Guidance for Schools on the Childcare Disqualification Regulations
Little Heath Primary
Childcare Disqualification Regulations
This guidance provides you with information about legislation that affects some roles in schools.
The Childcare (Disqualification) Regulations 2009 are made under section 75 of the Childcare Act 2006. There has been some recent guidance issued by the Department for Education which highlighted the need to ensure employees who are providing ‘childcare’ to children under the age of 8 provide schools with additional information.
The Department for Education (DfE) issued revised guidance in February 2015
It is recommended that the full list of offences/orders from this guidance are printed and maintained as a hardcopy so that staff without access to a computer can access them.
What are relevant staff and relevant settings?
The meaning of childcare (applicable to children under 8) according to the legislation is:
Staff are covered by this legislation if they are employed and/or provide early years childcare (this covers the age range from birth until 1 September following a child’s fifth birthday i.e. up to and including reception age) or later years childcare (this covers children above reception age but who have not attained the age of 8) in nursery, primary or secondary school settings, or if they are directly concerned with the management of such childcare. This includes:
- Early years provision - staff who provide any care for a child up to and including reception age. This includes education in nursery and reception classes 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 for children in the early years age range; and
- Later years provision (for children under 8) - staff who are employed to work in childcare provided by the school outside of school hours for children who are above reception age but who have not attained the age of 8. 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 the school’s choir or sports teams) but it does include before school settings, such as breakfast clubs, and after school provision.
This means that staff employed who work in the following roles are not covered, i.e. staff who:
- only provide education, childcare or supervised activity during school hours to children above reception age; or
- only provide childcare or supervised activities out of school hours for children who are aged 8 or over; and
- have no involvement in the management of relevant provision.
However due to the flexible nature of the way in which staff may be deployed in schools both in teaching and non-teaching roles which will see regular rotation between class groups taught it is recommended that any staff that may be required to undertake work that may fulfil the definitions above are required to complete a declaration form. This is so to avoid the need to complete this process prior to being able to confirm annual timetabling changes.
Please note:
Staff such as caretakers, cleaners, drivers, transport escorts, catering and office staff, who are not employed to directly provide childcare, are not covered by the legislation.
Who is disqualified?
The Regulations prohibit anyone who is disqualified themselves under the Regulations, or who lives in the same household as a disqualified person, from working in a relevant role.
A person is disqualified if any of the following apply:
- They have been cautioned for, or convicted of certain violent or sexual criminal offences against adults and any offences against children
- They are the subject of an Order, direction or similar in respect of childcare, including orders made in respect of their own children
- That have had registration refused or cancelled in relation to childcare of children’s homes or have been disqualified from private fostering
- They live in the same household where another person who is disqualified lives or works (disqualification ‘by association’). This means that the householder has an order, restriction or an unspentconviction or caution as set out in the legislation. It is accepted that they may not necessarily know this information – the declaration requires them to answer ‘to the best of their knowledge’. Information on whether a conviction is spent can be found here:
What constitutes disqualification and a list of relevant offences can be found in the schedules of the legislation however these have been helpfully brought together in the guidance issued in February 2015:
Schools should write to all those employees covered by the regulations enclosing a Childcare Disqualification Regulations Declaration Form (shown at the end of this guidance) which they will need to complete and return to the school office. This form should be securely retained on the personnel file held by the school.This process should become part of the schools pre-employment checking process before an employee has their offer of employment confirmed to them.
If there is a positive declaration on any employee’s form schools should seek guidance from the Schools’ HR Advisory Team, for those that buy into the service, on the next steps to take.
Employees who are deemed to be disqualified from working with young children are not able to continue working in settings covered by the regulations whilst they submit a waiver request to OFSTED. They can be temporarily redeployed into another role,or adjustments can be made to their role to avoid them working in relevant childcare, or placed on paid leave of absence. If these options are not possible, the employee must be suspended on full pay. OFSTED may grant a full or partial waiver and if a waiver is not granted, the employee will need to be dismissed unless redeployment options are available.
