Management Information Sheet

This MI sheet provides further information in the form of frequently asked questions following the MI sheet 235/14, issued on Friday 28th November.

Action needed:

Headteachers, school leaders and Chairs of governors should read both MI sheets and ensure they have taken appropriate action to ensure they have checked that relevant staff are not prohibited under the Childcare (Disqualification) Regulations 2009 from working with particular age groups within the school.

The regulations prohibit anyone who is disqualified themselves or who lives in the same household as a disqualified person (“disqualified by association”) from working in a relevant setting. The DfE recent guidance makes it clear, for the first time, that schools are included as a “relevant setting”.

A disqualified person is disqualified from:

1. Providing early years childcare ( the definition of which includes all provision for children aged 0-5, including those children in a school setting).
2. Providing later years childcare to children aged 6-8.
3. Being involved in the management of that childcare.

The following FAQs are based on questions raised and addressed over the last week.

What is the distinction between early years provision and later years provision?

The definition of early years childcare is provision for children aged 0-5 and includes those in a school nursery or in reception. This means that anyone working in a school setting with this age group comes under the regulations.

The definition of later years provision is childcare outside of the normal school day, such as breakfast or after school clubs, for 6-8 year olds.

Doesn’t that mean someone can be disqualified from working in school with 0-5 year olds but could work with 6-8 year olds, as long as they were not working with them in childcare provision outside of normal school hours?

Yes-that is an anomaly identified, shared with, and recognised by, a contact at the DFE.

What about whole school settings, such as assemblies, school trips, etc? In many schools, a person might not directly work with the relevant age group but are likely to be involved with them in a whole school way-are they included?

Advice from the DfE suggests that all nursery, infant, junior or primary school staff working with children (not cleaners etc) are covered, as the likelihood is at some point, they are likely to fall in to care provision category, even if they don’t work with the relevant age group on a regular basis. There may be some examples- schools with split sites, or separate nursery buildings- where it is easier to make a separation.

Why wouldn’t my after school provision for 6-8 year olds be included as education setting rather than childcare, since the children are supported with learning and behaviour in this setting?

We have confirmation that this would be judged as childcare and therefore the staff involved would be covered by these regulations.

What about other sorts of after school activities provided by outside organisations, such as sports clubs?

These are not classed as childcare.

Why would secondary schools need to worry about the regulations as they apply to early or later years provision?

Secondary schools may need to check staff if they provide some sort of childcare provision for children in the 6-8 year range.

What responsibility does the school have for ensuring that someone is not disqualified?

It is the responsibility of the school as the employer to ensure that it has taken the necessary steps to ensure that staff are not disqualified- the declaration form (See the link above for details) is the suggested mechanism for obtaining the information from current, relevant staff as it provides a comprehensive record of all relevant information.

What if someone provides a dishonest response in the form?

It is an offence to knowingly provide wrong information .However, if a person does not know that they are living with a person who comes under the Regs, that is not classed as an offence. The obligation on schools is to take steps to ensure they have sought the information and established whether or not the staff are disqualified.

What if someone refuses to provide the information?

There is an obligation on the school to have this information – in common with lots of other information that has to be provided .If someone refuses to provide the information that is likely to be considered a disciplinary offence. Schools will want to communicate and engage with staff to try to avoid non- compliance wherever possible but the information must be provided.

What if someone provides the information and it is clear they are disqualified?

Ofsted must be notified of the disqualification as soon as possible and within 14 days.

The person must be removed from the setting – you will need to take advice from your HR provider. Our information from the DfE confirms that redeployment within school may be a possibility, if the school is able to ensure that the person does not work with the relevant age groups. In other cases, that won’t be possible and the person will need to be suspended pending consideration of their continuing employment.

The list of offences that come under the regulations is complex to understand- how can I be sure any declaration includes a relevant offence?

Further advice can be gained from your HR provider, if you believe someone has declared a relevant offence. A simple “rule of thumb” is that any violent or sexual offence against children or adults is likely to be relevant.

Will people lose their job?

If someone is disqualified, and does not apply for, or does not gain, a waiver, and where redeployment is not an option, dismissal has to be a potential option, because the school is not allowed to employ people who are disqualified to work with the relevant age groups.

Are people really disqualified even if they have not committed any offence or had any care order against them, but someone they live with has? This aspect has caused most upset amongst my staff and seems very unjust.

This is an essential part of the regulations- disqualification by association. Individuals can of course ask for a waiver from Ofsted and this may be granted. Schools need to convince individuals of their need for declaration and guarantee information will be properly and sensitively handled.

How long does it take for the waiver request to be considered?

Ofsted have not provided any information on the process or the length of time it would take as each case is different.

What if someone informs us they are living with someone who has been charged, but not convicted, of a relevant offence?

Until there is a conviction, or an order issued, there is no requirement to declare the information and the individual is not disqualified. However, where schools are aware of this, they can consider whether or not this information suggests additional risk and if so, can take action to mitigate that risk. That action might include clear instruction to the individual about confidentiality, conduct, etc.

How will the information be kept up to date?

Schools should make it clear that individuals are obliged to inform their Headteacher (or Chair of Governors in the case of Headteachers) if they are disqualified, or if there is a change to their circumstances which renders them disqualified. This information should be updated on a regular basis and could be addressed annually as part of safeguarding training, or appraisal.

What about new recruits?

Norfolk job adverts and contracts will reflect the requirements of the regulations and it will be included as an additional pre- employment check.

What about people who work for the Local Authority but work with children in my school?

Relevant LA staff will also need to provide the required information and similar information is being shared with the relevant managers.

Where do I go for more information?

See Supplementary advice for the advice from the DfE.

Schools that buy the HR provision from Norfolk can contact HR Direct on 01603 222212 or hrdirect@norfolk.gov.uk