THE DEPARTMENT FOR EDUCATION has put out advice which is causing concern and confusion in some schools.
It is about legal regulations which disqualify certain people from working in Early Years or in childcare provision for “later years” (i.e. children under the age of 8). These regulations are called the Childcare (Disqualification) Regulations 2009. They apply to England only.
Individuals can fall within these disqualification regulations, for example, if they have been cautioned for or convicted of certain violent or sexual criminal offences against children or adults. Or if they live in a household in which another person who is disqualified lives or works (so-called disqualification “by association”).
If you have been asked by your school to make a disclosure and you feel worried about this, you can contact UNIONLINE on 0300 333 0303 or email@example.com. UNIONLINE was established by GMB along with the CWU to provide a broad range of legal services to members.
You can also check with your GMB rep or local GMB officer to see if similar concerns have been raised by other members. If you are not already in GMB, it is important you join now.
This legislation is not new, but many schools were previously unaware that it might apply to them. Now a growing number of schools are approaching staff seeking further disclosures.
GMB believes this process, coming on top of the usual checks that schools make, is disproportionate and bureaucratic. But as with anything relating to the law or to safeguarding, it has to be taken seriously.
GMB is encouraging schools to take a consistent and common-sense approach to fulfilling their legal duties in this area.
Staff who are disqualified can usually apply to Ofsted for a waiver. There is a right of appeal if Ofsted refuses to grant one. See the FAQs below for more information.
Who is covered by the regulations?
According to the Department for Education (DfE), the regulations cover:
• staff who work in early years provision (including teachers and support staff working in school nursery and reception classes);
• staff working in later years [childcare] provision for children who have not attained the age of 8 including before-school settings, such as breakfast clubs, and after-school provision;
• staff who are directly concerned in the management of such early or later years provision.
What if I’m not sure if an offence is relevant?
The DfE has said that if schools or individuals have any queries, they are able to contact the Department by emailing:
firstname.lastname@example.org including where appropriate details of an order, determination, conviction or other potential ground for disqualification, and the date on which it was issued.
My employer has included, on the declaration form, questions that include information on an individual’s medical condition and information on any medication that is taken on a regular basis. Is this necessary?
The employer should be asked why it thinks this is necessary. Your GMB rep or GMB officer could raise this query on members’ behalves.
They might want to point out what the NAHT advised headteachers, in guidance issued in December: “We would suggest that there is a fine balance here for schools to consider, as to whether such questions are too intrusive and indeed whether such a school policy decision in relation to their safeguarding procedures is a step too far. NAHT is not aware that a declaration of such personal and confidential information is necessary in order to comply with existing legislation.”
Is it true that I may be disqualified because I live in the same household as someone who is?
Yes. According to the DfE, this “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”.
If I am disqualified, how do I apply for a waiver?
Staff who are disqualified can usually apply to Ofsted for a waiver.
Ofsted says: “If you are disqualified, you can request a form to apply to us to waive your disqualification by emailing email@example.com. You must complete the form and give us the required information in writing. We cannot agree to waive your disqualification on the strength of information you give over the telephone.”
How does Ofsted reach a decision about whether to grant a waiver?
Ofsted says: “We consider each request on its own merits, taking into account:
• the reasons for your disqualification
• the length of time since the matter took place that disqualifies you
• the reasons why you believe we should waive your disqualification
• any risks to children from allowing you to provide or work in early years and childcare provision.”
If I am suspended while I apply for a waiver, will I still be paid?
If you are suspended, GMB believes it should be on full pay.
We also think that before suspending staff, schools should explore any possibilities for temporary redeployment. The NAHT has suggested to headteachers that suspension is “a last resort” and that “alternative arrangements should be considered”.
If you are in this situation, contact your GMB rep or GMB officer.
Can I appeal if Ofsted refuses to waive my disqualification?
Yes. Ofsted says: “You can appeal to an independent body, the First-Tier Tribunal (Health, Education and Social Care Chamber) (the Tribunal) against our decision to refuse an application to waive your disqualification. You must make an appeal in writing within 28 days of the date of our decision letter.”
Contact your GMB office if you are refused a waiver by Ofsted.
How do I get more information about applying for a waiver?
You can access an Ofsted guide at www.gov.uk/government/publications/applying-to-waive-disqualification-early-years-and-childcare-providers.