Data Protection
Schools must record the date on which the checks were completed, whilst not a mandatory field, we recommend that this is added to the schools’ Single Central Record (SCR). For those undertaking roles not in scope the advice is to input ‘N/A’ on the SCR.
In maintaining records schools must ensure they comply with the requirements of the Data Protection Act and in particular destroy all irrelevant information. For example this would include circumstances where an employee has declared something which is not covered by the regulations.
It is vital that schools do not ask staff or third parties to make requests for their criminal records in connection with employment, as this will amount to an enforced subject access request which will be an offence under section 56 of the DPA
DBS filtered convictions
Certain minor cautions and convictions are protected for the purposes of the Rehabilitation of Offenders Act (Exceptions Order). This means that they do not need to be disclosed and are removed or ‘filtered’ from the Standard or Enhanced DBS certificate.
Convictions now filtered out:
•Those over 18 at time of conviction:
–Cautions given more than 6 years ago
–Convictions given more than 11 years ago
•Those under 18 at time of conviction:
–Cautions given more than 2 years ago
–Convictions given more than 5.5 years ago
•If an employee has more than one conviction, they must declare all that are listed in Table A of the DfE guidance, as none will be filtered out.
•Convictions that resulted in a custodial sentence (regardless of whether served) will need to be declared if they are listed on Table A.
•There are many types of conviction that will not be filtered out. For example those that are serious and relate to sexual offending, violent offending and/or safeguarding. A list of these is given here( and employees must declare those that are listed in Table A.
What checks must the school do in relation to individuals working on the school site not employed by the school?
Where schools use staff from any agency or third-party organisation, to work in relevant childcare in schools, or contract out such childcare, they must obtain confirmation that the agency or organisation providing the staff has informed them that they will be committing an offence if they are deployed to work in relevant childcare, or are directly concerned in the management of such provision, if they are disqualified under the 2009 Regulations. This should include the provider requesting that their staff inform them if they consider that they could be disqualified under the legislation.
Where the school deploys a contractor who is self-employed to work in relevant childcare provision, the school must ensure that they are compliant with the requirements of the legislation explained in this guidance.
Who is responsible for checking trainee staff?
Where trainee staff are salaried, for example on employment based teacher training programmes, it is the responsibility of the school to ensure that they comply with the legislation. If a salaried trainee is disqualified from childcare, schools should inform the training provider of this. Where trainee staff are not on a salaried programme, it is the responsibility of the training provider to conduct the relevant checks to ensure that trainees placed in schools are not disqualified from childcare or that they have obtained a waiver from Ofsted.
What should I do for staff that are likely to work in areas that are in scope but do not do so now?
We suggest where a school has a mixture of class groups that are in scope that all staff may be assigned to such a class complete a declaration form and apply for a waiver if appropriate.
If it is clear that an individual will not realistically be required to work in a class in scope of the regulations they should not be asked to complete a declaration form.
Childcare Disqualification Regulations Declaration Form
SchoolThe Department for Education (DfE) has issued an number of recent updates to its Statutory Guidance “Keeping Children Safe in Education”.
These updates require organisations that provide care for pupils under the age of 8, to ensure that staff working in these settings are not disqualified from doing so under the Childcare (Disqualification) Regulations 2009. Reference:
A person may be disqualified through:
- having certain orders or other restrictions placed upon them
- having committed certain offences
- living in the same household as someone who is disqualified by virtue of 1 or 2 above (this is known as disqualification by association)
A disqualified person is not permitted to continue to work in a setting providing care for children under age 8, unless they apply for and are granted a waiver from Ofsted.
