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Are your staff aware that they could be 'disqualified by association'?

When appointing staff, schools have to carry out a number of checks prior to recruitment e.g. checks of the DBS barring lists, police records etc.

When appointing staff, schools have to carry out a number of checks prior to recruitment e.g. checks of the Disclosure and Barring Service barring lists, police records etc.  The Childcare Act 2006 and Childcare (Disqualification) Regulations 2009 require additional checks for staff involved in:

  • Providing early years child care or later years childcare to children who have not attained the age of 8; or
  • Being directly concerned in the management of such childcare to ensure that they are not disqualified from doing so. These additional checks apply not just to teaching  and support staff working in reception classes but staff running breakfast clubs etc. as well as those in management.  The onus is on the school to ensure that anyone it employs in such a setting is not disqualified from doing so.

There are various ways an individual may be disqualified from working in the above areas, it can include being on the Children’s Barred list, being cautioned for or convicted of certain violent and sexual criminal offences against children and adults or being disqualified from private fostering.

However, disqualification won’t always be due to the staff member’s own conduct. Under the above Act and Regulations, an individual can be disqualified because they live in the same household as another person who is disqualified lives or works. This is called disqualification “by association”.

The Department of Education (DofE) has recently published supplementary advice in relation to the childcare disqualification requirements, which also deals with disqualification by association.  It advises that schools should ask existing employees who are covered by these provisions to provide the relevant information and when recruiting new staff, to ask for the same information as part of the pre-employment checks.

How schools can achieve this, may be, as the DofE suggests, that schools elect to require employees and new staff to complete and sign a declaration to help identify those whom the “by association” requirement applies to.  The DofE provides that where an individual is disqualified “by association” that the member of staff be asked to provide the following information on the person living in the same household:

  • Details of any order, determination, conviction or other grounds for disqualification from the Childcare (Disqualification) Regulations 2009. Such details should include the date of the order and information about the body or court that made the order
  • Where the information relates to an order or conviction, a certified copy of the order.

The supplementary advice provides that any relevant information should be given to Ofsted as soon as reasonably practicable and at least before 14 days of the school become aware of the information.

Where a member of staff is disqualified, whether through their own conduct or “by association” they are prevented from continuing to work in the areas discussed above.  Where the disqualification comes about “by association” a member of staff’s emotions are likely to run high. Those responsible for talking with the individual should be prepared for this and to explain not only that the individual  cannot continue to work for the time being but the reason why that has come about and what steps the individual can take.

Usually an individual can apply to Ofsted for a waiver of disqualification. The school should explain this to the individual and how they can apply for a waiver but emphasising that until a waiver has been granted, the individual cannot continue to work. 

In the event that Ofsted grants a waiver, then the individual can return to work in accordance with its provision. Ofsted can choose to grant a full or partial waiver although a waiver will not be given for an individual who is on the Children’s Barred List.

Download the DofE's guidance