Disqualification by Association Advice

Dear Member,
I wrote to you in December 2014 concerning changes in the application of childcare legislation with regards to people working in schools. At the time I explained that the Union had initiated a legal challenge as we believed that the DfE guidance misrepresented the relevant legislation and imposed unnecessary obligations on employers and employees.  Also I wrote at that time that the local authority had agreed to advise Headteachers to delay acting on the ‘disqualification by association’ document pending further advice. The LA is now however (be it reluctantly) supporting schools, especially those facing OFSTED, in asking teachers to complete relevant declaration forms. As a result you may be approached by your headteacher seeking information about previous convictions and cautions (including reprimands and warnings) of those living within your household.
 If you are approached to complete any such declarations we believe you should  organise an NUT meeting in your school to discuss the form with colleagues, making sure that they are familiar with the relevant NUT advice given below.  We also advise you to contact us and delay completing the forms until you have done so.  
Why is this happening? 
The Childcare Act 2006 makes it a criminal offence to employ, in connection with specified forms of early years and later years provision, a person who is disqualified from registration by the Childcare (Disqualification) Regulations 2009. It appears that until very recently the DfE had not appreciated that that the Act might apply to schools. 
 The legislation covers:

·   staff who work in early years provision (including teachers and support staff working in school nursery and reception classes); 

·  staff who provide education or supervised activities for children up to 8 years old when school is not in session (e.g., breakfast or after school clubs and trips provided outside the curriculum),

·  staff who are directly concerned in the management of such early or later years provision. 

The NUT guidance is that as regards normal teaching duties, the guidance should only be considered in respect of teachers and other school staff who will teach or manage provision for children of 5 years and younger. This is because those who teach children over 5 years old are not deemed to be providing ‘childcare’ within the meaning of the Childcare Act 2006 and are therefore not subject to disqualification.
Important: If you feel that you are being asked to complete a form when the legislation does not cover you please contact us or the NUT National advice line.
Why does the form contain questions above other members of my household and am I required to provide information about a person who lives or works in the same household as me?
The Childcare Act makes it an offence for your employer to continue employing you to ‘provide childcare’ if you live with or employ someone who would be disqualified from ‘providing childcare’ if they were so inclined.
 The explanation given for asking for information about a person who lives or works in the same household, is that it “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, i.e.,  ‘by association’”.
The Union believes that the Regulations do not require you to volunteer information if you don’t already know and have no reasonable grounds for believing that a person who lives or works in the same household, such as a spouse, partner, child, lodger or house/flatmate is disqualified from providing childcare.  You are certainly not obliged to ask them whether they have a criminal record and, even if you do ask, there is no obligation on them to tell you that they do. If you don’t know the answers to the questions asked then reply ‘don’t know’ despite the fact that the form only has yes/no questions.
Do I have to complete a declaration form 
It should be understood that the Childcare Act does not require your employer to issue a declaration form.  The form has been issued by them to evidence the fact that it has taken steps to seek to ensure that you, or someone living in your household, does not represent a risk of harm to pupils. 
However your employer can and, in most cases, will compel you to complete the form as a condition of your continued employment and a refusal to provide information could lead to disciplinary action for failing to act as instructed.
What kind of offences would disqualify me or someone in my household from providing childcare?
An easy to read list of relevant offences may be found at Tables 4 & 5 of Ofsted’s ‘Compliance, investigation and enforcement hand-book: childminding and childcare – disqualification’.
What if someone I live with has a ‘spent’ conviction/caution for an offence in theRegulations?
The DfE’s supplementary guidance is completely silent on the effect of the Rehabilitation of Offenders Act 1974 (the ROOA).  This is one of the reasons why the NUT is challenging the legality of the guidance.  In the Union’s view, it shouldn’t be assumed that because the ROOA doesn’t apply to teachers, it doesn’t apply to the people they live with.  The NUT’s advice is that until the legal position is clarified you should not disclose convictions or cautions relating to someone else which are spent.  In any event, only cautions issued on or after 6th April 2007 will amount to disqualifying offences under the Regulations.
What do I do if I am disqualified from providing childcare as a result of the legislation?
If you have been identified (correctly) by your employer as a person disqualified from providing childcare, you will be required to apply to Ofsted for a waiver of disqualification.  While Ofsted cannot grant a waiver to anyone on the Children’s Barred List or anyone prohibited from teaching by the Secretary of State, it may grant a waiver to a teacher disqualified as a consequence of living with someone who is barred or prohibited. 
Before making a decision, Ofsted say they will consider the following:

·   the risk to children; 

·  the nature and severity of any offences, cautions or orders disclosed; 

·  the age of any offences or orders; 

·  repetition of any offences or orders or any particular pattern of offending; 

·  notes of any interviews with the disqualified person; 

·  any other information available from other authorities, such as the police; and 

·  any mitigating factors. 

If you have been disqualified “by association”, it is the NUT’s view that your character should also be taken into consideration.  The person best placed to provide Ofsted with relevant information is your head teacher/principal.  You should therefore request a character reference from him or her if possible and attach the same to your waiver application.
What will happen in the meantime?
Your employer may suspend you from teaching pending the outcome of your application but legislation requires your employer only to stop you from providing early and later years provision (i.e., teaching or supervising children less than 6 years old and supervising before and after school activities for children under 8).
The Union believes that Suspension must always be a proportionate act with other options considered. Staff correctly identified as falling within the scope of the Childcare Act  do not have to be suspended as a matter of course pending the outcome of an Ofsted waiver application.  Statute requires no more than that the individual is removed from early and later years provision (i.e., teaching or supervising children less than 6 years old and supervising before and after school activities for children under 8).  If it appears that a teacher is disqualified by association then a school would comply with its duties pending any application for a waiver by keeping the teacher to limited duties (for example teaching children not less than 6 years old during school hours) that could not fall within the definition of childcare.The Union will support members who are suspended without proper and appropriate cause.
What should I do next?
If further advice is needed please contact us at nut@islingtonteachers.org.uk
  Advice is also available from the Adviceline (Telephone: 020 3006 6266)

Tony Buttifint
Joint Secretary ITA