your duty to refer to the dbs - optimus education · • dbs referral guide for employers and...
TRANSCRIPT
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
