OG510-2 Charity Trustees: Disclosure and Barring Service

Last reviewed:
1 November 2013
Last updated:
4 February 2016

Policy Statement/Overview

This guidance supplements OG510-1 Charity Trustees: Making and Ending Appointments. It provides information on why and how we carry out Disclosure and Barring Service (DBS) checks once we decide to make a trustee appointment.

We will use the DBS where we appoint trustees to children's charities and charities that carry out regulated activity for both children and adults. Whilst being a trustee is not in itself a regulated activity we will make a check even where the trustee will not be involved in work with beneficiaries, thereby limiting risks to the beneficiaries and the charity. Section E4 sets out our policy in full and the type of checks we can request in different circumstances. 

Our guidance for trustees appointing new trustees for their charities is set out in our guidance CC30 Finding New Trustees: what charities need to know. CC30 recommends as good practice that charities adopt the same policy as the Charity Commission for making checks on trustee appointments. The Commission's policy statement "Protecting Vulnerable Groups Including Children" is also available for trustees on our website and explains about DBS checks and provides links to the DBS website. 

Summary of the guidance

The legal basis for the checks we make is outlined in section E1 of the Legal/ Policy Framework with our policy for applying checks at section E4. Regulated activity is set out at section E2.

Section B3 of Casework Guidance explains how the DBS works and section B4 sets out what we do when making DBS checks. 

The policies for appointment of ex-offenders and maintaining information security are contained at section E5; these are provided in the context of appointing charity trustees in line with the DBS code of practice.  

OG Contents (Site map)

Casework Guidance

B1 When do we make trustee appointments?

OG510-1 provides detailed guidance about making trustee appointments. This guidance considers how and why, when making trustee appointments, we may need to make checks with the Disclosure and Barring Service (DBS).

Our involvement in making trustee appointments will be usually where:

  • legal provisions for making appointments are not available to existing trustees
  • we are working with a charity to update its trusts as part of a scheme
  • we have opened a statutory inquiry and we conclude that new, additional or replacement trustees should be appointed

Occasionally, these situations may include requesting DBS certificates from continuing trustees where we consider that insufficient checks have been made previously. It is not necessary for an inquiry to be open to request a DBS check, however, we must have a legal basis for requesting the check.

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B2 How do we decide if a DBS check is required?

OG510-1 section B3.1 sets out the considerations required for making trustee appointments. They include the need to make appropriate DBS checks where we are legally entitled to do so. Our policy on making DBS checks for trustee appointments is set out at section E4 of this guidance.

The legal position for making the checks centre on the charity carrying out regulated activity and the level of check we require is based on what the trustee will be doing, as follows 

  • Enhanced Checks will be requested where the charity works with children or carries out regulated activity with children or adults but the trustee has no involvement, or no unsupervised involvement, with such activity  
  • An Enhanced Check with Barring Lists will be requested where the charity carries out a regulated activity and where the trustee is involved in any of the following:
    • carrying out trustee duties in a specified establishment or a place where adults are recipients of regulated activity
    • having access to children or adult beneficiaries of regulated activities
    • involvement in the regulated activities as part of their trustee work

Section E2 of this guidance explains what we mean by regulated activity for children or adults. Caseworkers will need to understand what the charity does and the level of involvement by the trustees to ensure we make a DBS check only where we are legally entitled and that we request the appropriate check. It may be necessary to check with the charity in considering whether the charity carries out a regulated activity and whether the trustee will be involved in regulated activity. 

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B3 How does DBS work in relation to the checks we make?

The Disclosure and Barring Service is an executive non-departmental body which reports to the Home Office. It provides information to employers enabling them to make safe recruitment decisions when employing people to work and volunteer with vulnerable groups. Information about the work of DBS can be found on its website.

The way DBS works when we require information about appointing a trustee is:

  • DBS will release information only where there is a properly completed application.
  • Individuals cannot make a request direct to DBS about themselves.
  • DBS accepts applications for checks from umbrella bodies (serving particular sectors) or from organisations registered with them for this purpose, this includes employers who process more than 100 checks a year or regulatory bodies such as the Charity Commission.
  • The Charity Commission is registered with DBS to make applications but its use of this service is limited to checks where we are making the trustee appointment; it is not a service for use by any other organisation via us. 
  • Where a check is required we will ask the individual to complete an application form. 
  • Checks should only be made for successful applicants (the offer of the position should be made conditional upon receipt of a satisfactory check result and make clear that the offer may be withdrawn subsequently in the event of and adverse check result).
  • Individuals are required to provide specific proof of identity (as stipulated by DBS) to us before the application is submitted to DBS.
  • DBS release the information in the form of a certificate that provides any relevant information according to the level of check.
  • The certificate is sent to the individual and that person must present the certificate to us.
  • It is our responsibility to check the information on the certificate to see whether there is any reason why the person should not be employed or appointed.
  • We must explain the reasons where the individual cannot be employed or appointed as a result of the information provided.
  • It is possible that individuals have a DBS certificate already. Where these are presented and are of the correct level and for the right type of workforce (ie child or adult related) we should carry out a Status Check with DBS. Such a check will reveal whether or not the status of that certificate is correct. A new application will be needed where it is indicated that the information on the certificate is not up to date - see section B5 below.

The DBS website has a Guide to DBS Checks explaining the application process and for the Update Service.

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B4 What action do we take if a DBS check is required?

Once we have decided that a DBS check is needed for a particular appointment, caseworkers should:

  • provide relevant details to the I & E Intelligence team, the Intelligence Team will need
    • a CRM case referral for access to relevant details of the case
    • confirmation of the name, address and date of birth of the individual to be appointed
    • confirmation of the level of check required - see B2 

The Intelligence Officer will then:

  • send out the DBS application form with a letter confirming:
    • what documents are needed for proof of identity
    • that only original documents will be accepted for identity purposes
    • what the individual must do next
  • on return of the completed form, make identity checks and ensure proper completion of the form
  • note details of documents used for identity purposes
  • send the completed form to DBS confirming the level of check required
  • return the original identity documents to the individual 
  • monitor progress of the application process via our computer link to DBS

It must be made clear to the individual that he or she will need to present their DBS certificate to us once this is received. In most cases this will be done by post, although it can be done in person where appropriate to the case.

Action will be taken by the caseworker on receipt of the certificate, as follows:

  • ensure they have the original certificate, a photocopy is not acceptable - DBS have guidance about the security features of the certificates  
  • check the information contained on the certificate  
  • consider what bearing it has on making the trustee appointment

Whilst the Intelligence Team makes the application, it is for the caseworker to make the decision about appointment once the certificate is presented. Where we are satisfied that the appointment can go ahead we should make the order in accordance with usual procedures. However, if the information confirms that it would not be appropriate to make the appointment the individual must be told why it cannot be made and case records noted. The record must show sufficient information to explain the decision but not the details of the convictions or barred list information. As such, the recorded information on file will not require protective marking. However, usually such information will not be for disclosure to third parties because of the requirements of the Data Protection Act 1998. (OG720 Data Protection guidance is currently being written)

We cannot keep an electronic copy of the certificate as part of case records. However, a photocopy should be taken by the caseworker and sent to I&E Intelligence Team for recording appropriate details (again, not exact details of convictions or barring). The photocopy must not be kept for more than 6 months.   

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B5 Can we accept a previously issued certificate?

Occasionally, individuals who we wish to appoint may already hold a DBS certificate. The certificate has no set period of validity, it has only a date of issue. Therefore, the information may be unreliable as it is possible that a person's criminal record or other relevant information may have changed since the date of issue. Also, the certificate may be a lower level of disclosure than required for the purpose.  

Before considering an existing certificate we should ask if the Individual subscribes to the DBS Update Service, which allows them to have their certificate kept up-to-date and take it with them from role to role. They must also consent to us making the Status Check. This process can be used quite effectively where an individual volunteers or works with more than one group at the same time. Where the individual subscribes to the service we should carry out a Status Check. This is done by I&E Intelligence Team who are able to access the relevant records with DBS. A caseworker would need to supply the:

  • DBS certificate Number
  • current surname of the certificate holder (as specified on the certificate)
  • date of birth of the certificate holder (as recorded on the certificate)
  • confirmation that the individual has consented to the check 

Before making the check we need to ensure that the certificate

  • is appropriate to the work required, ie child and/or adult related
  • is of the appropriate level, ie Enhanced or Enhanced with Barred List information

The outcome of a valid status check will show one of the following:

  • "This certificate did not reveal any information and remains current as no further information has been identified since its issue" - this means that the individual's certificate contains no criminality or barring information 
  • "This certificate remains current as no further information has been identified since its issue" - this means that the individual’s certificate did contain criminality or barring information and no new information is available
  • "This certificate is no longer current. Please apply for a new DBS check to get the most up to date information" - this means that the individual’s certificate should not be relied upon as new information is now available and you should request a new DBS

We should not rely on an existing certificate without a Status Check. DBS give specific instructions in their Update Service - Employer Guide about getting a copy of the DBS certificate in very particular circumstances. We may wish to consider doing this if we think we have not been given the most up-to-date certificate. 

