Guidance

Referral duty and power for local authorities and regulatory bodies

Updated 12 June 2018

Introduction

A guide for local authorities and regulatory bodies about the duty and power to refer a person to the Disclosure and Barring Service (DBS).

Local authorities includes Health and Social Care bodies and the Education Authority in Northern Ireland.

Regulatory bodies are the keepers of registers and supervisory authorities listed in the Safeguarding Vulnerable Groups Act 2006 (sections 41 and 43) and the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 (sections 43 and 47).

This guide is not legal advice and doesn’t cover all aspects of referral duty and power. If you need legal assistance, you should speak with a legal advisor.

Power to refer

The power to refer may be used when a local authority or regulatory body is acting in a role other than as a regulated activity provider, for example when undertaking a safeguarding role.

When those bodies use their power to refer a person, they may provide any relevant information to the DBS that they have about the person being referred if both of the following two conditions are met:

Condition 1: the organisation thinks a person has either:

• harmed or poses a risk of harm to a child or vulnerable adult;
• satisfied the harm test; or
• received a caution or conviction for a relevant offence

Condition 2: the organisation thinks that:

• the person they are referring is or has been, or might in the future be working in regulated activity; and
• the DBS may consider it appropriate for the person to be included in a barred list

If a local authority or regulatory body identifies that a person has met the above criteria, it has the power to refer to the DBS.

When an organisation is considering exercising the power to refer, it should make sure that the referral is compliant with the General Data Protection Regulation 2016, Data Protection Act 2018 and human rights legislation. The organisation should seek legal advice if necessary.

Whenever a local authority refers a person to the DBS, they must consider whether they are doing so under the duty to refer or their power to refer.

Examples of when the power to refer applies

These scenarios will assist local authorities or regulatory bodies to identify when a referral can be made under the power to refer.

Scenario 1

Following a child protection investigation, a local authority finds that a parent has harmed a child. The local authority is also aware that the parent is employed by a private day care nursery.

Scenario 2

An adult social care investigation identified that a member of staff working at a privately run care home carried out emotional and physical abuse of elderly residents. The member of staff left during the investigation.

The investigation concluded that if they had not left, the care home would have dismissed them from the role.

Scenario 3

During an investigation by a local authority, it is identified that a teacher at a local academy teaching children was dismissed after the teacher failed to adhere to health and safety procedures. Failing to follow health and safety procedures resulted in the serious injury of 2 children.

Local authorities as regulated activity providers

A local authority is considered a regulated activity provider if:

• they are responsible for the management or control of regulated activity,
• the regulated activity is carried out for the purposes of the local authority; and
• the local authority makes, or authorises the making of arrangements (in connection with a contract of service, or for services otherwise) for another person to engage in regulated activity

This means that the duty to refer applies when the local authority is the employer of staff in regulated activity.

The staff can be employed directly, by contract or through a personnel supplier.

A personnel supplier may be an employment agency, employment business or an educational establishment. An educational establishment becomes a personnel supplier when they make arrangements to supply a student to a regulated activity provider, such as a school.

Referrals, under the duty to refer, should be made on the DBS referral form.

The duty to refer requires the referring person or organisation to supply prescribed information. There are fields on the form for you to provide this.

Duty to refer

Local authorities are under a legal duty to refer where they are the regulated activity provider and they have withdrawn permission for a person to engage in regulated activity, because the person has either:

• harmed or poses a risk of harm to a child or vulnerable adult, or
• satisfied the harm test, or
• received a caution or conviction for a relevant offence.
• this also applies if the local authority would or might have withdrawn permission for a person to engage in regulated activity if the person has not otherwise ceased to engage in regulated activity. This includes situations where the person was re-deployed to a non regulated activity role or resigned or retired

The duty to refer applies regardless of whether another body has made a referral in relation to the same person.

You can read more about harm and relevant offences in the guide making referrals to the DBS.

Examples of when duty to refer applies

Scenario 1

A local authority investigation identified that a care worker employed by them has verbally and emotionally abused service users. The member of staff resigned shortly after allegations were made. It was concluded that had the care worker not left they would have dismissed them from the role.

Scenario 2

Following an investigation by the local authority, it finds that a member of staff working at a local authority run residential home has stolen money from several service users. The member of staff was dismissed as a result.

Scenario 3

Following allegations of abuse at a children’s home run by a local authority, it was identified that a member of staff established an inappropriate relationship with a child who was a resident of the home. The member of staff also took sexually explicit images of the child. The member of staff was arrested and prosecuted.

Duty to provide prescribed information on request

Where the DBS is considering whether to include a person in, or remove a person from, a barred list, it has powers to require a local authority or a regulatory body to provide any prescribed information it holds. Those organisations must comply with such a request.

The information is prescribed in the:

• Safeguarding Vulnerable Groups Act 2006 (Prescribed Information) Regulations (England and Wales) 2008
• Safeguarding Vulnerable Groups (Prescribed Information) Regulations (Northern Ireland) 2009

Those organisations need to supply all the prescribed information they have. If they don’t hold prescribed information, there is no need to create it for the purposes of the referral.

More information about prescribed information is available on the DBS referral form.

Duty to provide information on request

The duty to provide information on request happens when the DBS is considering:

• whether to include a person in a barred list
• whether to remove a person from a barred list

The DBS may need a local authority to provide any prescribed information. It is irrelevant whether the local authority referred under a duty or power to refer before.

How to make a referral

Complete the DBS referral form. It asks for all prescribed information, along with supporting documentation.

Help with referrals

You can call us on 03000 200 190.