The Disclosure and Barring Service (DBS): Navigating “Minded to Bar Letters” and Barred List Decisions

The role of the Disclosure and Barring Service (“DBS”) is to help employers make safer recruitment decisions, and the DBS is responsible for maintaining the Childrens’ and Adults’ Barred Lists.

Inclusion upon the List prevents a Barred Person from engaging in “regulated activity” with children and/or vulnerable adults.

Examples of regulated activity include working as a foster carer, a childminder, a healthcare provider, a teacher, and a Registered Manager of a Residential Care Home.

Regulated activity can also include voluntary work.

The receipt of a “Minded to Bar” letter from the DBS can be incredibly stressful, given the strict time limit in which to submit a response, and the consequences, in the event that a Decision to Bar is made.

Within the “Minded to Bar” letter, the DBS will set out their findings, namely why they consider it may, on balance of probabilities, be appropriate to include the recipient’s name upon the Childrens’ and/or Adults’ Barred Lists.

The DBS will also include copies of the information relied upon, when making their findings.

The recipient then has the opportunity to respond, usually within a period of 8 weeks, to explain why Inclusion on the List would be neither appropriate, nor proportionate.

A Decision to Bar can have a catastrophic impact upon an individual’s career and their livelihood, not to mention the associated stigma, reputational damage and lack of enrichment.

It is also important to note that Inclusion upon either of the Barred Lists lasts a lifetime. A Barred Person does have the right to request a Review of a DBS decision, however this is only after a minimum barred period has elapsed. In the case of a person aged 25 or over, the minimum period is 10 years.

A Barred Person can also seek permission from the Upper Tribunal to appeal against a Decision to Bar. However, this is a lengthy and costly process, and an appeal can only be made on narrow grounds, namely that the DBS made a mistake about a point of law, or a finding of fact.

It is therefore essential that written submissions sent in response to a “Minded to Bar” letter are presented clearly and coherently, addressing the fundamental issues and concerns raised by the DBS, and where possible, providing supporting evidence.

Within the space of two weeks alone, through the work of our team here at Blackfords LLP, the DBS have been successfully persuaded not to include the names of four separate clients, upon the Barred Lists.

Examples of previous cases studies are as follows:

Client A

Client A was a General Manager at a nursery franchise who was dismissed from her employment following a misunderstanding relating to another staff member’s competence.  She was offered a role as General Manager of another nursey and proceeded to thrive.  A year later when they renewed her annual enhanced DBS check she was informed that she had been barred from working with children, following a referral made by her previous employer.  Client A had moved house within the year and had not received notice of the DBS Decision, she immediately had to cease employment which had catastrophic financial and emotional consequences.

On Client A’s behalf, an application to provide written representations out of time was made and subsequently written representations and supporting evidence were submitted, addressing the issues and concerns raised.  The DBS were successfully persuaded to remove their name from the list, and they were able to return to regulated activity.

Client B

Client B was a Foster Carer who was referred to the DBS following the conclusion of a police investigation into allegation of an assault against a 3 year old child in their care.  Although the police investigation had not met the threshold for a prosecution, the DBS still had concerns that Client B posed a risk of harm to children.  We were able to address the concerns raised by the DBS within the ‘Minded to Bar’ letter, provide context to the issues raised and satisfy them that Client B did not pose a risk of harm to children.

 Client C

Client C was Responsible Individual in relation to a Residential Care Home, who faced allegations such as failing to ensure that sufficient staff were on duty, and failing to properly oversee the Service.

Within our representations, we were able to demonstrate the action taken and improvements made by our client, providing details of training subsequently undertaken and testimonials from work colleagues, service users and Professionals.

Having reviewed the additional information provided, the DBS were satisfied that Inclusion on the List was not appropriate in the circumstances.

Nicola Mitchard and Annie Lawrence, based at our Cardiff Office, regularly assist clients by drafting written representations in response to Minded to Bar Letters and attaching appropriate documentary evidence in support.

Blackfords LLP can offer assistance with all DBS matters, please reach out to any of our key contacts by calling us on 03330 150150