28. Since at least 1921, the Department for Education has maintained a list of those declared unsuitable to teach, known as ‘List 99’.[1] The process of barring adults from working with children and the body responsible for maintaining the list of barred adults and sharing information with schools have gone through several changes over the years.
29. Since 2012, decisions about barring unsuitable adults from working with children in schools and in other settings in England and Wales have been the responsibility of the DBS. The DBS took over the barring functions of the Independent Safeguarding Authority (ISA). The ISA was created by the Safeguarding Vulnerable Groups Act 2006, which passed into law following the Bichard Inquiry, in response to the murder in Soham of two girls by the caretaker of their primary school. Prior to the ISA, barring decisions were determined by the Secretary of State for Education for inclusion on List 99, and by the Department of Health for inclusion on the ‘PoCA list’ of those barred under the Protection of Children Act 1999 from working with children. Anyone who was placed on the PoCA barred list was automatically added to List 99.[2]
30. The scheme for barring and disclosure set out by the Safeguarding Vulnerable Groups Act 2006 was amended considerably by the Protection of Freedoms Act 2012. The stated aim of the Protection of Freedoms Act 2012 was to “scale … back to common sense levels” the criminal records and vetting and barring regime.[3] It redefined ‘regulated activity’, in particular by excluding supervised volunteers from the definition, thereby reducing from nine million to five million the number of people who would require barred list checks before they could come into contact with children in schools.[4] The Protection of Freedoms Act 2012 also repealed provisions of the Safeguarding Vulnerable Groups Act 2006 which had provided a system of monitoring people on the barred list.[5]
31. Dr Smith gave evidence to the Inquiry regarding the operation of the DBS and the process by which an individual may be barred from working with children. She said that the current barring processes are structured and rigorous, with a formalised, published framework and guidance for decision-makers.[6] Barring decisions are based on findings made on the balance of probabilities (not the higher criminal standard of ‘beyond reasonable doubt’).[7] The DBS has specific statutory powers to obtain and share relevant information with other bodies and organisations, such as the referring school, the local authority, the TRA and the police.[8]
32. Dr Smith explained there are three routes to barring:
33. There are two categories of autobar offences. The most serious offences such as rape of a child or sexual offences where the victim is a child under 13 will result in the convicted person being barred, irrespective of whether they work in regulated activity, with no right to make representations to the DBS. For other offences, including abuse of trust offences, sexual offences where the victim is a child over 13, voyeurism and indecent images of children, the convicted person has a right to make representations to the DBS.[10]
34. Except for those convicted of an autobar offence without the right to make representations, an individual will not be included on the barred list unless the DBS believes that he or she has worked, is working or may in the future work in regulated activity.[11]
35. There is no power for the DBS to bar provisionally. While the decision is being made by the DBS, the individual is still free to work with children.[12] Previous barring processes included the power to add a person to the barred list as an interim measure, pending the final decision being made. It is surprising that the current system does not include interim barring orders, given the significant risk that a referred person may pose to children. A power to make an interim barring order must have built-in safeguards, including a right to make representations.
36. Altogether, including autobar referrals arising on conviction or caution of a relevant offence, the DBS receives about 50,000 referrals a year.[13] The barring rate is about 30 percent, so approximately 15,000 individuals are barred each year. [14]
37. The DBS has no powers to follow up and monitor whether a barred person is working in regulated activity. Dr Smith said that the DBS would welcome greater access to information to establish the level of risk in terms of whether the person is still working in regulated activity.[15] The only way the DBS can currently find out is if a barred individual applies to work in a role which is regulated activity and the employer requests an enhanced certificate with a barred list check.[16]
38. The Inquiry asked Dr Smith to comment upon two cases decided by the Department for Education prior to the existence of the DBS. In both cases, the employing school referred an individual about whom there were concerns for inclusion on List 99 but the Department for Education decided not to prohibit the referred individuals from working with children.
39. In 2001, the Royal School for the Deaf Manchester dismissed RS-F3 from his senior care role at the school after a disciplinary hearing found an allegation of sexually inappropriate behaviour with children to be substantiated. The hearing found that RS-F3 regularly showered naked with children and young people at the school and assisted them in their intimate personal care, even when he had been requested not to do so by a parent because it distressed her son. RS-F3 had also failed to report bruising on another child in his care.[17]
40. At a strategy meeting convened in 2001 by the local authority, the unanimous view of the school, the police, the NSPCC and the local authority was that RS-F3 was unsuitable to work with children.[18]
41. The school made a referral to the Department of Health, which provisionally placed RS-F3 on the children’s barred list (the PoCA list). The Department of Health then passed the case to the Department for Education and Skills to consider whether to include RS-F3 on List 99.[19]
42. Further information was provided to the Department for Education and Skills by Greater Manchester Police, confirming that in 2002 a former pupil had alleged that RS-F3 had masturbated him at the school in 1973. The police explained that their investigation did not result in the charge or prosecution of RS-F3 but that they took the view that the circumstances of his dismissal indicated that RS-F3 should be excluded from future work with children.[20]
43. The Department for Education and Skills did not request any further detail or information from the police. It invited RS-F3 to make representations. RS-F3 asserted matters which contradicted the information that the school had provided.[21] The Department for Education and Skills did not ask for any further evidence or information from the school and accepted the representations made by RS-F3, deciding not to include him on List 99. In the light of the decision of the Department for Education and Skills not to bar RS-F3, the Department of Health did not confirm his provisional inclusion on the PoCA barred list.
