/ SAFEGUARDING:
CHILDCARE DISQUALIFICATION
NUT BRIEFING FOR DIVISIONS AND
ASSOCIATIONS IN ENGLAND
December 2014

As a result of recent DfE guidance, many schools and local authorities are approaching teachers and other school staff seeking information about previous convictions and cautions(including reprimands and warnings)of those living within their household. The Union has initiated a legal challenge as we believe that the DfE guidance misinterprets the relevant legislation and imposes unnecessary obligations on employers and employees. However, in addition, some schools and local authorities are misinterpreting the guidance and are imposing these checks overzealously, in a way not required either by the regulations or guidance.

Division Secretaries may be consulted by local authorities on the steps that they intend to take to implement the new guidance. Colleagues may also receive queries and requests for guidance as to the steps school groups should take. Adviceline staff are also responding to individual queries from members but will be seeking to ensure that members discuss a whole school approach to the issue.

Below are some background information and some points to raise with local authorities and governing bodies. There is also guidance for members at should be read in conjunction with this briefing.

THE DFE SUPPLEMENTARY ADVICE

The recent supplementary advice to ‘Keeping children safe in education’ can be found at:

This guidance refers to childcare legislation from 2006 and 2009. It appears that the DfE has only recently become aware that parts of this legislation may apply to schools, in addition to the complex safeguarding and regulatory system in place for all schools and other educational settings.

Which staff does it apply to?

The guidance states:

  • staff who work in early years provision (including teachers and support staff working in school nursery and reception classes);
  • staff working in later years provision for children who have not attained the age of 8 including before school settings, such as breakfast clubs and after school provision;
  • staff who are directly concerned in the management of such early or later years provision.

WHAT STEPS ARE SCHOOLS ADVISED TO TAKE?

Seeking Information

The guidance advises schools to ask existing employees working in these settings and those who are directly concerned in the management of such provision to provide the relevant information not only about themselves but also about a person who lives or works in the same household as them. The possibility of being disqualified from work due to previous convictions or cautions of a person within the employee’s household is referred to as ‘disqualification by association’. Schoolsare also advised to ask for this information as part of the pre-employment checks they undertake on appointing new staff.

The explanation for asking for information about a person who lives or works in the same household, is that it “guards against an individual working with young children who may be under the influence of a person who lives with them and where that person may pose a risk to children, i.e., ‘by association’”.

The guidance states that “Schools may choose to ask staff to complete and sign a declaration which would help identify those caught by the 'by association' requirement, particularly where an individual may be reluctant to self-declare.” However the regulations themselves use different wording, not specifically requiring that information is sought from employees, but giving a defence to employers who can prove they did not know nor hadanyreasonable grounds for believing that the person would be disqualified under the childcare legislation. The NUT considers that ordinarily a school will have no reason to believe that an individual was disqualified unless there are some particular facts known to them that put them on enquiry. This is particularly so given the extensive safeguarding procedures that are already in place in schools and have been alluded to above.

Where Relevant Information is Disclosed

The guidance then sets out that if any relevant information is disclosed, the individual can be advised to seek a waiver from Ofsted in order to continue to work in that setting. It states that no employee should continue to carry out the relevant work without the waiver. Many schools are implementing this by immediate suspension of the individual, and with disciplinary action threatened where employees refuse to complete the declaration form.

The Union believes that there should be no immediate suspensions. Staff correctly identified as falling within the scope of the Childcare Act and who have already made disclosures which raise concerns about their suitability to work with children do not have to be suspended as a matter of course pending the outcome of an Ofsted waiver application. Statute requires no more than that the individual is removed from early and later years provision (i.e.,teaching or supervising children less than 6 years old and supervising before and after school activities for children under 8). If it appears that a teacher is disqualified by association then a school would comply with its duties pending any application for a waiver by keeping the teacher to limited duties (for example teaching children not less than 6 years oldduring school hours) that could not fall within the definition of childcare. Suspension must always be a proportionate act with other options considered. The Union will support members who are suspended without proper and appropriate cause.

What Steps have Schools and Local AuthoritiesTaken?

Sending Out Forms to be Filled In

A number of schools and academies have issued declaration forms to existing staff. A typical example is attached at Appendix 1. Staff members have been told to complete the forms or face suspension. We believe a number of the questions on the form go beyond what is proportionate and should be amended or deleted. These are highlighted in red at Appendix 1 and are listed below for ease of reference:

SECTION 2 – SPECIFIED AND STATUTORY OFFENCES

“Have you ever been cautioned, reprimanded, given a warning for or convicted of:

  • Any other relevant offence?”

