FREQUENTLY ASKED QUESTIONS:
ADVICE TO MEMBERS
JULY 2013
This document is intended to address the issues which commonly arise in relation to CRB checks. Any issues not addressed in this document should be referred to the appropriate NUT regional/Wales office in the first instance.
What is a CRB check?
CRB checks are designed to help employers determine your suitability for appointment. As part of most school and college recruitment processes, you will be asked to apply for an Enhanced Disclosure Certificate from the Disclosure and Barring Service (formerly the Criminal Records Bureau). Your prospective employer - or a registered body, such as a local authority authorised to do so - will process and countersign the application form.
The CRB Disclosure Certificate is a paper document which may include information from local police records, such as acquittals or other non-conviction information. If you have been convicted of an offence in the past, this information may appear on the Enhanced Disclosure.
The Enhanced CRB Disclosure Certificate may also show whether you are barred from working with children and/or vulnerable adults. It may show whether you are barred on the Children’s List and/or the Adults List (both formerly known as List 99).
When will I require a CRB check?
CRB checks were strongly recommended for all school staff who have regular contact with children if they were employed or engaged after March 2002. The only requirement for those appointed before this date is that they must have been List 99 checked.
CRB checks became mandatory for the entire maintained schools’ workforce from 12 May 2006 (September 2003 for independent schools). Staff who took up post from this date must have an Enhanced CRB Disclosure. In the case of FE colleges, it became mandatory from 2007 for colleges to obtain an Enhanced CRB Disclosure for staff providing education.
No further CRB checks are required for any staff unless the person has a break in service of more than three months. There is no requirement for school or college staff employed before March 2002 to have retrospective CRB checks as long as they have been in continuous service. In this context, continuity means no break of service of longer than three months. However, many employers do retrospectively CRB check all existing teaching staff, regardless of the date on which they were first appointed. This is not a practice which the NUT would seek to discourage, although unnecessary, repeated and excessive checking is discouraged and strongly opposed, particularly where teachers are expected to meet the cost of such checks (please refer to the FAQ below).
Must my CRB Certificate be renewed and if so, how often?
The Union has become aware through casework that some employers have a three-year rolling programme of CRB checks. However, there has never been a requirement for a rolling programme of three-yearly checks for staff who have unbroken service (that is, no break of three months or more). The only reference to three-year checks in Safeguarding Children and Safer Recruitment in Education (the DfE’s definitive guidance on the matter) is at Appendix 11, where it is recommended for agency staff. Ofsted, or Estyn in Wales, and the Department for Education have repeatedly pointed out that such routine checks for staff directly employed by a school or college are not required. Ofsted and Estyn have indicated that they will consider such routine re-checks to be excessive, as they go beyond what the law requires or the Government recommends. They will not be considered evidence of good practice and may be considered to represent a poor use of school/college resources.
Do I have to be CRB checked every time I move from one school to another or from one local authority to another?
Since September 2006, supply agencies have been able to pass the results of CRB checks (but not the Certificate itself) between other school supply agencies and between individual schools.
If you have previously been CRB checked, there is no statutory requirement that another CRB check is carried out before taking up a job in a different school, college or even in a different local authority, provided you have continuous service and the check is at the correct level for the new post.
The same applies if you have never been CRB checked due to being in post before 2002, that is, there is no statutory requirement for a check to be carried out, other than a check of the barred Lists.
It is up to the receiving organisation to carry out a risk assessment to assess whether the check is at the correct level for the current role, whether it is accurate and whether they trust the previous organisation to have carried out the check efficiently.
The school, college or local authority should ask for evidence from the previous school, college, local authority or supply agency, that the check was undertaken.
Do I have to be CRB checked if I take a break of more than three months because of maternity, adoption, parental leave or sickness?
The requirement for a CRB check may be triggered by (1) an appointment to a new position or (2) a move to a post which brings a teacher into contact with children, when they have previously not had such contact. Since a return to work after a period of statutory leave is not a new appointment, that is to say, there has been no break in service, a CRB check is not required by law.
The same would be the case where a teacher has been away from school or college on sabbatical when their employment remains continuous.
What is ‘regulated activity’?
‘Regulated activity’ is a legal phrase, which appears in the Safeguarding Vulnerable Groups Act 2006 (as amended by the Protection of Freedoms Act 2012) and refers to activities of a specified nature, or in a specified place, or a defined position of responsibility, and which normally involves unsupervised work with children or vulnerable adults on a frequent, intensive or overnight basis.
The Protection of Freedoms Act 2012 has slightly restricted the meaning of regulated activity in relation to children and has completely changed the meaning of regulated activity in relation to adults. However, these changes are unlikely to have an impact on teachers and college lecturers, who will generally be carrying out work that is classed as ‘regulated activity’.
Why is there a distinction between regulated and non-regulated activity?
Employers have certain legal obligations under the Safeguarding Vulnerable Groups Act (as amended) when they engage a person in regulated activity. These duties include, but are not limited to:
· carrying out an appropriate search of the barred Lists;
· not knowingly allowing a barred person to work in regulated activity;
· referring to the Disclosure and Barring Service (formerly the ISA) anyone they have dismissed or removed from regulated activity because they harmed or posed a risk of harm to vulnerable groups, including children;
· referring to the Disclosure and Barring Service anyone they believe has committed a criminal offence.
Employers will be denied access to the barred Lists unless they can demonstrate that a person is in fact engaged in regulated activity. There is also no entitlement to seek an Enhanced Disclosure where a person is not engaged in regulated activity, although employers may be able to ask for a Standard or Basic Disclosure instead.
