Sector weighs up ‘disqualification by association’ options

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The Government is being urged to scrap disqualification by association (DBA) rules for non-domestic settings, after it launched a consultation on the ‘unfair’ rules that target childcare workers and not teachers.

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The Government is being urged to scrap disqualification by association (DBA) rules for non-domestic settings, after it launched a consultation on the ‘unfair’ rules that target childcare workers and not teachers.

The legislation is designed to protect children from a perceived risk associated with workers who are living with a person who has a conviction for a serious violent or sexual crime.

But there is no evidence to show that the regulations improve safeguarding in settings such as Reception classes, after-school clubs and nurseries, according to the public services union Unison.

Many childcare workers have been suspended or prevented from securing interviews for work while they apply for a waiver from Ofsted.

According to figures released by Ofsted in February, the watchdog had received more than 3,000 applications for waivers, of which none were turned down.

Unison, which represents 35,000 childcare workers, and has dealt with more than 500 DBA cases, is supporting the first of three consultation options ‘to remove disqualification by association in schools and non-domestic registered settings’.

The union argues that the rules may even increase risk because of wasted resources, especially, it says, as there are existing checks that do a much better job of protecting children.

It said it experienced a ‘big spike’ in cases after the Department for Education (DfE) published guidance in October 2014, interpreting the Childcare Act 2006 and 2009 regulations as including childcare workers in schools. This increased awareness of the regulations across early years settings which, like schools, had not generally been applying them.

Because of widespread confusion triggered by the guidance, the DfE then published further clarification in February 2015.

Ben Thomas, Unison’s national education officer, said, ‘It’s disrupted the lives of thousands. I’ve seen some heartbreaking cases, such as victims of domestic abuse being disqualified.

‘It’s deflected resources away from genuine safeguarding, such as proper supervision and background checks.

‘There’s no evidence that childcare workers provide a greater risk than any other person working with children.

‘There’s no justification for applying an extra check that’s different for a teacher or a paediatric nurse.’

Mr Thomas said the idea behind regulations for non-domestic settings is the DfE’s concern that childcare workers may be under the influence of people they live with.

However, it is unlikely that DBA would have prevented crimes such as those of nursery worker Vanessa George, who was encouraged to abuse children by a man she met online.

The National Day Nurseries Association (NDNA) is backing ‘option 2’, to ‘retain disqualification by association, but introduce a new right to make representations to Ofsted before the disqualification takes effect’.

Explaining the NDNA's reasoning, Claire Schofield, director of membership, policy and Communications at National Day Nurseries Association said, 'Under option two, consultation proposes that people have 28 days to make representations to Ofsted.

'If Ofsted accepts these, then they would be able to carry on working in childcare without applying for a waiver.

'If Ofsted having considered the representations, then decides to disqualify, the person can then apply for a waiver.

'It's an issue we've discussed a number of times with our policy committee over the past two years - it was initially highlighted by NDNA as an area needing clarification by us following a policy committee discussion in 2014.  

'At NDNA we feel that option two strikes the right balance - employees will have to inform their employer and Ofsted of their status, supporting providers to manage their safeguarding responsibilities.

The Pre-school Learning Alliance has not expressed a preference.

CASES DEALT WITH BY UNISON

A nursery worker was suspended from her job for two weeks in November 2014 after her son received a Football Banning Order. The case highlights the potentially disproportionate level of caution applied, because the offence was not caught by the regulations.

In another case, an early years teaching assistant in an after-school club was suspended for two months in March last year. Her partner had been convicted of ABH as a teenager in 2004 and the conviction was ‘spent’, as per the Rehabilitation of Offenders Act, meaning he would not be required to declare it. The childcare worker successfully applied for an Ofsted waiver, but found the process upsetting and stressful, particularly as she lived in a small community.

Meanwhile, there has been a number of cases of nursery workers who are also foster carers being disqualified because of rules relating to foster children being subject to a childcare order. In one example, the suspension lasted a month. As part of its consultation, the DfE is also reviewing the regulations on early years workers who are also foster carers.

A DfE spokesman said, ‘Nothing is more important than keeping children safe – that’s why we introduced the disqualification arrangements. We have worked with schools and nurseries to implement this system and provided additional guidance, but we want to make sure it is as fair and proportionate as possible.’

  • More information on the consultation, which closes on 1 July, is available here
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