Criminal Record Checks (DBS) to be required for MOT personnel

DVSA New MOT Notification service

‘Good Repute’, criminal record checks and the MOT

Over the years the DVSA have often published their successful prosecution of recalcitrant MOT Testers (NTs) and Authorised Examiners (AEs) who have unlawfully, and sometimes purposefully and corruptly issued MOT pass certificates either without seeing the vehicle, or when they know the vehicle should have failed the MOT inspection.

This could be systemic criminality, or at the lower end of the scale, a Tester doing a favour for a friend. To guard against such activity the DVSA insist that those formally involved in MOT Testing must be reputable, or as they put in their published information, “of good repute”.

Recently, however, they have extended a requirement for MOT Staff to have their background checked for any unspent criminal convictions (a so called DBS check – more of which later). Yet that may still leave thousands of Testers and Authorised Examiners who have never had their backgrounds checked for unspent criminal convictions which is of a seriousness which DVSA believe would bar them from being Testers or Authorised Examiners.

Such formal DBS checks first appeared as a requirement for new entrants to the MOT Scheme in 2022, and has more recently been extended to those returning to Testing after a lengthy absence, or after returning to the Scheme after a suspension following disciplinary action. This rather looks as if the DVSA are gingerly nibbling at the edges of a potential problem of Testers and Authorised Examiners who may have unspent criminal convictions which would fall foul of DVSA’s rules on ‘Repute’.

So we decided to have a much closer look both at what the DBS check is, and how it sits beside DVSA’s already extensive requirements to determine whether or not MOT Testing staff are ‘reputable’.

Being, “…of good repute”.

Here’s what DVSA state in their MOT Testing Guide Appendix 7:

Any individual involved in the MOT scheme must be free of conviction and be of good repute as defined within this appendix.

Any individual involved includes:

  • AE principals (AEPs)
  • authorised examiner designated managers (AEDMs)
  • AE delegates (AEDs),
  • site managers (SMs)
  • site admin
  • testers
  • AE consultants (AECs)

Well, although that looks to be pretty straightforward, there’s much more to it than that! In another section of the Guide the DVSA state:

It is the responsibility of the authorised examiner (AE) to notify the DVSA immediately of any convictions, as described in this appendix, to any individual involved in the MOT scheme under their authorisation, this includes: AEPs (directors, partners and sole traders), AEDMs, AEDs, site managers, site admin and testers.
An AE must notify the DVSA and make the necessary arrangements to remove any individual immediately.
All notifications of conviction should be sent directly to MOT administration. [email address supplied]
Once notified the approval to test will be ceased after 28 days unless the person who has the unacceptable conviction is removed or there is enough evidence of an application with continuity with intent to remove the individual.
A person cannot hold any role within the MOT scheme in any capacity until the conviction is considered spent under the relevant/current rehabilitation act.”

Convictions

The MOT Guide also makes it clear that the AE is directly responsible for notifying DVSA of any unspent convictions by any member of staff involved in Testing. The Guide says:

“The DVSA must be notified of all convictions as described in this appendix immediately for any individual involved in the MOT scheme. The responsibility to notify the DVSA of any conviction lies with both the AE and the individual who holds the role in the MOT scheme.
An AE is responsible for making the necessary checks on an individual prior to assigning them any role within their authorisation, ensuring they are free of any convictions as described in this appendix.” (the latter meaning unspent convictions)

The DVSA, however, do not count all and any criminal convictions as a bar from being involved in MOT Testing; here are their criteria for relevant unspent convictions which bars a person from becoming an Authorised Examiner, specifically identified in the MOT Guide. Strangely we cannot find any counterpart specification regarding unspent convictions for Testers and other staff formally approved by the DVSA to have a role in the MOT Scheme, so we are assuming the same range of unspent convictions will apply. Here is DVSA’s list:

  • a prison sentence (including suspended sentences) of three months or more
  • a fine exceeding level 4 on the standard scale (currently £2500)
  • a community service order (or equivalent) requiring unpaid work for more than 60 hours
  • any punishment outside the UK corresponding to the above

If the conviction does not fall under these categories then the conviction will be considered acceptable for participation within the MOT scheme, unless there are grounds for consideration as part of an individual’s good repute.

Well, there you are, if you haven’t got one of those specified unspent convictions, then you are of, ‘good repute’, OK? – NO! The DVSA, later in the Guide cite 15 other circumstances in which an individual can be found not to be, “of good repute”, together with another eight offences which might fall outside their stated unspent criminal convictions criteria. Simply stated, if they want you out of their Club, they’ll probably find a way…

DVSA and DBS checks

For those who don’t know, a DBS check is a process to discover if somebody has an unspent criminal record, and is officially known as the Disclosure and Barring Service which is the public body that carries out these checks. They used to be carried out by the Criminal Records Bureau (CRB), and called ‘CRB checks’.

These formal checks for unspent criminal convictions are mainly used to help employers to decide whether employees are suitable people to work for them. This includes deciding whether it is suitable for them to work with children or vulnerable adults, or for people with specific responsibilities where their having unspent criminal convictions would be inappropriate. Currently for the DVSA, this applies to new entrants to become MOT Testers and Authorised Examiners and those returning after being suspended from Testing for specific disciplinary sanctions.