44. The decision not to bar RS-F3 was communicated to the school, which immediately expressed its concern that the Department for Education and Skills had taken a different view to the Department of Health regarding the risk posed by RS-F3. Ms Jolanta McCall, chief executive and principal of the Seashell Trust which runs the Royal School Manchester, stated her view that RS-F3 should have been placed on both lists as he was “very unsuitable” to work with children. The Department for Education and Skills acknowledged this correspondence but took no further action.[22]
45. Dr Smith considered that if the DBS was taking the decision today it would obtain further information before reaching a decision as to whether RS-F3 posed a risk to children.[23] She explained that “The defensibility of a barring decision relies upon sufficient information to be able to make robust and clear findings”.[24]
46. The DBS has specific powers to obtain further information from the referring school, the local authority and the police.[25] In assessing any evidence gathered by the police, the DBS will make its own findings as to the risk of harm, on the balance of probabilities.[26] Dr Smith also said that when, as in RS-F3’s case, representations were made which contradicted the facts asserted in the school’s referral, the DBS would request further information from the referring organisation.
47. In 2003, RS-F71 resigned from the independent school where he had been teaching, having admitted to the headteacher that he had engaged in sexual intercourse a year previously with a 17-year-old pupil at her home. There was no disciplinary hearing and the headteacher did not refer the matter to the police or the local authority but did refer it to the Department for Education and Skills.[27]
48. The Teacher Misconduct Unit at the Department for Education and Skills invited RS-F71 to make representations at an interview, where the caseworker discussed with RS-F71 the fact that his admitted conduct amounted to a criminal offence of engaging in sexual activity with a child in abuse of a position of trust.[28]
49. The caseworker at the Department for Education and Skills recommended that the Secretary of State should not bar RS-F71, stating that the mitigating features put forward by RS-F71 were “very strong”.[29] These included the claim of RS-F71 that the sexual activity had been instigated by the pupil and that she did not appear to have been negatively impacted by it; that he was unsure of boundaries in a boarding school context as he had moved from the state sector; that he had been experiencing difficulties in his relationship with his girlfriend; that he had “learnt his lesson”; and that he was a competent teacher.[30]
50. Dr Smith said that if this case were referred to the DBS now, a detailed assessment of the potential risk of harm posed by RS-F71 would be undertaken, which would be highly likely to result in RS-F71 being placed on the barred list. She considered that the representations put forward by RS-F71 in 2004 did not address the concerns raised by his actions in having sexual intercourse with a pupil. Dr Smith also explained that the referred person’s competence as a teacher would play no role in a current DBS analysis of risk because “the value in having a competent teacher in a school cannot outweigh the need to safeguard children from sexual harm”.[31]
51. The Department for Education and Skills had no guidelines as to what criteria to use when considering whether to include a person on List 99.[32]
52. Maintained schools have had a duty since at least 1959 to refer to the barring authority teachers who were dismissed due to misconduct or resigned in circumstances where they would have been dismissed.[33] This duty was extended to independent schools by regulations made in 1982.[34] Schools also have a responsibility to refer teaching staff who have engaged in misconduct to the relevant regulatory body (ie the TRA or EWC).
53. The duty of schools to refer to the DBS is now set out in the Safeguarding Vulnerable Groups Act 2006. Whenever a member of staff has been dismissed or removed from working in regulated activity (or would have been removed, but resigned or retired) and the school believes that the staff member harmed a child or put a child at risk of harm, or has received a caution or conviction for a relevant offence, the school must notify and provide information to the DBS, which will then decide whether the person should be placed on the barred list.[35]
54. Dr Smith said that the DBS does not receive the number of notifications from schools that they would expect but that it is impossible for the DBS to know when organisations under a duty to refer fail to do so.[36] It is an offence for a person under a duty to notify the DBS to fail to do so without reasonable excuse but there has not been a single prosecution for this offence.[37]
55. The DBS also receives referrals from the police, local authorities and other organisations and regulatory bodies, including referrals of teachers from the TRA,[38] with which there is regular liaison and mutual information-sharing.[39] The DBS has statutory powers to obtain information relevant to barring decisions from a number of other organisations, including the police, schools and local authorities.[40]
56. Dr Smith said that if the DBS received information in a referral which indicated poor safeguarding practice within a school, the DBS would share the information with the relevant bodies, such as the Office for Standards in Education, Children’s Services and Skills (Ofsted).[41]
57. When the DBS receives a referral which appears to involve the commissioning of a criminal offence that had not been notified to the police, the DBS has statutory powers to make a referral to the relevant police force, which they have used in some cases.[42]
58. Once a school refers an individual to the DBS, it is not usually entitled to know the outcome of the referral. Only an organisation with a ‘legitimate interest’ is notified of a specific barring decision. A referring school is not considered to have a ‘legitimate interest’ where the individual has ceased to be employed at the school (for example, following dismissal or resignation). Dr Smith considered that it would not be desirable for the referring school to have an automatic right of reply because this would have implications for confidentiality and would lengthen the decision-making process.[43]