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Legal/ Policy Framework

E1 Relevant legislation

The Disclosure and Barring Service (DBS) was set up as a result of the Protection of Freedoms Act 2012. It exists to prevent unsuitable people working with vulnerable groups both children and adults. DBS replaced the Criminal Records Bureau and the Independent Safeguarding Authority.

DBS carries out its work by:

  • processing requests for criminal records and barred list checks
  • assessing whether individuals should be placed on or removed from a barred list
  • administering the barred lists by adding individuals to the lists or removing individuals from them.

There are many offences for which an individual can be placed on a barred list, the legislation and the offences that will always be included with DBS checks can be found at DBS website under "Offences that will never be filtered". Other information about disclosure and barring in the education and health sectors can be found on the Department of Education website (in relation to children) and the Department of Health website (in relation to adult care).

The areas of legislation shown below are those with which we are mainly concerned and set out how the DBS operates to protect vulnerable groups, confirm who the vulnerable groups are and what we or charity trustees need to do to ensure we receive the right information about people wanting paid employment, or voluntary positions, with those groups. Whilst we do not use our powers to appoint employees to charities we sometimes appoint trustees who may fall under these provisions.

  • The Police Act 1997 - this Act set out the framework (in the form of the Criminal Records Bureau - CRB) to disclose information about criminal convictions and other relevant information by certificate, to support an assessment of a person's suitability for employment or other role.
  • The Police Act 1997 (Criminal Records) Regulations 2002 - these regulations prescribe the form of application for a disclosure and the form of information to be contained in a certificate, along with setting out certain definitions and fees to be levied for the service.   
  • Safeguarding Vulnerable Groups Act 2006 - this Act set out the framework for a vetting and barring scheme which was, at that time, operated by the Independent Safeguarding Authority (ISA). It provides that people who are on barred lists must not engage in regulated activity and defines regulated activity at Schedule 4.
  • Protection of Freedoms Act 2012 - this Act repeals parts of the previous Acts. Sections 87 and 88 establish a new organisation known as the Disclosure and Barring Service which replaces and combines the functions of the CRB and ISA. The Act also repeals previous provisions that provided for monitoring by the Secretary of State of persons engaged in regulated activity. Restrictions on the scope of regulated activity for children and adults and the restriction of a definition of a vulnerable adult can be found at sections 64 to 66.
  • Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 - this Order acts as a gateway for access to the DBS checking service and lists those occupations, professions and positions that are considered to be exempt from the Rehabilitation of Offenders Act (which allows that in certain circumstances, not all previous convictions need to be disclosed to a potential employer). The types of jobs falling within this Exemption Order include those who work with vulnerable groups such as medical practitioners, dentists, nurses, teachers judicial appointments, youth club workers, prison officers etc. It also includes charities that work with vulnerable groups and reserves the right (from previous legislation) for checks to be made where we make trustee appointments to charities that carry out regulated activity.

Copies of the Acts and Regulations can be viewed on www.legislation.gov.uk.

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E2 What is regulated activity?

Regulated activity is work (paid or unpaid) that a barred person must not do.

It does not include:

  • family arrangements and personal non-commercial arrangements
  • peer exemption - activity by a person in a group assisting another member of the group
  • incidental contact - the activity is not being provided for children and the presence of a child or children is unforeseen

The meaning of regulated activity is different for children and adults and is defined for both groups in Schedule 4 of the Safeguarding Vulnerable Groups Act 2006 as amended by the Protection of Freedoms Act 2012. Being a trustee of a charity working with children or vulnerable adults is not in itself a regulated position. It is only if the trustee has close and unsupervised contact with beneficiaries that their activity is regulated and comes within the scope of an Enhanced and Barred List DBS check.  

