The Childcare (Disqualification) Regulations 2009 (the Regulations) set out the circumstances in which an individual will be disqualified for the purposes of section 75 of the Childcare Act 2006 (CA) from providing ‘relevant childcare provision’ or from being directly concerned in the management of such provision. For a childcare provider to fall foul of the CA, there must be ‘knowledge’ i.e. the provider must knowingly employ a person who is disqualified from registration in connection with the provision of early years or later years provision for children under the age of 8. Under the CA a childcare provider will not be guilty of an offence if it can establish that it did not know, and had no reasonable grounds for believing, that the person employed by the school was disqualified from registration.
The DfE published its woefully inadequate supplementary advice on 10 October 2014 (reported on in the Autumn edition of our eshot to schools) and suggested that schools may choose to ask staff to complete and sign a declaration to help identify those caught by the 'by association requirement’ even though this was not a legal requirement under the CA, the Regulations or KCSIE. The supplementary advice caused much confusion and concern in schools. Staff in some schools were suspended in order to avoid the risk of being held to be in breach of the Regulations.
In light of the supplementary advice, ISI made reference to the disqualification requirements in the Regulatory Handbook it issued in January 2015.ISI has also issued an update to schools on this issue. This states that that “schools which are not actively seeking self-declarations from staff about disqualification, including by association, are not to be reported as non-compliant under the ISSRs”. The update also explicitly states that "it will be a matter for individual schools to determine the appropriateness of undertaking these checks against their employees”, suggesting a degree of flexibility. However, ISI also stated that “schools should be making enquiries of staff and if they are not doing so, inspectors should raise this with the school” and “when inspecting and reporting, inspectors should note the school’s position in relation to the issue in the main feedback to the school and include reference to it in the body of the report”.
On 26 February 2015 the DfE published new statutory guidance entitled ‘Disqualification under the Childcare Act 2006’ and this replaces the supplementary advice issued in October 2014.
The new guidance provides some welcome clarification on the disqualification requirements and how they affect schools. A summary of some of the key points which will be of interest to independent schools is set out below:
- The guidance applies to independent schools
- It will be reviewed in September 2015
- The disqualification criteria are set out and these include ‘living in the same household where another person who is disqualified lives or is employed (disqualification ‘by association’) as specified in regulation 9 of the Regulations
- Under the CA a person is disqualified if they are ‘found to have committed’ an offence which is included in the Regulations (‘a relevant offence’) and a list of these is set out in the tables included with the guidance
- The legal requirements relating to disqualification by association only apply to staff
- who are employed and/or provide early years provision i.e. up to an including reception age. This includes education and/or any supervised activity (such as breakfast clubs, lunchtime supervision and after school care provided by the school) both during and outside of school hours; or
- who are employed to provide later years provision (for children under the age of 8) outside of school hours. This does not include education or supervised activity for children above reception age during school hours (including extended school hours for co-curricular learning activities such as sport or choir).However, it does include before school settings, such as breakfast clubs and after school childcare; or
- who manage the education of children of reception class age or who work with or manage the supervision of children under the age of 8, in relation to activities that take place outside of the school day (such as breakfast clubs and after school childcare).
- The requirements relating to disqualification by association do not apply to staff employed in the following roles
- provide education, childcare or supervised activity during school hours to children above reception age
- provide childcare or supervised activities out of school hours for children who are aged 8 or over
- who have no involvement in the management of relevant provision’
- Staff such as caretakers, cleaners, drivers, transport escorts, catering and office staff are not covered by the requirements relating to disqualification by association unless they also provide education or childcare are set out above
- Schools need to make all staff who fall within the relevant categories aware of the requirements of the CA and the Regulations, including that they may be disqualified by association if they live in the same household as a disqualified person or in a household in which a disqualified person is employed. They must make such staff aware of what information will be required of them and how it will be used to make decisions about disqualification. The guidance states that schools may wish to do so by including a section in their safeguarding policies or by way or an addition to new employees’ contracts of employment
- Schools should draw the new guidance to the attention of their staff
- Schools are required to gather sufficient and accurate information as to whether any members of staff who fall within the categories set out above are disqualified by association. The guidance states that they are not required to ask relevant staff to complete a self-declaration form.
- Offences relating to spent cautions or convictions or filtered cautions and convictions for staff who work with children should not be taken into account. Accordingly, schools need to ensure that they do not ask for information to which they are not entitled. Doing so is likely to be a breach of the Data Protection Act 1998.
- When a school is informed that a member of staff is disqualified it may consider taking advice form the LADO, designated safeguarding lead or their legal adviser
- When schools receive information indicating that a relevant employee falls within one of the disqualification criteria they must inform Ofsted. The school should provide information to an affected employee about making an application for a waiver from disqualification. Although a school must not continue to employ a disqualified employee, the school may consider whether to redeploy the employee elsewhere in the school or to adjust their duties so that the employee is not carrying out duties in ‘relevant childcare’.
Most school staff will not be covered by the CA. Although the guidance states that schools are not required to ask relevant staff to complete a self-declaration form we believe that in practice the majority of schools will require relevant staff to do so.