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30 Jan 2015

The Childcare Act 2006 and the Childcare (Disqualification) Regulations 2009

There has been further engagement with the DfE on the supplementary advice to Keeping Children Safe in Education (KCSiE). Also see updates on KCSiE: Prohibition Orders.

The Childcare Act 2006 and the Childcare (Disqualification) Regulations 2009

There is continued concern over the implications of the advice and the disproportionate nature of mandatory disqualification checks on all staff and their ‘households’. ISC has been working with teaching unions and the DfE to ensure that what appears in the revised version of KCSiE is consistent with the law and safeguards children as intended. Under the legislation, for schools to commit an offence, there must be knowledge i.e. they must knowingly employ a person who is disqualified from registration in connection with the provision of early years or later years provision for children under the age of 8. Under the Act a school will not be guilty of an offence if they can prove that they did not know, and had no reasonable grounds for believing, that the person they were employing was disqualified from registration.

Given the nature of the offence, schools may wish to focus on whether the school knows, or has reasonable grounds for believing, that someone they employ is disqualified. Schools may therefore consider it appropriate to conduct an audit of existing staff files to see if any staff members are now disqualified under the Regulations. So for example, where a staff member was risk assessed in the past for a caution or conviction that falls within the Regulations, they will now be disqualified and should be redeployed or suspended pending the grant of a waiver by Ofsted (which we understand can take two months). When DfE published their advice in October, they suggested that schools ask staff to complete and sign a declaration to help identify those caught by the 'by association requirement’. This is not at present a legal requirement under the Act, Regulations or Statutory Guidance.

ISC liaised with ISI on the way in which the disqualification requirements were added into the Regulatory Handbook earlier this month. ISI has subsequently issued an update to schools that demonstrates just how fluid this area is. The update from ISI was reassuring in that they accept that “schools which are not actively seeking self-declarations from staff about disqualification, including by association, are not to be reported as non-compliant under the ISSRs”. The update also explicitly states that "it will be matter for individual schools to determine the appropriateness of undertaking these checks against their employees”. But schools should also note ISI's current position, that “schools should be making enquiries of staff and if they are not doing so, inspectors should raise this with the school” and “when inspecting and reporting, inspectors should note the school’s position in relation to the issue in the main feedback to the school and include reference to it in the body of the report”.

ISC is due to attend a stakeholder meeting in early February and hopes to be in a position to update schools shortly after this.

KCSiE: Prohibition Orders

In ISI’s latest update it was confirmed that prohibition checks, introduced by KCSiE in April 2014, must be carried out on those (who carry out teaching work) appointed since 1 April 2012. This update was prompted by advice given to ISI by the DfE following the DfE taking advice from their lawyers on the regulation.

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The Department of Education has published revised guidance on safeguarding duties.

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Keeping Children Safe in Education (KCSiE)

The KCSiE statutory guidance will be effective from 5 September 2016.

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Reporting and Acting on Child Abuse and Neglect Consultation

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17 Aug 2016 Safeguarding

Revised Keeping Children Safe in Education statutory guidance

The Department of Education has published revised guidance on safeguarding duties, which will be live from 5 September 2016.

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Independent inquiry into child sexual abuse (known as the ‘Goddard Inquiry’)

Professor Alexis Jay has been appointed as the fourth Chairperson following Justice Goddard’s resignation.

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Identification Checking Guidelines

Information from the Disclosure and Barring Service on the changes to the list of documents the applicant must provide.