The Childcare (Disqualification) Regulations 2009 provide that only cautions (which include reprimands and warnings) issued on or after 6 April 2007 will amount to disqualifying offences. It is therefore disproportionate to ask about cautions issued prior to that date.

‘Catch-all’ questions such as “Any other relevant offence?” should be avoided because they give the impression that any and all offences lead to disqualification. In comparison to the extensive list of offences against children giving rise to disqualification under the Childcare (Disqualification) Regulations 2009, there are relatively few offences against adults which also give rise to disqualification. These offences are mentioned in Regulation 4 of the 2009 Regulations and include offences underthe Sexual Offences Act 2003, paragraph 2, Schedule 4 of the Criminal Justice and Court Services Act 2000 and Schedules 2 and 3 of the 2009 Regulations.

An easy to read list of relevant offences may also be found at section 5.1a of the Ofsted childcare compliance, investigation and enforcement handbook.

SECTION 3 – DISQUALIFICATION BY ASSOCIATION

“*household – includes family, lodgers, house-sharers, household employees.”

The term ‘household’ is not defined in the 2009 Regulations or the Childcare Act 2006, from which the Regulations are derived. It shouldn’t be assumed, therefore, that the legislature intended to capture lodgers and house-sharers and employers may be going beyond what is proportionate by making enquiries of individuals unlikely to be in a position to exert influence over the staff member in question.

SECTION 4 – PROVISION OF INFORMATION

“You should also provide a copy of the relevant order, caution, conviction etc. In relation to cautions/convictions a DBS Certificate may be provided”

A number of members have asked whether this means they must ask a person they live with to provide the employer with a DBS certificate. Employers should be reminded that they have no legal entitlement to DBS disclosures from those with whom they have no contractual relationship or who do not live on the premises where they are providing childcare. It is also questionable whether employers should be holding sensitive personal information of this kind about non-employees, even where it is disclosed willingly. Ofsted may wish to consider such documents in order to exercise their power to waive disqualifications, but in that case, such information should be sent to Ofsted and not to the employer.

DIFFERENT APPROACHES BY LOCAL AUTHORITIES

A number of local authorities have voiced misgivings about the content of the DfE supplementary advice. North Yorkshire County Council, for example, are advising headteachers in their area to “hold off taking any specific action until early in the New Year.” The Council’s advice to headteachers is enclosed at Appendix 2.

Other local authorities should be encouraged to take a similar approach.

HEALTH INFORMATION REQUESTS

A few schools and academies have gone beyond enquiries relating to childcare disqualification and have taken the opportunity to interrogate existing staff about all manner of potential safeguarding issues. The following declaration appears on some declaration forms.

  • I am aware that if I am taking medication on a regular basis I must notify the head teacher, and must keep the medication in a safe place, out of the reach of children.
  • I will ensure that I notify the head teacher if I experience any health concerns which could impact upon my ability to work with children.
  • I give permission for you to contact any previous settings, local authority staff, the police, the DBS, or any medical professionals, to share information about my suitability to care for children.

Our advice to members is that, while it may be to their advantage to put their employer on notice that they have a condition which may be protected under the Equality Act, they are not obliged to disclose information about any medication they are taking if it does not affect their ability to care for children.

We are particularly concerned that a signed declaration may be used as consent to obtain an employee’s medical records from a ‘medical professional’. While we are confident that no GP would disclose her/his patient’s confidential health records to an employer in the absence of evidence that:

(a)the patient had ‘freely’ consented to such disclosure (which is certainly not the case here); and

(b)the patient had been informed of his/her rights under the Access to Medical Reports Act 1988;

please insist on the removal of all health enquiries from declaration forms. If an employer has genuine concerns about a teacher’s fitness to teach the proper procedures to follow are set out in the Education (Health Standards)(England) Regulations 2003.

CHECKLIST OF POINTS TO RAISE IN DISCUSSIONS

The Union has approached the DfE putting forward our view of the scope of the legislation. We are requesting that the guidance is reworded to better reflect the requirements of the legislation. We believe that in the longer term it may be necessary to amend the legislation in order that its requirements do not impose additional requirements on schools.

In addition to the particular narrative on the declaration form, the following points can be made to local authorities and governing bodies.

