Supplementary advice to the Keeping Children Safe in Education 2014 DfE document has been released. This supplementary advice details a requirement for childcare disqualification checks to be carried out on all relevant staff working in schools and academies.

These checks are a requirement of the Childcare Act 2006 and the (Disqualification) Regulations 2009, which place separate and additional safeguarding requirements on schools.

The DfE have said that they were only recently made aware of the regulations and released the supplementary advice in late October 2014. These regulations must be complied with straight away.

The regulations prohibit anyone who is disqualified themselves or who lives in the same household as a disqualified person, from working in relevant settings. These settings include schools and academies.

Who will it affect?

The following categories of staff in nursery, primary or secondary school settings are affected by the Childcare (Disqualification) Regulations 2009:

• Staff who work in early years provision in nursery and reception classes
• Staff who work in later years provision for children who have not attained the age of 8 and provide childcare outside of school hours including breakfast clubs and after school care (this is where secondary schools may be affected). This does not include teachers and support staff who teach children aged 6 – 8.
• Staff who are directly concerned in the management of such childcare (Governors are covered under separate regulations – School Governance (Constitution) (England) Regulations 2012).

Who is disqualified?

A person is disqualified if:

• they are on the Children’s Barred List (which the school/academy should already know via the DBS);
• 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 a person’s care, including their own children);
• they have had registration refused or cancelled in relation to childcare or children’s homes or been disqualified from private fostering;
• they live in the same household where another person who is disqualified lives or works. This is called ‘disqualification by association’.

Full details of what constitutes disqualification can be found in the Childcare (Disqualification) Regulations 2009. Specifically regulation four and schedules one, two and three

"Please note if an employee declares that they have accepted a relevant caution prior to 6 April 2007 they will not be deemed to be disqualified. This is because the relevant provisions in the Childcare Act 2006 came into force on this date and it was deemed unfair to bring in a provision which would have retrospective effect for those who had voluntarily accepted a caution and were therefore unaware of the impact. Unfortunately this will not change to take into account that the schools workforce were unaware until 2014"

What action needs to be taken now?

• School leaders should ask all relevant staff (including those who are absent from work) in relevant settings to complete a declaration as soon as possible, confirming that they are not disqualified. A sample declaration form can be found here LINK 1. To assist staff in answering the questions the form poses, the school/academy should make the Childcare (Disqualification) Regulations 2009 available for view. These detail the disqualification orders, offences etc.

"Employees should be made aware that it is a criminal offence not to declare that they are disqualified (including disqualified by association - living with a disqualified person). However, the employee is not committing a criminal offence if they do not know a person they are living with is disqualified."

• Schools/academies should seek advice from their HR provider immediately if they:
• know of anyone in their employment who is or may be disqualified
• receive declaration from any member of staff that shows they are disqualified

Anyone who is disqualified will need to be immediately removed from the relevant setting (either by suspension or temporary appropriate redeployment where possible) and OfSTED must be notified ASAP but at the latest within 14 days of the date the school/academy became aware of the information. The DfE recommend contacting Ofsted using their normal enquiry email address: enquiries@ofsted.gov.uk

Schools/academies should also explain the implications to the individual and advise them that they can usually apply to Ofsted for a waiver of disqualification. Please see ‘waiver’ section below for further information.

• All new appointments in relevant settings, from this point onwards, must be required to complete the declaration form prior to commencing work and as is normal practice, DBS certificates checked to ensure disqualification does not apply.
• There is no requirement from the DfE or the regulations to add the check (of relevant staff) to the single central record. However, as this seems a sensible place to store the information, the single central record template on Schools’ PeopleNet has been updated to reflect this.
• Schools and academies must ensure that any external agency providing relevant staff in relevant settings carry out these checks prior to placing them in the school/academy.
• Schools and academies will need to re-check employees as an ongoing process. Schools and academies will need to determine how they wish to review their existing workforce declarations. The recommendation is that this can be done at annual safeguarding training by asking staff to provide written confirmation that there are no changes to their declaration form.

Disqualified workers

Disqualified persons can apply to Ofsted for a waiver. Only the disqualified person can apply for the waiver, the school/academy cannot do it on their behalf. The employee will need to visit the ‘applying for a waiver’ section of the Ofsted website.

Ofsted may grant a full or partial waiver, including a waiver that would allow an individual to work in the school settings described above. Whilst a waiver application is under consideration the individual must not continue to work in the relevant setting.

If the individual does not choose to apply for a waiver careful consideration will need to be given to whether it is feasible to redeploy the employee within the school outside of the relevant childcare settings. If this option is not available then the school/academy will need to conduct a hearing with a potential outcome of dismissal. This is because it is a criminal offence to continue to knowingly employ a disqualified individual in these settings.

