At the end of 2014 many schools and local authorities approached teachers and other school staff seeking information about previous convictions and cautions (including reprimands and warnings) relating to individuals living in their household. This was as a result of Department for Education (DfE) guidance on the implications of the childcare disqualification arrangements for schools. Unfortunately, a number of schools and local authorities were misrepresenting the guidance and imposing checks overzealously, in a way not required either by regulations or guidance.
As a result of concerted pressure from the NEU and other stakeholders, the Government has removed schools from the disqualification by association provisions. From 31 August 2018, no member of staff will be prevented from working with children in a school setting by reason of an offence or offences committed by someone living in their household. The DfE has issued revised statutory guidance, which is available here.
Background and context
What are the childcare disqualification arrangements?
The childcare disqualification arrangements are contained in the Children Act 2006 and the Childcare (Disqualification) Regulations 2018. They automatically disqualify a person from providing, or working in, childcare at the point they are convicted of or cautioned for specified offences or where they meet other disqualification criteria set out in the regulations. These arrangements apply to staff in all schools who are employed in connection with early and later years’ provision, as set out below:
- Early years’ provision includes education and any supervised activity for a child from birth until 1 September following their fifth birthday. It applies to all provision for children in that age range during and outside of school hours, including in school nursery and reception classes.
- Later years’ provision covers any supervised ‘childcare’ activity for a child aged under eight that is provided outside of school hours, including breakfast clubs and after school care.
The Act and regulations also apply to staff directly concerned in the management of such provision (eg head of nursery or reception).
Why do the ‘childcare’ disqualification arrangements apply to schools?
The arrangements apply wherever childcare is provided, so it applies to schools and other settings such as private nurseries. The definition of childcare embraces children taught in nursery and reception classes in schools, as well as where children attend provision outside of the normal school day. The intention of these arrangements is to ensure that individuals who may present a risk to children do not work in early or later years’ provision, as defined above.
What is the relationship between these arrangements and the Disclosure and Barring Service (DBS) arrangements that schools are familiar with?
All staff in schools are covered by the DBS arrangements but the disqualification arrangements are additional safeguarding requirements on school staff providing childcare, as defined above.
In what circumstances would I be disqualified from providing childcare in a school setting?
You will be disqualified from providing childcare in a school setting if:
- you are included on the DBS Children’s Barred List
- you commit certain violent and sexual criminal offences against children and adults which are referred to on pages 18-35 of the DfE’s statutory guidance
- orders relating to the care of children and listed on pages 36-38 of the DfE’s statutory guidance are made against you
- you are refused registration relating to childcare, or existing registration is cancelled, or you are prohibited from private fostering
- you are found to have committed an offence overseas which would have resulted in disqualification had it been committed in the UK.
School staff covered by the legislation
Is there a list of job roles that are covered by the disqualification arrangements?
No, but the DfE’s statutory guidance Disqualification under the Childcare Act 2006 provides examples of the sort of roles covered by the legislation. Ultimately, though, it is for head teachers to decide which staff come within scope of the legislation once they have sought appropriate advice (eg from the local authority).
What does ‘supervise’ mean? Is this just lunch time supervision?
The arrangements cover any supervisory role, such as a breakfast club or lunch time supervisor. They also cover someone providing classroom supervision, say in a reception class, but not necessarily someone who does so only occasionally. In essence, if the person’s role requires them to act in a supervisory capacity on a routine, though infrequent basis, the role will be covered.
Are all those supervising after school activities covered?
The arrangements extend to all provision provided for children up to reception age, before during and after school. For children above reception age but who have not attained the age of eight, the arrangements apply only to supervised activities provided by the school outside of school hours. However, this does not include extended school hours’ co-curricular learning such as sports teams, choirs and drama clubs.
What does ‘directly concerned with the management of provision’ mean?
The term embraces someone directly involved in the day-to-day running of relevant provision. This would include anyone working or managing in the setting and someone to whom managerial decisions are escalated, such as the head teacher. It would not extend to someone who is infrequently involved in the setting, which may include a member of the school’s senior leadership team (SLT) who may exceptionally have to make decisions relevant to the management of the provision.
You are a key stage 2 lead and you have been asked to make some management decisions affecting the reception class in the deputy head teacher’s absence on sick leave. This is not part of your role. You will not be covered by the legislation because making management decisions for reception is part of the deputy head’s role, not yours.
I am occasionally deployed to teach reception for short periods of time. Am I covered by the disqualification rules?
