Yes, under the Rehabilitation of Offenders Act 1974, a person with a criminal record is not required to disclose any spent convictions unless the position they are applying for, or are currently undertaking, is listed as an exception under the Act.
The submission of DBS checks for ineligible positions would be considered unlawful under the terms of the Rehabilitation of Offenders Act 1974. Under Part V of the Police Act 1997, an application for a DBS check must be accompanied by a statement by the registered person that the certificate is required for the purpose of asking an exempted question.
If an individual knowingly asks for a DBS check for a post which is not included in the Exceptions Order 1975 to the Rehabilitation of Offenders Act 1974 (ROA), they would be in breach of Part V, section 123 of the Police Act. This is because in doing so, they are committing an offence by knowingly making a false statement for the purpose of obtaining or enabling another person to obtain a certificate under this part.
While the requirement to request DBS checks has been removed for regulated activity, the entitlement to ask for one remains. Therefore, a local authority is free to insist that no one may undertake regulated activity unless he or she has undergone a DBS check, even supervised volunteers.
What is mandatory, however, is the requirement to conduct an enhanced regulated activity check for those undertaking regulated activity, but an enhanced regulated activity check cannot be made for someone not undertaking regulated activity.