DBS checks for pupil volunteers: DfE provides clarification following changes to regulated activity

Following changes to the definition of regulated activity introduced on 1 September 2026, many schools have contacted the Independent Safeguarding Service (ISS) seeking clarification about the implications for sixth-form students, prefects and other pupils who volunteer to support younger children.

We are therefore pleased to share an important legal briefing from our partners at HCR Law, who provide legal oversight and support in the development of ISS safeguarding policies and procedures.

Working alongside the Independent Schools Council (ISC), HCR Law has sought clarification directly from the Department for Education (DfE) about the continued application of the peer exemption, following the removal of the supervision exemption under the Crime and Policing Act 2026.

The DfE has now provided further clarification, including correspondence dated 23 September and 9 October 2026.

What has changed?

From 1 September 2026, the supervision exemption was removed from the definition of regulated activity. Previously, certain volunteers working under supervision could fall outside regulated activity and therefore not require an enhanced DBS check with children's barred list information.

The removal of this exemption raised questions about whether older pupils helping younger children, including within Early Years Foundation Stage (EYFS) provision, would now require DBS checks.

However, a separate provision within the Safeguarding Vulnerable Groups Act 2006, known as the peer exemption, remains in force.

What has the DfE clarified?

The DfE has confirmed that the peer exemption can continue to apply to sixth-form students and other pupils volunteering with younger children within the same school.

This includes pupils supporting children in different year groups or at different sites operating as part of the same school.

Where the exemption applies, the pupil is not considered to be undertaking regulated activity solely because they are assisting a member of staff who is in regulated activity. Consequently, an enhanced DBS check with children's barred list information is not required on that basis.

Importantly, the exemption is not automatic.

The pupil must genuinely be acting under the direction of someone undertaking regulated activity, and the arrangements must satisfy the conditions of the peer exemption.

The DfE has also indicated that the exemption may extend to certain established school partnerships or organised group activities, although this requires careful consideration of the circumstances.

What should schools do?

HCR Law recommends that schools review their existing pupil volunteering arrangements and ensure that they can demonstrate why the peer exemption applies.

In particular, schools should:

• Review arrangements involving sixth-form students, prefects and other pupils supporting younger children.

• Ensure that pupils are working under the direction of an appropriate member of staff undertaking regulated activity.

• Undertake and record a proportionate risk assessment, ideally led by the Designated Safeguarding Lead (DSL).

• Maintain appropriate records of pupil volunteering arrangements, including the supervision and direction provided.

• Consider whether existing arrangements fall within the peer exemption, particularly where pupils support children at another school or within a school partnership.

Where the peer exemption does not apply, schools must consider whether the activity meets the statutory definition of regulated activity and whether the relevant DBS and barred list checks are required.

Further guidance from HCR Law

HCR Law's briefing provides a detailed legal analysis of the peer exemption, the DfE's latest clarification and the implications for schools. It also considers work experience placements and the responsibilities of schools and host organisations.

HCR Law is also preparing an FAQ document and flowchart to help schools apply the updated requirements in practice.

This is an area that has generated considerable uncertainty for schools since September, and we are grateful to HCR Law for allowing us to share their expertise and analysis with our members.

HCR Law is one of ISS's specialist partners, providing legal expertise and oversight to support the accuracy and currency of our safeguarding policies and procedures.

We encourage schools to read HCR Law's full briefing, particularly where they currently use older pupils to support younger children or operate volunteering arrangements across different schools or sites which can be found here.