  1. Employers are not expressly required to actively seek information relating to people living in the same household as an employee. Under the regulations, they are obliged to make enquiries only if they know or have reasonable grounds to believe that an employee may be disqualified from providing childcare. Indeed, the DfE guidance itself states ‘Schools maychoose to ask staff to complete and sign a declaration….’. The Union believes that schools should not take such steps unless there are reasonable grounds for doing so as this is overly intrusive.
  1. It is not a legal requirement for schools to issue declaration forms in the same way it is, for example, to maintain a central register of vetted staff. Therefore, Ofsted inspectors should not be making limiting judgements if a school has not issued declaration forms to its existing staff. Ofsted guidance “5.1a Disqualification: childminding and childcare” provides that if an inspector becomes aware that a member of staff is a disqualified person, he or she may question the provider (i.e., the headteacher/principal) about the information they had about the individual before offering employment.
  1. As regards normal teaching duties, the guidance should only be considered in respect of teachers and other school staff who will teach or manage provision for children of 5 years and younger. This is because those who teach children over 5 years old are not deemed to be providing ‘childcare’ within the meaning of the Childcare Act 2006 and are therefore not subject to disqualification.
  1. As regards before or after school clubs or activities not including teaching, the DfE’s supplementary advice asserts that staff are covered if working in later years provision for children under 8 years old. It does not make clear that ordinary teaching in school hours is not within the meaning of this later years provision.
  1. A number of local authorities, including North Yorkshire and Cambridgeshire have voiced misgivings about the DfE guidance and are advising schools in their area not to issue declaration forms to existing staff until the ambiguities within the Childcare Legislation (highlighted above) are clarified.
  1. Staff correctly identified as falling within the scope of the Childcare Act and who have already made disclosures which raise concerns about their suitability to work with children do not have to be suspended as a matter of course pending the outcome of an Ofsted waiver application. Statute requires no more than that the individual is removed from early and later years provision (i.e., teaching or supervising children less than 6 years old and supervising before and after school activities for children under 8). If it appears that a teacher is disqualified by association then a school would comply with its duties pending any application for a waiver by keeping the teacher to limited duties (for example teaching children not less than 6 during school hours) that could not fall within the definition of childcare.
  1. Schools that decide to ask for declarations must address whether this is a proportionate step to take given that it involves an intrusion into the private lives of staff members and their households and so Article 8 of the European Convention on Human Rights (ECHR) is engaged. For the reasons set out above, the NUT does not think that this will normally be a proportionate step to take given that existing procedures are sufficient.
  1. Under the heading Disqualification by Association, the advice proposes that employees should be asked to provide information when it is identified that they are disqualified or that the association requirement is met, but it would seem to be pointless to do so if the person has already been found to be disqualified. Presumably what is meant is that the enquiries should be made where there is a person living in or employed in the member of staff’s household but in that case the supplementary advice gives no assistance in deciding:
  • what amounts to a household for these purposes;
  • what it means for a person to be employed in it;
  • what enquiries the member of staff can reasonably make of people who live in or are employed in the same household;
  • what duty, if any, staff or members of their household have to respond. We can find no duty to do so under the 2006 Act or the 2009 Regulations;
  • how the school should respond in the event that a person living with a member of staff either cannot or will not give any information.
  1. Furthermore, the supplementary advice is inadequate in that it makes no reference to the fact that, although a teacher is exempt from the provisions of the Rehabilitation of Offenders Act 1974, those living or employed in the same household may not be so exempt. Accordingly, if there is any duty to make enquiry of such persons (which is not accepted for the reasons set out above) it should be made clear that the duty does not extend to “spent” convictions by a person other than the teacher.

NEXT STEPS

Division Secretaries will be kept informed of progress on any legal challenge. The Union nationally is also in discussion with the Local Government Association and other teacher organisations. Advice to members seeks to avoid suspensions, but also to take the matter forward as a school group seeking that only reasonable steps are taken by each school, in order to stay within the current law whilst seeking to minimise disproportionate impact.

Where discussions with local authorities and schools are unsuccessful and they continue to seek information in a way which is unacceptable, we will consider balloting members for action short of strike action, this being a refusal to complete the forms. Action may be escalated where necessary.Please contact your regional office in the usual way for any such action request.

