Disqualification by association rules no longer apply to schools

The rules concerning disqualification by association will change dramatically on 31 August 2018. Schools will be subject to The Childcare (Disqualification) Regulations 2009 up until this date, which provide that individuals are disqualified if they live in the same household as another person who is disqualified from registration; or if they live in a household in which any such person is employed.

These rules have been heavily criticised by schools since their implementation. It has been widely communicated that these rules are disproportionate and unnecessary. To overcome the disqualification by association rules a waiver from Ofsted had to be sought by those affected.

The 2009 regulations will be replaced on 31 August 2018 and individuals will no longer be disqualified from registration if they live in the same household as another person who is disqualified from registration; or if they live in a household in which any such person is employed.

The new regulations, The Childcare (Disqualification) and Childcare (Early Years Provision Free of Charge) (Extended Entitlement) (Amendment) Regulations 2018, will replace the 2009 regulations. Updated guidance has also been issued which will be applicable from 31 August 2018 (this guidance be viewed here). The guidance note ‘Disqualification under the Childcare Act 2006’ will apply up until this date. The new regulations and updated guidance note will cover staff members who are employed or engaged to provide early-years childcare.

The change in the disqualification by association rules will apply to schools with early-years provision and nurseries. It will not apply to domestic settings (e.g. where childminding is provided in the home) or under registration on domestic premises. In such settings individuals will still be disqualified from registration if they live in the same household as another person who is disqualified from registration; or if they live in a household in which any such person is employed.

With this change in mind, schools should review the new legislation and guidance and ensure their policies and practices are in line with the new rules from the next academic year. Schools should ensure that they do not ask their staff questions about cautions or convictions of someone living or working in their household as they do not lawfully require this information. Schools should also ensure that they update their safer recruitment policies and practices and provide staff training. This is particularly important as staff members who take part in the recruitment process must not ask questions about cautions and convictions of someone living or working in the applicant’s household.

Despite this change, schools should still encourage staff to be open about their relationships which may impact safeguarding at the school so appropriate safeguards can be put in place to minimise any potential risk posed to the pupils. The recent case Reilly v Sandwell, where a headteacher was dismissed for failing to disclose her close relationship with a sexual offender, highlighted that “Parliament has itself recognised that sexual offenders towards children can represent a danger to children not only directly but indirectly by operating through those with whom they associate”.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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