1. The Childcare Act 2006 and the Childcare (Disqualification) Regulations 2009 NASUWT Supply Members’ Briefing March 2015

2. DfE Guidance New DfE statutory guidance on Disqualification under the Childcare Act 2006 was published by the DfE on Thursday 27 February 2015. The statutory guidance replaced October 2014 DfE supplementary advice Keeping children safe in education; childcare disqualification requirements. The NASUWT is fully committed to effective safeguarding arrangements in schools. The NASUWT argues that it is unnecessary to apply the Childcare Act 2006 and the Childcare (Disqualification) Regulations 2009 to schools because schools are highly regulated environments. In particular, teachers are already subject to stringent disclosure and barring arrangements. The NASUWT opposes early years teaching being defined as ‘childcare’. The NASUWT opposes all primary, infant and nursery headteachers falling within the scope of the Regulations. The NASUWT is not opposed to the Act and Regulations being applied to lightly regulated environments, such as private childcare.

3. NASUWT Actions The NASUWT robustly opposed the October 2014 DfE supplementary advice. The DfE withdrew the supplementary advice and consulted on new statutory guidance. The Act and Regulations continue to apply to schools and schools must ensure that they are not knowingly employing a disqualified person. NASUWT representations have led to some key clarifications and improvements to the statutory guidance. These include: o clarification of which staff are covered; o disqualification by association questions to staff; o processes to be followed by schools when disqualification occurs; o clarification on offences covered; o Schools must minimise the intrusion into the private lives of staff and members of their households; o Schools must handle data fairly and lawfully and not breach the Data Protection Act 1998, the Rehabilitation of Offenders Act 1974 and the Human Rights Act 1998.

4. Act and Regulations- Staff covered Early Years Provision: o Staff who provide any care for a child up to and including reception age; o Education in nursery and reception classes and/or any supervised activity (such as breakfast clubs, lunchtime supervision and after school care provided by the school); o Both during and outside of school hours for children in the early years range; Later Years Provision for children under 8: o Childcare provided by the school outside of school hours for children above reception age but who have not yet attained the age of 8; o Includes before school settings and after school provision. ‘staff concerned with the management of early or later years provision’ - primary, infant and nursery headteachers (paragraph 15). volunteers and casual workers; trainee staff – for salaried staff, the provider must provide confirmation of compliance. PRIVATE AND CONFIDENTIAL - NOT FOR CIRCULATION 4

5. Act and Regulations- Staff not covered Following NASUWT representations, the DfE has stated that staff are not covered who: o only provide education, childcare or supervised activity during school hours to children above reception age; o only provide childcare or supervised activities out of school hours for children who are aged 8 or over; o have no involvement in the management of relevant provision; o are not employed to directly provide childcare – caretakers, cleaners, drivers, transport escorts, catering and office staff; o are not employed to directly provide childcare and who are only occasionally and not regularly required to work in childcare activities – they will not automatically fall within the scope of the Regulations; o are health care staff, including school nurses; o are school governors and proprietors, providing that they are not concerned with management of childcare provision. PRIVATE AND CONFIDENTIAL - NOT FOR CIRCULATION 5

6. Additional risk management measures Childcare providers who hire or rent school facilities should comply with the regulations; Schools must obtain confirmation from supply agencies which provide staff for childcare provision that they are following the same processes as the school; Schools must ensure that self-employed contractors which work in relevant childcare provision are compliant with the legislation; Staff who are occasionally deployed to work in childcare provision should be risk assessed following HR and LADO advice; A list of relevant offences which will lead to disqualification is set out (Table A). PRIVATE AND CONFIDENTIAL - NOT FOR CIRCULATION 6

