05/07/2016

MSA responds to Department for Education consultation Amending the childcare disqualification arrangements in schools and non-domestic registered settings

By Dr Martin Bradley

Background

At the MEAB conference on 10 June, it was decided to ask attendees for their views on this latest government consultation so that MSAs response would receive added weight. One hundred and twenty-five delegates attended the conference and their views are summarised below. These views will be submitted to DfES by 1 July the final date for responses.

Besides ten questions asked by DfES, MSA asked two more:

MSAs questions

  1. The issue of disqualification from working with young children is complex. In particular disqualification by association requires anyone wishing to work in childcare and education to tell their employer if anyone who lives in the same accommodation as themselves is disbarred from working in this particular field. This could be a flatmate, or housemate, a partner or a spouse. The complications of knowing details about other people are added to complications for employers who have to pay for supply staff while the case is being investigated, as well as paying the original staff. Overall the situation is too complex and subject to varying interpretations, with staff likely to leave childcare rather than face extended investigations.

We therefore asked if conference members could add to the list of issues already raised.  They responded with the following:

  • There was a major concern around the potential for unfair dismissal claims and referral to tribunals (19%).
  • This was closely followed by the complexity of the current arrangements which many felt were impossible to police effectively (18%). Related points were that DBS checks ought to be sufficient, that staff would not necessarily know other tenants, that young staff in inner city areas could only afford to share accommodation and as such the current scheme was potentially discriminatory against them. Several people also felt that it was likely to be unfair to innocent people with a possible impact on their personal and professional reputation.
  • The costs of suspension on full pay while a case is being investigated (13%). This linked to issues around the impact on small Montessori settings. One colleague noted that in Surrey staff members were suspended while a third party was being investigated i.e. even before any third partys guilt was established.
  • One comment was that the complexity was worth preventing in child protection cases.

Overall, the view was that the present system is not really workable.

2.  MSA then asked for views on DfESs wish for any changes not to refer to childcare in domestic settings i.e. childminders and childminder agencies. Sixty-one per cent agreed that the proposed change should not includes such providers, 20% felt that they should be included, while 2% had no view. This demonstrated clear support for DfESs position.

DfES consultation questions

Question 1. Do you consider the current disqualification by association (DBA) arrangements to be unfair and disproportionate in relation to the risk posed to children?

The overwhelming response, 94%, was that it was unfair.

In giving their reasons for this, 13% felt that it was unfair to the employer to have responsibility for monitoring the present arrangements, while 12% felt that it was unfair to both employers and employees. Several people noted that the principle of innocent until proven guilty should apply, and one questioned whether it was compatible with British values. The potential for anomalies, complexities and inconsistencies was noted, and 6% considered the system to be impractical.

Question 2. Which of the three options set out in this consultation, if any, do you think best achieves the objective of protecting children whilst making the regime fairer?

  • Remove DBA for all childcare workers in schools or non-domestic registered settings
  • Retain DBA but introduce a new right to make representations to Ofsted
  • Retain DBA but reduce its scope, and introduce a new right to make representations to Ofsted

Opinion was much more evenly divided on this:

Option 1: 38%

Option 2: 25%

Option 3: 41%

The reasons for responses again focused on the wide-ranging nature of the current and proposed arrangements, complexities, and the adequacy of other checks, notably DBS. Only one person wished to retain the current arrangements.

Question 3: Do you support the proposal in Option 1, that we should completely remove DBA for childcare workers in non-domestic registered settings?

Yes: 45%

No: 54%

Relatively few people made comments, having already responded to earlier questions. However the need to be fair to staff and to remove unfairness was noted by 8%.

So, by a reasonable majority, Option 1 was rejected.

Question 4: Do you support the proposal in Option 2, to retain DBA but allow representations before disqualification from childcare for workers in schools and non-domestic registered settings, or disqualified for having registration refused or cancelled in relation to childcare or childrens homes, or disqualified from fostering, or on grounds relating to the care of children?

Yes: 43%

No: 49%

On the positive side this was seen as fairer and more positive, negative views included difficulties for the employer to monitor the situation, the time consuming nature of the process and the need for a right to appeal were also noted.

