The Department for Education has issued revised statutory guidance regarding the application of the Childcare (Disqualification) Regulations 2009 and the much publicised issue of ‘disqualification by association’.

The revised guidance will come as welcome news to institutions in the education sector which have, over recent months, been seeking to navigate the legal and practical uncertainties arising from the previous advice published by the DfE in October 2014.

Institutions will now be very familiar with the DfE’s October 2014 advice which was designed to supplement the statutory guidance for schools and colleges ‘Keeping children safe in education’. The DfE’s advice focused primarily on the legal framework set out in the Childcare Act 2006 and the Childcare (Disqualification) Regulations 2009 and the application of that framework to nursery and school settings.

The advice summarised the situations in which staff are disqualified from working in early and later years provision, including where they live in the same household as another person who is disqualified (‘disqualification by association’) and recommended that schools seek a relevant declaration from staff, including about any person who lives with them.  Whilst the advice explained a member of staff’s ability to apply to Ofsted for a waiver, it controversially directed that whilst a waiver application was under consideration individuals must not continue to work in early and later years settings.

Whilst the guidance was expressed to “help schools understand the requirements placed on them by childcare legislation” it generated in practice a multitude of questions, caused confusion and resulted in a number of unexpected consequences, including an estimated 300 staff suspensions (and the resultant operational difficulties and cost consequences arising from those suspensions). The advice attracted criticism from staff and trade unions who considered it to contain an inaccurate analysis of the application of the statutory requirements and a disproportionate means of safeguarding children, particularly in relation to the concept of ‘disqualification by association’.

Following pressure from staff and the trade unions, the DfE has now issued revised statutory guidance (dated February 2015) regarding the application of the Childcare (Disqualification) Regulations 2009 which replaces the previous advice and provides clarification in a number of areas.

First, it has confirmed that the rules apply only to staff:

  • in early years provision who provide care for children up to and including reception age (which includes education in nursery and reception classes and/or supervised activity (such as breakfast clubs, lunchtime supervision and after school care) both during and outside of school hours); and
  • in later years provision (for children under 8) who are employed to work in childcare provided outside of school hours (such as breakfast clubs and after school provision) for children who are above reception age but who have not attained the age of 8 (this does not include education or supervised activity for children above reception age during school hours, including extended school hours for co-curricular learning activities).

The rules also apply to individuals who are directly concerned with the management of such childcare. However, they are now explicitly stated not to apply to staff who only provide education, childcare or supervised activity during school hours to children above reception age or only provide childcare or supervised activities out of school hours for children who are aged 8 or over.

Second, whilst summarising the responsibilities of schools the guidance now affords greater flexibility in terms of how they are expected to draw the rules to the attention of staff and gather relevant information, including relating to individuals who live with them.

Third, the guidance is now clear that whilst a waiver application is under consideration by Ofsted, staff are not necessarily prevented from working in the school in any other setting (such as teaching a class other than reception). The guidance states that schools will need to decide whether it is appropriate to redeploy staff elsewhere in the school (or, in an academy trust, to seek a temporary alternative job role in another school), or make adjustments to their role to avoid them working in relevant childcare. The guidance now makes it clear that it is only where alternative arrangements cannot be made, or it is not appropriate to do so, that schools will need to consider whether to grant paid leave, or as a last resort suspend the member of staff, while the waiver application is under consideration.