This brief guide is aimed at people working in schools who either themselves, or those that live/work in the same household, have a criminal record.
The guide summarises 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.
It was substantially updated in late February following the publication of statutory guidance. It will be updated on an ongoing basis.
In October 2014, the Department for Education (DoE) published supplementary advice to schools on what are called the ‘childcare disqualification requirements’. This caused significant confusion and resulted in hundreds of people being suspended from their jobs.
Many organisations, including Unlock, have been putting pressure on the Government, which has resulted in them removing their supplementary advice and replacing it with statutory guidance published in February 2015.
“Employees cannot be required to disclose spent cautions and convictions relating to individuals who live or are employed in the same household as them” (Page 11 of the statutory guidance)
The requirements have been around for a number of years, and apply to registered childcare provision outside of schools, but it’s only since October 2014 that the DoE has made it clear that these also apply to primary schools, and one aspect that’s received the most attention has been the ‘disqualification by association’ part.
The requirements apply on top of what schools do in relation to enhanced DBS checks and checks against the barred lists.
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 or 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 (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). Any questions must be relevant and limited to the requirements of the legislation.
- 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 or anyone living or employed in their household is named on the DBS Children’s Barred List. It can also include asking about cautions or convictions for offences covered by the regulations which are not yet spent under the Rehabilitation of Offenders Act 1974.
- Inform their staff that they are not required to disclose the spent cautions or convictions of a person who lives or is employed in their household.
- Keep a record of those staff covered by the regulations, and the date disqualification checks were completed.
- Retain personal information that is relevant to disqualification on the personnel file.
- To identify cases where a staff member covered by regulations may be disqualified ‘by association’, schools must ask only those staff to provide, to the best of their knowledge, information about someone who lives or is employed in their household.
- 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 an unspent conviction of a partner for an offence which is not listed as a relevant offence, or a spent conviction of a partner (regardless of the offence).
- 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 unrelated or spent convictions of 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 will be an offence under section 56 of the Data Protection Act from 10th March 2015.
- Schools should not store data about household members without their sentient.
- Substantive details of criminal record checks should not be retained and information that is not relevant should be destroyed.
‘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, or covered ‘by association’’.
- Table A – Relevant offences – from page 13 of the Statutory Guidance
- 5.1a Disqualifications (Ofsted, 2013) – this seems to be an older document than the Ofsted guide on the waver process, but it includes more detail about the offences covered by the regulations
- DBS Relevant Offences – All of the offences listed here appear to be covered by the regulations
- A helpful summary of the offences from a website which covers safeguarding in schools
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
ABH and GBH
Types of offences not classed as ‘relevant’
An official list of offences not classed as ‘relevant’ does not exist. However, the following broad categories do not appear to be included in any of the lists that exist, although we advise you always check your specific offence against the lists above and, if in doubt, contact Ofsted. If you’re not sure whether your offence is covered, you can email firstname.lastname@example.org.
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 the offences below are classed as ‘relevant’. 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.
Those covered ‘by association’
For those living or employed in the same household as somebody covered by the regulations, what needs to be disclosed is different.
Do I disclose or not?
If the disclosure relates to you, it’s likely the school are already aware because of your enhanced check. However, you should still work out whether the ‘offences’ involved are covered by the regulations – see above. If they’re not, you don’t have to formally disclose them under these regulations.
If the disclosure relates to someone who lives or is employed in your household, but they’re not the one covered directly by these regulations, the first thing you should do is work out whether their cautions or convictions are spent. If they are spent, they don’t need to be disclosed. Secondly, if they are unspent, you should work out whether the ‘offences’ involved are covered by the regulations – see above. This isn’t always as easy a question to answer as you might think.
If your situation is covered by the regulations, it’s important to point out that the ‘disqualification by association’ element relies on self-disclosure. Usually, a school will ask you to make a declaration which relates to the people you’re living with.
At the moment, we’re still trying to understand the implications of not disclosing.
In practice, if you know the situation of someone you live with, and you’re aware you have something to disclose because of them, you are running a risk by not disclosing. In reality, in most cases it’s unlikely they’ll find out, but the chances of this will depend on individual cases (for example, whether the case is featured in the media). Plus, if the school or authorities find out that you’ve lied, you not only risk your job, but possibly risk being prosecuted under the Fraud Act, particularly if it’s clear that you knew what you were doing.
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 (either because of something about you, or something about someone you live with), 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, or about any person who lives or is employed in your household who satisfies the disqualification criteria.
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 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 email@example.com. 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 firstname.lastname@example.org. 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 (if by association, please state)
- What is the relationship to the individual (if by association only)
As this stage, we know very little about the number of cases that Ofsted have dealt with so far, how likely it is that they’ll grant a waiver, or how long it takes for them to process these applications.
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 available from other authorities, such as the police; and
- any mitigating factors.
If you have been disqualified “by association”, it is important that you make sure that your character is also taken into account. The person best placed to provide Ofsted with relevant information is your head teacher/principal. You should request a character reference from them (if possible) and attach it to your waiver application.
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.
- Disqualification under the Childcare Act 2006 – Statutory Guidance (Department for Education, February 2015)
- Childcare (Disqualification) Regulations 2009 (Legislation)
- Applying to waive disqualification: early years and childcare providers (Ofsted)
We are working at a policy level with trade unions and other stakeholders to work towards the removal of the regulations altogether.
If you are looking for further advice in addition to what’s on this page, there are some useful contacts below:
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. Some of the unions have been quite vocal about this system, and are actively challenging it. For example, the guidance for NUT members is worth a read.
Department for Education
Help on how the childcare disqualification arrangements should be applied in schools can be obtained from the Department for Education by email – email@example.com, or by telephone – 01325 340 409.
Queries about the waiver application process should be made to Ofsted by email – firstname.lastname@example.org.
In the meantime….what we’re doing
We’re challenging this system, particularly the ‘disqualification by association’ element.
- Practical self-help information – We’ve produced this brief guide to help people understand how this system seems to be working in practice.
- Policy work – We’ve put a call out for individuals who this has affected. If you’ve been directly affected by the ‘disqualification by association’ element, please let us know what’s happened to you. More details can be found in the policy section of our main website.
- Discuss this issue – There’s an interesting discussion on our online forum about this – read and share your thoughts