Keeping children safe in education

About this guidance

The Childcare (Disqualification) Regulations 2009 are made under section 75 of the Childcare Act 2006.  It contains information on what schools should do and sets out the legal duties with which schools and colleges must comply for all existing and new employees in early (birth to 5) and later years (up to age 8) working in schools and academies. 

Keeping children safe in education is the first step to safeguarding and promoting the welfare of the children in schools. The school is committed to safeguarding and promoting the welfare of children and young people and expects all staff and volunteers to share this commitment.

This school recognises the value of, and seeks to achieve a diverse workforce which includes people from different backgrounds with different skills and abilities. The school is committed to ensuring that the recruitment and selection of all who work within the school is conducted in a manner that is systematic, efficient, effective and promotes equality and opportunity.

What school staff need to know

All staff members should be aware of systems within their school which support safeguarding and these should be explained to them as part of staff induction.  This includes the school’s child protection policy, code of conduct and the schools designated safeguarding lead.

Disqualification under the Childcare Act 2006

Staff are covered by this legislation if they are employed and/or provide early years childcare from birth to up the age of 8 in nursery, primary or secondary schools settings, or if they are directly concerned with the management of such childcare.

• Early years' provision includes education in nursery and reception classes and any supervised activity such as breakfast clubs, lunchtime supervision and after school care provided by the school, both during and outside of school hours.
• Later years' provision (for children under 8) relates to staff who are employed to work in childcare provided by the school outside of school hours for children who are above reception age but who have not attained the age of 8, for example breakfast clubs and after school provision.

Staff such as caretakers, cleaners, drivers, catering and office staff, who are not employed to directly provide childcare are not covered by the legislation.  Staff who are only occasionally deployed and are not regularly required to work in relevant childcare will not automatically come within the scope of the legislations.  Schools should exercise their judgement about when and whether such staff are within scope, evaluating and recording any risks and control measure put in place, a record of the assessment should be retained on the employee's personnel file.

Safeguarding requirements

The child protection arrangements in place for all pupils, including the checks which schools must make to identify risks to children and to make informed decisions about the suitability of individuals to work in schools, are set out in the Keeping children safe in education (KCSIE) guidance by the Department for Education. When appointing staff, schools much check the following:

• Police records
• Police intelligence
• Disclosure and Barring Service (DBS) barring lists
• Those appointed to teaching posts, they are not prohibited from doing so by the Secretary of State.

The requirements of those working in nursery and reception classes in schools are set out in the Early Years Foundation Stage (EYFS) statutory framework.

Childcare disqualification requirements

The Disqualification under the Childcare Act 2006 guidance sets out separate and additional requirements on schools.  At the point that an individual is convicted of, or cautioned for, a criminal offence of a specified type or category, or where they meet other disqualification criteria set out in the regulations, the Act and Regulations disqualify staff from the following:

• Providing early years childcare or later years childcare to children who have not attained the age of eight; or
• Being directly concerned in the management of that childcare.

In addition to inclusion on the Children’s Barred List, the wider disqualification criteria  include:

• Being cautioned for or convicted of certain violent and sexual criminal offences against children and adults
• Grounds relating to the care of children (including where an order is made in respect of a child under the person’s care
• Having registration refused or cancelled in relation to childcare of children’s home or being disqualified from private fostering.
• Living in the same household where another person who is disqualified lives or works (disqualification ‘by association’).

Disqualification by association

The requirement to provide the relevant information about a person who lives or works in the same household as them is a new piece of legislation.  Schools are free to decide how to bring these requirements to the attention of their staff.  As a means of making staff aware of their duty to provide such information, they may for example choose to include a section in the school's safeguarding policy and draw this guidance to the attention of their staff.

It guards against an individual working with young children who may be under the influence of a person who lives with them and where that person may pose a risk to children i.e. ‘by association’.  Not all staff are covered by the legislation Appendix 2 - Roles not covered by the legislation

In addition to ensuring staff are made aware of the relevant legislations, schools need to take steps to gather sufficient and accurate information about whether any member of staff in a relevant childcare setting is disqualified by association.

It is not necessary for schools to ask staff to complete a self-declaration form to obtain the relevant information and about whether a staff member is disqualified.  It is important that schools avoid asking for information that is not relevant to ensure that they are not in breach of data protection legislation.  They 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 inform their staff that when responding to questions about their cautions or convictions, they do not need to provide details about any protected cautions or protected convictions and that they are not required to disclose their spent cautions or convictions of a person who lives or is employed in their household.

Where schools decided to adopt the approach of self-declaration Appendix 3 - Staff Disqualification Declaration once completed, this should be retained on the personnel file; you should also indicate on the School Central Register that a declaration form has been completed, which helps to identify those caught ‘by association’ requirement, particularly where an individual may be reluctant to self-declare.  When it is identified that an individual is disqualified or ‘by association’ criteria is met, should be asked to provide the following information to their employer about themselves or any person who lives in the same household as them:

• Details of any order, determination, conviction, or other ground for disqualification from registration under the Childcare (Disqualification) Regulations 2009;
• The date of the order, determination or conviction, or the date when the other grounds for disqualification arose;
• Information about the body or court which made the order, determination or conviction and the sentence (if any) imposed
• A certified copy of the relevant order (in relation to an order or conviction)

Any relevant information passed to the school must be provided to Ofsted as soon as reasonably practicable, but at the latest within 14 days of the date the school became aware of the information.  Schools should be mindful of their obligations for handling personal data under the Data Protection Act and should act accordingly.

