Disqualification rules 'ineffective', say providers

Early years providers want the rules on disqualification by association amended because they say the law penalises staff for a violent offence committed by someone living under the same roof.

Under the current legislation, an individual living in a household with someone who is disqualified from working with children may also be disqualified by association. This applies to household members such as partners, children - including foster children - flatmates and lodgers.

Employing someone who is disqualified is an offence.

However, DBS checks do not cover disqualified by association, as this would mean accessing third-party information. The onus is on early years providers to find out if this applies to any staff members by developing declaration forms that should be completed by employees annually.

An employee can challenge the disqualification by applying for a waiver from Ofsted.

However, nurseries claim that the waiver forms are 'unclear' and 'confusing'. The decision process can also take a long time - in some cases months, according to independent early years trainer and former Ofsted inspector Debbie Alcock.

Education secretary Nicky Morgan and schools minister David Laws last month acknowledged that the rules may need changing, after being challenged by teaching unions.

In a letter to the National Association of Head Teachers (NAHT), Ms Morgan said, 'We have been giving careful consideration to a range of options for making change. This includes how we might make changes to the current arrangements that would allow the majority of those staff in schools and nurseries who are currently affected to remain in their posts while Ofsted considers their application for a waiver.

'This would require regulatory change but could be done relatively quickly, possibly as soon as the start of the new school year in September 2015.'

It is understood discussions are continuing to take place between the Department for Education (DfE) and teaching unions.

Providers have also raised concerns about the cost implications of paying staff who are suspended as they wait for a waiver, on top of paying for a temporary member of staff to provide cover.

According to Mrs Alcock, while employers may need to suspend staff to meet legislation, there is no suggestion that they need to pay them in full. However, she said that providers may decide they want to or feel obliged to do so, particularly if it is a long-standing member of staff.

To avoid this, Mrs Alcock recommends nursery owners have in place a section on their contracts that states if any disqualification is found during a staff member's employment, they would be suspended without pay.

Jessica Webber, owner of Toddle In Nursery in Colne, Lancashire, currently has two members of staff who are suspended on full pay while they apply for waivers.

She said, 'Two of our staff have recently informed us that their partners each have a previous conviction from many years ago for a violent offence against an adult. They have applied for waivers, but in the meantime are suspended on full pay. This obviously leaves us understaffed while their cases are evaluated.

'The staff in question at our setting have been DBS checked and by no means pose any risk to the safety of the children in our care. It seems so unfair, and a complete waste of time, money and resources, for both settings and for Ofsted.'

She added, 'One member of staff is even considering moving out of the home she shares with her partner.'

Mrs Alcock said that if a practitioner ceases living with the person who committed the offence they are no longer disqualified. She added that if someone has a disqualified lodger or adult child at home, they could ask them to move out during the waiver process so they could continue to work.

Ms Webber said she believes the legislation does little to safeguard children, and warned it could lead to practitioners who live with someone disqualified from working with children remaining tight-lipped for fear of losing their job.

Claire Schofield, director of membership, policy and communications at the National Day Nurseries Association (NDNA), said, 'We welcome the move by the DfE to look into the concerns of schools and nurseries regarding staff who are disqualified by association and we would expect the next Government to take this forward.

'The current situation is causing concern for nurseries. The rules are very complex and unclear, which is why we produced a factsheet on the subject to help our members navigate this issue.

'A particular problem is that when an application is made for a waiver, a staff member can be suspended on full pay during a long process, causing another issue for nurseries who must foot the extra cost of cover for them.

'We would urge the DfE to take a sensible, measured approach towards this issue, which balances the safety of children with the need for continuity of care. We would like a consistent approach, so any changes put in place for school childcare should also apply in nurseries.

'We are continuing to inform and advise our members on this issue and will be actively participating in this review.'

Schools

Thousands of school staff have also been affected by the rules on disqualification by association since the Government released supplementary guidance on child safeguarding last October.

The guidance was issued to schools to provide clarification that the rules on disqualification by association, which have been the law since 2009, apply to school staff working with children under the age of eight, as well as nurseries. It was generally not previously understood by schools that this was the case.

Ofsted figures show that since last October, applications for waivers from school staff have rapidly increased. The inspectorate received 1,009 applications by the end of February, up from 259 the previous month.

However, hundreds of staff applying for waivers were deemed not to require one under the definitions of the legislation.The union Unison said this occurred because many schools misapplied the DfE guidance, which lacked clarity.

Following this, the DfE issued further guidance at the end of February to clear up the confusion - explaining that the rules apply to all those who care for children under the age of five, but only in the context of out-of-school club settings for those working with children between five and eight.

According to Unison, the number of applications for waivers has fallen since the end of February. As of March, no waivers had been refused.

Ben Thomas, national officer at Unison, said, 'Current legislation on disqualification by association does nothing to prevent children being put at risk.

'The rules apply only to some sport sessions run by staff. If staff are a risk to children, there should be no difference.

'School staff awaiting a waiver decision from Ofsted can actually be redeployed by their school to work with older children.'