1. Introduction
This guidance has been written in response to changes to the Safeguarding Vulnerable Groups Act 2006 and referrals to the DBS, which came into force on the 10 September 2012 and to ensure that any disclosure of information complies with the Data Protection Act 1998 and any other appropriate legislation.
2. Referrals to the DBS
The Council as an employer has a duty to refer a person to the DBS if the criterion for referral has been met. In addition, the Council has a power to refer in relation to child protection and adult safeguarding.
Duty to refer
Where the Council is the employer or manager of a volunteer who is engaged in ‘regulated activity’, either paid or unpaid, they have a duty to make a referral to the DBS when the required conditions for referral have been met.
The criterion for referral is met when the Council:
‘Withdraws permission for a person to engage in regulated activity, or would or might have done so had the person not otherwise ceased to engage in regulated activity because they have:
a) Harmed or poses a risk of harm to a child or vulnerable adult;
b) Satisfied the harm test; or
c) Received a caution or conviction for a relevant offence.’
When making a referral, the Council is required to provide the prescribed information identified in the Safeguarding Vulnerable Groups Act 2006 (Prescribed Information) Regulations 2008.
If any documents are to be disclosed to the DBS which are not covered by these Regulations, approval must be given from Legal Services and if Strategy/Case Conference minutes are to be disclosed, approval from the Chair of the meeting.
Final approval to release any documentation to the DBS must be obtained from the appropriate Head of Department.
When making referrals under the duty to refer, Managers must complete the Approval Form attached as Appendix 1.
Power to Refer
The Council has the power to refer to the DBS when it is not acting as a regulated activity provider and this would normally be when the Council is undertaking its safeguarding role.
The power to refer would apply if the following conditions are both met:
‘The first condition is that the Council thinks a person has:
a) Harmed or poses a risk of harm to a child or vulnerable adult;
b) Satisfied the harm test; or
c) Received a caution or conviction for a relevant offence.
The second condition is that the Council thinks:
a) that the person they are referring is or has been, or might in the future be engaged in regulated activity; and
b) that the ISA may consider it appropriate for the person to be included in a barred list.’
As there is no legal duty to provide information under the power to refer, there is no exemption from the requirements of the Data Protection Act 1998. Managers must therefore, when considering the release of information under the power to refer, ensure that any disclosure is made in accordance with the Data Protection Act 1998 and any other relevant legal requirements i.e. Human Rights Act 1998.
Managers making referrals under the power to refer must complete the Approval Form attached as Appendix 2. This includes obtaining the approval from Legal Services for the release of any information in connection with this referral, approval from the Chair of Strategy/Case Conference Meetings if minutes are to be released and the approval from the appropriate Head of Department.
Further guidance from the DBS on the Council’s referral duty and power and Data Protection and Security can be obtained via the attached links:
https://www.gov.uk/disclosure-and-barring-service-criminal-record-checks-referrals-and-complaints#referrals-and-barring
3. Release of Information to a third party in connection with a referral to the DBS
There may be occasions when the Council is asked to provide documents to a third party to assist in their referral to the DBS in their role as the ‘regulated activity’ provider.
On these occasions, Managers must complete the Approval Form attached as Appendix 3, prior to any release of any information. As the Council is not under a duty to provide this information, any disclosure will be subject to the requirements of the Data Protection Act 1998. It is therefore important that Managers obtain the necessary approval from Legal Services and the appropriate Head of the Department prior to the release of any information.
4. Referrals to the Care Council for Wales and the General Teaching Council for Wales
The Council has a duty under the Care Standards Act 2000 and the Education Act 2002 to make referrals to the appropriate Regulatory Bodies if certain criterion has been met. In addition, the Council has signed up to the Protocol for co-operation, joint working and information sharing between the Care Council for Wales and Local Authority Employers of Social Care Workers in Wales.
The Education (Supply of Information) Regulations 2009 provides a list of the relevant paperwork which should be included with any referral to the General Teaching Council for Wales.
All disclosures are subject to the requirements of the Data Protection Act 1998.
Attached as Appendix 4 and 5 are Approval Forms, that must be completed prior to the release of any information to the Care Council for Wales or the General Teaching Council for Wales.