7. Disqualification by association It is not necessary for schools to ask staff to complete a self-declaration form; If a school uses a self-declaration form it must be relevant and limited to the requirements of the legislation; Schools should avoid asking for medical records, details about unrelated or sent convictions of household members, DBS certificates from third parties of copies of criminal records; Staff do not need to provide details of their protected convictions and cautions; Schools must only ask teachers to provide information to the best of their knowledge; Staff do not need to provide details of spent cautions or convictions of members of their households – this will amount to an enforced subject access request and the Information Commissioner’s Office will be seeking to take prosecutions against organisations which commit this offence (paragraph 23). PRIVATE AND CONFIDENTIAL - NOT FOR CIRCULATION 7

8. Process to be followed when disqualification occurs Disqualified individuals should apply to OFSTED for a waiver. Disqualification does not imply that individuals are prevented from working in a school in any other setting. While a waiver application is under consideration schools will need to decide whether it is appropriate to redeploy staff elsewhere in the school. A member of staff could be disqualified from working with children of reception age or under, but could work with children aged 6 or 7, provided they were not working with them in childcare provision outside of normal school hours. Local authorities and academy trusts may also be able to consider making alternative arrangements, including … a temporary alternative job role. When alternative arrangements cannot be made or are inappropriate, the school will need to consider whether to grant paid leave or similar, or as a last resort, suspend the member of staff during the waiver application process. PRIVATE AND CONFIDENTIAL - NOT FOR CIRCULATION 8

9. OFSTED and DfE processes OFSTED does not have additional resources to devote to the waiver process arising from the implementation of the Disqualification Regulations to schools. OFSTED will implement a ‘triage’ approach to waiver applications and process the cases which pose the highest potential risk to children most quickly. The NASUWT has drawn attention to the unacceptability of current OFSTED timescales for processing waiver applications. OFSTED intends to work with schools on a regional basis to develop a common understanding of disqualification cases. Individuals should apply for a waiver using the OFSTED pro-forma and should include, if known, a certified copy of the relevant order (in relation to an order or conviction). Schools should not request, in connection with the waiver application, DBS certificates from third parties, or copies of a person’s criminal record obtained directly from the police, prison, probation service or courts (criminal offence from 10 March 2015 onwards).

10. Managing the Disqualification Process The NASUWT advises: o If a headteacher decides that a member of staff needs to apply to OFSTED for a waiver, it would be helpful if they could be advised to seek assistance from their union; o It would be helpful if headteachers could provide character evidence in support of any waiver application, confirming that in their view the member of staff does not pose any risk to children; As a first step, headteachers will need to establish whether individual teachers are subject to the regulations (e.g. whether the age of the children they teach means they are). As a second step, headteachers will need to decide whether any offence is relevant. Headteacher members can seek advice from the NASUWT on these issues and other aspects of the disqualification process.

11. Issues for supply members If supply teachers are directly employed by a school or local authority, they should be subject to the same disqualification process as other teachers. Employment agencies have to confirm to schools that they are implementing the regulations for agency workers. If a supply teacher is disqualified from teaching children of reception age or younger, and is in the process of applying for a waiver, they can continue to teach older children. This includes children aged 6 or 7, provided they are not working with them in childcare provision outside of normal school hours. Supply teachers should therefore not be ‘suspended’ from all work by employment agencies when applying for a waiver – this is unnecessary under the regulations. If there are circumstances where a supply teacher is removed from the workplace, the NASUWT will always argue that this should be on full pay.

12. Next Steps The NASUWT will continue to argue that the Childcare Act 2006 and Childcare (Disqualification) Regulations 2009 are inappropriate for schools. The NASUWT will continue to argue that the legislation should be changed, if necessary, to exempt teachers. The NASUWT will continue to seek confirmation that OFSTED’s role in processing disqualification waiver applications should not impact detrimentally on OFSTED inspection outcomes. NASUWT members should continue to follow the Union’s interim guidance on the October 2014 DfE supplementary advice, which has now been accepted by the DfE as appropriate advice on the Act and Regulations. The DfE can be contacted for advice: Mailbox.disqualification@education.gsi.gov.uk. Mailbox.disqualification@education.gsi.gov.uk Both the DfE and OFSTED urge against over-reaction when applying the Disqualification Regulations.