The Disclosure and Barring Service  (“DBS”) is often mistakenly oversold as a functioning barrier that reliably stops perpetrators working with children and vulnerable adults. It is almost certain the DBS does not see itself in this way. If it works well, it then needs to be part of a functioning safeguarding framework that must include Mandatory Reporting of known or suspected abuse by Regulated Activities in England and Wales. Scotland would also benefit from MR – Northern Ireland has had a form of mandatory reporting since 2005.

The DBS was formed in 2012 by merging the functions of the Criminal Records Bureau (CRB) and the Independent Safeguarding Authority (ISA) under the Protection of Freedoms Act 2012. The DBS started operating on 1 December 2012. It operates from Liverpool and Royal Wootton Bassett. Its equivalent agencies are Disclosure Scotland in Scotland and Access Northern Ireland in Northern Ireland.

It is a legal requirement in the UK for regulated activity employers to notify the DBS if a person leaves or changes their job in relation to having harmed someone. It is an offence for any person who has been barred by the DBS to work or apply to work with the group (children or adults) from which they are barred. It is also an offence for an employer to knowingly employ a barred person in regulated activity with the group from which they are barred.

An organisation which is entitled to ask exempted questions must register with the DBS, or a registered DBS Umbrella Body before they can request a DBS check on an applicant. The applicant applies to the DBS with their application countersigned by the DBS Registered Organisation or Umbrella Body. The applicant’s criminal record is then accessed from the Police National Computer , as well as checked, if appropriate, against lists of people considered unsuitable to work with children and vulnerable people maintained by the DBS (formerly maintained by the Independent Safeguarding Authority). A copy of the completed certificate is sent to the applicant’s home address.

If an individual or organisation has safeguarding concerns regarding a member of staff, they can make a safeguarding referral to the DBS who will work with multiple agencies to assess whether that individual should be Barred from working in regulated activity with children and/or vulnerable groups.

A functioning DBS is an asset, but does it work?

We assert the DBS, its legal framework and its reliability do not bear scrutiny. Much store is invested in this service which has the appearance, to those who bother to look at it carefully, of having been designed to fail. All Regulated Activities, which includes those which are inspected  (e.d. Ofsted, CQC, ISI, etc) as well as those which are uninspected, must secure DBS for certain personnel.

Example : Were I the Chair of an uninspected setting e.g., (i) grassroots football club (ii) a Lawn Tennis Club (iii) a dance school or (iv) scouts, I am mandated under Sect 35 + 37 of SVGA 2006 (as amended 2012) to return a referral to the DBS in circumstances directed by the Act. The Chair, perhaps the PA and/or Company Secretary of the organisation, may be the only people at the club to have some inkling whether I have fulfilled my legal obligation by returning the referral. If I decide not to submit a referral, and in so doing break the law because for example, I have reached a compromise agreement with the alleged perpetrator so as to avoid scandal,  I am permitting the former employee to continue to work in children’s settings unimpeded.  How might my criminal behaviour be discovered in this Regulated Activity?

Such a discovery might come to the attention of the DBS / Local Authority/ Department for Educaton / Department of Culture Media and Sport / The FA / National Governing Body of the respective sport, only years later and possibly as a result of an adult disclosing the abuse they suffered in childhood that prompted the ‘compromise departure’ of the alleged perpetrator. The relative rarity of such disclosures is well understood which means that DBS referral failures are exceptionally hard to expose. In the intervening time between the alleged abuse having occurred and its eventual discovery via the alleged abusee disclosing in adulthood, the potential harm caused to other children stemming from the alleged perpetrator being recycled cannot be measured.

Section 38 (1)b and (2) of SVGA 2006 ‘Duty to provide information’ states that a person found guilty of failing to make a referral to the DBS is liable on summary conviction to a fine not exceeding level (5). But the question one needs to ask of all the Regulated Activities is – who initiates a complaint, to whom, and how does it lead to prosecution? Law without enforcement is useless.   

Surprising as it may seem, it is not the DBS which is a quango and not a prosecuting authority. Certainly not the Local Authority, nor the Department for Education nor Department of Culture Media and Sport because they are also non-prosecuting bodies, nor the National Governing Bodies of Sport. No one prosecutes, despite the seriousness of the crime. So it would appear that this law is counterfeit. What does it say about politics that it is prepared to entertain counterfeit legislation in this safety critical application? 

To go yet further. In 2008 St Benedict’s school Ealing was inspected by the Independent Schools Inspectorate – safeguarding was given a positive report. Six months later an unannounced visit was commissioned by the DfE and safeguarding was roundly slated. Highlighted in the emergency inspection was the absence of referrals having been returned to the Independent Safeguarding Authority (as the DBS was then named). Since the late 50’s it has always been law to submit a referral to the ISA and its forerunners, which in Education was called the ‘Teacher Misconduct Section.’

Relevant extract from the Independent School Inspectorate report:

‘At the time of the follow-up inspections, the school did not have a fully established policy for reporting directly to the Department for Education and Skills or to the Independent Safeguarding Authority, responsible for such referrals since 20 January 2009. The advisability of making such referrals is now clearly understood even when there may not be a strict legal obligation to do so’

The extract reveals that not even the inspectorate realises a referral to the TMS was law. But then schools safeguarding inspection is in a very poor state and there is no political will at the DfE to do anything about it.

There was no attempt to bring anyone to book either at the school or the school’s owners for recycling abusers.  One, a former teacher called Skelton was eventually jailed for abusing at another school at which he subsequently taught following his dismissal from St Benedict’s. This setting was included into the Catholic investigation undertaken by the Independent Inquiry into Child Sexual Abuse. An article from the Sunday Times on publication of the IICSA report.

Regulated Activities can unknowingly employ recycled perpetrators because the system is so limp. The reliability of the DBS is therefore in question. The shortcomings can of course be addressed, but there is an absence of political will as this unfortunate Times article by Jenni Russell reveals. This was about the time that damage was being done to the DBS by the Protection of Freedoms Act which was a triumph of dogma over safeguarding need. We wrote about it here