Education Law e-alert: Changes to Disqualification by Association
19 September 2018
New legislation has arrived this month that will reassure the sector and provide schools with greater access to teaching or childcare staff.
The Childcare (Disqualification) and Childcare (Early Years Provision Free of Charge) (Extended Entitlement) (Amendment) Regulations 2018 (the "2018 Regulations") came into force on 31 August.
The Regulations state (Regulation 9 in Part 2) that schools and nurseries are no longer caught by the 'Disqualification by Association' provision contained in the Childcare Act 2006 ("the Act"). This means that teachers who live with an individual who has previously received a caution or conviction for a relevant offence – or live in a home where such an individual works – are no longer disqualified 'by association' from working or providing childcare in schools or nurseries.
The Childcare Act comes into force but disqualification by association under Section 75 does not apply to schools.
Statutory guidance is issued by the DfE stating that schools are deemed to fall within the scope of Section 75.
Further statutory guidance is issued, advising that disqualification by association is no longer applicable to schools and nurseries.
The 2018 Regulations have amended a provision of the Act that was a cause of great stress and uncertainty for many – the disqualification of individuals from providing childcare or teaching children up to the age of 8 if they lived with an individual with a criminal caution or conviction (or lived in a house where this individual worked), under Section 75 of the Act ("Section 75").
The disqualification provision applied to those working in 'early years' childcare (from birth to 1st September after the child turns 5) or 'later years' (from Reception until the child turns 8). It didn't only apply to teaching, but also extended to nursery care and supervision outside of the normal school day, e.g. breakfast clubs or extra-curricular/after school clubs.
Many in the education sector criticised these rules and felt that the effect of the legislation was disproportionate to any potential risk to pupils, particularly when it had the potential to significantly impact the associated person's life. An associated teacher/childcare provider had to declare certain aspects of their private lives to their employer, governing body or Local Authority and would, under the previous rules, have been suspended pending an investigation into the association. The only recourse was to apply to Ofsted for a waiver to continue teaching or providing childcare. This process often took several months and even in the event of a successful application, often made it difficult for an affected teacher to get back into the swing of their previous role.
The change will apply to schools with early-years provision and nurseries.
Regulation 9 has the effect of amending Section 75 to apply solely to the provision of childcare or managing childcare in 'domestic premises', which is defined in the Act as "premises which are used wholly or mainly as a private dwelling".
This means that where an individual's work (such as childminding), takes place in the home that they share with a disqualified person, they will be caught by Section 75. Providing childcare, lessons or supervision activities in a school or nursery, however, is no longer covered by the provision.
You should review your policies and practices to ensure that they are in line with the new rules. From 31 August 2018, Heads, HR staff or those responsible for managing employees must no longer ask their staff about any (actual or possible) cautions or convictions of the people living or working in their home, as this information is no longer required by law. The guidance still suggests that schools should encourage their staff to be open about their relationships so that appropriate safeguards can be put in place to reduce any potential risks to the safety or well-being of pupils.
It is also no longer necessary for schools to retain 'disqualification by association' data regarding its employees, meaning schools should review any information held in this regard and decide whether it should be retained and on what basis, or whether it should be destroyed.
It is important to remember that teachers or childcare workers can still be disqualified from registration as a teacher or childminder if they themselves have a relevant caution or conviction.
Although the 2018 Regulations have provided a long-awaited solution to the issue of disqualification by association, some have raised the question of whether boarding schools will still be caught under 'private dwellings'.
The updated statutory guidance, available HERE , states that "…it should be noted that other statutory guidance may be relevant where the third party lives on the school premises, such as in boarding schools". Whilst the 'Boarding Schools National Minimum Standards' guidance document (available HERE ) has not yet been updated to reflect Regulation 9, Standard 14 refers to staff recruitment and checks on other adults. As a minimum, boarding schools must ensure that they also comply with Standard 14 of the guidance, namely:
"14.1: Schools operate safe recruitment and adopt recruitment procedures in line with the regulatory requirements, and having regard to relevant guidance issued by the Secretary of State.
14.2: For all persons over 16 (not on the roll of the school) who after April 2002 began to live on the same premises as boarders, but are not employed by the school, an enhanced certificate with a barred list information must be obtained from the Disclosure and Barring Service (DBS).
14.3: There is a written agreement between the school and any person over 16 not employed by the school but living in the same premises as children (for example, members of staff households). This specifies the terms of their accommodation, guidance on contact with pupils, their responsibilities to supervise their visitors, and notice that accommodation may cease to be provided if there is evidence that they are unsuitable to have regular contact with pupils.
14.4: All persons visiting boarding accommodation (e.g. visitors, outside delivery and maintenance personnel) are kept under sufficient staff supervision to prevent them gaining substantial unsupervised access to boarders or their accommodation."
Schools should consider their specific circumstances, in particular:
- Are there any boarders under the age of 8 on-site?
- Are all boarding staff recruited with all the necessary safer recruitment checks?
- Are any third parties permitted to reside on-site due to their connection to/relationship with a member of staff? If so, what are the arrangements and do these, as a minimum, meet the National Minimum Standards?
At this stage, it is envisaged that any off-site accommodation provided for staff (as distinct from a boarding house) where a disqualified third party may work or reside, will be sufficiently separate and the individual member of staff will no longer be disqualified 'by association'.