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Disqualification by association

It is with pleasure that I have Debbie Alcock, of Influential childcare as my guest blogger. Debbie has been in childcare for over 30 years, 19 of these spent in inspection and regulation, first with the London Borough of Barnet and then with Ofsted. She has held many positions in Ofsted: as a policy writer, inspector, team manager, area manager and lastly as a regulatory inspector dealing with serious concerns and safeguarding. She currently works as a freelance trainer, consultant and writer. In addition, Debbie plays a strong part in the Ofsted Big Conversation and is the London lead for NEYTCO.

Debbie writes:

“Disqualification by association is one of the 11 reasons that a person may be disqualified from working with children. Since the 1989 Children Act there has been legislation preventing a child being cared for where there is a person with convictions of a certain type living or working in the same premises as the provision. For childminders this meant lodgers, partners, sons and daughters as well as gardeners or cleaners.  For nurseries this meant cleaners, drivers of nursery vehicles, cooks and administrators or others if the nursery was in dual use.

However, since 2008 this has developed as we gain a greater understanding of those people who intentionally harm and groom children. We know that most paedophiles groom children and in order to gain their opportunity to abuse they first groom the adults around them. A person who works in a nursery becomes a figure of trust in the community. Parents will know that DBS checks have been done and see a nursery worker or childminder as a ‘safe’ person who they would trust their children with. The partner or nursery workers’ associates, for example, will use this as an opportunity to begin to groom the parents, maybe offering to do odd jobs to befriend them. As a result, and after several cases, the law was expanded to safeguard children by extending these rules to include the families of nursery workers, not just those who would be in close proximity or living on the premises where children were cared for.

The terminology used in the regulations means that if you are lucky enough to be able to afford a gardener or a cleaner, if they are disqualified then you, as a nursery worker, are also disqualified.

Don’t forget that this applies to convictions as well as cautions, reprimands and upcoming cases. It also applies to those who are on the EYFS register as well as the voluntary and compulsory register. It also applies to schools and voluntary organisations, such as the Scout movement.

On the whole, this is a practical precaution to safeguard children. However, it is not just offences that disqualify people, there are an additional six reasons:

  • court orders made regarding own children;
  • any ban from foster care;
  • cancellation of registration as a childcare provider;
  • certain orders or notices given to social care managers and owners;
  • refusal of a childcare application to register, after April 2007, having received a caution for a disqualifiable offence; and
  • if they are on one of the barred lists held by the DBS.

Some of these issues would seem to present little risk to children when we are talking about a person who may live with a nursery worker. But some of these are high risk.

Here are two examples of what may occur:

  1.  A lady found out that she was disqualified from caring for children in a nursery when she declared that her husband of twenty-five years had been convicted of assault occasioning actual bodily harm, commonly known as ABH. Her husband was 45 and this occurred when he was 19. He had been out drinking with friends and agreed they had all had too much to drink. A fight broke out and he got caught up as he tried to get his best friend out of the way. The police arrived and arrested everyone. He sobered up in the cell overnight and was charged with ABH in the morning. In those days there was no CCTV and his lawyer advised him and his friend to plead guilty as it was a first offence and the sentence was likely to be a small fine and community service. He did this, but years later as laws changed he now found that not only was he disqualified from working in any capacity with children but so was his wife. In the years that had passed he had gained qualifications, was working professionally (but not with children and vulnerable adults) and had children of his own. There were no other convictions or cautions on his DBS. A waiver is now needed if his wife wants to continue to work with children.

2.  A teenage girl was embarking on a career in childcare. She applied at a setting that would support her to gain qualifications. Her mother had been a childminder for many years and she wanted to build her career using the positive experiences she had gained. During the recruitment process it was found that she was disqualified by association as her mother’s childminding registration had been cancelled. It was cancelled because she didn’t pay the annual fee. The teenager now needs a waiver if she wants to continue to work with children.

The waiver process is in place for people to challenge disqualification and an expert panel, who are able to assess the risks a person may present, will make decisions about the disqualification. These could be that a disqualification is lifted, or it could be refused, but sometimes there are conditions attached such as the person may not collect the nursery worker or be on the premises at any time even for a social event.

Waivers can take time to obtain and no employer may employ a disqualified person – to do so is an offence.

The hard part for employers is that you must not ask a nursery worker for the details of another person’s criminal past, you may only ask if they know of any reason that they are disqualified.

A challenge was made in court about the relevance of some older and less serious crimes. This was successful and there is now a filtering process, meaning some old convictions, cautions and reprimands no longer need to be revealed. The DBS provides a comprehensive guide and some wording you can use when developing your own declaration forms.