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E2.1 Regulated activity - Children

Regulated activity concerns:

  • the activity being undertaken
  • (in some cases) whether or not it is supervised 
  • where it takes place
  • how often it takes place

In general terms regulated activity in relation to children involves work where there is:

  • particular close interaction with children

or

  • (in a specified place) the opportunity for contact with children

Regulated activity types include:

  • unsupervised activities:
    • teaching
    • training
    • instructing
    • caring for or supervising children
    • providing advice/ guidance on well-being
    • driving a vehicle that is only for children

where that unsupervised activity is carried out regularly or intensively~link to E2.2 below:

  • in a limited range of establishments ('specified places') with the opportunity for contact with children, for example:
    • schools
    • children's homes
    • childcare premises

The complete list of establishments of where the regulated activity takes place can be found at Schedule 4 para 3 of the Safeguarding of Vulnerable Groups Act 2006.

Health care provided by, or under the direction or supervision of, a regulated healthcare professional will always be a regulated activity irrespective of the frequency with which it occurs.

Personal care which comprises;

  • physical help with eating or drinking for reasons of illness or disability
  • physical help for reasons of age or disability in connection with toileting, washing, bathing and dressing
  • prompting with supervision, training or advice in relation to the above activities where a child is unable to carry out these activities without prompting or advice

will always be regulated activity irrespective of the frequency with which they occur. 

Apart from the health care and personal care activities the Safeguarding Vulnerable Groups Act allows for some discretion about activities related to children in specified establishments so that they may not be classed as 'regulated' where it relates to taking on volunteers and particular supervision provisions are in place. 

Those provisions are:

  • there must be supervision by a person who is him or herself engaged in a regulated activity
  • the supervision must be regular and day-to-day
  • the supervision must be reasonable in all the circumstances to ensure the protection of children

The discretion is there to provide flexibility for managers of activities to judge what is reasonable in the circumstances. For instance, when using volunteers in helping children to read where there is a supervising teacher or classroom assistant in place. 

In applying such discretion it means that an organisation will have no entitlement to do a barred list check on a voluntary worker who, because he or she is supervised, is not in a regulated activity. The Department of Education provides guidance and examples about applying this discretion, including how to decide if a person is supervised to a reasonable level for the role.  

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E2.2 Frequency with which regulated activity in relation to children is carried out

Work in this context is regulated activity only if done regularly or intensively. "Regularly or intensively" is defined in Schedule 4 according to the activity concerned and means:

  • carried out by the same person frequently or intensively, that is:
    • once a week or more often
    • on 4 or more days in a 30 day period
    • overnight between 2am and 6am where there is opportunity for face-to-face contact
  • where a person does not carry out the activity but their work takes place in a specified establishment with the same frequency as shown above, and they have the opportunity for contact with children whilst carrying out their work.
  • where a person does not carry out the activity but their work takes place in a specified establishment where they provide occasional or temporary services

The Department of Education website provides information about the activities and what regular means in relation to the particular activities.  

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E2.3 Regulated activity - adults 

An adult is a person who is aged 18 or over. Regulated activity with adults will involve one-to-one unsupervised access.

Regulated activity for adults differs with those for children in the following ways;

  • there is no specified establishment condition - the focus is on the activities needed by the adult and not where they take place
  • there is no frequency test - an individual needs to engage in the activities involving the adult only once to be considered as carrying them out

Schedule 4, Part 2 paragraph 7 sets out what is considered as regulated activity in relation to adults; as follows: 

  • healthcare, provided by or under the direction or supervision of, a regulated healthcare professional
  • personal care involving:
    • hands-on physical assistance with washing and dressing, eating, drinking and toileting
    • prompting or supervising an adult with any of these tasks because of their age, illness or disability 
    • teaching someone to do one of these tasks 
  • social work - provision by a social care worker of social work which is required in connection with any health services or social services
  • assistance with an adult's cash, bills or shopping because of their age, illness or disability, arranged by a third party
  • assisting in the conduct of an adult's own affairs under a formal appointment
  • conveying adults for reasons of age, illness or disability to, from or between places, where they receive healthcare, personal care or social work arranged via a third party 

A person whose role includes the day-to-day management or supervision of a person engaging in regulated activity is, themself, engaging in regulated activity. 

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E3 Information held and disclosed by the Disclosure and Barring Service (DBS)

The Rehabilitation of Offenders Act 1974 allows that people with spent criminal convictions do not have to disclose those convictions in a recruitment situation unless the position for which they are applying or are currently undertaking is excepted from the Act, and therefore should be disclosed.

An application for a DBS check is made, at the employer's request, by the person applying for the position. An employer has a legal responsibility to ensure that they are entitled to ask the person to disclose any convictions they may have. The situation can arise only where the position being applied for is listed as an exception to the Rehabilitation of Offenders Act 1974. Those exceptions can be found in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and from the DBS website eligibility guidance.

