The Department for Education (DfE) has recently published guidance on childcare disqualification requirements to help schools understand the requirements placed on them by childcare legislation. This guidance talks about the separate and additional burden that the Childcare Act 2006 (the Act) and the Childcare (Disqualification) Regulations 2009 (the Regulations) place on schools when recruiting staff.
Who is disqualified?
In addition to being on the Children’s Barred List, the Act and the Regulations disqualify staff from registration for early years or later years provision if:
- They have been cautioned for or convicted of certain violent and sexual criminal offences against children and adults;
- There are grounds relating to the care of children, including where an order is made in respect of a child under the person’s care;
- They have had registration refused, or cancelled, in relation to childcare or children’s homes or have been disqualified from private fostering; or
- They live in the same household as another person who is disqualified from registration for early years provision. ‘Household’ would ordinarily extend even to circumstances where there are shared living quarters such as a kitchen area or living room. This is known as disqualification ‘by association’.
It is hoped that disqualification ‘by association’ will guard against an individual working with young children who may be under the influence of a person who lives with them.
Who does it apply to?
The disqualification criteria apply to staff in schools who work in early years provision and in later years provision for children who have not attained the age of 8. They cover staff working in a nursery, primary or secondary schools.
Early years provision includes education and any supervised activity for a child from birth until the 1 September following their fifth birthday. It applies to all provisions for children in that age range during and outside of school hours, including in school nursery and reception classes.
Later years provision covers childcare that is provided outside of school hours including breakfast clubs and after-school care.
The Childcare Act 2006 and Childcare (Disqualification) Regulations 2009 also disqualify staff from being directly concerned in the management of such childcare.
What must you do to be compliant?
The DfE has said that schools should be asking both new and existing staff to disclose the following information, not only about themselves but also about a person (people) who lives or works in the same household as them:
- Details of any order, determination, conviction, or other ground for disqualification from registration under the Childcare (Disqualification) Regulations 2009;
- 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; and
- A certified copy of the relevant order (in relation to an order or conviction).
One practical way that you could do this is:
- Send the new guidance out to all affected staff and highlight to them that they must now provide you with the above information about themselves AND other people that they live/work within the same household.
- Along with the guidance, ask staff to fill in and sign a declaration form on which they can make the relevant disclosures if needs are.
- Review these declarations once they come back to you, and take the appropriate action where necessary – i.e. notify Ofsted as soon as possible (within 14 days) once you’re made aware of any declarations.
In terms of new staff, you should do this process as part of your pre-employment checks. This should be added to the checks you already do.
What to do after you receive declarations
New staff: Candidates that are disqualified, or disqualified by association, will be deterred from an application or rejected.
Existing staff: If they disclose that they are disqualified or disqualified by association, they will have to be suspended pending advice from Ofsted, which may lead to a disciplinary process being commenced. Disqualification may be a fair reason to dismiss that member of staff, but you must also remember that you must follow a fair procedure to do so.
What are the penalties for non-compliance for the school?
The DfE has said that schools are responsible for putting in place arrangements to obtain the necessary information to ensure the suitability of staff to work in the relevant settings in schools. It is an offence for an employer to knowingly continue to employ someone when they should be disqualified. Ofsted has the power to enforce the prohibition on employing a disqualified person and if necessary to initiate a prosecution against the school.
What are the penalties on the individual for failure to give or giving incorrect information?
In relation to sanctions for employees, the DfE has said that this is down to the schools to deal with. They have said that it is not unreasonable to expect that members of the school workforce comply with a request of this nature. These requirements are designed to protect the youngest and potentially most at risk pupils in schools.
It is for the head teacher and the governing body to determine what action they consider appropriate where any staff are unwilling to comply with the school’s request, including giving consideration to whether disciplinary action is appropriate where an employee has refused to comply with a reasonable request.