Disqualification by association – Care Standards Tribunal sets out factors when considering a waiver from disqualification
Chris Hook
Experienced commercial lawyer specialising in the charity, education and sport sectors
21 August 2017
The Care Standards Tribunal has recently allowed an appeal by a teaching assistant against Ofsted’s decision not to waive her "disqualification by association". The case serves as a reminder that this legislation continues to cause confusion and uncertainty in childcare and school settings. Helpfully, the Tribunal also used the case as an opportunity to set out a number of factors for Ofsted to consider when deciding whether to grant a waiver from disqualification.
Introduction
The case concerned Mrs Adel Lee, a teaching assistant from Hungary, who was disqualified by association from being employed in a school in connection with the provision of early years or later years childcare. This is because her husband, Mr Edward Lee had been convicted of downloading indecent images of children.
Legislative background
Section 75 of the Childcare Act 2006 makes provision about disqualification from registration under Chapter 2 (the early years register), Chapter 3 (the mandatory part of the general childcare register and Chapter 4 (the voluntary part of the general childcare register) of Part 3 of the Act.
In turn the Childcare (Disqualification) Regulations 2009 lists various circumstances in which a person is disqualified from registration. In particular, regulation 9 provides that a person is disqualified if he or she lives (a) in the same household as another person who is disqualified from registration or (b) in a household in which a disqualified person is employed.
A person who is disqualified must not provide, or be directly concerned in the management of, any early years or childcare provision. This includes childminders, nurseries and pre-schools as well as those who deliver early years and later year childcare provision which are exempt from registration such as schools and crèches.
It is an offence for someone to knowingly employ someone who is disqualified in connection early years or childcare provision.
This also means that staff who are employed at a first, primary or all-through school may also be caught by the legislation. The Department for Education (“DfE”) has published statutory guidance for local authorities, maintained schools, academies and free schools to explain the implications for schools.
Nonetheless, in many cases a disqualified person can apply to Ofsted for a waiver from disqualification.
Factual background
Mr Lee was arrested in June 2014 while living in Northern Ireland. Mr and Mrs Lee subsequently moved to England, where Mrs Lee took up a position as a teaching assistant in a school. They married in June 2015.
In March 2016 Mr Lee pleaded guilty to downloading indecent images at his arraignment but he was not sentenced at this stage. He telephoned Mrs Lee, who was in Hungary for the school Easter break. She notified her head teacher on the first day back in April 2016.
Mrs Lee was then subject to disciplinary proceedings and was dismissed for gross misconduct on 17 May 2016.
A key concern for the school – and subsequently for Ofsted when considering the waiver application –was that all staff at the school had been asked to fill out a Self-Declaration form in February 2015. The form contained a general declaration at the end: “I understand my responsibility to safeguard children and am aware that I must notify the Headteacher of anything that may affect my suitability or that of anyone living in my household.” It was this wording that caused the concern that Mrs Lee had not displayed the qualities of openness and transparency that might reasonably be expected of a childcare professional.
The decision to dismiss Mrs Lee was upheld at an internal appeal on 4 July 2016. As Mrs Lee had less than two years’ service, she was not entitled to make a claim to an Employment Tribunal alleging unfair dismissal.
Application for a waiver
Following her dismissal Mrs Lee applied for a waiver from disqualification so that she could seek alternative employment in primary schools.
However, Ofsted twice refused Mrs Lee’s application for a waiver. It shared the school’s concerns about Mrs Lee’s apparent failure to disclose her husband’s arrest and criminal proceedings prior to his conviction as well as the risk of harm to children.
Mrs Lee then appealed to the Care Standards Tribunal.
Findings
At appeal the Tribunal noted that there had never been any suggestion that Mrs Lee knew or should have known her husband was committing the offences, the majority of which were carried out in the years before she had met him.
There was no evidence that Mrs Lee gave any cause for concern in how she carried out her duties as a teaching assistant.
It was accepted that Mrs Lee was an honest and credible witness and sought to give full and honest answer to some searching questions.
It was also agreed that, had Mrs Lee disclosed the arrest and proceedings with the school at the first possible opportunity, then she would be unlikely to be in the position she subsequently found herself in.
Given the restrictions in place in a school, the Tribunal judged that Mrs Lee had at no time unwittingly exposed children to risk of harm or would do so in the future. Mrs Lee understood that viewing images was abusive of children.
In addition, in this case, Mr Lee’s sexual interest was in older children rather than those in early year or later years childcare.
Consequently, the Tribunal allowed Mrs Lee’s appeal.
Wider significance
The Tribunal also used the case as an opportunity to set out guidelines and factors to take into account when deciding whether to grant a waiver.
The Tribunal noted that Ofsted’s Early years compliance handbook (March 2017) lists seven factors:
- the risk to children
- the nature and severity of any offences, cautions or orders
- the age of any offences or orders
- repetition of any offences or orders or any particular pattern of offending
- the notes of any interviews, including their explanation of and attitude to the disqualifying event
- any other information available from other authorities
- any mitigating circumstances
The Tribunal held that the following factors are likely to be relevant:
- whether there is any real concern that the A (that is, the Applicant or the Appellant on appeal) would unwittingly expose a child to risk
- whether the A would be capable of knowing if there was a re-occurrence of the offending or the danger signs
- whether the A would come forward with any concerns that offences were again being committed (past behaviour being informative but not conclusive)
- when matters were first disclosed to an employer
- the attitude of the A to disclosing matters to an employer
- any measures put in place to minimize risk
- any rehabilitation received by the offender or treatment received
- the level of deceit involving the offender to the A
- steps taken by A to understand the type of offending and whether they have been offered any professional or other support
What should you do?
Nurseries and childcare providers should familiarise themselves with Ofsted’s current guidance Applying to waive disqualification: early years and childcare providers (June 2015).
Primary schools should familiarise themselves with DfE’s current statutory guidance Disqualification under the Childcare Act 2006 (June 2016).
If you discover that one of your staff members is disqualified, you should:
- notify Ofsted;
- consider whether and how he/she could be redeployed so that he/she is not working within early years provision or later years provision out-of-hours and is not involved in the management of either;
- grant the staff member a period of leave or suspend him/her if this is the only feasible option. Suspension should be a last resort; and
- explain to the staff member that he/she must personally apply for a waiver from Ofsted and direct him/her to Ofsted’s current guidance.
If the redeployment cannot continue, the you will likely need to go through the usual procedures to dismiss the staff member. But we strongly recommend taking legal advice first.
Chris Hook is an associate solicitor at Hempsons in Newcastle upon Tyne. He provides specialist legal advice to charities, social enterprises and educational institutions on a wide range of charity, commercial, regulatory and public law matters. He can be contacted at [email protected] or 0191 230 6052. You may also be interested in his other articles below.
James English is a senior solicitor at Hempsons in Newcastle upon Tyne. He provides specialist employment law advice to private, public and third sector organisations, particularly in the area of health, social care and education. He can be contacted at [email protected] or 0191 230 6054.
Disclaimer: This article contains information which is necessarily general. It does not constitute legal advice. It is essential that, before proceeding with a particular course of action, you take specialist legal advice on any relevant considerations which may apply in your specific circumstances so that you can properly assess your options and any associated risks and benefits.
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