Regulated Activity

Any person whose duties are deemed as Regulated Activity must have an Enhanced with Barred list check for either Children or Adults or both. The application process is the same as other checks.

Regulated activity, related to children, includes:

any activity of a specified nature that involves contact with children or vulnerable adults frequently, intensively and/or overnight. (Such activities include teaching, training, care, supervision, advice, treatment and transportation.)
any activity allowing contact with children or vulnerable adults that is in a specified place frequently or intensively. (Such places include schools and care homes, but do not include Universities.)
fostering and childcare.

‘Regulated activity relating to children’ is when the activity is frequent (once a week or more) or ‘intensive’ (takes place on four or more days in a 30-day period).

Regulated activity relating to adults does not carry a requirement to do the activities listed below for a certain number of times. If any of the regulated activities are carried out then a barred list check for adults needs to be applied for. There are six categories within the new definition of regulated activity with adults. These are:

Health care - provided by any health care professional, or under the direction of supervision of one;
Personal care - washing and dressing, eating, drinking and toileting;
Social Work - in connection with Health or Social Services;
Assistance with household affairs - cash, bills, shopping;
Assistance with the conduct of affairs - Power of Attorney/deputies appointed under the Mental Capacity Act;
Conveying an adult - must be for health, personal or social care due to age, illness or disability. This does not include taxi drivers.

Where in the University is there likely to be 'regulated activity'?

The Department for Education (DfE) have advised that regulated activity is likely to take place in relation to HE in the following circumstances:

some students on placements in workplaces arranged by HEIs will carry out regulated activity
HEI staff or students may interact with children in carrying out paid or voluntary outreach work with schools
HEI staff or students may interact with the vulnerable groups through their academic research.
some HEI staff working in HEI health centres or learning support units may work with vulnerable adults

Staff working in student residences will not be covered by the Scheme if care or supervision of students is not an expectation of their role.

Duty to refer

The University, as both an employer and as a provider of professional education, has a statutory duty to notify the Disclosure and Barring Service (DBS) of any individual who may pose a threat to children or vulnerable adults. It is a criminal offence to fail to refer an unsuitable person (employee, student, volunteer) working in regulated activity who has been removed from regulated activity to the DBS for a decision on barring.

The duty to refer is triggered when the University judges:

that an individual has caused harm or poses a risk of harm to the relevant vulnerable group, following the application of its staff or student disciplinary procedures; and
has removed the individual from the workplace, or would or might have removed him/her if the individual has already left. (For example, the duty to refer will apply if an employee resigns before the completion of an investigation if the investigation subsequently establishes that an allegation is not unfounded or malicious.)

Since this is a statutory duty, this overrides normal data protection principles. The University should not wait for the outcome of an internal appeal: it must refer on the basis of its initial conclusion.

The duty to refer is unlikely to apply where a warning is issued and the individual (employee, student, volunteer) is allowed to continue in their role working with children and/or vulnerable adults. Nor will it apply if the behaviour was the result of a lack of professional insight or breach of confidence which are more appropriately issues of 'fitness to practise' which should be referred to a regulatory/professional body rather than the DBS.

For advice on student referrals, Colleges should speak to Ian Blenkharn, Director of Education and Student Experience.

Decisions on staff referrals will be made by the Director of Human Resources who will also be responsible for the referral. College Deans/Heads of Services should discuss with their HR Business Partner whether a referral to DBS is necessary in appropriate disciplinary cases (or cases where an employee resigns before the investigation or disciplinary process is completed).

Colleges and Services are reminded that it is a criminal offence to fail to refer where the duty to refer applies. Individuals as well as the University as a corporate body can be held to be liable.

Implications of barring of staff and students

In most cases, an employee will be dismissed for misconduct before a referral takes place. Exceptionally, an employee may be barred for activities outside of employment, in which case the University must remove the employee from regulated activity. Consideration should be given to whether other suitable work is available or whether to apply the appropriate procedure to terminate the employment.

For students, the Department of Education has advised that, If a student training for work in regulated activity is barred, the HEI is justified in removing the student from that course. Any action to expel the student from the HEI would depend on whether the student’s behaviour had breached the HEI’s internal rules and/or whether the student could transfer to some other course.