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Disqualification by Association (February 2015)

Published: 28th February 2015
Revised: 10th June 2016 when the guidance was republished, but no changes were made to the text. The government note says that they have ‘updated review date to January 2017 when we will take account of the outcome of our consultation on changes to the disqualification arrangements for childcare workers’.

Disqualification under the Childcare Act 2006
Statutory guidance for local authorities, maintained schools, academies and free schools (February 2015)

Background

In October 2014, the government issued supplementary guidance to ‘Keeping Children Safe in Education (2014)’. This guidance said that school staff are disqualified from working in a school, when they ‘live or work in the same household’ as someone who is barred from working with children or young people, even if they would not otherwise be disqualified themselves.

The guidance caused much consternation in schools and resulted in people being suspended from their work and, in some cases, they were dismissed. In many schools, staff were asked to sign a declaration that they did not meet the ‘disqualification by association’ criteria.

Disqualification by Association Guidance from February 2015

On 26th February 2015, the government issued new guidance which replaces the October 2014 document and clarifies the position with regard to schools called Disqualification under the Childcare Act 2006.

Download the latest guidance

www.gov.uk/government/publications/disqualification-under-the-childcare-act-2006

Who is covered by ‘Disqualification under the Childcare Act 2006’?

Staff

Staff are covered by the Act if they are employed and/or provide childcare in either the early years or later years.

  • Early Years means from birth until 1st September following a child’s fifth birthday i.e. up to and including reception age.
  • Later Years means children under the age of 8.

Managers

Staff who are directly concerned in the management of early or later years provision are covered by the legislation. Schools will need to use their judgement to determine who is covered, but this will include the headteacher, and may also include other members of the school’s leadership team and any manager, supervisor, leader or volunteer responsible for the day-to-day management of the provision.

Which staff are covered is set out in the table below

During School Hours Outside School Hours*
Reception age or younger Covered Covered
Older than Reception age until age 8 Not Covered Covered
8 years or older Not Covered     Not Covered
*Outside school hours does not include school clubs, eg. choir or sports’ teams, or detentions, but does include breakfast clubs or after-school provision.

Who is not covered?

Staff such as caretakers, cleaners, drivers, transport escorts, catering and office staff, who are not employed to directly provide childcare, are not covered by the legislation.

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 not covered by the legislation.

School governors and proprietors are not covered by the legislation, unless they directly manage, work or volunteer in a relevant provision.

What should schools do?

Schools should make staff aware of the disqualification guidance by:

• referring to the guidance in the school’s safeguarding policy or another document
• drawing the guidance to the attention of their staff
• recording these checks on the Single Central Record or maintain a separate record

Identifying staff who may be ‘disqualified by association’

In order to identify cases where a staff member working in relevant childcare settings may be disqualified ‘by association’, schools must ask only relevant staff to provide, to the best of their knowledge, information about someone who lives or is employed in their household.

Declaration Forms

It is not necessary for schools to ask staff to complete a self-declaration form to obtain information about whether a staff member is ‘disqualified by association’, but they do need to ‘take steps to gather sufficient and accurate information’ [about staff in relevant provisions]. Schools must record the date on which disqualification checks were made, either on the single central record or a separately.

Schools must be careful not to ask for information to which they are not entitled when establishing whether a staff member is ‘disqualified by association’. Paragraphs 22 – 33 of ‘Disqualification under the Childcare Act 2006‘ gives guidance on appropriate and relevant information sources.

Headteachers are advised to seek HR or legal advice to clarify which information may be requested from relevant staff.

What should schools do when staff indicate they may be disqualified?

The first step should be to contact the school’s HR provider, legal provider, LADO, safeguarding lead officer or advisor and explain the circumstances.

If the school is satisfied that the staff member is ‘disqualified by association’, they should inform Ofsted and explain to the member of staff that they may apply to Ofsted for a waiver.

Although a school must not continue to employ an individual who is disqualified, it does not imply that individuals are prevented from working in a school in any other setting.

Options whilst an Ofsted waiver is being considered

Whilst a waiver is being considered, schools may redeploy staff away from the relevant age groups or adjust their role.

Where a school is unable to redeploy the member of staff or adjust their role, they should consider paid leave or, as a last resort, suspend the person whilst the waiver is considered.

Options where a staff member decides not to apply for a waiver

The school will have to decide with the person could be permanently redeployed or whether dismissal would be appropriate.

Options when a waiver is declined

The school will have to decide with the person could be permanently redeployed or whether dismissal would be appropriate.

Relevant Offences

The table of relevant offences can be found in the document: Disqualification under the Childcare Act 2006’.

Applying to Ofsted to waive a disqualification

If you are disqualified, you can request a form from Ofsted to waive the disqualification by emailing them here: disqualification@ofsted.gov.uk .

The form must be completed in writing. They will not agree to waive a disqualification on the strength of information given over the telephone.

Further help

Department for Education mailbox.disqualification@education.gsi.gov.uk or 01325 340 409

Ofsted: disqualification@ofsted.gov.uk

This document has been prepared by Andrew Hall, a specialist safeguarding consultant. It has been written in good faith and is a summary of the relevant statutory guidance at the time of writing and is no replacement for reading the document in full. This summary does not constitute legal advice.

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