DBS check legislation can be confusing. If you’ve had any experience of applying for DBS checks before, you’ll probably be aware that not everyone can obtain the highest level.
As part of DBS check legislation, there are certain eligibility criteria in place which determine who can apply for the different levels of check.
To answer some of the mysteries of the DBS checking process, this blog will address some of the key pieces of legislation involved, and how they may affect you.
DBS Check Legislation: Defining Spent and Unspent Convictions
One of the key aspects that affects what information will appear on different levels of DBS certificates depends on whether convictions are considered spent or unspent.
The Rehabilitation of Offenders Act (ROA) 1974 and the additional (Exceptions) Order 1975 are the key pieces of legislation that define the difference between spent and unspent convictions. They set out the rehabilitation periods when a conviction becomes ‘spent’, as well as the certain circumstances in which companies/organisations can ask an individual about their spent convictions.
This is known as asking an ‘exempted question’, and only in certain cases can organisations/companies do this. This is what forms the basis of DBS check eligibility.
For a position to be eligible for a standard DBS check it must be included in this piece of legislation. For a position to be eligible for an enhanced DBS check it must be included in both this legislation and the Police Act 1997.
It is also part of this set of legislation which allows an employer to ask an applicant about their unspent convictions.
DBS Check Legislation: Defining Regulated Activity
The definition of regulated activity also forms a key part of DBS checks, as it forms the basis of eligibility for checks against the barred lists.
The Safeguarding Vulnerable Groups Act 2006 set out the scope for the definition of regulated activity and barred lists. “Regulated activity” is a set of roles/activities when working with children and/or vulnerable adults which mean an applicant should be checked to ensure they are not barred from working with vulnerable groups.
This scope of regulated activity was amended by the Protection of Freedoms Act 2012, which also merged the Criminal Records Bureau and Independent Safeguarding Authority together to create the Disclosure and Barring Service.
DBS check legislation states that is a legal requirement to ensure that an individual working in regulated activity with a vulnerable group is not barred from doing so. This forms the basis of a legal requirement of some employers to request DBS checks with barred lists in the recruitment process.
In addition, it is illegal for an individual to see work in regulated activity with a vulnerable group from which they are barred from working with.
DBS Check Legislation: Recent Changes
In recent years, one of the biggest changes to DBS check legislation, aside from updates to eligibility, is the introduction of the filtering process.
This process was introduced in 2013 as an amendment to the Rehabilitation of Offenders Act (ROA) 1974 (Exceptions) Order 1975.
This amendment was introduced in response to a high court case which challenged the right to disclose spent convictions on a DBS certificate even if a significant amount of time had elapsed, and the individual had not re-offended.
As a result, some spent cautions/convictions may be filtered automatically from even the highest level of DBS check as long as they meet the filtering criteria.
The criteria include that they cannot have more than one caution/conviction on record, it cannot have resulted in a custodial sentence, and a significant period of time has to have elapsed before it is filtered. For more information visit the government guidance available here.
DBS Check Legislation: A Summary
As we have seen there are a number of pieces of DBS check legislation which form the basis for the legality surrounding DBS checks. This ranges from basic eligibility to the filtering process, and affects who is able to obtain DBS checks, and what will appear on certificates.
Any questions about eligibility? Contact the DBS directly.
If you’re looking to get started requesting DBS checks, you can register for free today!
Got any further questions? No problem, get in touch – we’d be happy to help.