5. Letter to other Organisations advising them of their duty to refer
Attached as Appendix 6 is a draft letter that should be issued to external organisations following a Strategy Meeting/Case Conference advising them of their duty to refer information to any Regulatory Body and/or the DBS if appropriate.
APPENDIX 1
APPROVAL FORM FOR THE RELEASE OF INFORMATION TO THE DISCLOSURE AND BARRING SERVICE (DBS) – (As a regulated activity provider)
Personal Details:
Name of Individual:
Date of Birth:
NI Number:
Details:………………………………………………………………………………………………………………………………………………………………………..
In accordance with the Safeguarding Vulnerable Groups Act 2006, the Safeguarding Vulnerable Groups Act 2006 (Prescribed Information) Regulations 2008, and as a Regulated Activity Provider and the Council’s duty to refer, I confirm:
1) This referral has met Condition One for referral YES/NO
(Permission has been withdrawn for a person to work in regulated activity)
2) This referral has met Condition Two for Referral YES/NO
· the Person has been cautioned or convicted of a relevant offence; or
· the Person has engaged in relevant conduct in relation to children and/ or vulnerable adults; or
· the Person has satisfied the Harm Test in relation to children and/or vulnerable adults
Please delete as appropriate
3) This disclosure of information is in line with the Data Protection Act, which permits the disclosure of personal data without consent in circumstances where such disclosure “is necessary for the exercise of any functions conferred on any person by or under any enactment”. (DPA 1998, Schedule 2, paragraph 5(b); Schedule 3, Paragraph 7 (1) (b))
YES/NO
4) In addition to the documents required by the DBS under a duty, I agree to the following documentation also being sent:
i)
ii)
If any additional documents are to be sent which are not required under the Council’s duty, approval must be given by Legal Services and if Strategy/Case Conference Minutes are to be sent, approval must also be obtained from the Chair of the meeting.
Has approval for these documents to be sent been obtained? YES/NO
Name of person(s) who approved…………………………………………
Date(s) approval given………………………………………………………
Based on the above, I give approval for the required information to be disclosed to the DBS.
Signed:
Statutory Director of Social Services
Or
Head of Lifelong Learning
Dated:
APPENDIX 2
APPROVAL FORM FOR THE RELEASE OF INFORMATION TO THE DISCLOSURE AND BARRING SERVICE (DBS) – (As a Local Authority in their safeguarding capacity)
Personal Details:
Name of Individual being referred:
Date of Birth:
Details:………………………………………………………………………………………………………………………………………………………………………..
In accordance with the Safeguarding Vulnerable Groups Act 2006 (as amended on 10 September 2012) and the Council’s power to refer, I confirm:
1) This referral has met Condition One for referral YES/NO
· The Council thinks this individual has, 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
Please delete as appropriate
2) This referral has met Condition Two for Referral YES/NO
(The Council thinks that this individual is or has been, or might in the future be engaged in regulated activity; and that the DBS may consider it appropriate for the individual to be included in a barred list)
3) This disclosure of information is in line with the Data Protection Act, which permits the disclosure of personal data without consent in circumstances where such disclosure “is necessary for the exercise of any functions conferred on any person by or under any enactment”. (DPA 1998, Schedule 2, paragraph 5(b); Schedule 3, Paragraph 7 (1) (b))
YES/NO
4) Approval has been given by Legal Services for the release of this information
YES/NO
Name of person who approved…………………………………………….
Date approval given…………………………………………………………..
5) Approval has been given by the Chair of the Strategy Meeting/Case Conference for the release of Strategy/Case Conference Minutes (if applicable)
YES/NO
Name of person who approved……………………………………………...
Date approval given…………………………………………………………..
Based on the above, I give approval for the required information to be disclosed to the DBS.
Signed:
Statutory Director of Social Services
Dated:
APPENDIX 3
APPROVAL FORM FOR THE RELEASE OF INFORMATION TO A THIRD PARTY IN CONNECTION TO A REFERRAL TO THE DISCLOSURE AND BARRING SERVICE (DBS)
Organisation requesting the information……………………………………….
Name of Individual being referred………………………………………………..