The DfE’s statutory guidance is clear that most staff who are only exceptionally deployed and are not routinely required to work in relevant settings do not automatically come within scope of the legislation. It is left to the discretion of the school governing body, the local authority’s designated officer and the school safeguarding lead officer or adviser to determine whether such staff should be within scope. In reaching their decision they should carry out a risk assessment, preferably with the knowledge and involvement of the recognised unions and, in any event, with the involvement of school staff.
I am a peripatetic music teacher. Am I covered?
You will be covered if your role requires you to provide repeated support or tuition to an individual, group or class in a relevant setting. This may include music tuition outside of school hours, but may not include extended school hours’ co-curricular learning.
Are supply teachers covered?
Supply teachers are covered when assigned to work in a relevant setting. If you are employed by your school governing body or local authority, they should apply the same arrangements to you as they apply to other directly employed staff in relevant settings. If you are employed by an agency, however, the agency should explain (in writing) the childcare disqualification arrangements, what obligations the arrangements place on you and what you need to do if you are disqualified.
What about educational psychologists and speech/language therapists?
Paragraph 10 of the DfE’s statutory guidance says anybody involved in any form of health care provision for a child, including school nurses and local authority staff, such as speech and language therapists and education psychologists, are specifically excluded from the statutory definition of childcare and are therefore not covered by the legislation.
Are trainees on Teach First or other salaried teacher training covered?
Yes, all trainees on a salaried teacher training course are covered by the legislation. It is the responsibility of the school in which they work to ensure that they comply with the legislation. If a salaried trainee is disqualified from childcare the school should inform the training provider of this.
What about trainee teachers on placement?
All trainee teachers are covered by the arrangements. Where trainees are on non-salaried programmes, such as a postgraduate certificate in education (PGCE) course, 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, where appropriate. Schools will want to ensure that the necessary checks have been made when arranging placements. Ofsted will consider students on initial teacher training (ITT) courses as being in employment and will therefore consider any waiver applications from them.
What if I am self-employed?
The school wishing to use your services is likely to ask you to confirm in writing that you are not disqualified from working in early or later years’ provision. You will be solely responsible for ensuring that you are not disqualified while working in the relevant settings. If you are or become disqualified, you may apply to Ofsted for a waiver in the same way employed school staff do.
Disqualification by association
What does disqualification ‘by association’ mean?
Disqualification ‘by association’ meant you could be disqualified from providing childcare in a school setting because of an offence or offences committed by someone who lived in your household. However, because of a change to the law, schools are no longer required to ask staff providing, or employed to provide, childcare if they are disqualified by association.
Does this mean I am under no obligation to inform my head teacher if someone I live with has or obtains a criminal record?
No it doesn’t. It means your head teacher and school governing body should not demand disclosure, but it does not mean you may remain silent even where it would be appropriate for you to confide in your head teacher. You should remember that you have a contractual obligation to safeguard the children in your care. This may sometimes mean disclosing information about people in your personal life which you may prefer not to disclose. Your head teacher may need to assess whether the people you are close to, and who may have access to school premises and/or to pupils’ information because of their association with you, represent a risk of harm to pupils and then to take appropriate steps to mitigate any perceived risk. Members have been dismissed and, on some occasions, prohibited from teaching altogether, because they failed to disclose information about offences – and even a police investigation of an alleged offence –committed by a spouse, partner, child or close friend.
Our advice is to speak to your head teacher or chair of governors (where you are the head) the moment you become aware that a relative or friend (with whom you may or may not live) is, or has been, the subject of a police investigation, charge or conviction for offences against a child and/or a violent offence against an adult.
Managing affected staff
How should schools check that ‘relevant’ staff are not disqualified from providing childcare?
The DfE’s statutory guidance provides some examples of how schools may obtain appropriate information and ensure it remains relevant (refer to paragraph 22 of the DfE guidance). The NEU has provided school leaders with a model letter to issue to staff at the beginning of each academic year.
All the staff at my school have been asked to complete a self-declaration form. Is my school taking the right approach?
We are aware that a number of schools have advised head teachers/principals to ask all staff in nursery, primary and ‘all-through’ secondary schools to complete declaration forms. In our view, the disqualification arrangements do not require schools to take such measures. Paragraph 23 of the DfE’s statutory guidance advises that schools have a responsibility only to ensure that anyone in a relevant setting is made aware of the circumstances which would disqualify them from providing childcare and of the penalties associated with working while disqualified without a waiver. We continue to seek the agreement of school leaders and local authorities to do no more than what is required to comply with the law. Staff in secondary schools will generally fall outside the remit of the legislation in any event.