Anyone within the pre-September 2012 definition of regulated activity will remain eligible for Enhanced Level CRB checks, whether or not they fall within the post-September 2012 definition of regulated activity, but they will no longer be eligible for List checks.
I have previously lived outside the United Kingdom. Will a CRB check be sufficient?
The DfE’s Safeguarding Children and Safer Recruitment in Education guidance document requires a prospective employer to obtain a certificate of good conduct from the embassy or police force of the country in which you lived, but only if a CRB check has not provided sufficient information. There is a significant cost attached to certificates of good conduct and prospective employers should not ask for them merely because you have lived outside the UK. The NUT takes the view that a blanket practice of seeking certificates of good conduct even in circumstances where a CRB check has provided sufficient information would disproportionately disadvantage job applicants born outside the UK and should be avoided unless it can be justified.
I work in an FE College with students over 18 years old. Do I need to be CRB checked?
The Government’s Safeguarding Children and Safer Recruitment in Education document says people seeking positions providing education in FE colleges where they will be dealing only with students over 18 years of age cannot be subject to a Standard or Enhanced CRB Disclosure, as those positions are not covered by the exceptions to the Rehabilitation of Offenders Act 1974.
How do self-employed teachers go about getting CRB checked?
The Disclosure and Barring Service (formerly the CRB) cannot process Standard or Enhanced Disclosures for self-employed people. If you wish to obtain a CRB Certificate, you will need to register with a supply agency or ‘umbrella body’.
Furthermore, parents or carers who engage self-employed home-tutors do not have to check an individual they wish to engage.
Can I apply for a CRB check without going through my employer or employment agency?
Yes. You may use the services of an umbrella body to obtain a certificate. A list of umbrella bodies (some offering their services for free) may be found by using the search facility at: www.gov.uk/dbs.
Alternatively, you may make a data subject access request to your local police force, which will provide you with up-to-date details of any criminal records in the UK (including non-conviction material) relating to you. A subject access application form can be downloaded from most police force websites. There are links to local police force websites in England and Wales on the ACPO Criminal Records Office website at: www.acro.police.uk.
What sort of information will appear on my CRB Certificate?
An Enhanced Disclosure can disclose:
· details of all convictions, cautions, reprimands, warnings, Discharges (Conditional and Absolute) held on the Police National Computer (PNC);
· results of checks against the Disclosure and Barring Service (DBS) barred Lists;
· any information (including non-conviction information) held by the local police forces that the Chief Officer reasonably believes to be relevant to the application and ought to be disclosed.
As part of the Enhanced Disclosure process, the CRB sends each application to the relevant police forces across England, Wales, Scotland and Northern Ireland. It needs to be understood that the police are not limited to disclosure of conviction information. It is the statutory duty of the Chief Officer of every relevant police force to consider the release of any information that s/he reasonably believes to be relevant and ought to be included on the Certificate, including, but not limited to:
· details of incidents that did not result in police investigation or in prosecution;
· details of prosecutions that resulted in a verdict of Not Guilty;
· information that provides the background to a PNC conviction (such as victim profile; method/weapons used; level of violence; nature of injury/harm inflicted etc.).
What sort of information should not appear on my CRB Certificate?
The Chief Police Officer should not disclose any non-conviction information which s/he does not reasonably believe to be relevant to the purpose for which the Certificate was requested.
Furthermore, from 29 May 2013,the DBS will be removing/filtering certain old and minor offences from Criminal Record Certificates issued from this date.
Convictions obtained more than 11 years ago (where you were 18 or over at the time) will not be disclosed in a Criminal Record Certificate, provided certain conditions are met and the conviction does not relate to any offences contained in a prescribed List.
Any cautions, reprimands or warnings issued six years ago or more (where you were 18 or over at the time) or issued two years ago or more (where you were under 18 at the time) will no longer be disclosed in the Criminal Record Certificate unless they relate to one or more offences contained in the prescribed List. The prescribed List may be found on the DBS website at: www.gov.uk/dbs, together with a summary of the filtering rules and the DBS filtering guidance.
If old and minor convictions, cautions, reprimands and final warnings appear on your DBS Certificate because the Certificate was issued prior to 29 May 2013, you may apply to the DBS to have the relevant entry removed, using the DBS online Certificate Dispute form, which is available at: www.gov.uk/dbs.
Can I start work pending a CRB disclosure?
Yes, you can be appointed and start work pending receipt of a satisfactory CRB Disclosure Certificate, provided it is obtained as soon as possible after your appointment and you are closely supervised in the meantime by someone who has been CRB checked.
Will I get a chance to correct inaccurate or misleading information contained in my CRB disclosure before it’s disclosed to my employer?
Yes, you will. Changes in the law will ensure that a copy of the Certificate is sent to you for checking first before it is disclosed to your prospective employer or registered body, if different. This will ensure that before the Certificate is disclosed to anyone else, you are able to challenge and, if successful, have removed from the Certificate any information which may prejudice the prospective employer’s view of your suitability for the job.
Statutory guidance from the Home Office also requires the Chief Police Officer to seek your views before disclosing information where:
· there is doubt as to whether the purpose for which the Certificate is being requested actually requires the disclosure of certain information;
· you are unaware of or have never had a fair opportunity to answer any allegations made against you;
· there is doubt that an allegation could be substantiated;
· there is doubt as to whether factual information is correct or remains valid;