In order to provide some further assistance, so that schools may judge what will be appropriate action to take at this juncture, we have set out below a number of points which hopefully will clarify the situation for schools. The key points are in bold italic type.

1. The Childcare Act 2006 and The Childcare (Disqualification) Regulations 2009 set out a regulatory scheme.

2. The Act and Regulations set out the circumstances in which a person is disqualified from registration;

3. It applies to the following members of staff:

• Staff who work in early years’ provision. This includes provision of childcare, including education for all children up to the 1^st September following the date on which they attain the age of 5;
• Staff working in later years provision.  This does not include education, or any other supervised activity provided by a school during school hours for registered pupils.  It does include provision of childcare for children between the ages of 5-8.  This would therefore include provision for children below the age of 8 in school settings such as breakfast clubs and after school provision;
• Staff who are directly concerned in the management of this early or later years provision.

As you will see this is likely to include all primary schools where any provision is made for children outside school hours.

4. One of the requirements provides that those convicted of a number of specified offences, or who live in the same household as someone who has, are disqualified from registration.

5. It is a criminal offence for schools knowingly to employ anyone to provide childcare who is disqualified from registration.

6. The list of offences is set out in the Childcare (Disqualification) Regulation 2009.  The DfE have suggested that the most complete list of relevant offences can be found in the Ofsted advice “Applying to waive disqualification: early years and childcare providers” which can be accessed via the following link:  https://www.gov.uk/government/publications/applying-to-waive-disqualification-early-years-and-childcare-providers.

This summary list includes any person:

• found to have committed a relevant offence against a child;
• made subject to an order or determination removing a child from your care or preventing a child from living with you;
• found to have committed certain offences against an adult; for example, murder, kidnapping, rape, indecent assault, or assault causing actual bodily harm;
• charged with certain offences against an adult, or an offence that is related to another offence, and had a relevant order imposed;
• included on the list of those who are barred from working with children, held by the Disclosure and Barring Service;
• made the subject of a disqualifying order;
• previously refused registration as a childcarer or have had registration cancelled, unless the cancellation was only for non-payment of fees for continued registration after 1 September 2008;
• refused registration as a provider or manager of children’s homes or have had registration cancelled.

7. Legislation also provides that a person is disqualified from registration if they live in the same household as someone who is disqualified, or in a household which any such person is employed.

8. We are aware that some local authorities are advising schools to require their employees to complete declaration forms to confirm that neither they, nor anyone they live with, is subject to the disqualification requirements. The law does not require completion of a declaration form. The completion of a declaration form is merely one vehicle by which schools may ascertain whether the is any non-compliance on the part of an employee.

9. Should a declaration be used by a school, an employee will be able complete the information about themselves as this will obviously be within their knowledge.  With regard to a declaration in relation to a member of the employee’s household, the requirement in the legislation is that the employee does not know, or has no reasonable grounds for believing, that a member of their household is disqualified from registration. They must therefore simply confirm whether they are aware ‘to the best of their knowledge’ of any such disqualification.  The law does not require, nor is the DfE suggesting, that there is any requirement for a member of staff to be required to interrogate members of their household and require them to provide information.

10. The DfE have committed to publishing new guidance which will be helpful to schools and not too prescriptive. They are also hoping to produce a Questions and Answers document on the Local Government Association website but unfortunately no date has been given for this.

It is difficult to provide definitive advice at this stage, or to make any long-term decisions about building in the relevant questions to any recruitment process, until such time as the revised guidance is available at the end of February.  Unfortunately compliance with the requirements is included in the Ofsted Framework and therefore schools which are not compliant may be at risk if they fail to take any action whilst they await publication of the revised guidance.

This guidance has been prepared in consultation with the Catholic Education Service which is in a continuing conversation with the DfE about this matter.  We will seek to update this advice as soon as the DfE provide further guidance.