If you are issued with a self-declaration form in the course of your employment let the NEU know, as the union would wish to challenge this. Call 0345 811 8111 or contact Adviceline.
You may also take a collective approach with other staff at your school and decide as a group not to complete a form which the DfE’s statutory guidance describes as unnecessary (refer to paragraph 24). Speak to your school rep, or if you don’t have one, your division/association secretary about organising a staff meeting to assess the strength of feeling at your school.
What process should schools follow once a staff member in a relevant setting discloses disqualification?
Once a staff member in a relevant setting declares they are disqualified, a meeting should be arranged to discuss, among other things:
- the process of applying to Ofsted for a waiver
- their work pending issue of the waiver.
A trade union representative or work colleague should be allowed to accompany the disqualified member of staff to the meeting.
Can disqualified staff continue to work in schools while a waiver application is under consideration?
Yes – disqualified staff can continue to work in schools but not in a relevant setting. If you are disqualified, your head teacher should consider whether they can redeploy you within the school or elsewhere. Head teachers should suspend disqualified staff only once all other options have been exhausted and only as a last resort.
Who applies for a waiver?
It is the responsibility of the disqualified member of staff to apply for a waiver. Information about how to apply for a waiver can be found at here, along with a copy of the waiver application form.
How long does it take to get a waiver decision?
This will depend on the information Ofsted is given by the individual disqualified and the complexity of the waiver application. In the majority of cases, where Ofsted is given the information it needs, decisions can be made quickly and waivers issued in a week or two. Where information is incomplete, or where Ofsted needs to make enquiries or conduct interviews, a waiver application may take a number of weeks.
How does Ofsted assess waiver applications?
Ofsted says that before a decision is made it will consider the following:
- the risk to children
- the nature and severity of any offences, cautions or orders disclosed
- the age of any offences or orders
- repetition of any offences or orders
- repetition of any offences or orders or any particular pattern of offending
- notes of any interviews with the disqualified person
- any other information available from other authorities, such as the police, and
- any mitigating factors.
Will I be interviewed by Ofsted?
You will not be interviewed by Ofsted as a matter of course. An interview may be necessary, however, if the information you provide is insufficient for Ofsted to make a decision as to your suitability to work with children, or the offence which gives rise to disqualification is very serious and/or complex.
Can I apply for a waiver in anticipation of a job in the relevant setting?
Ofsted are taking a pragmatic approach where waiver applications are made prior to appointment. As long as there is evidence of a job offer, Ofsted will consider applications for waivers prior to staff taking up roles in childcare. In relation to agency teachers, Ofsted has agreed to consider waiver applications from staff on agency books so that they do not have to wait for an assignment before applying for a waiver.
As an agency teacher, what could my agency be doing while I wait for a waiver decision?
If you are already working in a relevant setting, your agency could ask the school to which you have been assigned to redeploy you to a non-relevant setting in the school pending the outcome of your waiver application. If there are no redeployment opportunities at the school, your agency could send you to work in a non-relevant setting at another school. If you have not received an assignment yet, your agency should be looking for work in non-relevant settings pending the outcome of your waiver application.
What happens when a waiver is granted?
The individual can resume work immediately in the relevant setting. The waiver may explain that there are some restrictions, for example, the waiver applies only to the present job role. The individual concerned will need to discuss this with the school, which will receive a copy of the waiver notification but not the relevant conviction materials.
Are Ofsted waivers portable? If not, why not?
Most waivers are unconditional, which means they can be used by staff who move to work in another school. Affected individuals should make sure they keep safe any waiver letter they receive, as they may need to show it to a future employer. The regulations allow Ofsted to grant a full or partial waiver, which may mean that they will restrict the waiver only to employment with a certain employer, or to a particular role. Where Ofsted gives consent to waive disqualification only in relation to a person’s current employment, the individual would need to apply to Ofsted for another waiver if they wish to work for a different employer. Staff who believe they have been wrongly issued a conditional or partial waiver should contact the union; it may be possible to ask Ofsted to reconsider the application.
Are there circumstances where a staff member who is refused a waiver can continue to work in a school?
If a waiver is not granted, the school will need to decide whether to permanently redeploy the staff member to an alternative role or dismiss them. There may be cases where individual circumstances change and a person ceases to be disqualified before the school has made a decision. Members should immediately contact the union if they are threatened with dismissal.
Can I appeal if Ofsted refuses to grant me a waiver?
There is a right of appeal to the Health, Education and Social Care First-tier Tribunal within 28 days of Ofsted’s decision letter. You may contact the union if you are refused a waiver by Ofsted.