Childcare Disqualification Requirements – Primary school teachers, nursery staff and others – ‘Disqualified by association’

Latest – July 2018 – The Department of Education published its response, (amending the childcare disqualification arrangements in schools and non-domestic registered settings”), to the consultation that it announced in May 2016. It agreed disqualification by association in schools and registered non-domestic childcare settings should be removed. Therefore, from the 1st September 2018 schools are no longer required to ask their staff questions about unspent relevant convictions of someone living in their household.
 

Aim of this page

This page is aimed at people working or considering working in schools who have a criminal record. 

The guide summaries how we understand these regulations to be working in practice, with the aim of providing some useful advice, if you find yourself in a situation with the school. We’ve also got links to some detailed documents which cover some aspects in more depth. The guidance was updated in September 2018. 

Why is this important?

If you’re employed or engaged in providing relevant childcare provision (or involved in the management of such provision) and have a criminal record, then you may be disqualified under the Childcare Act. 

It’s important to establish whether your criminal record is one which will disqualify you and if so, how you would go about applying for a waiver from Ofsted. 

What changes have been made to the Childcare Disqualification Regulations?

Under the Childcare (Disqualification) and Childcare (Early Years Provision Free of Charge) (Extended Entitlement) (Amendment) Regulations 2018 (“the 2018 regulations”), schools are no longer required to establish whether a member of staff employed or engaged in providing relevant childcare provision  is disqualified by association. Therefore, schools should no longer be asking their staff questions about the cautions or convictions of someone living or working in their household.  

Under the new guidance schools are advised  to follow the safe recruitment procedures set out in Part 3 of the Keeping Children Safe in Education (KCSIE)2018, to ensure their policies are clear about the expectations they place on staff, where their relationships and associations both within and outside of the workplace (including online) may have implications for the safeguarding of children in school.   

If you have previously disclosed the unspent caution or conviction of somebody living or working in your household, then you should request that the school delete this information as it will no longer be lawful for the school to retain it.  

At the moment we have no guidance on what schools are going to do, now disqualification by association has been removed. We are keen to hear from anyone who has gone through the new system to update us on the procedures schools now follow, particularly if they continue to ask criminal record questions of someone living in your household. Please send your evidence to policy@unlock.org.uk 
 

What roles are covered by the regulations?

  • Early years provision – staff who provide care for a child up to and including reception age, both during and outside of school hours. 
  • Later years provision (for children up to 8) – staff who are employed to work in childcare provided by the school outside of school hours, including breakfast clubs and after school provision 
  • Staff who are directly concerned in the management of early or later years’ provision – this will include the headteacher, and may also include other members of the senior leadership team, any manager, supervisor, leader or volunteer responsible for the day-to-day management of the provision 
  • Volunteers and casual workers concerned in any of the above 
  • Registered childcare provision outside of schools (Home-based Childminders), although that’s not the focus of this information. 

What roles are not covered by the regulations?

  • Staff who only provide education, childcare or supervised activity during school hours to children above reception age (including extended school hours for activities such as school choir or sports teams)
  • Staff who only provide childcare or supervised activities out of school hours for childcare who are aged 8 or over
  • Staff such as caretakers, cleaners, drivers, transport escorts, catering and office staff, who are not employed to directly provide childcare
  • Most staff who are only occasionally deployed and are not regularly required to work in relevant childcare
  • 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
  • School governors and proprietors are not covered as an outright role

What can schools do?

In the Department for Education statutory guidance, there are a number of key points about what schools should do:

  • Make staff covered by the regulations aware of what information will be required and how it will be used to make decisions about disqualification.
  • Take steps to gather sufficient and accurate information (although a self-disclosure form isn’t mandatory).
  • Ask relevant questions which are limited to the requirements of the legislation. In particular, this includes any cautions or convictions that they have for a relevant offence (that are not yet filtered), and whether they are named on the DBS Children’s Barred List. It can also include asking about convictions for offences covered by the regulations which are not yet spent under the Rehabilitation of Offenders Act 1974.
  • Keep a record of those staff covered by the regulations and those who were previously disqualified by association, and the date disqualification checks were completed. 
  • Retain personal information that is relevant to disqualification on the personnel file.
  • Schools must be certain that any information provided is adequate, accurate and relevant, and where information is provided in error, or is not relevant, it should be destroyed. This would include the criminal record details of a partner of somebody living in the same household.
  • Explain to any individual falling within one of the disqualification criteria how to make an application for a waiver.

What can’t schools do?

In the Department for Education statutory guidance, there are a number of key points about what schools can’t do:

  • Schools must not knowingly employ a person who is disqualified under the regulations in relevant childcare provision.
  • Schools should avoid asking for medical records, details about household members, DBS certificates from third parties, or copies of a person’s criminal record.
  • Schools should not ask staff or third parties to make requests for their criminal records, as this will amount to an enforced subject access request which would be an offence under section 184 of the Data Protection Act 2018.
  • Details of criminal record checks should not be held without the consent of the individual. Where an individual does not give consent schools should only record the date the declaration was made. 