So, Option 2 was rejected.

Question 5: Do you support the proposal in Option 3, to retain DBA, but reduce its scope so that it only applies to certain more serious offences, and introduce a new right to make representations for certain workers?

Yes: 58%

No: 34%

While this was seen as fairer and quicker, protecting the rights of the employer and the employee, as well as civil liberties, more effectively, more details of any proposals were sought. As one person put it, here are problems in defining what is meant by more serious. Another comment was that the Government should underwrite the costs of appeal.

Question 6: If you support Option 3, do you agree that offences should be categorised as more/less serious for the purpose of this option and which offences do you think should be categorised as more serious?

This was more difficult to answer without a detailed list and knowledge of the offences, but yes and no both received 40% support. Comments mainly focused on problems of bureaucracy, complexity, questions of who was going to administer the system (including needing to know about the detail of various offences). It was noted that all cases are serious.

Overall, no clear view emerged here.

Question 7: Do you agree that our proposals to remove automatic disqualification and/or allow representations to Ofsted (including in cases of DBA) should include Head Teachers and the registered person in other relevant settings?

Yes: 71%

No: 22%

The great majority considered that Head Teachers and registered people should be treated the same as other members of staff.

Question 8: Do you support the proposals to amend regulation 4(2) in respect of childcare workers or those who have adopted children in their household so that it no longer has the effect that childcare workers who were themselves once the subject of a care order are disqualified?

Yes: 68%

No: 27%

There was some confusion evident about the question which several people felt was unclear. Other comments were that the present system was discriminatory, unfair and against equal opportunities all strong opinions! During the session some participants expressed their surprise at the current disqualifications for such people.

Question 9: Do you have any comments about the potential financial costs or benefits to businesses of these proposals?

Benefits: few saw any significant benefits, although one referred to an improved retention of qualified staff.

Costs: the main costs related to recruiting and paying cover staff, with 42% seeing this as a major issue, especially for small businesses. One referred to a six week suspension as having cost her setting £2,000. Others spoke of it as massively expensive and suspensions not being affordable. This was seen as a potential disaster for nurseries and unsustainable especially in the context of 30 hours funding. The issue of potential legal costs and appeal costs was raised. The disruption and impact of team morale concerned respondents.

These responses indicate that the proposals do not address fundamental concerns about financial viability under the current funding arrangements when staff may be suspended. Small business settings were seen as especially vulnerable. This strongly suggests that there is insufficient joined up thinking across funding and employment policies.

Question 10: Do you have any other comments on the proposals in this consultation, or more generally about the childcare disqualification regime?

The main reactions to the proposals were negative. Comments included:

  • Unworkable, too generalised.
  • Too blunt a tool, unrealistic.
  • Avoid knee-jerk legislation, along with a need for more considered decisions.
  • DBA undermines the DBS process, which several supported.
  • DBA is a long-winded and confusing process unclear and lacking transparency: potentially disproportionate.
  • Unfair: the danger of blaming the innocent.
  • Harsher on workers than on parents under Child Protection Orders.
  • Too little support for employers who have to apply the system more information is needed on how to obtain disclosures from staff which may lead to DBA.

Several also felt that the language used in the consultation questions was obscure.

Summary

While the consultation itself did not seek a summary, it is clear that the present DBA arrangements are regarded as unworkable and at least potentially unfair. The costs to small employers, both for supply staff and potentially in any appeal, are considerable and unaffordable under the proposed 30 hours funding. The system appears to be geared to the financial capacities of local authority funded schools and chains such as academies, as well as their ability to deal with staffing issues, including by cross-funding from their greater resources and having access to legal and other advisers employed by them.

The burden placed upon small employers by the present proposals illustrates the problem associated with taking a one size fits all approach. As conference members noted there is a need for support and advice for small Montessori settings, possibly with government or supplementary funding, to deal with the complex issues around DBS, especially where settings are unlikely to encounter this type of issue often.

Dr Martin Bradley

Chairman

Montessori Schools Association