Reason for the release of the documentation:
……………………………………………………………………………………………………………………………………………………………………………………
Document(s) to be released:
Title of Document / Date of DocumentThis disclosure of information is in line with the Data Protection Act, which permits the disclosure of personal data without consent in circumstances where such disclosure “is necessary for the exercise of any functions conferred on any person by or under any enactment”. (DPA 1998, Schedule 2, paragraph 5(b); Schedule 3, Paragraph 7 (1) (b))
YES/NO
Approval has been given by the Chair of the Strategy Meeting/Case Conference for the release of this information (if applicable) YES/NO
Name of person who approved……………………………………………………...
Date approval given…………………………………………………………………..
Approval has been given by Legal Services for the release of this information.
YES/NO
Name of person who approved……………………………………………………...
Date approval given…………………………………………………………………..
Based on the above, I give approval for the required information to be disclosed to …………………………………………………………………………...
Signed………………………………………………………………………………….
Statutory Director of Social Services
Dated………………………………………………………………………………….
APPENDIX 4
APPROVAL FORM FOR THE RELEASE OF INFORMATION TO THE CARE COUNCIL FOR WALES
Personal Details:
Name of Employee:
Date of Birth:
NI Number:
Details:………………………………………………………………………………………………………………………………………………………………………..
In accordance with the Care Standards Act 2000 and the Care Council for
Wales requirements, I confirm:
1) This referral has met one or more of the conditions for referral YES/NO
· The worker has been dismissed; or
· the Council has become aware of a health condition that may contribute to or affect the worker’s registration; or
· the Council has commenced a disciplinary investigation on a matter which it feels may affect the worker’s registration; or
· the worker has been suspended whilst waiting for the outcome of a disciplinary hearing; or
· the Council has become aware of a criminal charge or conviction against the worker; or
· other circumstances which the Council feels may affect the worker’s registration
Please delete as appropriate
2) This disclosure of information is in line with the Data Protection Act, which permits the disclosure of personal data without consent in circumstances where such disclosure “is necessary for the exercise of any functions conferred on any person by or under any enactment”. (DPA 1998, Schedule 2, paragraph 5(b); Schedule 3, Paragraph 7 (1) (b))
YES/NO
3) The registered social care worker is aware of this referral
YES/NO
4) Approval has been given by the Chair of the Strategy Meeting/Case Conference for the release of Strategy/Case Conference Minutes (if applicable)
Name of person who approved………………. …………………………….
Date approval given………………..…………………………………………
5) In cases where the employee resigns prior to a Hearing and has not seen sight of the disciplinary papers or if misconduct is not proven, approval must be given by Legal Services for the release of information to the Care Council for Wales
Name of person who approved………………..…………………………….
Date approval given……………….………………………………………….
Based on the above, I give approval for the required information to be disclosed to the Care Council for Wales.
Signed:
Statutory Director of Social Services
Dated:
APPENDIX 5
APPROVAL FORM FOR THE RELEASE OF INFORMATION TO THE GENERAL TEACHING COUNCIL FOR WALES
Personal Details:
Name of Employee:
Date of Birth:
NI Number:
Details:………………………………………………………………………………………………………………………………………………………………………..
In accordance with the Education Act 2002 and the requirements of the General Teaching Council for Wales, I confirm:
1) This referral has met the conditions for referral YES/NO
(The Council has dismissed a registered teacher, or might have dismissed a registered teacher had he or she not resigned on the grounds of misconduct; professional incompetence; or conviction of a relevant offence)
2) This disclosure of information is in line with the Data Protection Act, which permits the disclosure of personal data without consent in circumstances where such disclosure “is necessary for the exercise of any functions conferred on any person by or under any enactment”. (DPA 1998, Schedule 2, paragraph 5(b); Schedule 3, Paragraph 7 (1) (b))
YES/NO
3) Approval has been given by the Chair of the Strategy Meeting/Case Conference for the release of Strategy/Case Conference Minutes (if applicable)
Name of person who approved……………….…………………………….
Date approval given………………..…………………………………………
4) In cases where the employee resigns prior to a Hearing and has not seen sight of the disciplinary papers or if misconduct is not proven, approval must be given by Legal Services for the release of information to the General Teaching Council for Wales