Guidance

DBS barring and referrals: making representations

Updated 11 April 2016

Introduction

This guide will help if you are considering making representations. It’s not intended to be legal advice, but if you need assistance, you should speak with a legal advisor.

If DBS writes to say you may be barred from working/volunteering in regulated activity with children and /or adults, you can make representations. Or you can make representations if you know that a referral has been made about you.

Representations are an important part of making fair, consistent and thorough barring decisions.

DBS makes decisions whether to bar a person from working in regulated activity with children and/or adults where the person has:

• been convicted of or cautioned for certain offences, known as autobar offences (relevant offences in England and Wales)
• harmed a child or vulnerable adult, or when DBS considers the person poses a risk of harm to a child or vulnerable adult

Test for regulated activity

DBS can only consider a person for inclusion in a barred list where the person is, or has been, or might in future be working with vulnerable groups including children, in regulated activity.

You can make representations if you think you don’t meet the test for regulated activity.

The only exception to this is if you have committed an autobar offence, with no right to representations. These are offences where, due to their severity, there is no opportunity to make representations against inclusion in list(s).

What are representations?

Representations are an opportunity to explain why you feel it would be inappropriate or disproportionate for the DBS to include you in one or both barred lists. In certain circumstances, if you are included in both lists, you may be allowed to make representations against your inclusion in one list, but not the other

You will be advised if you can make representations or not when DBS write to you.

It is important that you think about the value of the information and evidence that you are going to supply for representations. For example, if you’re sending in a character reference from a friend as support, it can have a higher evidential value if the friend has knowledge of why you are being considered for a barred list. If the friend doesn’t have this knowledge, the evidential value may be lower.

DBS is unable to assist in preparing your representations. However, you may like to approach someone else, for example a solicitor, carer, family member, trade union representative, professional association or another advisory body to help you.

If you want the DBS to deal with someone on your behalf, you must provide a signed form stating who this should be, giving your permission. Contact the barring team for a copy of this form.

It’s important to understand that making representations doesn’t guarantee that you will not be included in a barred list. But supplying your representations helps DBS to have all relevant information to support fair and balanced decision-making.

As with written representations, oral representations provide an opportunity to explain why you feel it would be inappropriate or disproportionate for DBS to include you in one or both of the barred lists.

You can find out more in the oral representations guide.

Examples of documents for representations

DBS considers all the information you supply as part of the representations process; which can be from a wide range of sources.

The list below is not exhaustive, but will give some examples of the types of information which may be useful for representations:

• explanation of your offending behaviour
• mitigating factors for your offending behaviour
• insight into, or remorse for your offending behaviour
• action taken by you, or courses completed to address your offending behaviour
• pre-sentence reports (e.g. OASys reports, judge’s sentencing remarks, probation service reports, or social services assessments)
• relevant medical reports or assessments from medical experts
• relevant specialist assessments by other professionals
• career history/details
• professional references
• testimonials (character statements)
• errors of fact in evidence

Who can make representations?

Anyone who:

• has had a minded to bar letter from DBS
• has been cautioned or convicted of an autobar offence with the right to make representations (would have received an intended to bar letter)
• knows that they have been referred to the DBS

You can read more about relevant offences, which will give more detail of offences that result in an autobar.

When can representations be made?

You can make representations before you receive a minded to bar letter. However, DBS won’t need to consider your representations until they reach a decision that you may be barred. Most cases are closed (no bar) before they reach this stage.

Once the minded to bar/intended to bar letter is received, you’ll have 8 weeks to make representations (provide evidence or information) about why you shouldn’t be barred.

Representations are then carefully considered by DBS, before making a final decision whether to bar.

If during the representations process DBS is provided with any additional information that is used in the decision making process, the person will be given the opportunity to make comments (representations) about that information as well.

What happens if representations are not made?

There is no legal need for you to make representations, but it’s important you’re aware of what can happen if you choose not to.

Inclusion in a DBS barred list will last for your lifetime; although you are able to request a review after a minimum timescale has passed, depending on your age at the time of inclusion in the list(s).

You can read more in our guidance about barring reviews.

A range of information from a variety of sources will be used to make barring decisions. If you’re convicted/cautioned of a relevant offence or the evidence held by DBS allows us to make certain findings on the balance of probabilities, then DBS will consider whether it is appropriate to include you in one or both lists. DBS do this by carrying out an assessment of risk.

DBS will make a decision about whether you should be included in both, or either of the children’s or adults’ barred lists or should not be barred.

Making representations is an opportunity for you to give your interpretation of circumstances that led to the referral.

If you are cautioned or convicted of an autobar offence (with the right to make representations) and you choose not to, by law DBS has no discretion and must include you in one or both lists, after the 8 week representations period has ended. The list you will be placed in will depend on the circumstances of the offence. This means you will be barred from working in regulated activity with children or vulnerable adults or both.

Transparent decision making

The DBS will give you all the information it intends to use when making a decision whether to include you in one, or both barred lists.

This will happen in one of these ways:

• if you are being considered for inclusion in a barred list, following a referral, you will get a ‘minded to bar’ bundle. This will include a letter explaining why you are being considered for inclusion in a barred list(s). DBS will also tell you what relevant information is being considered in making that decision

• If you have been cautioned or convicted of an autobar offence with the opportunity to make representations; and meet the test for regulated activity, you will get an intended to bar letter. This will explain why you are being considered for inclusion in a barred list(s)

You can provide comments (representations) on the information DBS sends you, but you can’t challenge police cautions or convictions with DBS. This should be taken up with the police or the court system.

You can’t challenge findings of fact which have been made by a competent body such as a professional regulator.

Process timescales

You’ll have 8 weeks to make representations. You’ll also be given an extra 2 days from the date on your notification letter to allow for postage.

If you feel you need more time to provide representations, you should contact the barring team and request a time extension. This will be considered, and may be allowed depending on why you feel that you need an extension.

For effective safeguarding, the DBS needs to make barring decisions as soon as possible. Ongoing extensions for representations won’t be allowed, and we can’t delay progressing a case which is pending an appeal at the Court of Appeal. In these situations, DBS may re-examine your case in light of new information (such as a conviction being overturned at a later date).

Once you have made your representations, it isn’t possible to give a fixed timescale on when a case will be decided. There are many factors that need to be taken into account. For example, we may ask for further information and have to wait for a response from a third party.

What happens next?

You will be notified of the DBS final decision whether to include you in a barred list.

What DBS does with your information?

You can read about this in our data protection and security guide.

Contact the barring team

You can call us on 03000 200 190 if you need help.

Disclosure and Barring Service
PO Box 3963
Royal Wootton Bassett
SN4 4HH