Schools must keep a record of those staff who are employed to work in or manage relevant childcare and should record the date on which disqualification checks were completed.  Schools should ensure that in maintaining records they comply with the requirements of the Data Protect Act.  In particular they should not store personal data or sensitive personal data about household members without their consent, and they should ensure that any information is kept to a minimum, is accurate and is only stored for the minimum period of time necessary.  Schools may choose to keep this information as part of the single central record or maintain a record separately.  Ofsted and the independent inspectorates will check this as part of the normal school inspection process.

What offences are listed

Ofsted have produced a list of all offences and prohibition for childcare.  The Disclosure and Barring Service list covers all offences that would result in a person being placed on the barred list.  A summary of relevant offences are shown in Appendix 4 - Offences that count, specific offences are detailed in the following guidance:

• Ofsted: Disqualifications (February 2013)
• DBS: Relevant offences (September 2014)

Action for schools and individuals

It is the responsibility of the governing body to ensure that the school has procedures making the requirements of the legislation clear and should explain to new and existing staff working in relevant childcare that they should inform the school if their circumstances change.  Schools that choose to add information relating to disqualification into their policies should alert all staff to the addition, for example via staff bulletin or email.

It is the responsibility of the Head teacher and other managers involved in recruitment to ensure that the school operates safe recruitment procedures and makes sure all appropriate checks are carried out on all staff and volunteers who work at the school.  They will also monitor contractors’ and agencies compliance with this policy, to ensure that all the staff they employ have had the appropriate checks.  This includes staff working in these specified early and later years settings, are suitable to do so.

Schools may now ask existing employees covered by the legislation and working in these settings and those who are directly concerned in the management of such provision to provide the relevant information not only about themselves but also about a person who lives or works in the same household as them.  

1. Schools should ask for this information as part of their pre-employment checks when appointing new staff.
2. Schools should ask existing staff covered by the legislation, whether anyone they live with is disqualified from working with children or young people.
3. Schools will ask relevant staff to complete and sign a declaration that they do not meet the ‘disqualification by association’ criteria, a copy of the guidance should also be provided.
4. When schools become aware that a member of staff lives in a household with a disqualified person, they should contact their HR provider for further advice.
5. The schools must inform Ofsted within 14 days.

Safer recruitment

The school will:

• Ensure that appropriate staff who undertake recruitment have received and successfully completed safer recruitment training
• Keep and maintain a single central record of recruitment and vetting checks in line with DfE requirements
• Require staff who are convicted or cautioned for any offence during their employment with the school to notify the school, in writing of the offence and penalty.

Pre-appointment checks

When appointing new staff, the school will: 

• verify a candidate’s identity, preferably from current photographic ID and proof of address
• obtain a certificate for an enhanced DBS check with a barred list information
• obtain a separate barred list check if an individual will start work in regulated activity before the DBS certificate is available
• receipt of at least two satisfactory reference, one of which will be from the former or most recent employer
• check that a candidate to be employed as a teacher is not subject to a prohibition order issued by the Secretary of State, using the Employee Access Online service
• undertake a pre-employment medical fitness check
• verification of the candidate’s right to work in the UK
• if the person has lived or worked outside the UK, make any further checks to school consider appropriate
• Verification of qualifications
• Verification of professional registration if applicable
• Ask candidate to complete a ‘Childcare Disqualification Declaration’ form.

Ofsted waiver

Individuals who are disqualified are not permitted to continue to work in early or later years’ provision or be directly concerned in the management of that provision unless they have received a waiver from Ofsted which covers the role that they wish to undertake. 

Where a school becomes aware that a member of staff is disqualified they should explain the implications to the individual and advise them that they may apply to Ofsted for a waiver of disqualification.  Further details about how to make an application for a waiver can be found on the Ofsted website - applying to waive disqualification: early years and childcare providers.  Whilst a waiver application is under consideration, the individual must not continue to work in these settings. 

The school should consider if they are able to offer suitable alternative work in another setting or a temporary alternative job role in another school.  Where alternative arrangements cannot be made or it is not appropriate to do so, the school will need to consider whether to grant paid leave or similar, or as a last resort suspend the member of staff whilst the waiver application is under consideration.  

Where an individual decides not to apply for a waiver, or a waiver is declined, schools will have to consider and make decisions about whether the individual could be permanently redeployed, the appropriateness of redeployment, or whether steps should be taken to legitimately terminate their employment. For further guidance, contact your HR provider.

Single central record  

The school must keep a single central record, referred to in the regulations as the register.  The single central record must cover all staff (including supply, volunteers, governors, contractors) who work at the school.  Generally, the information to be recorded on these individuals is whether or not the following checks have been carried out or certificates obtain, and, the date on which the checks were completed.

• identity check
• a bared list check
• an enhanced DBS check
• a prohibition form teaching check
• further checks on people living or working outside the UK
• check of professional qualifications and
• check to establish the person’s right to work in the UK
• disqualification check if relevant

For details of records that must be kept, see the Schedule 2 of the School Staffing (England) Regulations 2009.

Volunteers

Schools must follow the principles set out in Part 2 of Keeping Children Safe in Education 2014, DfE.

Further Guidance

For further guidance and information, please see the following:

• Appendix 5 - Further guidance on spent cautions or convictions
• Appendix 6 - Latest Disqualification Guidance