DBS Barring – Representations, reviews and appeals

Aim of this information

If you are under consideration for inclusion in either the children’s or adult’s barred lists, the Disclosure and Barring Service (DBS) may offer you the chance to explain why it would be inappropriate or disproportionate for you to be included in one or both lists. This information sets out how you can go about making representations, how to request a review of a decision and how to appeal a decision.

Why is this important?

If an employer or organisation has concerns that a person has caused harm, or poses a future risk of harm to vulnerable groups, they will be referred to the DBS.

As part of the barring decision, the referred person can make representations. It is important that anybody who finds themselves in this situation does make representations to the DBS to ensure that their case is considered in the fairest and most balanced way.

Introduction

If the DBS writes to you to inform you that you may be barred from working/volunteering in regulated activity with children and/or adults, you will be able to make representations. This is an important part of ensuring that fair, consistent and thorough barring decisions are made.

The DBS makes decisions as to whether a person should be barred if they have:

• Been convicted or cautioned for certain offences
• Harmed a child or vulnerable adult or when the DBS considers the person poses a risk of harm to a child or vulnerable adult.

Test for regulated activity

The DBS can only consider a person for inclusion on a barred list where that person is, has been, or might in the future be working with vulnerable groups in regulated activity. You will be able to make representations if you believe that you don’t meet the test for regulated activity. The only exception to this is if you have been cautioned or convicted of an autobar offence with no right to representations.

Making representations

What are representations?

Representations provide an opportunity for you to explain why you feel it would be inappropriate or disproportionate for the DBS to include you in one or both barred lists. You might consider making representations if the DBS informs you that you could be barred from working in regulated activity with children and/or adults. Or you can make representations if you know that a referral has been made about you.

How do I make representations?

It is expected that the majority of people who make representations will do so in writing. However in the interests of fairness and equality, and to protect a persons rights under the European Convention on Human Rights, the DBS have recently introduced a system whereby arrangements can be made to hear oral representations.

The DBS is unable to provide help in preparing individual representations, this will need to be sought from a solicitor, carer, family member, trade union representative, professional association, or other advisory body. If you decide to have anyone other than yourself submit your representations, and you wish for the DBS to liaise directly with another party rather than with yourself, then you will need to enclose written authority signed by yourself to this effect.

What do I say?

When making your representations you may include, but are not restricted to, any of the following:

• An explanation of your offending behaviour.
• Any factors that may mitigate your offending behaviour.
• A copy of your pre-sentence report, Offender Assessment System (OASys) report, Judges sentencing remarks, Probation Service reports or Social Services assessments.
• Any relevant reports from medical experts. Please note that if you decide to provide a report from a medical expert as part of your representations then the DBS may ask you to attend an assessment by an independent medical expert of their choosing.
• Any relevant specialist assessments completed by other professionals
• Details of your career
• Professional references or testimonials
• Why you think you pose no current or future risk of harm to vulnerable groups, including children.

Your representations should not challenge police cautions or convictions unless these have been formally overturned. If you are, at the time of making your representations, also disputing or appealing against your caution or conviction, then this will not be taken into account until such time that the result of that appeal is known. Your representations also cannot challenge findings of fact made by a competent body (A competent body is a professional regulatory body named in the Safeguarding Vulnerable Groups Act 2006 or the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007).

If you include any original documentation that you wish to be returned to you, then you should clearly state this within your representations.

How long do I have to make representations?

The DBS will allow you 8 weeks from the date of their notification letter to you to make your representations. However, if you feel that you need more time you must write to them detailing why you feel an extension is needed. Once they receive your request, they may consider granting such an extension. The DBS is unable to extend the representations period indefinitely and is unable to wait for appeals on cautions or convictions should they be on going. Where new information is subsequently made available (such as the outcome of an appeal hearing), the DBS is able to review the decision in light of the new information.

What happens once I have sent my representations?

Once the DBS receives your representations, the information provided is assessed alongside the other information they hold about you. They may then seek additional information such as police reports etc. Any information that is used to make a decision about including you in a barred list will be disclosed to you so you may make comments before they make a final decision about your case. Upon receipt of your representations, the case is reassessed and a final decision will be made, and you will be sent further written notification of this.

What if I do not make any representations?

You are not under any obligation to make representations but it is important to understand that, if you do not provide any evidence to support your case not to be barred, then the DBS will make a final decision based on the information it already holds on you from elsewhere. Inclusion on a DBS barred list will last for your lifetime unless you appeal or seek review. Making representations is an opportunity for you to give your interpretation of the circumstances that led to the referral.

