Unlock comments on the findings of the DBS review

Unlock is pleased that the independent review of the Disclosure and Barring Regime, delivered by the Disclosure and Barring Service (DBS), announced on 24 February 2022 has now been published. We welcome the detailed and thorough approach taken by the review, and the way they responded to evidence presented by the experts by experience, such as Unlock. It is positive that they have considered some of the relevant recommendations by the Independent Inquiry into Child Sexual Abuse (IICSA) and supported proposals that will provide an overall benefit.  

We are disappointed, though, that the review did not address the fundamental complexity of the criminal records system, and how this impacts on the effectiveness of the DBS. For example, the issue of complexity in respect of what level checks employers can carry out was not addressed, even though ineligible checks create a huge problem not just for people with criminal records applying for jobs but for employers as well. In addition, we are concerned about a general trend to increase the number of enhanced checks being carried out, without addressing the current problem of less serious offences showing up on such checks. For example, cautions can still show up, even though they are only used when it is deemed that the offence is not serious enough to be taken to court. 

We set out below our initial response to some of the key recommendations. 

We welcome the recommendation relating to amending the definition of regulated activity to make it more easily understood by those who must apply it. This supports the IICSA report which found the statutory definition ‘complex and difficult for employers to understand.’ Amending it would ensure greater clarity for all involved as well as greater consistency of practice, which would be beneficial for everybody. 

We also welcome the recommendation proposing self-employed people should be able to apply for an enhanced DBS check. This would close an existing gap, which makes it more challenging for people who wish to work in certain roles, including therapeutic ones which are not governed by a statutory agency, on a self-employed basis. Again, greater consistency would benefit everyone, while making sure appropriate checks can be carried out when necessary. However, it is unfortunate that this recommendation did not go further and propose a change so that anyone can apply for their own Standard or Enhanced certificate. This would resolve the current problem of people applying for jobs where such elevated checks are carried out, without being able to find out in advance what will show up on the check. 

We welcome the review’s decision to leave the issue of requiring a birth certificate as part of the identification process for the moment. As noted in the review, there is no evidence that name changing has allowed people to circumvent the identification process, and further, the review agreed that the DBS is not only aware of potential risks but is confident in the current process. Therefore to introduce a requirement at this stage for people to provide their birth certificate for identification purposes would create additional burdens for people without any obvious benefit. 

We are disappointed about the recommendation to make it mandatory for councillors being considered for appointment to any committee involved in decisions on provisions for child or vulnerable adult services to be subject to enhanced checks. While we appreciate the aim of creating consistency of practice, this could be achieved without requiring the higher levels of checks, when there is little evidence to support a need for this to be introduced. Where there is a clear benefit for safeguarding purposes, higher level DBS checks are appropriate, but they should not be imposed without such evidence as they create additional barriers for people with criminal records into certain roles unnecessarily. This is especially relevant for this recommendation, where the review does not clearly indicate what safeguarding risks they think are engaged in these situations. 

We are unclear whether there would be sufficient benefit gained from employers being able to receive push notifications related to employees signed up to the update service, so would be concerned about spending time and money on assessing feasibility where it might be better utilised elsewhere. For example, the changes introduced as part of the Police, Crime, Sentencing and Courts Act 2022 have still not been implemented due to the DBS IT system not being able to accommodate the changes. Implementing the will of parliament should be a priority.  

In respect of the update service, as noted by the review, it is unclear how the current process is working, and why new applications are not being sought in the vast majority of cases where a change is identified. Without understanding how it is working at the moment, it is difficult to say whether any change is needed. There is a risk that introducing push notifications might lead to employers being given information they no longer have a right to – for example when an employee has moved on.  

We also note that the review states employers could require people to register for the update service, but want to make clear this would be inappropriate due to the current restrictions as to who can use the update service. For example, the DBS IT systems currently prevent anyone who has protected cautions or convictions from using the service, as they still require a manual certificate. We would argue that the priority should be to ensure everyone has equal access to the update service before any new changes are considered.   

A full response to the review will be published at a later date.