Disqualification by Association: Disqualification Under the Childcare Act 2006: July 2018

There has been an update to the statutory guidance to Disqualification Under the Childcare Act 2006 at the moment it is a draft and is expected to become statutory on August 31st 2018.

Please note this is still a draft.

The main change is schools and nurseries are no longer required to establish if staff, including those working with under 5s or under 8s in wrap around, extended hours or childcare, are disqualified by association. That is if they share a house with someone who would be disqualified from working with children. This means that schools do not have to and should not ask their staff questions about cautions or convictions of anyone living or working in their household.

The other changes in is some of the relevant offences. The details are below.

However, staff can still be disqualified on their own behalf if they work with under 5s or under 8s in childcare provided by the school outside of normal school hours or the management of such staff or provision. School need to be certain that none of these staff have a conviction or caution for any of the relevant or have been subject to any of the listed court orders.

Further Schools should establish the status of any agency, contract or self-employed staff working with these children. Anyone providing healthcare provision (e.g. school nurses, EPs and speech and language therapists) are specially excluded.

Staff can be disqualified by
• inclusion on the Disclosure and Barring Service (DBS) Children’s Barred List;
• being found to have committed certain violent and sexual criminal offences against children and adults which are referred to in regulation 4 and Schedules 2 and 3 of the 2018 Regulations (note that regulation 4 also refers to offences that are listed in other pieces of legislation);
• certain orders made in relation to the care of children which are referred to in regulation 4 and listed at Schedule 1 of the 2018 Regulations;
• refusal or cancellation of registration relating to childcare, or children’s homes, or being prohibited from private fostering, as specified in Schedule 1 of the 2018 Regulations;
• being found to have committed an offence overseas, which would constitute an offence regarding disqualification under the 2018 Regulations if it had been done in any part of the United Kingdom.

Also, under the legislation a person is disqualified if they are ‘found to have committed’ an offence which is included in the 2018 Regulations (a ‘relevant offence’) this includes:
• being convicted of a relevant offence;
• on or after 6 April 2007, being given a caution for a relevant offence; or
• on or after 8 April 2013, given a youth caution for a relevant offence.

An up to date enhanced DBS certificate or a check against the DBS update service will help schools establish whether the offences committed by that individual are relevant offences.
Schools must ensure that they are not knowingly employing a person who is disqualified under the 2018 Regulations in connection with relevant childcare provision. In gathering information to make these decisions schools must ensure that they act proportionately and minimise wherever possible the intrusion into the private lives of their staff. Accordingly, schools must ensure that they handle information fairly and lawfully and take care not to breach:
• Data Protection Act 2018 (DPA);
• General Data Protection Regulation (GDPR) (EU) 2016/679;
• Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (as amended in 2013) (‘the Exceptions Order’);
• Rehabilitation of Offenders Act 1974 (ROA); and
• Human Rights Act 1998.

Schools do not need to use a self-declaration form to obtain information about whether a staff member is disqualified. If they choose to do so they must ensure the questions are relevant and limited to the requirements of the legislation and are only asked of the relevant staff, so they are not in breach of data protection legislation, including GDPR.

Personal data, including any details of the criminal record should not be held without consent from the individual. In instances where an individual does not consent, schools should only record the date the declaration was made, details of any additional safeguarding restrictions, and whether or not an Ofsted waiver has been granted if relevant.

The majority of offences that lead to disqualification under the 2018 Regulations will not become protected under the rehabilitation of Offenders Act 1974, which means that they must always be disclosed by a member of staff employed to work in relevant childcare, and they will not be filtered from a DBS certificate. The DBS has produced a list of specified offences that will never be filtered. All the offences listed in Annexes A and B of the guidance must always be disclosed, as should any offence involving the death or bodily injury to a child (even if not specifically listed in the table).

If a member of staff falls within one of the disqualification criteria in the 2018 Regulations the school must inform them and explain the implications including whether they can apply to Ofsted for a waiver of disqualification (for example, Ofsted cannot grant a waiver to an individual who is on the Children’s Barred List) and make clear what information the individual will need to share with Ofsted and why. The individual can then apply for an OFSTED wavier. Information about how to do this can be found in the OFSTED fact sheet.

A school must not continue to employ an individual who is disqualified in connection with early or later years childcare provision, nor should a disqualified individual provide or be directly concerned in the management of such provision unless they have received a waiver from Ofsted, which covers the role that they wish to undertake. This does not imply that individuals are prevented from working in a school in any other setting.

The guidance a list of the relevant offences and orders (pages 17-35). The new offences added to the list since the June 2016 guidance are:
• Criminal Justice and Courts Act 2015 – including care workers ill-treating or wilfully neglecting an individual
• Female Genital Mutilation Act 2003 – including conducting FGM and assisting a girl to conduct FGM on herself
• Modern Slavery Act 2015 – including holding a person in slavery or servitude and requiring a person to perform forced or compulsory labour
• Psychoactive Substances Act 2016 – supplying or offering to supply a psychoactive substance to a child
• Serious Crime Act 2015 – possessing a paedophile manual and engaging in controlling or coercive behaviour in an intimate or family relationship
• Terrorism Act 2000 – including belonging to a proscribed organisation and committing an act of terrorism
• Terrorism Act 2006 – including encouraging terrorism, circulating a terrorist publication and directing a terrorist organisation

Actions by schools

• Review staffing policies and safer recruitment policy and make the necessary changes to ‘ensure that their policies are clear about the expectations they place on staff, including where their relationships and associations both within and outside of the workplace (including online) may have implications for the safeguarding of children in school.’ (page 11).
• These changes should be reflected in staff and governors’ training.
• Ensure that anyone working with the relevant groups of children is aware of the legislation by including a section in the school’s safeguarding policy, or another policy document, or by means of an addition to new staff members’ contracts of employment. Schools should draw this guidance to the attention of all their staff.
• Decide how they will obtain the information to find out if a member of staff is disqualified and how regularly this needs to be updated.
• Keep a record of all staff who are employed to work in or manage relevant childcare provision and record the date on which the information about qualification was provided. I would suggest that this is recorded on the Single Central List. This will be checked by OFSTED and the Independent School Inspectorates as part of their schools’ inspections.
• Schools will need to review any historic data collected and destroy any information which is no longer required i.e. disqualification by association information or information for people not working with these groups.
• Consider obtaining professional advice from a HR provider, designated officer, or safeguarding lead officer or adviser to help establish whether staff with relevant cautions or convictions are disqualified from working in relevant childcare.

Further information

Keeping children safe in education (KCSIE)
Statutory framework for early years foundation stage (EYFS) 
Working together to safeguard children
Data Protection: A toolkit for schools
The ICO’s employment practices code of practice gives guidance on data protection issues for employers carrying out criminal records checks 
Guidance on the Rehabilitation of Offenders Act 1974 (ROA)
The DBS has produced a list of specified offences that will never be filtered, .
Guidance provided  by the DBS will help schools understand the old and minor cautions and convictions that do not need to be disclosed.

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