Don’t forget that of the 11 reasons for disqualification, only five would come up on a DBS check, the others are for you to make your own forms about and ask the right questions.”

Contact Debbie:

Debbie A

 debbie.alcock@hotmail.co.uk

Follow Debbie on Twitter: @alcock_debbie 

Follow the conversation on:

Twitter: @IamLauraHenry

Facebook: @LauraHenryConsultancy

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18 Comments

  • Anom

    hi does this stand for committee members also? We discovered someone could not be employed at another child setting because of barring by association, but she is on the committee and had a DBS when she joined which didn’t show as it was just for her, we spoke to ofsted and they basically said if a waiver is applied for it is our choice if we keep the person on and if denied then they couldn’t be part of the committee. However they also said if a waiver wasn’t applied for it was still down to our decision. This has completely confused us and I would like a solid answer as to what we should do?

  • Jo Martin

    Hi. Thank you for an interesting article. It’s my understanding that cancellation of registration due to non payment of fees no longer results in disqualification so this may need clarification in your article? Is that your understanding too?

  • Shelagh Willis

    Thank you Laura and Debbie for this excellent and really useful blog, S x

  • Debbie Alcock

    You are not alone, I have heard this so many times from providers. Ofsted have a duty to regulate child care (unlike schools where they inspect only). Their role is not to provide advice but to consistently measure if a provider, in your case a committee is and remains suitable. One of the measures for suitability is the manner in which you understand the regulations and follow them.
    So, your colleague is disqualified. Ofsted are looking to see what you do, will you apply for a waiver? will you carry out your own internal investigation and clearance system (this may prove unsatisfactory later if your process was floored) or will you ask them to step down?.
    For some people old offences or reasons for disqualification can haunt them for the rest of their lives. These laws don’t just apply to child care but to volunteers such as the guide movement, youth work, church work etc. and so if it was me I would want to gain a waiver so I could move forward in life.

  • Steph Dorling

    A really interesting blog, out of curiosity what was Debbie’s answer to Anom’s comment?

  • Debbie Alcock

    Hi Jo
    There is a time limit on cancellation for non-payment of fee. This is because some processes were not correct before so the time it no longer counts for non-payment of fee is after 1 September 2008 (6 April 2007 for those registered only on the voluntary part of the Childcare Register).

    The reason I did not include this detail is because the blog becomes overly complicated then becomes harder for people to absorb the thrust of the intention of this blog which was to raise awareness and encourage all to develop declaration forms and find out more.
    Detailed information can be found in Ofsteds Compliance, Investigation and enforcement section 5a.
    I am also writing an easy to read guide which goes much deeper and is step by step. I would be honoured if you emailed me so I can send you the first chapter for your comments. – Debbie

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  • Kay.williams

    Hi Debbie and Laura

    Thank you so much for this article, this issue seems to have gained momentum recently and rightly so. However, as a result some providers have become quite anxious, feeling that they don’t know what to do about information that they ultimately don’t know about – if you see what I mean! Your article has helped clarify the situation. My understanding is that Nursery employers are responsible for making sure that they do not employ anyone who is aware that they are living with or related to a person who is disqualified. Therefore, the question must be asked at interview “to your knowledge do you know if any of your household members or members of your family are disqualified from working with children?” they should record the response accordingly and take appropriate action without seeking detail regarding the criminal activity. If employers feel that they omitted to do this at previous interviews they can ask existing staff the same question to ensure that they have strengthened their safeguarding procedures in light of their increased understanding of disqualification by association.

  • annie o'mahony

    Many thanks for such an informative article, however I have a couple of questions I hope you could answer…

    I understand about new staff, however what if a currant member of staff signs that yes someone they live with has been disqualified… (we ask our staff to update yearly as advised by our QL). Can we no longer employ them? and if no, do we have to sack them/make them redundant?

    I am concerned as you say they can apply for a waiver, therefore if we have sacked them could they not take us to a tribunal for unfair dismissal. I am really concerned that I get this right for both the staff and children we care for.

  • Catherine Lyon

    Hello Ladies,

    Very helpful, just (literally) come from a Senior Management Meeting and discussed reviewing our annual forms.

    I am unable to find a link on the DBS website re wording that could be used. garding wording that could be used for making own forms. Please can you provide the link?

    Catherine

  • Catherine Lyon

    Sorry about the previous garble – got distracted half way through!

  • Laura Henry

    Please come along to Debbie’s session on disqualification by association.

    Book a place: http://www.eventbrite.co.uk/e/masterclass-on-the-disqualification-regulations-tickets-17830734206?aff=es2

  • Tai TungHo

    Good discussion – I was enlightened by the information , Does someone know where my assistant can get ahold of a sample Calendar example to complete ?

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