an area, a bit like First Aid, where we assume that we know what we are talking about, based on what we have always done, or what others have told us, or what we have had inferred to us, without actually investigating and gaining all the facts, this is true for me as the director of SFA, CIC I have had to register myself and the company to carry out DBS checks for staff.
However, I became aware that all organisations, businesses voluntary organisations or group of people who want to request a DBS check on you have to prove that the job you are applying for is either, for Standard Checks, on the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975. And for Enhanced Checks the position you are applying for must be included in both the ROA Exceptions Order and in the Police Act1997(Criminal Records) regulations. Not only that To be eligible to request a check of the children’s or adults barred lists, the position must be eligible for an enhanced level DBS certificate as above and be specifically listed in the Police Act 1997 (Criminal Records) regulations to able to check the appropriate barred lists
Levels of criminal record check available
To be eligible for a standard level DBS certificate the position must be included on the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975.
To be eligible for an enhanced level DBS certificate the position must be included in both the ROA Exceptions Or der and in the Police Act1997(Criminal Records) regulations.
Enhanced checks with children and/or adults barred list check(s)
To be eligible as an organisation to request a check of the children’s or adults barred lists, the position must be eligible for an enhanced level DBS certificate as above and be specifically listed in the Police Act 1997
(Criminal Records) regulations as able to check the appropriate barred lists
So as a consequence it’s useful to know what a regulated activity is, i.e. one that requires the person to obtain a DBS certificate in order to prove that they are eligible to work in at the regulated activity.
The new definition of regulated activity
(i.e. work that a barred person must not do) in relation to children comprises, in summary:
(i) unsupervised activities: teach, train, instruct, care for or supervise children, or provide advice/ guidance on well being, or drive a vehicle only for children;
(ii) work for a limited range of establishments (‘specified places’), with opportunity for contact: e.g. schools, children’s homes, childcare premises. (Not work by supervised volunteers);
Work under (i) or (ii) is regulated activity only if done regularly: “regularly” is defined in detail on the following pages under items (a) to (f).
HM Government is publishing statutory guidance on supervision of activity that would be regulated activity if unsupervised.
(iii) relevant personal care, e.g. washing or dressing; or health care by or supervised by a professional;
(iv) registered childminding; and foster carers
Therefore the organisation has a legal duty to not request a DBS in relation to any work that is:
2. Irregular with different groups of children
3. Working at different establishment
Now what is regular?
1. Sole, unsupervised Teaching or training or education is once a week over a but and over 4 occasions in a month
Exception – if this work is supervised no DBS is required
2. Sole care or supervision once a week and over 4 days in a month
Exception – if this work is carried out and supervised no DBS is required
You have the right to request the DBS to prevent the processing of your application under the Data Protection Act 1998, principle 6
“Personal Data should be processed in accordance with an
It is imperative and the law that those who are requesting you to provide your DBS and other certifications are acting within the law to do so other wise it is a contravention of your privacy and not only that they are breaking the law by requesting this information.
If you are working self employed as a Forest Schools Practitioner as a one off in a school environment or for two sessions a month or even three, then you do not require a DBS and the School is not at liberty under Data Protection to ask you for one. If you work with another adult person and are under supervision or watchful eyes then you do not need one. They would be breaking the law as it is a non-regulated activity that you are offering. If you are ‘employed’ by them, i.e. you are on their payroll then you do fall under the regulated activities and they can ask you to apply for a certificate.
Similarly if you work with vulnerable adults, in you role as a Forest Schools Practitioners in the woodland or other outdoor setting, you will only require a DBS in that instance if you are responsible for their personal hygiene and other toileting or private matters (e.g. assisting with issues re menstruation) unsupervised. What this means is that if there is a parent or other care giver or personal assistant with them, their personal hygiene is carried out by themselves or by another then you are NOT required in law to obtain or show a DBS certification and it is illegal for that organisation to ask you to provide one. If you are employed by a care home, a residential or other set up and on their pay roll then you may be required to hold one. You must check.
The organisation in order to request DBS certification and to apply for one has to prove that they are eligible BY LAW to do so, i.e. they have to provide documentation to the autorising body (representing the government) that the Rehabilitations of Offenders Act 1974 is complied with and if an enhanced check is required then the Police Act 1997 (criminal Records) regulations.
It is not simply a case of, well we al have them, we all need them, and this is what we have always done. It is a very serious legal situation and one where those we employ are protected by law and that their data is personal and that we will only ask for checks when they enter into a Regulated Activity where a check is required.
Gone are the days of months and months of waiting, checks now are taking in the region of 5 to 10 days, so an activity that was not regulated and becomes one, by the time the DBS is needed for UNSUPERVISED work then the practitioner, volunteer, parent, employee can apply very quickly.