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. A number of schools and local authorities misrepresented the guidance and imposed checks 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 is 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 issued revised statutory guidance.
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 (e.g., head of nursery or reception).
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.
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.
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 that would have resulted in disqualification had it been committed in the UK.
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 it is for head teachers to decide which staff come within scope of the legislation once they have sought appropriate advice (e.g., from the local authority). See below for further guidance about school staff likely to come within scope of the legislation.
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.
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. This does not include extended school hours’ co-curricular learning such as sports teams, choirs and drama clubs.
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.
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 (LA’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.
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.
Supply teachers are covered when assigned to work in a relevant setting. If you are employed by your school governing body or LA, 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, it 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.
The DfE’s statutory guidance says anybody involved in any form of health care provision for a child, including school nurses and LA 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.
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.
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 consider any waiver applications from them.
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 as employed school staff.
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. A change to the law means schools are no longer required to ask staff providing, or employed to provide, childcare if they are disqualified by association.
No, it does not. 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 that 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 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.
The DfE’s statutory guidance provides some examples of how schools may obtain appropriate information and ensure it remains relevant. The NEU has provided school leaders with a model letter to issue to staff at the beginning of each academic year.
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. The NEU view is that the disqualification arrangements do not require schools to take such measures.
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
The union continues 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. Attached to this document is an NEU staff decision matrix which you may use to determine if you are disqualified.
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. 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.
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 rep or work colleague should be allowed to accompany the disqualified member of staff to the meeting.
Yes – they 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.
It is the responsibility of the disqualified member of staff to apply for a waiver. Information about how to apply for a waiver is available from GOV.UK.
This will depend on the information Ofsted is given by the disqualified individual and the complexity of the waiver application. In the majority of cases, 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, an application may take a number of weeks.
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
- any mitigating factors.
You will not be interviewed by Ofsted as a matter of course. An interview may be necessary 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.
Ofsted is 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.
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.
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.
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.
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.
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.