Reference:
Name / Post
Please circle one option for every question
Section 1 – Orders or other restrictions
Have any orders or other determinations related to childcare been made in respect of you? / YES / NO
Have any orders or other determinations related to childcare been made in respect of a child in your care? / YES / NO
Have any orders or other determinations been made which prevents you from being registered in relation to child care, children’s homes or fostering? / YES / NO
Are there any other relevant orders, restrictions or prohibitions in respect of you as set out in the Schedule 1 of the Regulations? These are summarised in the following document:
/ YES / NO
Are you barred from working with Children (Disclosure and Barring Service (DBS))? / YES / NO
Are you prohibited from Teaching? / YES / NO
Section 2 – Specified and Statutory Offences
Have you ever been cautioned, reprimanded, given a warning for or convicted of:
Any offence against or involving a child? (A child is a person under the age of 18)? / YES / NO
Any violent* or sexual offence against an adult?
* a violent offence in this context is murder, manslaughter, kidnapping, false imprisonment, ABH or GBH / YES / NO
- Any offence under the Sexual Offences Act?
Any other relevant offence? A summary of relevant offences is available from the following link
/ YES / NO
Have you ever been cautioned, reprimanded, given a warning for or convicted of any similar offence in another country? / YES / NO
Section 3 – Disqualification by association
To the best of your knowledge, is anyone in your household* disqualified from working with children under the Regulations?
*household – includes family, lodgers, house-sharers, household employees
This means does anyone in your household have an Order or Restriction against them as set out in Section 1 or do they have an unspent conviction, namely a caution, reprimand, warning or conviction for any offence in Section 2. Guidance on whether a conviction is spent can be found here / YES / NO
Section 4 – Provision of Information
If you have answered YES to any of the questions above you should provide details below in respect of yourself, or where relevant the member of your household. You may supply this information separately if you so wish, but you must do so without delay.
Details of the order, restriction, conviction, caution etc.
The date(s) of these
The relevant court(s) or body(ies)
You should also provide a copy of the relevant order, caution, conviction etc.
Section 5 – Declaration
In signing this form, I confirm that the information provided is true to the best of my knowledge and that:
- I understand my responsibilities to safeguard children.
- I understand that a copy of this form will be retained on my personal file.
- I understand that I must notify my Headteacher immediately of anything that affects my suitability including any cautions, warnings, convictions, orders or other determinations made in respect of me or unspent convictions of the same for a member of my household that would render me disqualified from working with children.
- I understand that I must notify the Headteacher immediately if there are any changes or additions to the information I have supplied on the form that may occur in future.
Signed
Print Name / Date
Dear xxxx
Childcare Disqualifications
I am writing to notify you of a change in legislation that affects your role. The Childcare (Disqualification) Regulations 2009 are made under section 75 of the Childcare Act 2006. There has been some recent guidance issued by the Department for Education which has highlighted to the school the need to ensure employees who are providing ‘childcare’ to children under the age of 8 provide us with additional information.
The Regulations prohibit anyone who is disqualified themselves under the Regulations, or who lives in the same household as a disqualified person, from working in a relevant role. A person is disqualified if any of the following apply:
- They have been cautioned for, or convicted of certain violent or sexual criminal offences against adults and any offences against children
- They are the subject of an Order, direction or similar in respect of childcare, including orders made in respect of their own children
- They have had registration refused or cancelled in relation to childcare of children’s homes or have been disqualified from private fostering
- They live in the same household where another person who is disqualified lives or works (disqualification ‘by association’). This means that the person living in the household has an order, restriction, unspent conviction or caution etc. as set out in the legislation. It is accepted that you may not necessarily know this information – the declaration requires you to answer ‘to the best of your knowledge’.
Full details of what constitutes ‘disqualification’ are in the Schedules to the Regulations
We have classified your role to be providing ‘childcare’ to children under eight and therefore this role falls within scope of the legislation.
Enclosed is a Childcare Disqualification Regulations Declaration Form which you will need to complete and return to the Headteacher. This form must be received by xxxxxxxx
If there is a positive declaration on your form we will need to meet to discuss next steps, otherwise your Declaration Form will be retained on your personal file.
If you have any questions on the above, please contact NAME on XXXXXXX.
Yours sincerely
xxxxxxxxx
Guidance on the Childcare Disqualification Regulations
November 2015