Changes to the Disclosure and Barring Regime

Following the enactment of the Safeguarding of Vulnerable Groups Act 2006 there were to be dramatic changes made in the world of safeguarding of children and vulnerable adults through the introduction of a new vetting and barring scheme, a key element of which was the registration of all persons who work with vulnerable groups.  However, as with much legislation these days, the provisions of the SVGA were to be introduced gradually over a period of time which tends to cause confusion with those affected by the legislation as to whether certain provisions are yet in force.  Not all the provisions of the SVGA had come into effect by the time the Coalition Government came to power.  In response to criticism that the SVGA went too far in its scope the Coalition Government pledged to reduce the ambit of the vetting and barring system proposed to more “common sense levels” and included provisions in the Protection of Freedoms Act 2012 to “balance the need to deliver effective safeguarding arrangements with protecting and respecting individual’s freedoms”.  We are now left with changes being made to certain provisions in the SVGA, some provisions in the SVGA will now no longer be introduced, and we have certain provisions in the PoFA which have yet to be phased in.  All this continues to create a confusing picture both for organisations employing people to work in the health and social care sector and for people applying for jobs in this sector.  So what is the position at present and what further changes will be made in the course of phasing in provisions from this latest legislation?

A good place to start is to look at what provisions of the SVGA have been repealed by the PoFA and which we can therefore forget about for the future.

  • The scheme to register people who work with vulnerable groups and continuously monitor them for any new criminal record information was never introduced and will not now be introduced.
  • From 10th September 2012 there is no longer a category of controlled activity and so providers will no longer be entitled to check if persons in this category are on the barred list.  This category covered people who generally did not have close contact with children or vulnerable adults such as an administrator.  However it will still be necessary to carry out a CRB check where this is already required.

What changed on 10th September 2012?

  • A key element of the SVGA is that it sets out those activities which a person who is on a barred list must not do.  These are called “regulated activities” (confusingly not the same activities as that term covers under the Health and Social Care Act 2008).  It was estimated that the original definition would, over time, cover more than 9 million people working with vulnerable groups.  The PoFA introduces a new definition of “regulated activities” which focuses on people whose work involves close and unsupervised contact with vulnerable groups.  This is expected to reduce the number of people covered to about 5 million.
  • There is no longer a definition of “vulnerable adult” under the SVGA.  The definition of regulated activity identifies those activities provided to any adult, which if an adult requires any of them, that adult will be considered to be “vulnerable” at that particular time.  Therefore an adult is not considered to be vulnerable merely because of the setting in which the activity is received or because of the personal characteristics or circumstances of the person receiving the activities.  Also, there is no longer a requirement for the activities to be carried out a certain number of times by a person before they are regarded as engaging in regulated activity.  If a person is engaged in any activity covered by the prescribed list of activities then they are engaging in regulated activity.
  • The full list of regulated activities relating to adults can be found on the website of the Department of Health at  This gives helpful examples of how to distinguish when an activity would be regulated and when it would not be.  Providing personal care is a regulated activity but in the case of a beauty therapist visiting a care home once a week to provide manicures to people living at the home who would like them, this is not regulated activity.  However if the manicures are being given to people because they need them and are not able to look after their own nails then this is regulated activity.  People who cook meals in care homes but do not assist people in eating their meals are not involved in regulated activity.  Entertainers who visit care homes and day centres to entertain people are not in engaging in regulated activity.  These examples show how the revisions to the SVGA have reduced the number of people who it is necessary to check do not appear on the barred lists.  It is the responsibility of the provider to decide if a position is a regulated activity and therefore eligible for a check of the adult barred list.
  • For children the full lists of regulated activities can be found on the website of the Department for Education at
  • There is now a minimum age of 16 at which someone can apply for a criminal record check.
  • There are changes to the types of information that the police will be able to provide as part of the enhanced disclosure.  Previously the police released locally-held non-conviction information if they felt the information “might be relevant” to the position applied for by the applicant.  This has been tightened up to what the chief police officer reasonably believes to be relevant for the position applied for.
  • It has been the case that a person can challenge information disclosed on their own criminal records certificate that they believe to be inaccurate.  This right has been expanded so that people other than the applicant can challenge the information as well.
  • A provision in the Police Act 1997 allowed police forces to provide certain sensitive “additional information” (sometimes called “brown envelope material”) about CRB applicants to organisations which information was not made known to the applicants themselves.  This provision has been repealed.  However in practice the police can still provide sensitive information directly to employers under common law powers where this may be necessary to prevent harm to others.

What has not changed?

  • The duty of providers to make referrals to the ISA under the SVGA continues as before.
  • It remains a criminal offence for a provider to knowingly engage any person in a regulated activity (although the definition of regulated activity is the revised one) who has been barred by the ISA.
  • Everybody within the original definition of regulated activity under the SVGA will remain eligible for enhanced CRB checks without barred list information.
  • The Adult First check service will continue to be available for the moment.  It is intended that this will be phased out once the forthcoming Disclosure and Barring Service barred list check service is operational whereby providers will be able to do a check direct as to whether a person is barred.

What further changes are planned?

  • On 3rd December 2012 the Criminal Records Bureau and the Independent Safeguarding Authority will merge into a new organisation called the Disclosure and Barring Service which will perform the same tasks as its predecessors.
  • For CRB checks the government plans to introduce an Update Service early in 2013.  The intention of this service is to allow individuals to apply for a CRB check once and then if they need a similar sort of check again, to reuse their existing certificate, with the organisation engaging them checking online to see if the certificate remains accurate.  This is intended to make the system less onerous for workers and employers by removing the need for unnecessary repeated applications but it will require the employee to subscribe to the service and pay a fee, which the Home Office has said will be “small”!

The onus remains on providers to do their own checks regarding persons they are considering engaging to work for them and to make their own judgement on whether to engage a person or not. The government sees its role more on the side of providing information through the CRB and the ISA to enable providers to make informed decisions.  Ultimately it is the responsibility of providers to use good judgement when recruiting and to monitor the conduct of its workforce, remain vigilant and act quickly when any concerns are raised.

At the time of writing, the DBS website has not been launched but hopefully when it is available it will provide plenty of helpful advice for providers, employees and volunteer workers alike.  The Care Standards Consultancy will bring more news on the DBS once it begins operating.

Chris Mileson

September 2012