Alice Reeve is an employment partner at Veale Wasbrough Vizards

Anything to declare?

Lawyer Alice Reeve explains how the childcare disqualification regulations may affect your school

Posted by Dave Higgitt | April 01, 2015 | Law, finance, HR

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The Department for Education (DfE) published advice on the childcare disqualification requirements in October 2014. The advice has caused confusion and concern across the sector. It brought the implications of the Childcare Act 2006 (Act) and the Childcare (Disqualification) Regulations 2009 (Regulations) to the attention of the sector for the first time.

The Regulations apply to staff working in connection with or directly concerned in the management of: 

• “early-years provision” (up to the 1 September after the child’s fifth birthday) on school premises during or outside the normal school day

• “later-years provision” (up to age eight) which takes place on school premises outside of the normal school day, including, for example breakfast and after-school clubs. 

While there is still some confusion as to precisely which situations the Regulations apply to, this appears to be the latest technical position.

It is an offence for a school to knowingly employ a person who is disqualified under the Regulations. A person is disqualified if they are barred from working with children (by inclusion on the Children's Barred List) but also if any of the following applies: 

• they have been cautioned for, or convicted of, certain criminal offences including violent or sexual criminal offences against children or adults

• an order has been made relating to a child in their care

• they have had a registration to be involved with childcare or children's homes rejected or cancelled

• they have been disqualified from private fostering 

It is also an offence for a disqualified person to knowingly provide early or later years provision or to be directly concerned in its management.

Perhaps the most controversial aspect of the Regulations is that a person will also be disqualified if they live in the same household as another person who is disqualified from working under the Regulations, or live in a household in which any such person is employed. This is known as “disqualification by association”. 

Disqualification and new recruits

The DfE advice and the Independent Schools Inspectorate (ISI) January handbook confirms that schools in the independent sector are required to start introducing an additional layer of pre-appointment checks in respect of staff who work in the relevant provisions, to ensure applicants are not disqualified under the Regulations.

Schools can achieve this by asking applicants to declare whether there are any grounds applicable to them, or anyone in their household, which disqualifies them. For example, schools could use a self-declaration form during the recruitment process. The DfE guidance suggests that the self-declaration form should seek the following information from applicants: 

• details of any order (e.g. a care order), determination, conviction, or other ground for disqualification from registration under the Regulations

• the date of the order, determination or conviction, or the date when the other ground for disqualification arose

• information about the body or court which made the order, determination or conviction, and the sentence (if any) imposed

• a certified copy of the relevant order (in relation to an order or conviction) 

Disqualification and existing staff

Schools may be hesitant to request self-declarations from existing staff. However, if you are already aware that someone is potentially disqualified, steps should be taken immediately to seek an Ofsted waiver. In its January handbook and subsequent update, ISI has stated that schools which are not currently requiring completion of self-declaration forms by existing staff will not be reported as non-compliant; however, this requirement will become an ISI regulatory standard from 30 March 2015.

Schools should prepare to require existing employees to complete self-declaration forms in advance of 30 March. We suggest that schools circulate these forms with a cover letter, memo or email to staff to “softly communicate” to colleagues the school’s obligation to carry out this additional check and provide support and care for individuals who may find this process difficult.

Of course, this is the best advice as we currently understand the position, but, with the DfE due to publish updated guidance by the end of February, by the time this article is published we will hopefully have clear guidance on whether the disqualification check is to be abandoned or narrowed in its application. 

FAQs

From what date do the Regulations apply?

At present the Regulations apply to all staff employed in childcare settings, irrespective of when they commenced employment, and so appear to impose a retrospective obligation on schools. 

What roles are covered?

These requirements apply to staff involved in the "provision of childcare". This is much broader than teachers and may involve any member of staff who engages with the children – for example, catering staff who have contact with pupils at breakfast clubs. 

Do the Regulations apply to volunteers, self-employed staff or contractors?

The legal requirements only strictly apply to "employees" and so there is no requirement to ask contract cleaning or catering companies to undertake the checks or to check self-employed peripatetic staff. However, we are aware that schools are checking on a risk-based approach, to safeguard the school’s reputation and as an example of best practice. 

What happens if a school knows a member of staff is disqualified?

It is an offence for a school to knowingly employ an individual who is disqualified under the Regulations, and schools will need to take immediate action where they are already aware that an existing member of staff is disqualified. Schools should consider seeking advice if they are unsure how to proceed in this circumstance. It is important that the school complies with the Regulations but also provides support for the affected member of staff.

Where an existing member of staff is disqualified, they should either be suspended, or redeployed to duties within the school which do not involve working in connection with or managing services for, the affected age groups. If the redeployment is implemented effectively, the member of staff is able to continue working at the school. A risk assessment should be carried out before a member of staff is redeployed.

What can an individual do if they are disqualified?

An individual who is disqualified under the Regulations can apply to Ofsted for a waiver of their disqualification. The application for a waiver must be made by the individual and cannot be made by the school, although of course the school can offer support through this process. If the application for a waiver is successful, the member of staff and the school are no longer committing an offence, and the individual can be redeployed back to their original duties in early- or later-years provisions. 

Do the Regulations apply in secondary schools?

The Regulations only affect staff working in connection with or managing services for early-years provision and later-years provision in certain circumstances (detailed above). Staff working in secondary schools with no contact with or management over children aged eight or over, or children aged between five and eight but not part of the relevant later-years provisions, are not subject to the Regulations.

However, the Regulations do apply to provisions which take place on school premises outside of normal school hours, such as breakfast and after-school clubs. Staff in secondary schools will be subject to the Regulations if they work with or manage relevant children under the age of eight in one of these settings. 

Alice Reeve is an employment partner at leading education law firm Veale Wasbrough Vizards

Alice can be contacted on 0117 314 5383 or at areeve@vwv.co.uk