Disqualification under the Childcare Act 2006 (Childcare Disqualification in Schools or Disqualification by Association)

Disqualification under the Childcare Act 2006

Information, advice and guidance for members [England]


Background

Under the Childcare Act 2006 and the Childcare (Disqualification) Regulations 2009, it is illegal for someone who is disqualified from registering as a childcare provider to provide childcare for children under the age of eight years, or to be involved in its direct management.  It is also an offence for an employer to knowingly employ someone who is disqualified to provide or manage such childcare.

There are several disqualification criteria, most of which would be picked up through the process of applying for a Disclosure and Barring Service (DBS) check (formerly CRB check).  One criterion which has caused particular difficulty to some is ‘disqualification by association’.  This applies where someone is disqualified, not because of anything he or she has done, but because he or she lives in the same household where another person who does meet the disqualification criteria (even if they have never applied to work with children) either lives or works.

In October 2014, the Department for Education (DfE) published guidance to help schools apply the rules on disqualification, including disqualification by association.  Unfortunately, some schools and local authorities, in attempting to follow this guidance, appear to have gone far beyond what the law requires, resulting in some people being subjected to unnecessary stress and uncertainty, suspended from work, or threatened with the prospect of possible disciplinary action.

Voice and other unions raised concerns with the DfE about how the guidance was being interpreted and applied inappropriately by some schools and local authorities. 

As a result, the DfE issued new, clearer guidance (February 2015) on disqualification by association and how staff should be treated if they are affected by this. 

Voice continues to work with the DfE to resolve some of the wider issues raised by the disqualification process. 

The DfE’s guidance:  www.gov.uk/government/publications/disqualification-under-the-childcare-act-2006


Who is affected?

The DfE guidance makes it clear that the legislation applies to staff who either manage or work directly with children under 5 during school hours, or children under 8 outside of school hours (for example, in breakfast clubs or after-school clubs).  It does not apply to staff who only work with children above reception age during school hours, unless they also have responsibility for managing foundation stage provision or out-of-school-hours activities for children under 8. 

Disclosing offences of people who live or work in the same household

The ‘disqualification by association’ rule means that you are obliged to inform your employer if anyone living or working in the same household as you falls within one of the disqualification criteria.  However, it is important to note that you are not guilty of an offence if you are unaware that a person you are living with is disqualified.  Also, there is no legal requirement on either you or your employer to seek such information. 

The DfE guidance (paragraph 33) says:

Schools should be aware that under the Rehabilitation of Offenders Act 1974 (ROA), employees cannot be required to disclose spent cautions and convictions relating to individuals who live or are employed in the same household as them. Accordingly, schools should inform staff that they are not required to disclose the spent cautions or convictions of a person who lives or is employed in their household. Staff working in childcare are entitled to respond to a question relating to the criminal record of a person who is living or is employed in their household as though it only relates to ‘unspent’ cautions or convictions that are included on the list of relevant offences.

Another point to bear in mind is that, in the case of people who either live or work in the same household as you, only cautions and convictions which are still ‘live’ have to be disclosed.  The DfE guidance states:

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. Staff working in childcare are entitled to respond to a question relating to their criminal record as though it only relates to cautions or convictions that are not protected.

Pages 13-41 of the DfE guidance contain a list of offences deemed relevant to this legislation.


Rehabilitation

The Rehabilitation of Offenders Act 1974 allows some criminal convictions and cautions to be considered ‘spent’ after a specified period of time.  The specified period of time is known as the rehabilitation period.  This is quite a complex area of law and you should take specific legal advice based on your individual circumstances.  The following is intended as general guidance. 

Rehabilitation periods that run beyond the end of a sentence are made up of the total sentence length plus an additional period that runs from the end of the sentence (known as the ‘buffer period’).  Other rehabilitation periods start from the date of conviction or the date the penalty was imposed.  The ‘buffer periods’ are halved for those who are under 18 at date of conviction (except for custodial sentences of six months or less, where the ‘buffer period’ is 18 months).  

The rehabilitation periods for sentences with additional ‘buffer periods’ which run from the end date of the sentence are shown in the table below.

 *Custodial sentence includes a sentence of imprisonment (both an immediate custodial sentence and a suspended sentence), a sentence of detention in a young offender institution, a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, a detention and training order, a sentence of youth custody, a sentence of corrective training and a sentence of Borstal training.

**In relation to any community or youth rehabilitation order which has no specified end date, the rehabilitation period is 2 years from the date of conviction.

The following table sets out the rehabilitation period for sentences which do not have ‘buffer periods’ and for which the rehabilitation period runs from the date of conviction:


What happens if I am disqualified by association?

If you become aware that you are disqualified by association, you should inform your employer immediately.  Your employer is then obliged to inform Ofsted and explain how you can apply to Ofsted to have your disqualification waived.  Ofsted cannot grant a waiver in all circumstances but will make a decision based on your individual circumstances.  Whilst your waiver application is being considered, your employer must ensure that you do not work with (or manage provision for) children of reception age during school hours or children under 8 outside of school hours. 

We are aware that some employers are suspending members in such circumstances, but suspension should only ever be used as a last resort.  The DfE guidance makes it clear that suspension should not be considered unless and until other alternatives have been ruled out.  Alternative arrangements could include redeploying you or adjusting your role temporarily so that you are not working directly with (or managing provision for) a relevant age group.  For example, if you usually work in reception, you could be moved to Key Stage 1.

If you decide not to apply for a waiver, or if your waiver is unsuccessful, your employer will need to either continue with the alternative arrangements on a permanent basis or take steps to end your employment. 

Details on how to apply for a waiver can be found at:

www.gov.uk/government/publications/applying-to-waive-disqualification-early-years-and-childcare-providers


How can Voice help?

If you are affected by the disqualification by association rules, please contact us.  We can guide you through the process, give further advice about your individual circumstances and represent you in any meetings or procedures which your employer might instigate.

If your employer has chosen to suspend you or modify your working arrangements as part of this process, we can advise on whether you are being treated fairly, and we can represent you in any discussions with your employer over any current and future work arrangements.   If, after reading this guidance, you feel that you have been disadvantaged in some way because, for example, you have disclosed a conviction of an associate which you now realise should not have been disclosed (because it is spent), we can support you in seeking to  resolve issues with your employer. 


Further information

Ofsted: Early years provision in schools: apply for disqualification waiver

For further information, contact Voice