The Department for Education (DfE) raising childcare disqualification requirements through its publication of an advice note in October 2014 caused an understandable stir across the sector. The advice brought the implications of the Childcare Act 2006 (the Act) and the Childcare (Disqualification) Regulations 2009 (the Regulations) to the attention of the sector for the first time and added an additional obligation on the accepted practices on pre-recruitment checks of staff working in, or responsible for, early- and later-years childcare.
We recently reported on how the Regulations affected schools. It was noted at this time that updated guidance from the DfE was to be published.
As anticipated, the DfE issued Statutory Guidance (the Guidance) on disqualification under the Act and the Regulations, which replaced the October 2014 advice. Schools must have regard to the Guidance when carrying out their duties to safeguard and promote the welfare of children – and will be inspected on compliance by ISI.
The Guidance provides greater clarity and also introduces a number of new elements to the disqualification regime. This means that schools which have already carried out an analysis of which staff are in scope should reconsider their position. In some cases, schools are likely to need to approach additional individuals who are now in scope; in others, schools will need to destroy information already gathered on staff members who are now expressly out of scope.
What settings are covered by the Regulations?
The settings which come under the Regulations remain unchanged and include:
• Early-years provision, including usual school activities and any other supervised activity (up to the 1 September after the child’s fifth birthday) on the school premises during or outside the normal school day
• Later-years provision (up to age 8) which takes place on school premises outside of the normal school day, including, for example, breakfast and after-school clubs.
Secondary schools are not covered unless they offer any early- or later-years provision.
Which employees are covered by the Regulations?
The scope of school employees covered by the Regulations is now clearer, with a proper emphasis on the provision or management of ‘childcare’. This clarity should help schools in determining which of their employees are covered in the first place and in thinking about redeploying employees, pending receipt of an Ofsted waiver, if necessary.
The roles within scope are:
• Anyone employed in connection with the provision of early-years or later-years provision
• Anyone directly concerned in the management of early-years or later-years provision.
The Guidance interprets this as staff employed directly to provide childcare, where ‘childcare’ means any form of care for a child, which includes education for a child and any other supervised activity for a child. There are helpful examples in the Guidance of who is and is not covered.
Roles under the management aspect will include the head and may also include other members of the leadership team, as well as those involved in the day-to-day management of the provision. This may include the bursar, but ‘office staff’ are unlikely to be covered.
Helpfully, the Guidance expressly states that staff such as caretakers, cleaners, drivers, transport escorts, catering and office staff who are not employed to provide childcare directly are not covered by the legislation. Similarly, most staff who are only occasionally deployed and are not regularly required to work in relevant childcare will not automatically come within scope.
The Guidance does, however, widen the definition of the staff to include employees, casual workers, self-employed staff, volunteers and trainees. This means that schools which have to date considered ’employees’ only will need to consider the broader range of individuals who work in the setting.
Gathering information and communicating with staff
The Guidance introduces a new flexibility around how schools communicate with staff about the Regulations, with an emphasis on choice for schools. Schools are required to make staff aware of what information will be needed of them and how it will be used to make decisions about disqualification. This includes drawing the attention of staff to the DfE guidance and related guidance from Ofsted.
In relation to information gathering, the Guidance contains an explicit exhortation that schools are not required to ask staff to complete self-declaration forms. However, while schools are now able to consider different approaches to gathering the required information, it seems that, in most cases, self-declaration forms remain the best way of meeting all the requirements. Importantly, the new guidance removes the requirement for schools to repeat checks on a regular basis. Instead, schools must explain to staff that they should inform the school if their circumstances change and should have a contractual obligation to do so.
The Guidance introduces a new requirement for schools to notify Ofsted when information that a member of staff falls within the grounds for disqualification is received. Whether this requirement applies to independent schools exempt from registration under the Act is not clear and therefore it is appropriate for all schools to have regard to this requirement until any further clarification is provided.
What remains the same?
Disqualification by association, arguably the most controversial aspect of the Regulations, remains in place. This means that a person will 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.
The Guidance includes some new wording on the obligations of the school in relation to gaining information in this regard. Schools are advised that they must ask staff to provide, to the best of their knowledge, information about someone who lives or is employed in their household. Schools are also required to ensure that the information provided is adequate, accurate and relevant, but must not ask about spent convictions.
In relation to any information which is gathered about household members, schools must ensure that they are clearly informed about how and for what purpose the school will use their information. The Guidance also states that schools should not store personal data about household members without their consent and therefore schools will need to consider how to obtain consent – and what to do if this is refused.
Schools should familiarise themselves with the Guidance and consider what actions they need to take now to ensure compliance with their responsibilities to safeguard and promote the welfare of children. The DfE has indicated that the Guidance will be reviewed in September 2015 and the minister for education has indicated that if re-elected, this layer of bureaucracy may be removed. So while schools must comply now and must be aware that this is an inspection standard, the narrow interpretation of the Guidance is recommended.
Simon Bevan is an employment partner at education law firm Veale Wasbrough Vizards