‘Relevant’ offences – What needs to be disclosed?

Types of offences classed as ‘relevant’

The types of offences that are included by definition in the regulations are not contained in one single list. There are a couple of sources listed below. In particular, Table A of the statutory guidance is quite significant. However, whether it needs to be disclosed will depend on whether you’re covered directly by the regulations.

Some of the more common offences that will result in disqualification include:

  • Offences against children (including those that result in inclusion on the Children’s Barred List
  • Those individuals subject to a Sexual Offence Prevention Order (SOPO) 
  • Offences involving violence or a sexual offence against children or adults, including, Murder, manslaughter, kidnapping, false imprisonment
  • Possession of indecent photographs of children
  • Assault occasioning Actual Bodily Harm (AOABH) and Assault Occasioning Grievous Bodily Harm (AOGBH) 

Types of offences not classed as ‘relevant’

An official list of offences not classed as ‘relevant’ does not exist. We advise you to always check your specific offence against the lists above and, if in doubt, you can email disqualification@ofsted.gov.uk. 

Those individuals covered directly by the regulations

The school will normally be aware of all relevant cautions/convictions via an enhanced DBS check. However, although the school may have previously agreed to employ you, these regulations mean you will need to disclose any caution or conviction you have for a ‘relevant’ offence, unless it is eligible for filtering. Technically, relevant offences that are now ‘filtered’ do not need to be disclosed, but we are not aware of any offences listed by the regulations that are eligible for filtering.

This means that if you have a caution or conviction for a relevant offence, it will need to be disclosed if asked for, and you will then have to apply for a waiver from Ofsted.

Applying for a disqualification waiver

If you disclose information that falls within one of the disqualification criteria, the school will inform Ofsted. You should also be informed by the school whether you can apply to Ofsted for a waiver. Ofsted cannot grant a waiver to an individual who is on the Children’s Barred List and working directly in areas covered by the regulations.

Where you are disqualified, you are not allowed to continue in the relevant childcare provision, and you have to then apply for a waiver. You will need to complete the waiver application, providing information about yourself.

So far, many people disclosing information have been suspended from their jobs. However, although in this situation a school musn’t continue to employ you in early or later years childcare provision until you’ve received a waiver from Ofsted, there’s no reason why you are prevented from working in a school in another way. You could be redeployed elsewhere, or have adjustments made to your role to avoid working in relevant childcare. For example, you could work with children aged 6 and 7, providing you’re not working with them in childcare provision outside of normal school hours.

There are details of how to apply to Ofsted to waive your disqualification in the Ofsted guidance. This contains details of how to apply, how they consider these applications, and how you can appeal if they refuse.

Essentially, if you are disqualified, you can request a form to apply to Ofsted to waive your disqualification by emailing disqualification@ofsted.gov.uk. However, Ofsted cannot grant a waiver in certain circumstances, such as where the individual working in the school is on the Children’s Barred List, or prohibited from teaching by the Secretary of State.

If you’re not sure if you’re disqualified, you can seek advice from Ofsted by emailing disqualification@ofsted.gov.uk. When we did this as a ‘trial run’, they requested the following details from us before being able to advise or sending a waiver application:

  • The full name of the school and postal address
  • URN or DfE number of the school
  • Full name of individual requiring waiver
  • Telephone number
  • Position in school/job title/age range of children you work with
  • Are you involved in any before or after school clubs as part of your role in the school
  • Nature of offence

How does Ofsted decide whether to grant a waiver?

Before making a decision, Ofsted say they 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 or any particular pattern of offending;
  • notes of any interviews with the disqualified person;
  • any other information obtained from a criminal conviction certificate or an enhanced DBS check;
  • any mitigating factors.

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.

If you’ve been refused a waiver by Ofsted, contact our helpline.

The regulations in practice – examples

Probably not. The later years provision of the regulations (applicable to children aged between 5 and 8) only relates to staff who are employed to provide childcare to children outside of school hours. Therefore teaching over 8’s during the day would not make you subject to the regulations but if you were involved in any type of breakfast or after school club with children under 8 then you would be.

Yes. Any teacher providing care for a child up to and including reception age, both during and outside of school hours is subject to the regulations.

Your role would be covered by the regulations because you run a breakfast club.

Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed below can be found here.

  • Trade unions – If you’re currently employed in a school, in a role covered by these regulations, and you think that you might be affected by this, you should try and speak to your trade union (if you’re a member) to get advice from them.
  • Department for Education – Help on how the childcare disqualification arrangements should be applied in schools can be obtained from the Department by using their contact form or by telephone – 0370 000 2288. 
  • Ofsted – Queries about the waiver application process should be made to Ofsted by email – disqualification@ofsted.gov.uk.

Resources

More information

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This page was last fully reviewed and updated in September 2018. If you’ve spotted something that needs updating, please let us know by emailing the details to advice@unlock.org.uk
 

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