For those schools and academies who buy the HR service from Norfolk HR Services, the relevant policies and information on Schools’ PeopleNet and Norfolk Schools will be updated accordingly to reflect this change. Those schools can also contact HR Direct on 01603 222212 for further information.

Frequently Asked Questions

Why has this advice only just been issued when the Regulations have been in force since 2009?

The DfE have said that they were only recently made aware of the regulations and released the supplementary advice in late October 2014.

How do I know what cautions or convictions are relevant?

Regulation four and schedules one, two and three of the Childcare (Disqualification) Regulations 2009 set out the relevant cautions and convictions.

How do I know what grounds, relating to the care of children (including where an order is made), are relevant?

Regulation four and schedule one of the Childcare (Disqualification) Regulations 2009 sets out the relevant orders relating to disqualification.

Is disqualification automatic?

Yes, the school/academy does not have any discretion. The disqualification is automatic even if you believe that the person does not pose a risk to children.

What if I continue to employ a disqualified person?

Any employer who continues to employ a disqualified person will be breaking the law and could be held responsible for this. In addition, such a breach would affect the school/academy's own registration with OFSTED and would impact on the findings of inspections.

Do the regulations apply to volunteers? (This includes individuals on unpaid placements)

The DfE have confirmed that the Childcare (Disqualification) Regulations 2009 do NOT apply to volunteers. This means that schools are not required to ask existing or new volunteers to complete a disqualification declaration form and that volunteers are not, by statute, disqualified from working in a school by virtue of these regulations. However, the principles set out Part 2 Keeping Children Safe in Education relating to the management of safeguarding state:

"In line with part three of this guidance, governing bodies and proprietors should prevent people who pose a risk of harm from working with children by adhering to statutory responsibilities to check staff who work with children, taking proportionate decisions on whether to ask for any checks beyond what is required; and ensuring volunteers are appropriately supervised."

If Governing Bodies wish to ask volunteers to complete a Disqualification declaration, this could be viewed as a proportionate decision as they are applying the same standards of safeguarding checks to volunteers as to their employees. The DfE has confirmed that they consider this to be the right approach.

Any such information provided by volunteers or prospective volunteers should be assessed in line with the guidance issued in relation to employees. Ofsted will not consider a waiver application in respect of a volunteer (as the Regulations do not apply) and schools will need to make a decision about whether to allow the individual to continue volunteering - this should involve a risk assessment having regard to the information provided on the declaration, the nature of the activities they undertake and the level of supervision in place

For existing staff, is a self-declaration sufficient or is any declaration expected to be verified, for example by viewing a current DBS check or obtaining a new one?

Yes, it is sufficient. The law is about knowingly employing someone who is disqualified. Schools/academies who regularly ask staff to confirm there are no changes in their circumstances and act on any information received that brings into doubt an employee's suitability are taking appropriate steps to make sure they do not knowingly employ someone who is disqualified.

These Regulations have been in force since 2009, has the DfE taken advice about the employment law risk of effecting a dismissal on the basis of these Regulations now, in respect of someone who has been employed for a number of years?

The DfE said: These regulations have been in force for a number of years and we would expect that schools will take appropriate action where individuals may be caught by the requirement, or where they are made aware that someone working at the school should be disqualified.

I will be handling sensitive, personal data potentially regarding someone who does not work at the school/academy. How do these Regulations sit with the Data Protection Act?

The DfE indicates that information must be processed in accordance with the Data Protection Act. The Childcare (Disqualification) Regulations require employers to pass information to OFSTED and such statutory duties are allowed under the Data Protection Act. Schools/academies must handle and store all information in school carefully, in accordance with normal Data Protection rules.

What about contractors and agency staff?

Employers are responsible for ensuring that persons caring for children are suitable to work with children. In the case of workers that are supplied by an agency or third party organisation, schools and academies should ensure that the agency or organisation has carried out the relevant checks.

How long will it take to process an application for a disqualification waiver?

The DfE says: It is a matter for Ofsted who have the responsibility for granting a waiver or not. The time it will take to process a waiver application will undoubtedly vary from case-to-case; whilst many should be straightforward, others will unfortunately be more complex and take time to resolve.

What if a person is not sure whether they have a relevant offence?

We would advise declaration of anything that they think may be relevant and schools can check with the DfE.

What should I do with the forms once an employee has returned it?

These forms should be placed on the employee's personal file as these are kept in a secure place. For volunteers, these forms should be retained in the same single central location that you store all the other papers.

What constitutes childcare outside of the normal school day?

Child care includes breakfast clubs, homework clubs, nursery and crèche provision provided by the school. Where activities are run by other providers on school premises but not managed by the school (e.g. lettings, football clubs), these are not covered as they are not child care provision.