Regulated activity refers to roles within educational settings that provide access to children and vulnerable adults. That’s why it’s so essential that DBS checks underpin robust Safeguarding within schools and trusts. The level of checks that employees, or prospective employees, require depends on the nature of work and, more specifically, if the work is legally defined as ‘regulated activity with children.’
If you know or have reason to believe, that an individual is barred and allow them to carry out any form of ‘regulated activity’ you will be committing an offence. You could face up to five years in prison if they are convicted, in addition to the reputational damage that your School, Academy or Trust will suffer.
We cannot overstate the importance of clearly understanding this legal definition. As such, you need to ensure that you keep on top of legislative changes, which is something that we can help with through our proactive advice notes and webinars.
Types of DBS checks
There are three main types of DBS checks: standard, enhanced and enhanced with barred list check. However, in an educational setting, the enhanced check is the only option to be used or accepted.
All the checks provide information held on the Police National Computer (PNC) about an individual’s previous convictions, cautions, reprimands and warnings. Additionally, the enhanced check informs employers of any approved information held by the police that is relevant and ought to be released, as judged by the Chief Police Officer.
As well as the above, the enhanced barred list check provides a final observation on whether an individual appears on the children’s barred list. This check should be carried out on people working, or seeking to work, in ‘regulated activity with children.’
Defining ‘regulated activity’
The ‘Keeping Children Safe in Education’ (KCSIE) document details the full legal definition of ‘regulated activity,’ as set out in Schedule 4 of the Safeguarding Vulnerable Groups Act 2006, as amended by the Protection of Freedoms Act 2012.
Some activities are only legally defined as ‘regulated’ if they are undertaken regularly. Others are deemed to be ‘regulated’ regardless of their frequency or supervision, such as residential trips and personal care (including toileting, washing, assisting with eating or drinking).
There are two categories that ‘regulated activity’ can be split into:
Category A
- Teaching, training, instructing or supervising children if the person is unsupervised
- Providing advice or guidance on physical, emotional or educational wellbeing
- Driving a vehicle only for children, e.g. the School bus on a morning and evening.
Category B
Work undertaken for schools and colleges, known as specified places, provides an opportunity for contact with children; this does not include work undertaken by supervised volunteers.
Work undertaken in either category A or B is ‘regulated activity’ if it is done regularly. For this purpose, ‘regularly’ is defined as three or more days in a 30 day period.
KCSIE further states that when a school decides to engage a volunteer who will not be in ‘regulated activity’, they must be supervised by someone engaged in ‘regulated activity’. The School must consider the following to ensure the safety of pupils at all times:
- There must be supervision of a person who is engaged in ‘regulated activity’
- Supervision must be undertaken regularly and on a day-to-day basis
- Supervision must be “reasonable in all circumstances to ensure the protection of children.”
If the work is in a specific place, such as the School premises, paid workers remain in ‘regulated activity’ even if supervised.
DBS process: types of checks for volunteers
Again, the type of DBS checks available for volunteers depends on if they will undertake ‘regulated activity with children’, unsupervised.
An enhanced DBS check with a barred list check is required for those that will engage in ‘regulated activity’. For those that will not, an enhanced DBS check without a barred list check is required, alongside supervision. You can only legally request a barred list check for those who will be engaged in ‘regulated activity.’
KCSIE states that volunteers who are supervised on a regular basis are no longer required to have a full enhanced DBS check with a barred list check. However, schools should complete a risk assessment and use their professional judgement when deciding whether to obtain an enhanced DBS certificate. Safer recruitment guidance recommends this as the minimum check required.
Volunteers who have not had any checks obtained, should not be allowed to work in regulated activity.
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