Government consults on 'unfair' disqualification rules

The automatic ban was enforced in February last year meaning practitioners can be stopped from working in an early years setting if they live with someone convicted or cautioned for a violent or sexual offence.

Since then, the sector has been flagging deep concerns, including that the system is ‘unfair’, ‘ineffective’ and ‘unclear’.

Practitioners can apply for a waiver from Ofsted, but this can take weeks to be processed by Ofsted, causing difficulties for staff and settings who do not pose a risk.

The proposed safeguarding changes relate to schools, nurseries and other non-domestic settings, but do not affect childminders, who care for children at home.

Childminders are, however, invited to comment.

In the consultation launched today, views are being sought on the three following options:

1. remove disqualification by association in schools and non-domestic registered settings;

2. retain disqualification by association, but introduce a new right to make representations to Ofsted before the disqualification takes effect;

3. retain disqualification by association, but reduce its scope and introduce a new right to make representations to Ofsted before the disqualification takes effect.

The consultation document states, 'Concerns have been raised with the department about the fairness and proportionality of these arrangements on childcare workers in schools and other non-domestic registered settings.

'Accordingly we are seeking your views on three separate options which are intended to improve the fairness of the current arrangements.'

The National Day Nurseries Association (NDNA) is supporting the second option and urged nurseries to have their say.

Purnima Tanuku, the body’s chief executive, said, ‘The current rules about disqualification by association are very complicated and unclear.

‘We first highlighted this to the Department for Education two years ago and developed resources to help nurseries manage this issue.’

Ms Tanaku welcomed the ‘much-needed review’ and urged the DfE to take a ‘sensible, measured’ approach, which ‘balances the needs of the child with a workable, practical solution for childcare providers’.

She added, ‘Protecting children is paramount, so following consultation with our National Policy Committee, we would recommend option two of the consultation in which workers have a right to make representations to Ofsted before disqualification would take place.

‘Nurseries must have robust safeguarding procedures which should ensure that all children are safe while these practitioners remain in situ.

‘We will be consulting with our members on this issue and would encourage all those with an interest in early years to respond.’

The public service union UNISON slammed the imposition as ‘arbitrary’ and called for the regulation to be scrapped, for doing more harm than good.

A spokesman said, ‘The regulations did nothing to promote safeguarding in the early years sector.

‘The arbitrary imposition of this policy caused severe upset and distress to thousands of early years workers.

‘We would recommend that as many staff as possible complete the consultation and select option one to abolish the DBA regulations for early years staff.’

The Pre-school Learning Alliance (PLA) did not express a preference on the options, but chief executive Neil Leitch called for childminders to be included in the changes.

Mr Leitch said, ‘The current rules around disqualification by association can create significant and sometimes unnecessary challenges for early years providers, and so we warmly welcome the move to consult with the sector on a fairer regulatory system.

‘We are disappointed, however, to see that the proposed changes apply only to schools and group settings, and not childminders.

‘While we recognise that there are key differences between domestic and non-domestic settings, and that this will inevitably have an impact on the way that disqualification by association rules should be applied, this is not a reason to exclude childminders from the scope of the consultation completely.’

Liz Bayram, chief executive of Pacey, described the consultation as a 'sensible progression' that 'balances sector experience with everyone's first priority, to safeguard children'. 

She added, 'At PACEY we feel Ofsted’s involvement in this disqualifications process could help. We will be talking to our members about the pros and cons of each proposed option.'

• The consultation closes on 1 July and the papers can be viewed here.