The type of information held or accessed by DBS is shown in Table 1 below; the types of checks that may be requested are shown at Table 2.

Table 1 - Information held or accessed by DBS

 

Information Type

 

 

Content

 

Legislation

 

Criminal Records

 

 

  • ·          Spent convictions
  • ·          Unspent convictions
  • ·          Reprimands
  • ·          Final warning

 

The information in these records is prescribed by The Police Act 1997(Criminal Records) Regulations 2002

 

Barred List for Adults

 

Barred List for Children

 

 

Automatic Barring (Adults & Children)

  • ·          Cautioned or convicted for a relevant offence
  • ·          Referral from an organisation that has a legal duty or power to make a referral
  • ·          Automatic barring ‘without representations offences’
  • ·          Automatic barring ’with representations offences’ (representations considered and whether person has links to regulated activity)

 

Discretionary barring (Adults & Children)

  • ·          Referrals from organisations where there is a legal duty or power to make a referral to DBS where an employer has dismissed or removed an employee from working in a regulated activity, following harm to a child or vulnerable adult or where there is a risk of harm

 

 

The reasons for inclusion of a person on a barred list are contained in the Safeguarding Vulnerable Groups Act 2006 as repealed by the Protection of Freedoms Act 2012.  

 

Protection of Children Act List (PoCAL)

 

 

 

 

List 99 

 

 

 

 

Protection of Vulnerable Adults (PoVA)

 

PoCAL was a list of individuals considered to be unsuitable to work with Children. The information was maintained by the Department of Health and now forms part of the Barred List for Children.

 

List 99 was maintained by the Department for Education and contained names of individuals prohibited from working in the education sector (not only teachers). The information now forms part of the Barred list for Children 

 

PoVA was maintained by the Department of Health and contained names of those who were considered unsuitable for working with vulnerable adults. The information now forms part of the Barred list for Adults. 

 

 

 

 

PoCAL was set up as a result of the Protection of Children Act 1999.

 

 

 

List 99 was maintained as a result of the Education Act 2002

 

 

 

 

PoVA was maintained under Part 7 of the Care Standards Act 2000.

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Table 2 - Checks that  may be requested

Type of check Circumstances of the request Information disclosed

Standard

A person is applying for a position which is excepted as a result of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 entitling the employer to request criminal records details only. Standard checks form part of an Enhanced Check for a trustee appointment where the individual will be involved with a charity that works with children or carries out a regulated activity for either children or adults. Criminal record (convictions - spent & unspent, reprimands and final warnings)
Enhanced The position being applied for is one which is listed as an exception in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 or in the Police Act 1997 (Criminal Records) Regulations 2002. We would use this check for appointment of trustees to charities that work with children or carry out regulated activities for children or adults but where the trustee is not involved with the work of the charity or carry out their duties in proximity to it. 'Standard' information plus any information held or accessed locally by police that appears relevant to the position in question
Enhanced with Barred Lists Check All those positions as set out for an enhanced check plus regulated activity as set out in Schedule 4 of the Safeguarding Vulnerable Groups Act 2006. These checks will include charities that carry out regulated activity where the trustee has proximity to or is involved in the charity's work. 'Standard' information, locally held or accessed information from the police and information from the adult or children's barred list (as appropriate to the position).
Adult First

This is appropriate for a position requiring a criminal records check by law and a check against the adult barred list. The organisation must also have made a request for the full checks to be done before making the Adult First check. This process enables a person to be employed, under supervision, (depending on the result of the Adult First check) whilst waiting for a full criminal records check.  

Information from the adult barred list plus locally held or accessed information from the police
 

The DBS will make a charge for the checks requested, unless they are for volunteers. Details of those charges are found on the DBS website.

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E4 Our policy for making DBS checks when appointing trustees 

OG510-1 (section B3.1) sets out issues for consideration when appointing trustees; OG510-1 section E1.2 confirms who must not be appointed. 

Our policy on using DBS checks when making trustee appointments is to ensure that we:

  • limit risk to the charity, the beneficiaries and the sector
  • limit damage to public confidence in the sector and the Commission
  • operate in a way that is consistent with our advice to charities 

keypoints

Potential trustees are asked to sign a declaration (SCW1181) confirming that they are not disqualified from acting as a trustee. In all cases where we are making a trustee appointment we will carry out, at least, a Standard check.