If you are cautioned or convicted of an autobar offence (with the right to make representations) and you chose not to, then by law the DBS has no discretion and must include you in one or both lists, after the 8 week representations period has ended. The list you are placed on will depend on the circumstances of your offence.

Reviews

There are three powers under which the DBS may grant permission for your inclusion in one or both barred lists to be reviewed.

Where your role does not meet the test for regulated activity

Anyone included in a barred list prior to September 2012 may seek a review at any time if they consider that, within the revised definitions of regulated activity from that date, they are not, have not been nor might in future be engaged in regulated activity relating to vulnerable groups, including children.

Rather than a review of whether you can or cannot undertake regulated activity, this is a review of whether the bar is necessary, given you would not be carrying out regulated activity in the future. You should be mindful that should you be removed from either list purely due to not meeting the test for regulated activity, and in the future apply for a regulated activity role, you may be considered for inclusion on either list.

Note: This power does not apply to those who were barred following automatic barring offences without right to make representations.

Where certain statutory conditions are met

You may seek a review of your inclusion in a barred list at any time if you can provide DBS with evidence of:

1. Information which is now available which was not at the time of your inclusion in the list;
2. Any (material) change in circumstances affecting you since barring ; or
3. An error by the DBS.

Where you request a review after a minimum barring period

Whether you have made representations on initial barring or not, once your case has been concluded you may ask the DBS to review your inclusion in either or both barred lists after a minimum period has elapsed. The minimum period will have been stated in your individual notification letter. These periods are based on your age when barred:

A barred person is required, under this power, to satisfy the DBS that their circumstances have changed since they were initially barred or since they last applied for a review. Evidence of change might include but is not restricted to:

• Specialist assessments
• Reports from medical experts, the Probation Service or any other professional
• Evidence that they have successfully appealed a criminal conviction
• Details of any relevant work (paid or voluntary) they have undertaken since their inclusion in the barred list(s)
• Evidence of a change in personal circumstances e.g. relationship history
• Any factors that might explain what happened
• Testimonials (character statements)

Any supporting statement should not challenge findings of fact made by competent bodies – e.g. statutory regulatory bodies, nor challenge police cautions or convictions.

Irrespective of the grounds for applying, you may only apply for this review with the permission of the DBS and this will only be granted if they think that your circumstances have changed enough to justify a review of your case.

If you do not request a review then you will remain included in the barred list(s) indefinitely.

How to seek a review – Who to write to?

Should you wish to seek a review of your inclusion in the Barred List(s) you should make your request in writing quoting your:

• DBS (or ISA) Reference Number;
• Full name; and
• Full address including postcode

In order to ensure that the request for review is being considered under the correct power (detailed above), you should also state under which of these powers you wish your inclusion in a barred list to be reviewed.

In the event the DBS refuses your request to remove your name from a barred list following review, you may seek to appeal to the Upper Tribunal – but only if this is based on an error of law or a finding of fact. The Upper Tribunal will advise whether or not they will hear your appeal on these grounds. More details about the Upper Tribunal can be found here.

Appeals

There is a right to appeal against most barring decisions, whether you are included in one or both of the barred lists (the only one you cannot appeal is in Autobar cases in which there is no right to make representations against the imposition of a bar). If you feel you have a case to appeal against being place on the barring lists, it is worth appealing. In 2013/14, 35% of people who were permitted to make representations won their appeals (Information from the Independent Review of the Barring Operations of the Disclosure and Barring Service, published July 2016).

This appeal is through the Administrative Appeals Chamber of the Upper Tribunal in England and Wales. There is no right of appeal against the DBS in the event they refuse you a review. Any appeal may only be made with the prior permission of the Tribunal and on the grounds that the DBS have:

• Made an error in law relating to your case; and/or
• Made an error in finding of fact relating to your case.

You should be aware that both the DBS and the Upper Tribunal have emphasised:

“You should note that section 4(3) of the Safeguarding Vulnerable Groups Act 2006 provides that the decision whether or not it is appropriate for an individual to be included in a barred list is not a question of law or fact.”

The Tribunals Service provides a comprehensive and detailed online guide to the entire appeal process here: Appealing to the Upper Tribunal against decisions of the Disclosure & Barring Service. Following appeal to the Upper Tribunal, the Civil Appeals Office is the body to which you would appeal a decision by the Upper Tribunal.

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Useful links

Below you will find links to the useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed below can be found here.

• Disclosure and Barring Service

More information

1. For practical self-help information – More information can be found on Barring (Children’s Barred List and Adult’s Barred List)
2. To discuss this issue with others – Read and share your experiences on our online forum
3. Questions – If you have any questions about this, you can contact our helpline.

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