8. Regulated Courses

A criminal record can sometimes prevent someone working in certain regulated roles. For some roles, this will depend on the different characteristics of a criminal record. For example, a caution from a long time ago may still be disclosable but would not prevent someone having a successful career in their chosen field. For other roles (particularly those that involve working with children or vulnerable adults) certain offences may result in people being barred from taking up a role.

This means that there may be situations where it is appropriate for a higher education provider to collect information about someone’s criminal record, if they are applying for a regulated course. On rare occasions, people may be excluded from studying a particular course, or they may not be able to take up placements which are a required part of a course. Even in these situations, it is clear that regulated courses will benefit from increased transparency about decision-making. Access to regulated courses could also be improved by positive communication and an understanding of the challenges that might be faced by those with criminal records.

Make sure your approach is non-judgemental and consider the process from an applicant’s perspective. Ensure you are clear about how, when and what someone may need to disclose, and how this will be assessed. You may also need to consider how you support students with their careers. What barriers might be specific to their chosen profession, and where can they get specialist advice?

Lots of those who contact our helpline for advice on this issue do not have a criminal record that would ordinarily pose a barrier to a regulated profession. But they contact us for support, even for very minor infractions, on the assumption that this will mean they are unable to apply. This is indicative of a much wider problem, in which people self-select out of higher education for fear that their criminal record (or other interactions with statutory services) will pose a barrier. The chilling effect can be especially prevalent for access to regulated courses. We go into more detail about the chilling effect here.

How can regulated courses be more accessible?

There are roughly three categories of course that will/ might involve DBS checks:

• DBS check is legally required prior to enrolment
• DBS check required for placement, completion of the course is dependent on this placement
• DBS check for some placements but alternative placements are available with no DBS check

All prospective applicants should be able to find clear information (without having to ask) before applying, about which of the above categories, if any, applies to a particular course. For the third category, the information provided should give details of any steps that can be taken in respect of alternative placements.

Applicants to regulated courses are asked about criminal records on their UCAS application; those applying to regulated courses will be obliged to disclose unspent and spent criminal records that are not filtered. This can mean disclosing old and minor cautions and convictions. Applicants will not have to disclose filtered convictions. Universities must have processes in place to delete and ‘forget’ data regarding convictions that have become filtered during study for regulated professions.

Our advice team have frequently supported regulated degree students who have faced problems when registering to the regulating body for the profession they are entering. This is because their universities have insisted that they must disclose convictions which have become filtered during their studies. This is legally incorrect, and very poor advice, suggesting an urgent need for staff training on criminal record disclosure law. Further guidance on filtering is available here.

Specific, clear guidance for each course

Higher education providers should make clear the specific professional or regulatory requirements for these courses. Simply having a criminal record should not usually be a bar to entry. If there are specific blanket rules imposed by the regulating bodies, these should be made very clear in all course details.

Clear expectations from the outset help everyone involved; applicants can determine what they need to do, Universities can be sure they are collecting the right information that they need. If your policy relies predominantly on the policy of the regulating body of the relevant profession, make sure you direct applicants to this.

To support students, you might consider compiling some short (anonymised) case studies of previous students who have enrolled and completed a regulated course with a criminal record. You can demonstrate to students how the process might look: explain the journey from UCAS to graduation, detailing where and how their criminal record was taken into account. These can be included in materials on your website. For example:

It is important to remember that if a conviction is spent, it is likely to have occurred a longer time in the past than an unspent conviction. Where an applicant is not currently subject to statutory supervision, they will be unable to provide references or information from a prison or probation officer, so assessments of criminal records should not depend on these. Many people will have criminal records that do not relate to a period of supervision at all.

Relationships with placement providers

Do you fully understand the approach of your placement providers to applicants with criminal records? Do they have recruitment policies in place for people with criminal records when recruiting from non-student groups? Consider whether your approach may pose additional barriers to a profession; are you more risk-averse than your partners when assessing criminal records?

There is growing awareness of the value of inclusive recruitment across employment sectors. Statutory, third sector and private organisations are increasingly promoting fair practice to ensure better representation of people with lived experience of disadvantage in the workforce. For example, this charter for employers recruiting those with lived experience into NHS health & justice roles.

It’s possible that placement providers may take a different approach to recruiting people with criminal records than they have in the past. Higher education providers should ensure that they are up to date with the sector as it currently stands. Applicants who may have previously not been accepted by placements may be more welcome now.

Transparency in decision-making

You may decide to reject an applicant because you have assessed that they would be unable to register with the relevant regulatory body for that course. In such cases, you should detail the exact reasoning behind your decision. We hear regularly from people applying to regulated courses who have been turned down by a university because they ‘won’t be accepted by the regulating body’ – but with no further explanation. This leaves applicants in the dark, with several questions unanswered; what about their criminal record was considered unsuitable? Was it the university being more risk-averse than the regulating body might be? Might they be able to apply elsewhere and succeed?

Remember that the process of applying itself can be emotive and stressful for applicants. If someone is unsuccessful, it is best to give clear and detailed reasons for this decision. This can help inform what next steps they might need to take, so that a potentially difficult experience is not wasted.

Lived experience

Some regulated courses may lead to roles which attract and specifically benefit from people with lived experience of certain challenges. We hear from people who want to apply to regulated courses because they’d like to support people facing the same challenges that they have overcome. We hear about this most often for people looking to work in social work, youth work, and mental health nursing.

Providers should take an intersectional approach and recognise that those who have faced disadvantage may sometimes be more likely to have a criminal record. For example, children who are care experienced are disproportionately represented at all stages of the criminal justice system. Providers who are unwelcoming to those with criminal records should consider whether they are losing applicants with vast personal expertise. It should be understood that it is possible for students to sit within multiple widening participation groups and face multiple barriers to access as a result.

Supporting learning for learning’s sake

It’s also important to remember that studying can be an end in of itself. Higher education providers should remember that some applicants may have an interest in a field without wishing to become a practitioner. Where a course would normally lead to someone taking up a kind of regulated activity, is there capacity to design a pathway through that course that does not lead to practice? Consider, for example, the academic value of social work theory as distinct from social work practice. Or, consider someone who studies accountancy to become a bookkeeper, rather than an accredited accountant.