Dear Sam,
This is a very grey area, and sadly, I am not surprised to hear
that you have received conflicting advice on it.
My organisation, SPA, is currently working to revise our
guidance to HE Providers on handling applicants with criminal convictions,
following the changes made to the DBS in England and Wales last year. One of
these changes, which seems to be the least widely known about and understood,
is filtering, and I, too, am trying to work through the implications of this in
order to guide HE Providers correctly.
The position for employers in work places exempt from the
Rehabilitation of Offenders Act seems clearly that it is no longer correct to
ask prospective employees to declare all spent and unspent criminal
convictions, only those which would appear on a DBS disclosure, i.e. not those
that would be filtered out. It is confusing, however, for both employers and
job applicants to understand the full criteria by which convictions or cautions
will be filtered out, as they are complex and are not the same as the
straightforward spent / unspent dichotomy.
The further confusion for HE providers is whether legally, you
are the same as Employers and therefore subject to the same restrictions. There
has clearly been no case law in this new area yet, and I am not convinced that
the DBS have really thought this one through. My instinct is that it is safest
for HE Providers to assume that they are subject to the same restrictions as
Employers, and therefore should be only asking applicants to declare
convictions and cautions (whether spent or unspent) that would not be filtered
out of a DBS disclosure. However, I must stress that this is not legal
advice, and SPA is not able to give legal advice.
The charity Unlock which provides guidance to individuals who
have had convictions has issued some detailed and very helpful guidance on
filtering, which can be accessed at http://hub.unlock.org.uk/knowledgebase/filtering-cautions-convictions/.
The DBS also has some guidance at https://www.gov.uk/government/publications/dbs-filtering-guidance,
but like most of their guidance it specifically references only employers /
employees, not HE Providers and their applicants. My understanding is that
Unlock, which runs a helpline and advice service for anyone with a conviction
in their past, is likely to advise university applicants to courses requiring
DBS clearance that they do not need to declare any convictions that will be
filtered out of their actual DBS disclosure.
I’m sorry that this hasn’t provided a clear answer
on the issue, but I’m not sure there is one yet. As I say, my instinct is
that we probably shouldn’t be asking applicants about convictions /
cautions that will be filtered out (which by definition will be old, minor and
non-violence), but this is not legal advice.
Best wishes
Helen
Helen Jones
Admissions Support and Development Manager
Supporting Professionalism in Admissions
SPA is an independent UK-wide
programme, supported by HEFCE, UCAS, DELNI and UUK, based at:
Rosehill
New Barn Lane
Cheltenham
Glos GL52 3LZ
Tel: 01242
545733 Mob: 07717 488061
Web: www.spa.ac.uk
SPA is independent of, but based
at, the Universities and Colleges Admissions Service (UCAS). All issues
relating to financial and legal affairs are dealt with by UCAS for SPA. UCAS'
registered office: Rosehill, New Barn Lane, Cheltenham, Glos GL52 3LZ. Registered
company No 2839815. Registered charity No. (England and Wales) 1024741 and
(Scotland) SCO38598.
From: CRB-HE [mailto:[log in to unmask]] On
Behalf Of Samantha Drew
Sent: 27 November 2013 08:50
To: [log in to unmask]
Subject: [CRB-HE] DBS filtering implications for Health Care courses and
the Rehabilitation of Offenders Act (1974)
Dear all,
Although not directly a DBS question, I am hoping you will
be able to share your HEI's position, since the DBS filtering of minor
convictions came into effect, on the use of pre-screening questions to Health
and Social Care applicants as they are exempt from the Rehabilitation of
Offenders Act (1974).
In the past our Health and Social Care applicants have been
exempt from the Rehabilitation of Offenders Act (1974) so we have been entitled
to ask for details of all convictions and cautions, even if they are spent. We
have done this using a pre-screening form once they have accepted our offer and
while we wait for the DBS to be issued. Guidelines now suggest that the only
exemptions to filtering are a minority of specialist positions such as national
security, in which case we wouldn't be entitled to ask this information and by
doing so would be acting unlawfully under the Act.
We thought we had this agreed several months ago, however we
have recently received conflicting advice and would be grateful if you are able
to share your views on this. Our NHS partners are not able to provide any
guidance and are looking to us for the answers.
I see that Carla Eastwood from Leeds Met and Kim Hearth from
Exeter have previously asked a similar question, however there we no replies on
the mailbase.
Any information you are able to provide would be gratefully
received.
Kind regards,
Sam
--
Samantha Drew
Admissions
Team Leader
Admissions Office
Headington Campus
Gipsy Lane
Headington
Oxford
OX3 0BP
t: +44 (0)1865 483018
f: +44 (0)1865 483983
e: [log in to unmask]
Please note I do not work on Thursday