Childcare Act 2006 and Childcare (Disqualification) Regulations 2009

by

Ryan Clement


Pursuant to s175(2) Education Act 2002 ('2002 Act'), “The governing body of a maintained school shall make arrangements for ensuring that their functions relating to the conduct of the school are exercised with a view to safeguarding and promoting the welfare of children who are pupils at the school,” and  pursuant to paragraph 3 of the Schedule to the Non-Maintained Special Schools (England) Regulations 2015 ('2015 Regs'), "The proprietor must make arrangements for safeguarding and promoting the health, safety and welfare of registered pupils at the school..."


Childcare Act 2006 and Childcare (Disqualification) Regulations 2009

The Childcare Act 2006 ('2006 Act')  and the Childcare (Disqualification) Regulations 2009 ('2009 Regs') set up a scheme that requires certain providers of “early years provision” and “later years provision” to be registered, and expressly disqualifies certain people from registration. People who are disqualified from registration must not provide early or later years provision or be directly concerned in the management of such provision: s76(2) Section 75 of the 2006 Act confers powers on The Secretary of State to make various regulations. In particular, s75(4) states that regulations may provide for a person to be disqualified from registration if s/he lives in the same household as another person who is disqualified from registration or s/he lives in a household in which any such person is employed. It is a criminal offence to employ a person who is disqualified from registration by regulations under s75. Section 75(4) is mirrored in reg. 9. However, a person may apply for a waiver under reg. 10.


Statutory Guidance


Reference to “any guidance” under s175(4) of the 2002 Act, Para. 7 (b) of Sch. 1 to the Education (Independent School Standards) Regulations 2014 and Para. 3 of Part 1 of the Sch. to the Non-Maintained Special Schools (England) Regulations 2015 is to the, “Disqualification under the Childcare Act 2006 – statutory guidance for local authorities, maintained schools, academies and free schools.” The current statutory guidance is dated June 2016 and is to be reviewed in January 2017 (‘the Guidance’)

In consequence, schools and local authorities must have regard to the Guidance when carrying out their duties to safeguard and promote the welfare of children. For example, s59, 67, 74(2), 75 and 104(2) of the 2006 Act confers on the Secretary of State  to make the 2009 Regs. Although the title refers to 'maintained schools' the Guidance is also applicable to 'non-maintain' schools. Furthermore, reference to 'Non-Maintained Special Schools (England) Regulations 2011' under  'About this Guidance' on page 3 of the Guide appears to be an error because the 2011 Regs were revoked by the 2015 Regs on 1 September 2015 before the Guide was published in June 2016. Hence, a link is provided to the 2015 Regs below instead.


A v B local authority and C governing body of school [2016]


In this case the Court of Appeal held that a head teacher of a primary school with a previously unblemished record was lawfully summarily dismissed when she failed to disclose to her school her ‘close personal relationship’ with a disqualified person, a male who had been convicted of making indecent images of children by downloading them onto his computer. The school considered that the failure to disclose this relationship constituted gross misconduct because it was putting the safety of children at risk. She claimed that after having taken advice from various quarters, she had made a judgment that she was under no obligation to disclose this information. She maintained that position throughout the disciplinary process. Although the dismissing officer had not relied upon the 2009 Regs the provisions’ importance were discussed by the CA.

“The importance of the provisions, to my mind, is in demonstrating the serious view that is taken of the risk to young children not only from sexual offenders themselves but also through others who are in contact with such offenders in certain ways. Parliament considered that there was sufficient risk where someone (“the associate”) lived in the same household as such a person, or lived in a household where such a person was employed, to prevent the associate not only from providing the early or later years provision but also from being directly concerned in the management of it, on pain of criminal prosecution of the associate or his employer. Ofsted can waive the requirements of the regulations but the existence of that power does not, in my view, detract in any way from the message conveyed by s76 and the 2009 Regs. It may be noted that, in Ofsted’s guidance on requesting a waiver from disqualification, it is made clear that relevant to the determination of a request is “any risks to children from allowing you to provide or work in early years and childcare provision”. This underlines, I think, that the focus of the disqualification regime is firmly upon the safety of children.” Lady Justice Black


Conclusion


Disclosure of one’s “association”, whether or not one believes it falls all square with the 2009 Regs, is clearly of the utmost importance for all staff concerned, school governors and, most of all, lest we forget, to safeguarding and promoting the welfare of children. A failure to do so may lead to staff being fairly dismissed or governors failing in their duties.

Statutes, Regulations, Guidance and Reports

EDUCATION ACT 2002
CHILDCARE ACT 2006
CHILDCARE (DISQUALIFICATIONS) REGULATIONS 2009
THE NON-MAINTAINED SPECIAL SCHOOLS (ENGLAND) REGULATIONS 2015

THE REPORT of HER MAJESTY'S CHIEF INSPECTOR of EDUCATION, CHILDREN'S SERVICES  and SKILLS - EARLY YEARS 2015

THE NON-MAINTAINED SPECIAL SCHOOLS (ENGLAND) REGULATIONS 2015 DEPARTMENTAL ADVICE  for NON-MAINTAINED SPECIAL SCHOOLS - August 2015

Keeping Children Safe in Education - May 2016

Disqualification under the Childcare Act 2006 – Statutory guidance for local authorities, maintained schools, academies and free schools dated June 2016

Early years and childcare registration handbook - July 2016