Your duty to refer to the DBS - Optimus Education · • DBS referral guide for employers and...

Your duty to refer to the DBS

Dai Durbridge, Education Partner

• The law and guidance

• Making a referral

This session

Making a referral

• Case study

• Questions throughout

The law and guidance

Dai Durbridge, Education Partner

The law

• Sections 35-45 Safeguarding Vulnerable Groups Act 2006

• Applies to:• Regulated Activity Providers• Regulated Activity Providers

• Personnel suppliers

• Local Authorities

• Keepers of Registers

• Supervisory Authorities

The guidance

• DBS referral guide for employers and volunteers• V2.0 December 2012

• DBS fact sheets (9 in total)• DBS fact sheets (9 in total)• When to refer

• Decision making process

• Relevant Offences list

• Data Protection

• Reviews

• Appeals

Making a referral

Dai Durbridge, Education Partner

What is the duty?

• Referral must be made when both of the following

conditions are met:

i) The RAP withdraws permission for an individual to engage i) The RAP withdraws permission for an individual to engage

in regulated activity or would have done so had that

individual not resigned, retired, been made redundant or

transferred out of regulated activity because…

What is the duty?

ii) They think that the individual has:

• been cautioned or convicted of a relevant offence

• engaged in ‘relevant conduct’; or

• satisfied the ‘Harm Test’• satisfied the ‘Harm Test’

• Both i) and ii) need to be satisfied for the duty to be

triggered

Key definitions

• Four for us to consider:

– Withdraw

– Relevant offence– Relevant offence

– Relevant conduct

– Harm test

Withdraw

• Does “withdraw” include suspension?

– No, not triggered by temporary suspension

• “investigate and gather sufficient information to establish • “investigate and gather sufficient information to establish

if the allegation has foundation”

• When will that be?

Relevant offence

• 100+ offences all listed in DBS fact sheet 5

• Serious offences, including most sexual offences

• Most unlikely that you will be the first to know that the

individual has the conviction – DBS will already have been

informed

Relevant conduct

• Defined in the Act as any conduct that:

– endangers or likely to endanger child

– if repeated against child would endanger or be likely to

endanger themendanger them

– involves sexual material relating to children

– involves sexually violent images if it appears to the DBS that

the conduct is inappropriate

– of a sexual nature involving a child

Harm test

• Not an exhaustive list, but includes:

– Sexual

– Physical

– Financial– Financial

– Neglect

– Emotional

Psychological

– Verbal

When do you refer?

• “investigate and gather sufficient information to establish

if the allegation has foundation”

• When will that be?• When will that be?

• Does it matter whether it is the harm test or relevant

conduct that is identified?

What if the duty isn’t triggered?

• You can make a referral where the duty is not

triggered but you believe there are concerns but you

do not have the evidence to dismiss

• DBS required by law to consider the referral

The referral form

• New 7 page form supported by 13 pages of guidance

• Relatively straightforward and clear

• In most cases, no additional documentation to create

• Bundle it up, post it off

What about data security?

• Preferred method of passing referral to the DBS?

– DBS do not guarantee the security of emails. Only send encrypted

emails if referring electronically

– Registered post recommended– Registered post recommended

– Do not refer by fax

• Data Protection Act does not stop you providing the

necessary information

What about threats of legal

action?

• Does it make any difference?

– Libel?

– Damages?

– Injunction?– Injunction?

– Other expenses and pointlessly aggressive legal remedy?

• Protected in law as long as you have only included

factual information and reasonable opinion in referral

The outcome

• Will the DBS tell you the outcome?

• DBS not allowed to do so unless you have a “legitimate interest” in the referred individualinterest” in the referred individual

• Do you?

• Don’t forget, it is a criminal offence if you fail to discharge your duty…

Case study

Part one

• Mr Rogers is a teacher at your school. A female pupil has

alleged that Mr Rogers touched her inappropriately at the

end of a lesson

• Having discussed with Mr Rogers some problems the pupil

is having at home, Mr Rogers hugged her tightly and

whispered that he would look after her and that she

should not tell anyone else

Part one

• As a result of the allegation, it is decided that Mr Rogers

should be suspended to allow an investigation to take

place

• Having suspended Mr Rogers, should you make a referral

to the DBS?

Points to consider

• Have the conditions in the two stage test been satisfied?

– Has Mr Rogers been withdrawn from regulated activity?

– If so, is it because you think his actions equate to ‘relevant

conduct’ and/or satisfy the harm test?conduct’ and/or satisfy the harm test?

• Would you refer at this stage?

Part two

• Following the investigation you decide that a disciplinary

hearing is required

• Mr Rogers refuses to attend the hearing, believing you to • Mr Rogers refuses to attend the hearing, believing you to

have already decided its outcome

• You follow your disciplinary procedures and dismiss Mr

Rogers based on the evidence available to you

Points to consider

• What was the reason for dismissal?

• Does that reason satisfy the harm test or equate to

relevant conduct?relevant conduct?

• Have the conditions in the two stage test been satisfied?

Points to consider

– Has Mr Rogers been withdrawn from regulated activity?

– If so, is it because you think his actions equate to ‘relevant

conduct’ and/or satisfy the harm test?

• Would you refer at this stage?

Part three

• You decide to refer, but before you do you receive a letter

from Mr Rogers appealing the dismissal

• What do you do now? • What do you do now?

– Do you carry on with the referral?

– Do you hear the appeal first?

Points to consider

• Have the conditions in the two stage test been satisfied?

• The guidance says:

– “investigate and gather sufficient information to establish if the – “investigate and gather sufficient information to establish if the

allegation has foundation”

• When can you hear the appeal?

– Will it cause delay?

Part four

• You decided to hear the appeal as soon as possible and refrain from making the referral for now

• The appeal is dismissed. The next day you receive a five page letter from Mr Rogers’ solicitor threatening to sue page letter from Mr Rogers’ solicitor threatening to sue the school for defamation, libel and damages if you make a referral

• The letter says that the allegation was false and malicious and the disciplinary process flawed

Points to consider

• Was Mr Rogers withdrawn from regulated activity because

you think his actions equated to ‘relevant conduct’ and/or

he satisfied the harm test?

• Is the test satisfied?

• Does the threat of legal action change that?

Further information

Questions?

Dai Durbridge, Education Partner

talk to us…

Dai Durbridge| 0115 976 6578|

dai.durbridge@brownejacobson.com