Where a charity works with children or carries out regulated activity we will make checks appropriate to the trustee position and the nature of what will be expected of the trustee. If an individual refuses to apply for a DBS certificate as requested we will not make the appointment.

Those checks include:

  • any information we hold locally including the list of removed trustees
  • DBS checks at the appropriate level - see Table 2 above for information disclosed

Standard checks - criminal records information will be provided to us as part of an Enhanced Check (see next category).

Enhanced checks - should be used where the trustee position is for a charity working with children or carrying out regulated activity for children or adults but where the trustee does not engage in that activity and does not operate as a trustee from the charity's premises.

Enhanced Check with Barred Lists - these must be requested where the trustee position is for a charity carrying out regulated activity and the trustee will be involved with the day-to-day work of the charity, has unsupervised access to beneficiaries or carries out their duties in the charity's premises.

The majority of trustee appointments will be made by charities rather than the Charity Commission.We provide guidance for charities making appointments on our website and in our publication Finding New Trustees CC30. We strongly recommend that charities that carry out regulated activity follow our example of asking for the DBS checks even where the trustee will not be involved in the regulated activity.

keypoints

The basic criminal record check can be undertaken on any applicant for work which does not involve working with children. Currently, this service is available to any employer and self-employed people anywhere in the UK but it must be requested through Disclosure Scotland. The DBS plans to offer basic criminal record checks in the future.

 

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E5 Charity Commission registration with DBS

As the regulator of charities the Charity Commission is able to register with DBS, even though our use of their service is infrequent. We pay a registration fee for this service. Being registered allows us to make applications to and checks directly with DBS without having to apply through an umbrella body. It is important to note that we may only use this service in line within the legal provisions that apply to DBS (see table 2 above); it is not a method for us to check every trustee.

As part of the registration we are required to nominate a countersignatory who is required to approve all applications that we make. The countersignatory is a named member of the I&E Intelligence Team. See section B4 for details of how requests must be processed.

As part of our registration with DBS we are required to comply with the DBS Code of Practice. The Code of Practice requires us to have explicit policies on:

  • appointing ex-offenders to ensure we treat all individuals fairly when making trustee appointments

and

  • the way we handle DBS certificate information to ensure DBS certificates and certificate information is handled correctly 

These policies are set out below.

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E5.1 Complying with DBS code of Practice - policy statement on appointing ex-offenders as trustees 

"The Charity Commission is committed to the fair treatment of individuals it considers for appointment, regardless of race, gender, religion, sexual orientation, responsibilities for dependents, age, physical or mental disability or offending background.

This policy is made available to all DBS certificate applicants at the outset of the trustee appointment process.

We actively promote equality of opportunity for all with the right mix of talent, skills and potential and welcome appointments or applications from a wide range of candidates. Having a criminal record will not necessarily bar you from appointment as a charity trustee. This will depend on the nature of the position and the circumstances and background of your offences. We select all candidates for trusteeship when using our powers to appoint based on their skills, qualifications and experience.

In practice this policy is carried out in the following ways:

  • A DBS certificate is requested only after a thorough risk assessment has indicated that one is both proportionate and relevant to the position concerned. For those positions when we are using our powers to appoint and where a certificate is required, all application forms, recruitment adverts and information will contain a statement that a DBS certificate will be requested where the position is to be offered to an individual.  
  • Where a DBS certificate is required as part of the recruitment process we will write to all applicants or those put forward for appointment asking them to provide a current certificate (where it complies with portability requirements) or, if not available, to apply for a new one. This will be done at an early stage in the recruitment process. We require this information to be sent under confidential cover, to a designated person within the Commission, and we guarantee that the information will be seen only by those who need to see it as part of the recruitment process.
  • Unless the nature of the position allows the Commission to ask about an individual's entire criminal record we ask only about unspent convictions as defined by the Rehabilitation of Offenders Act 1974.
  • We ensure that all those in the Commission who are involved in the appointment process have been suitably trained to identify and assess the relevance and circumstances of offences to the position in question. We also ensure that they have received appropriate guidance and training in the relevant legislation relating to the employment of ex-offenders, eg the Rehabilitation of Offenders Act 1974 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975.
  • At interview or separate discussion we ensure that an open and measured discussion takes place on the subject of any offences or other matter that might be relevant to the position. Failure of the applicant to reveal information that is directly relevant to the position could lead to withdrawal of an offer of that appointment.
  • Every subject of a DBS certificate will be made aware of the DBS Code of Practice and we will make a copy available on request.
  • We undertake to discuss any matter revealed in a DBS certificate with the individual before withdrawing a conditional offer of appointment."

