The law for childcare providers on suitable staff has become very complex, with a multitude of regulations. Unsurprisingly I still meet many providers who do not fully understand them. Yet it is incredibly serious if a provider is seen to have committed an offence for employing a disqualified person.
Most people assume that undertaking a DBS will uncover all disqualifications. It does not. There are 11 reasons a person may be disqualified, yet only five of these would be uncovered by a DBS check. The other six need to be considered by the provider.
WHAT SHOWS ON A DBS CHECK?
A person will be disqualified if they are found to:
• have committed a disqualifiable offence (these include offences against children, as well as actual bodily harm or grievous bodily harm). This is where you can immediately get into trouble. The information you receive about offences is privileged, received because we work with children (if you were employing someone to work in a shop, you would not be given it). You need to know which offences do disqualify someone in childcare before you refuse to employ them. If someone has a long history of petty theft, you would be made aware by the DBS, but it is not a disqualifiable offence. Other offences, such as ‘being concerned in the making of an offer to supply class A drugs’, are also not disqualifiable (though if a person has been found ‘being concerned in the making to a child of an offer to supply class A drugs’ then the person is disqualified). You therefore need to have a fair process in place for interview on any concerns arising from the check;
• have committed overseas offences that are parallel to UK disqualifiable offences. All employers in childcare must understand what constitutes a disqualifiable offence, so they can be clear, if one shows up, what to do next;
• have caused injury or death of a child through an offence not specified in the early years compliance handbook;for example, driving while drunk or driving without due care and attention. Being drunk while driving is not disqualifiable, but if a child gets injured at this time the person becomes disqualified;
• be on the DBS barred list (this includes persons known to List 99, the PoCA list, Section 128 and the Independent Safeguarding Authority). Therefore, it is important to notify the DBS if you have had to dismiss a member of staff due to a safeguarding issue; and/or
• have received a caution from 6 April 2007 for a disqualifiable offence. For police to issue a caution, two criteria must be fulfilled: that they have enough evidence to prosecute but have decided not to; and that the person has admitted guilt. The caution is a written document and does not refer to someone who has been arrested.
WHAT ARE THE OTHER SIX DISQUALIFIABLE EVENTS THAT MAY MEAN SOMEONE IS NOT SUITABLE TO WORK WITH CHILDREN?
The following do not show on a DBS check as they do not come under criminal law (all come under civil law, which is why they can cause controversy):
• A refusal at any time to register childcare provision. This indicates there were significant reasons against. Some of these may be in relation to safeguarding or social services.
• A cancellation of a registration, except for cancellation for non-payment of fees after 1 September 2008 (6 April 2007 for those registered only on the voluntary part of the Childcare Register).
• Orders relating to the care of children. This is a very difficult one for providers as the information regarding care orders is held by social services, and private providers cannot do social service checks. But you have to demonstrate that you have looked into this by asking the question of staff. Failure to do so can be seen as an offence under the Safeguarding Vulnerable Groups Act 2006. Ofsted can do these checks and do them for providers, but Ofsted no longer checks the suitability of managers, which leaves a real knowledge gap.
• Fostering – any ban on a person acting as a foster carer. Please note, this is not a refusal to be a foster carer – there are all sorts of reasons for people being refused registration, such as the size of their home. This refers to a person who has fostered children and subsequently becomes banned.
• Children’s homes – a failure to register, failure to comply with conditions of registration, contravention of regulations, false descriptions of establishments and agencies, and false statements in applications. Both the manager and the provider of a children’s home must be registered, so you need to know if any of your employees or applicants have either been a children’s home manager or a provider.
• A person who lives in the same household as another person who is disqualified from registration, or in a household in which any such person is employed, is disqualified from registration. This the one disqualification that causes the most controversy. If a worker is married to a person who is disqualified for any of the other 10 reasons then the worker becomes disqualified too. A consultation has been carried out to assess whether change is needed here.
FURTHER INFORMATION