There are two barred lists to which people can be added. One relates to people not being deemed suitable to working unsupervised with children and the other relates to work with vulnerable adults. If someone is deemed to pose a risk of future harm to vulnerable groups in such roles, they will be referred to the DBS to be placed on the relevant list(s). People can be added to these lists either via a referral from an organisation, following information that comes to the attention of the DBS following a check, or as a result of a conviction or caution for an autobar offence. If you were convicted of an autobar offence then a decision to added you to the list will be automatic
The DBS will contact you after a referral, notifying you that they intend to bar you and offering you the opportunity to make representations to challenge it. If the barring concerns an autobar offence, DBS will merely notify you of your inclusion on the barred list. Once on a list it is sometimes possible to have this reviewed or to appeal that decision.
Challenging decisions relating to the barring list
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Besides cases of autobar offences, you can make representation to the DBS regarding barred lists either in writing or verbally. This is your opportunity to explain why you believe you should not be added to a barred list. You can also give permission for someone else (e.g. a solicitor or trade union representative) to liaise with the DBS on your behalf.
You cannot use this process to challenge convictions or cautions, unless they have already been overturned and would not now constitute relevant information for the barred list. If you are in the process of appealing convictions or cautions, this can’t be taken into account until that process is completed. Making representations regarding being on the barred list is an opportunity to dispute whether information is relevant, rather than a chance to appeal a conviction itself.
From the point at which you are notified that you’ll be added to the list, you have eight weeks to make representations. You can request an extension, with reasons provided, but this is not granted automatically. If you make no representations to the DBS regarding your inclusion on the list then they will make a decision based on the information they have. It can be hard to navigate the process of making representations, so we would encourage anyone considering doing so to contact our helpline for support.
Government guidance on making representations can be found here.
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There are three ways you can seek to have your place on the barred list(s) reviewed:
- Firstly, if you consider that, within the revised definitions of regulated activity from that date, you are not, have not been or won’t in the future be engaged in regulated activity relating to vulnerable groups, including children. If you later apply for a regulated activity role, you can be added to the list again. Anyone on the list as a result of autobar offences cannot appeal via this route.
- Secondly, if you can provide evidence of new information, a change in circumstances, or an error by DBS.
- Finally, if a minimum period (one year for under 18s, five years for 18-24 year olds, ten years for those 25 and over) has passed since you were added or last had your case reviewed. However, you still have to prove to the DBS that there has been a “material change” (for which there is no specific definition) in circumstances.
None of these routes are an opportunity to challenge things that have already been defined as fact by law (i.e. this is not a chance to appeal previous convictions).
Should you wish to seek a review of your inclusion in the barred list(s) you must make your request in writing quoting your DBS 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. Requests should be sent to: Review Team, Disclosure and Barring Service, PO BOX 181, Darlington, DL1 9FA. The DBS will then decide whether there are grounds for a review.
If 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 your challenge 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.
Government guidance on reviews can be found here.
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You have a right to appeal against most barring decisions, whether you are included in one or both of the barred lists. You cannot appeal autobar cases for which there is no right to make representations against the imposition of a bar. From the decision letter from DBS informing you of their intention to add you to the barring list, you have three months in which to make your appeal. Visit the government webpage here to appeal a decision.
This appeal is through the Administrative Appeals Chamber of the Upper Tribunal in England and Wales. Any appeal may only be made with the prior permission of the Tribunal and on the grounds that the DBS have done one of the following:
- Made an error in law relating to your case
- 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”.
Government guidance on appeals can be found here.