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E5.2 Complying with DBS Code of Practice - policy statement on DBS certificate and information processing

"As an organisation using the DBS checking service to help assess the suitability of applicants for trustee positions, the Charity Commission complies fully with the Code of Practice regarding the correct handling, use, storage, retention and disposal of certificates and certificate information. The Charity Commission also complies fully with its obligations under the Data Protection Act 1998 and other relevant legislation pertaining to the safe handling, storage, retention and disposal of certificate information and has a written policy on these matters which is available to those who wish to see it on request.

In practice this policy is carried out in the following ways:

  • certificate information should be kept securely, in lockable, non-portable, storage containers with access strictly controlled and limited to those who are entitled to see it as part of their duties.
  • In accordance with section 124 of the Police Act 1997 certificate information is passed only to those who are authorised to receive it in the course of their duties. We maintain a record of all those to whom certificates or certificate information has been revealed and it is a criminal offence to pass this information to anyone who is not entitled to receive it.
  • certificate information is used only for the specific purpose for which it was requested and for which the applicant's full consent has been given.
  • Once the trustee appointment decision has been made we do not keep certificate information any longer than is necessary. This is generally for a period of up to six months to allow for the consideration and resolution of any disputes or complaints. If, in very exceptional circumstances, it is considered necessary to keep certificate information for longer than six months we will consult DBS about this and give full consideration to Data Protection Act provisions and the human rights of the individual before doing so. Throughout this time the usual conditions regarding the safe storage and strictly controlled access will continue.
  • Once the retention period has elapsed we will ensure that any DBS certificate information is destroyed immediately by secure means, ie by shredding, pulping or burning. While awaiting destruction the certificate information is not to be kept in any insecure receptacle (eg waste bin or confidential waste sack). We will not keep any photocopy or other image of the certificate or any copy or representation of the contents of the certificate. However, notwithstanding this, we may keep a record of the date of issue of a certificate, the name of the subject, the type of certificate requested, the position for which the certificate was requested, the unique reference number of the certificate and the details of recruitment decisions taken."

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Q & A

F1 What is the Disclosure and Barring Service (DBS)?

The DBS is an agency of the Home Office that replaced the Criminal Records Bureau and the Independent Safeguarding Authority. It provides information to employers and other organisations about individuals who have criminal records and who are on lists barring them from working with vulnerable groups. Section E1 sets out more information about the work of DBS and the legislation that underpins it and Section B3 explains the process of getting a DBS check. Information held or disclosed by the DBS is set out at section E3.

F2 When do I need to carry out a DBS check?

We ask for DBS checks where we are appointing trustees to a charity that is involved with delivery of services that are considered to be regulated activity. There are different checks for different levels of involvement with the charity. Section E4 sets out the full extent of our policy on obtaining DBS checks and the types of checks we should request. The nature of regulated activity for children and adults is set out in section E2.

F3 Who carries out the check? 

The I&E Intelligence Team  is responsible for the application process but only by request from the relevant caseworking via a CRM referral. See section B4 about the process for obtaining checks.

F4 What will the checks tell me?

This depends on the level of check required. Section E3 confirms the information that DBS hold and what is information is provided by the different levels of check.  

F5 What do I do if the trustee appointment can't be made because of the information received?

Where the certificate shows information which confirms that the individual is unsuitable to be appointed we must tell them. We must also give the reasons why we can't appoint him or her. This is a requirement of the DBS Code of Practice that we must abide by because of our registration with DBS. See the policy on appointing ex-offenders as trustees at section E5.1.

F6 Do we charge for making the application?

No, trustee appointments are voluntary positions for which no charge is made by DBS. Consequently we do not ask the applicant to pay. The position must be eligible for an enhanced level criminal record check as above and be for a purpose listed in Regulation 5 of the Police Act 1997 (Criminal Records) Regulations as able to check the barred list(s).

F7 What does each type of check involve?