There are four different types of DBS check providing increasingly more information, depending on what sort of job is involved. They are:

  • Basic DBS check
  • Standard DBS check
  • Enhanced DBS check
  • Enhanced DBS with list check

Currently the DVSA’s DBS rules set up in 2022 requiring MOT Testers to have a DBS Basic check say:

New Tester (or an existing tester adding an additional test Group, A or B)
Tester returning after 2- or 5-year cessation
Tester returning after a 5-year gap”

Then more recently they have been extended with Special Notice SN  03-23 which states:

“…From 8 January, a DBS check must also be submitted for:
testers returning after a disciplinary period of 28 days (short term cessation) 
tester returning after being lapsed or suspended (including non-completion of annual assessment) …

So, as far as we can gather, currently only new entry AEs and Testers require a DBS check, as well as those exceptions noted above. Significantly, and surprisingly AEs do not necessarily have to have a DBS check when returning to the MOT Scheme following short term suspension arising from disciplinary action by DVSA. This despite having to re-apply all over again by completing the VT1 form to become an Authorised Examiner – they leave the DBS part blank – which is something of an anomaly!

This means that even after 8th January 2024, there will probably still be Testers and AEs who have never had a DBS check – and their numbers could be in the tens of thousands. So it is quite possible that many of them could have unspent criminal records which would show up on a DBS check if carried out, which neither their Authorised Examiners, or indeed DVSA, are currently aware of.

Another issue to consider is the regularity of DBS checks. There is no set rule here, although as far as we can gather most organisations requiring DBS checks for employees and/or contractors to be reviewed every three years. The DVSA are silent on that issue, so just one check, one time only, is needed.

Due Diligence

‘Due Diligence’ is an expression frequently used within industry and in legal contracts which refers to taking reasonable care and investigative thoroughness to check something out. It effectively sums up what DVSA have somewhat convolutedly required for AEs to ensure that they and Testers are, ‘of good repute’. It is significant, however, while it is a requirement for new AEs and Testers, DVSA have not made it compulsory for all current AEs and Testers to have a DBS check or to have it regularly reviewed.

Arguably that suggests that the Agency have not been historically as ‘duly diligent’, as perhaps they should have been with regard to ensuring the MOT Scheme does indeed have Testers and Authorised Examiners who are all ‘of good repute’!

Given the DVSA’s firm insistence that Testers and Authorised Examiners be of ‘good repute’ accompanied by a complex and seemingly all-encompassing definition of what could amount to not being of good repute, we would firmly recommend that it would be a very prudent measure if AEs employing MOT Testers insist on regular DBS checks as part of their employment contract, whether as temporary or permanent employees, and also submit themselves to a DBS check. This due diligence would go beyond what DVSA currently formally require, and could be very helpful if they ever fall foul of DVSA’s disciplinary system.

The DVSA and DBS checks

Given how keen the DVSA are about both AEs and Testers being reputable, it is surprising that they have not already made it a mandatory requirement for all Authorised Examiners and MOT Testers to undertake regular (say three yearly) DBS checks.

Although they have recently increased the requirement for DBVS checks via the disciplinary process, it would take years (if ever!) work through the population of Testers and AEs, it being a limited and slow process of osmosis.

We spoke informally to the DVSA on this, who agreed that it would be beneficial to the Scheme if Testers and AEs all had a regular DBS check. However, citing the number of people involved, it was suggested that with around 23,000 Testing Stations, and about 50,000 Testers to get checked it would be a mammoth task.

In response we suggested that perhaps the DVSA should encourage employer AEs to have themselves and Testers undergo a DBS check and formally note that this will be beneficially taken into account in the event of any future disciplinary proceedings wherein being ‘of good repute’ was a factor.

Cost

The cost of a Basic DBS check is £30. So for a Testing Station with a couple of Testers, and including one Authorised Examiner, it amounts to £30 per check – surely a small price to pay for peace of mind. On the other hand, for the MOT industry as a whole, using the numbers cited above, that amounts to just under £3Million every three years, about a million pounds a year. Not a large sum, but quite unreasonable as that money goes from the pockets of Testing Stations into the pockets of a Government Agency, and despite these times of high inflation, the MOT fee hasn’t been increased since 2010. But that’s a different story!

In conclusion…

From the very tone of the words used in DVSA’s MOT Guide with respect to the need for honest Testers and Authorised Examiner regarding their being of ‘good repute’, together with the extensive ‘catch-all’ definition of what they mean by ‘good repute’, it seems very strange that DVSA have never required Testers and Authorised Examiners to have mandatory and regular criminal record checks.

It also strange and surprising that regarding DBS checks, AEs are treated differently from Testers when returning into the Scheme following disciplinary action resulting in suspension for 28 days or less. Yet if the suspension is two years or more, they will require a DBS check to return to the Scheme.

AEs returning to MOT Testing after a short term cessation are not required to undergo a DBS check.

Why such an anomaly compared to Testers after DVSA’s new rules take effect next year?

It is also odd that any DBS check required by the DVSA is a ‘once off’ requirement, yet in just about all other employment activities where a DBS check is mandatory, it must be reviewed every three years.

Whilst we understand the logistical difficulty of suddenly requiring perhaps 70,000 people (or more!) to have a DBS check, given the importance the DVSA place upon being of good repute, surely DVSA should put together a voluntary process which encourages Testing Stations to have their Testers, Authorised Examiners, and perhaps others more formally involved in the Scheme to undergo a DBS check within the terms of their employment contracts, which we understand is already done by more conscientious MOT businesses.

There was a time when DVSA would award Testing Stations who had undergone a successful ‘mystery shopper’ visit with credit points set against points arising from disciplinary action – but that no longer applies. Perhaps DVSA should encourage Testing Stations to voluntarily include a DBS check within their contracts of employment for Testing Staff in return for some form of acknowledgment akin to the erstwhile points credit Scheme. Surely that would be beneficial to the Scheme as a whole?

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