Can I really be added to the DBS Barred List?

Ruth Peters, specialist Disclosure & Barring Service solicitor considers some of the questions we are frequently asked by clients regarding potential inclusion on the DBS Barred List such as in relation to historic allegations and ‘false allegations.’

Can the DBS consider ‘false allegations’?

Referrals to the Disclosure and Barring Service in relation to potential inclusion on the barred list can often arise following notification of no further action by the police. Typically referrals can arise on a discretionary basis when an individual makes an application for an enhanced DBS and details of a previous allegation manifests. Whilst referrals are made to the DBS following convictions or cautions, referrals can also be made on a discretionary basis following allegations often arising from incidents in the workplace. Typically referrals may be made in relation to individuals working in care homes, schools, voluntary organisations and more. Often organisations have a duty to refer individuals to the DBS for barring consideration following incidents that have triggered safeguarding processes. The following organisations can make referrals to the DBS: local authorities, health and social care trusts, education authorities in Northern Ireland, keepers of registers in England, Wales or Northern Ireland, supervisory authorities in England, Wales or Northern Ireland,  and regulated activity providers. Organisations who are not included in this list can still refer individuals to the DBS if they have any concerns regarding safeguarding issues. When the prosecution are making a decision as to whether to prosecute an individual they make reference to the Code for Crown Prosecutors. When deciding whether there is enough evidence to charge, prosecutors must consider whether evidence can be used in court and is reliable and credible, and there is no other material that might affect the sufficiency of evidence. The CPS must be satisfied there is enough evidence to provide a “realistic prospect of conviction” against a defendant. The DBS however have different considerations and use a civil standard of proof known as ‘the balance of probabilities’.

I was found not guilty at court – surely this means they can’t include me on the Barred List

In criminal courts the burden of proof is referred to as ‘beyond all reasonable doubt’. Effectively this means if there’s any doubt then the court should acquit you ie. find you not guilty. However the Disclosure & Barring Service use the civil standard of proof known as ‘the balance of probabilities’. There is a very small difference between succeeding on the balance of probabilities and failing on the balance of probabilities. If the evidence is such that the the DBS can say “we think it more probable than not,” the case succeeds, but if the probabilities are equal, the case fails. This means therefore the DBS can still consider barring following not guilty verdicts. However, it is likely that there would be a large amount of information/evidence/documentation for the court case that could be used within the representations to assist you. As an example, Olliers have dealt with a number of rape acquittals previously and successfully utilised comments made by the Judge in summing up together with providing defence witness statements within the representations. We have avoided inclusion on the barred ist for many of our clients following not guilty verdicts.

Can the DBS consider historic convictions?

Yes the DBS can and do consider historic allegations. it is not unusual for clients to receive an intention to include in barred list’ letter many many years after a conviction. The reason for this is that the DBS can only consider inclusion on the Barred List when they reasonable believe that an individual has previously, is currently or might in the future be engaged in regulated activity with children and/or adults. It may therefore be the case that an individual was convicted of an offence many years ago but at that point not engaged in regulated activity. If they then  change career and apply for an Enhanced DBS Check in relation to becoming engaged in regulated activity that would then trigger a referral to the DBS in relation to the historic conviction.

I only accepted a caution so I could go home

Unfortunately when considering inclusion on the Barred List the DBS cannot go behind a conviction or caution i.e. they cannot take into account your denial of the allegation and will operate on the basis that the offending behaviour giving rise to the caution or conviction actually took place. The DBS is required by legislation to regard convictions, police cautions and  findings of specified ‘competent bodies’ as facts in their decision-making. A list of competent bodies whose findings cannot be challenged with the DBS, can be found here.

Am I restricted from working whilst the DBS consider my case?

No. Unless you have already been added to the barred list without your knowledge and are now making late representations, there are no restrictions on you by the DBS in terms of working within regulated activity. There may however be other restrictions placed on you by other professional bodies e.g the NMC or the TRA. You may also have a duty to inform your employer that the DBS are considering barring.

I’ve been added to the Barred List – does that mean I can’t see my grandchildren?

Not at all. Inclusion on the barred list concerns restrictions on undertaking what is known as ‘regulated activity’. There is specific guidance on what constitutes regulated activity specifically in relation to children and also in relation to adults.  Inclusion on the barred list does not affect simply seeing  and associating with children within your family (or indeed not within your family). Any activities carried out in the course of family relationships and personal non-commercial relationships are excluded from regulated activity. You can also find more guidance here.

I didn’t know I was on the Barred List – what can I do?

We are frequently contacted by clients who have only become aware their name was included on the Barred List many years later following an application for a DBS Check. This may have come about due to the DBS contacting an individual for representations at an old address and the same never being received. If the DBS did not receive representations when an individual was contacted and your name was subsequently included in one or both barred lists you may ask the DBS for permission to make late representations. You will need to explain to the DBS why you did not make representations at the time of the original request, for example, you did not receive a ‘minded to bar’ letter and therefore were unaware of the same. Olliers have helped many clients in such situations and submitted late reprevsntoins and been able to successfully have clients removed from the barred list.

I have been barred. What does this mean?

It is a criminal offence to engage or seek to engage in regulated activity or regulated work with the group from which you are barred. If you are currently engaging in regulated activity with vulnerable groups including children, you would be committing a criminal offence if you continue to do so. You should discuss the situation with your employer immediately.

• If you are included in the children’s barred list, you are not allowed to engage in regulated activity with children (anyone under 18 years of age) in England, Wales or Northern Ireland. You are also not allowed to carry out regulated work with children in Scotland.
• If you are included in the adults’ barred list, you are not allowed to engage in regulated activity with adults in England, Wales and Northern Ireland. You are also not allowed to carry out regulated work with protected adults in Scotland.

How can Olliers Solicitors help me?

The Disclosure and Barring Service will afford individuals the opportunity to make representations that they ought not to be included on the barred list and it is crucial that individuals do submit such representations to the DBS. At Olliers we have significant experience of successfully avoiding inclusion on the barred list in relation to many of our clients. We have successfully avoided inclusion on the barred list for many of our clients following allegations in the teaching sector,  care home industry,  medical sector, voluntary sector and many more. It is crucial that you deal with the representations effectively as there is no automatic right of appeal in these cases.

Specialist Minded to Bar Lawyers

For more information please see the following articles:

• I’ve been NFA’d – is that the end of the matter?
• DBS Minded to Bar Representations 
• I’ve been placed on the DBS Barred List – can I appeal?

Contact Olliers’ DBS barred Iist lawyers

For a no-obligation confidential discussion contact Ruth Peters to discuss how we can help you further.