Type of check 

What the check involves 

Positions eligible for this

Standard check Check of the Police National computer records or convictions, reprimands and warnings The position being applied for must be covered by an exempted question in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975
Enhanced check Check of the Police National computer records plus other information held by police such as interviews and allegations. This information must be relevant to the sector and be approved by the police for inclusion on the certificate The position being applied for must be covered by an exempted question in both the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and in Part 5 of the Police Act 1997 (Criminal Records) Regulations [1]
Enhanced criminal record check with children's and/or adul's barred list information Check of the Police National computer records plus other information held by police plus check of the DBS Children's Barred List plus check of the DBS Adults' Barred List The position must be eligible for an enhanced level criminal record check as above and be for a purpose listed in Regulation 5 of the Police Act 1997 (Criminal Records) Regulations as able to check the barred list(s)

[1] This legislation does not provide a list of job roles that are eligible for this check - such a list does not exist. Instead, the Rehabilitation of Offenders Act 1074 (Exceptions) Order 1975 sets out the 'exempted questions' for which a standard check can be obtained. Similarly, the Police Act 1997 (Criminal Records) Regulations 2002 set out the purposes for which an enhanced check can be obtained, and the Police Act 1997 (Criminal Records) (No 2) Regulations 2009 list the circumstances in which an enhanced check will automatically include a barred list check. It is important to note that the Regulations can also remove roles, duties or activities through the removal of an exempted question or of a particular purpose. The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, the Police Act 1997 (Criminal Records) Regulations 2002 and the Police Act 1997 (Criminal Records) (No 2) Regulations 2009 can all be found on the legislation website

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Model Letters and orders

G1 Text for letter or email to prospective trustee asking for initial information

Dear

Proposed appointment as a trustee of [name & number of charity]

Thank you for agreeing to be considered as a trustee of the above charity. This [letter/email] contains important information about action to be taken before this trustee appointment can be made.

The work of [charity name] involves [describe work done] which is a ‘regulated activity’ as defined under Schedule 4 of the Safeguarding Vulnerable Groups Act 2006.Before we appoint trustees to charities that are involved with such activities our policy is to request information from the Disclosure and Barring Service (DBS).

The DBS is an agency of the Home Office which is set up to help employers and organisations make safe recruitment decisions where posts have responsibility for vulnerable children or adults. DBS will run checks which indicate where an individual is unsuitable for such a post. The information is provided in the form of a Disclosure Certificate and is sent to the individual. DBS has access to criminal records and lists which name individuals who are barred from working with vulnerable groups. You can find out more about the DBS and how they work from their website www.gov.uk/dbs. It is against the law for someone to apply for a job or voluntary position where he or she knows that he or she is on a barred list. However, a criminal record in itself is not necessarily a bar to taking up a post as a charity trustee; it will depend on the relevance of the conviction to the work of the charity and the role of trustee.

So that we can proceed with the DBS check we first need to know if you already have a Disclosure Certificate and whether you subscribe to the DBS Update Service. If you do, please send the Certificate to us and confirm whether or not you are a subscriber to the Update Service.

Depending on your response we will take the following action:

  • If you are a subscriber we will make an online check with DBS to confirm whether the Certificate provided is up-to-date or if another application is needed to access the latest information.
  • If you hold a Certificate but are not a subscriber we will ask you to complete the DBS application form so that we can access the latest information. In completing the form you will be asked for proof of identity.
  • Where you do not hold a Certificate we will ask you to complete the application form, which must be returned to us with proof of identity.

Guidance on the DBS website [insert latest link] confirms what documents may be used as proof of identity. We will accept original documents only.

If you do not hold a Certificate please contact me by telephone [details] so that I can send the DBS application form to you as soon as possible, otherwise I await receipt of your Disclosure Certificate.

Yours sincerely

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G2 Text for letter or email to accompany DBS application form

Dear

Proposed appointment as a trustee of [name & number of charity]

Further to my [letter/email] of [date] I enclose the application form for the Disclosure and Barring Service (DBS) check. Instructions for completion of the form are shown on the front page.

Please complete the form and return it to us with your documents showing proof of identity. Documents that may be used for this purpose are [shown on the DBS website at www.gov.uk/dbs / are attached to this letter/ email]. If you do not want to send documents by post we can make arrangements for you to bring them in person to one of the Commission’s offices. To do this, please telephone me on [details] so that we can arrange an appointment.

We will then complete the final section of the form and send it to DBS. Once the application is processed DBS will send you the Disclosure Certificate. On receipt of the Certificate you should send it to [name of caseworker]. [Name] will then contact you about making the trustee appointment or confirm to you why the appointment cannot be made.

I look forward to receipt of the application form by [date]. If you decide not to proceed with this process please let me know as soon as possible so that I can make new arrangements.

Yours sincerely

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