Childcare Disqualification - NUT Briefing (Dec 14)_EB

Created: 19 December 2014/EB/SA103 October 2018

Appendix 1

STAFFDISQUALIFICATION DECLARATION

SCHOOL
InOctober2014,theDepartmentfor Education (DfE) issuedanupdatetoits StatutoryGuidance Keeping ChildrenSafe.
education_childcare_disqualification_requirements_-_supplementary_advice.pdf
Thisupdaterequiresschoolswhichprovidecareforpupilsundertheageof 8,toensurethatstaffandvolunteersworkingin thesesettingsare notdisqualifiedfromdoing sounder theChildcare (Disqualification)Regulations2009. Reference:

A personmaybedisqualifiedthrough:
1.having certain ordersor other restrictionsplaceduponthem
2.having committed certainoffences
3.living in the samehouseholdas someonewho is disqualified byvirtueof 1or 2above(this is known as disqualificationbyassociation)
You are required,therefore, to sign the declarationbelowconfirmingthatyou are notdisqualifiedunder thoseRegulationsfromworking in thisschool.
If youfail tocomplete and returntheform,thiswill be regardedas a disciplinarymatterforstaff, whichmayresultin dismissaland in thecase ofvolunteers,willmeanthatyou cannolongerwork at the school.
Adisqualified personis notpermitted tocontinuetoworkin asettingprovidingcare forchildrenunderage8,unlesstheyapplyfor and are granteda waiverfromOFSTED.Reference: providers.
Name: / Post:
SECTION 1–ORDERS OROTHER RESTRICTIONS
Have anyorders or otherdeterminationsrelatedtochildcarebeenmadein respectofyou? / YES/NO
Have anyorders or otherdeterminationsrelatedtochildcarebeenmadein respectof a childinyour care? / YES/NO
Have anyorders or otherdeterminationsbeenmadewhichpreventsyoufrom being registeredinrelation tochild care,children’s homes orfostering? / YES/NO
Are thereanyother relevant orders,restrictions or prohibitionsin respectofyouas setout intheSchedule1oftheRegulations? / YES/NO
Are youbarredfromworkingwith Children(DisclosureandBarring(DBS)? / YES/NO
Are youprohibitedfrom teaching? / YES/NO
SECTION 2–SPECIFIEDAND STATUTORYOFFENCES
Haveyouever been cautioned,reprimanded,given awarningfor orconvicted of:
  • anyoffenceagainst orinvolving achild?(a child is apersonundertheageof 18)?
/ YES/NO
  • anyviolent or sexualoffenceagainstanadult?
/ YES/NO
  • anyoffenceunder theSexualOffencesAct?
/ YES/NO
  • anyother relevantoffence?
/ YES/NO
Haveyouever been cautioned,reprimanded,given awarning for orconvictedof anysimilaroffence inanothercountry? / YES/NO
SECTION 3–DISQUALIFICATIONBYASSOCIATION
Tothebestofyourknowledge, is anyone in yourhousehold*disqualifiedfromworkingwith children undertheRegulations?
*household–includesfamily,lodgers,house-sharers,householdemployees
Thismeansdoesanyone in your householdhave an Order or Restrictionagainstthemas setout inSection1 orhavetheybeencautioned,reprimanded,given a warning for or convictedofanyoffencein Section2. / YES/NO
SECTION 4–PROVISIONOF INFORMATION
If youhaveanswered YES to anyofthequestionsaboveyoushouldprovidedetailsbelowin respectofyourself,or whererelevantthememberofyourhousehold.Youmaysupplythisinformationseparatelyifyousowish, but youmustdo sowithoutdelay.
Detailsof theorder, restriction,convictioncaution,etc.
The date(s)ofthese
Therelevantcourt(s) orbody(ies)
Youshould alsoprovideacopyoftherelevant order, caution,conviction,etc. Inrelationtocautions/convictionsaDBS Certificatemaybe provided.
SECTION 5- DECLARATION
Insigning thisform, Iconfirm that theinformationprovidedis truetothebestof myknowledgeandthat:
  • I understandmyresponsibilities to safeguardchildren.

  • I understandthatImustnotifythe Principal immediatelyof anythingthataffectsmysuitabilityincludinganycautions,warnings,convictions, orders orotherdeterminationsmade in respectofmeor amemberof myhouseholdthatwouldrendermedisqualifiedfromworkingwith children.

Signed:
Print Name: / Date:

Childcare Disqualification - NUT Briefing (Dec 14)_EB