Disqualification From Childcare: The Law, the Regulations and the Controversies

Disqualification from childcare is an area of law that has caused significant distress to childminders and childcare workers, and which was the subject of substantial controversy before a significant reform in 2018. Understanding the current framework (what triggers disqualification, who is affected, how waivers work and what the practical implications are) is essential for all registered providers and those thinking of entering the sector.

The Statutory Basis

The power to make disqualification regulations comes from ss.75–76 of the Childcare Act 2006. Section 75 provides that the Secretary of State may by regulations disqualify certain persons from (a) being a registered early years or later years childcare provider; (b) being an employee of a registered provider in a role involving regular contact with children; or (c) being directly concerned in the management of a registered provider. The current regulations are the Childcare (Disqualification) and Childcare (Early Years Provision Free of Charge) (Extended Entitlement) (Amendment) Regulations 2018 (SI 2018/794), which came into force on 31 August 2018, replacing the earlier 2009 Regulations.

What Triggers Disqualification

Schedule 1 to the 2018 Regulations sets out the circumstances that trigger automatic disqualification. These fall into four main categories:

1. Cautions and Convictions for Specified Offences

A person is automatically disqualified if they have been cautioned for, or convicted of, any of the offences listed in Part 1 of Schedule 1. These include all sexual offences against children (under the Sexual Offences Act 2003), murder, manslaughter, child destruction, child cruelty (s.1 Children and Young Persons Act 1933), kidnapping, false imprisonment and certain offences under the Protection of Children Act 1978. Critically, disqualification is triggered by a caution as well as a conviction – a conditional caution accepted to avoid prosecution has the same disqualifying effect as a conviction.

2. Inclusion on the DBS Children’s Barred List

A person included on the DBS children’s barred list under the Safeguarding Vulnerable Groups Act 2006 is disqualified from all childcare activity. Barred list inclusion is an absolute disqualification that cannot be waived by Ofsted. The barring decision is made by the DBS (not Ofsted), and the appropriate challenge to a barring decision is a referral to the First-tier Tribunal under the Safeguarding Vulnerable Groups Act 2006, not through Ofsted’s waiver process.

3. Certain Court Orders

A person is disqualified if they are subject to certain orders including:

• a disqualification order or disqualification from working with children order under the Criminal Justice and Court Services Act 2000
• a Sexual Harm Prevention Order
• a Sexual Risk Order
• or certain orders made in care proceedings under the Children Act 1989 (including orders freeing a child for adoption where the person was a parent, or care orders made in respect of their own child on grounds involving abuse or neglect)

4. Registration Refusals and Cancellations

A person whose registration as a childcare provider has been refused or cancelled by Ofsted is automatically disqualified from registering again (or from being employed in a disqualified role) unless and until Ofsted grants a waiver. This applies whether the refusal or cancellation related to their own conduct or to the conduct of their setting.

The 2018 Reform: Abolishing Household Disqualification

The most controversial aspect of the earlier 2009 Regulations was the concept of disqualification by association. Under the 2009 framework, a childminder or childcare worker was disqualified if any person who lived in the same household as them was disqualified, regardless of whether that household member had any involvement in childcare. This meant that a childminder could be disqualified because their adult child, partner or lodger had a relevant conviction – even if that person never came into contact with the children being cared for.

This rule was widely criticised as disproportionate, as an infringement of Article 8 ECHR rights (respect for private and family life), and as causing serious injustice to childcare workers who had no knowledge of a household member’s past. Several First-tier Tribunal cases highlighted the harshness of the rule in individual cases. In 2016, the government announced a review, and the 2018 Regulations abolished domestic disqualification by association entirely. From 31 August 2018, a childminder or childcare worker is not disqualified merely because someone living in their household holds a relevant conviction. Only their own convictions, orders and DBS barred list status are relevant.

It is important to note that this reform does not remove the requirement for DBS checks on household members of childminders – that requirement remains in the EYFS welfare requirements. A disclosed conviction of a household member is relevant information for Ofsted’s overall assessment of suitability and the safety of the premises, even though it no longer automatically disqualifies the childminder.

The Waiver Process

Section 76 of the Childcare Act 2006 and reg.10 of the 2018 Regulations enable a disqualified person to apply to Ofsted for a waiver. A waiver does not expunge the disqualification – it grants an exception, allowing the disqualified person to be registered or employed in a disqualified role, subject to any conditions Ofsted imposes. Ofsted has a broad discretion in determining waiver applications. It will consider: the nature and circumstances of the conviction or order; the time elapsed since it; the person’s conduct since the conviction; any evidence of rehabilitation; references; the age of the person at the time of the offence; and any other relevant information. Waiver applications are assessed individually and there is no guaranteed outcome.

Waivers cannot be granted where the disqualification arises from DBS barred list inclusion – that is an absolute bar. Waivers may be revoked if Ofsted becomes aware of new information that changes its assessment. A refusal to grant a waiver can be appealed to the First-tier Tribunal.

Obligations on Employers

Registered providers have an obligation to ensure they do not employ a person in a disqualified role knowing them to be disqualified. Doing so is a criminal offence under s.76(4) of the Childcare Act 2006. In practice, this means providers must:

• carry out enhanced DBS checks before employment
• ask new employees to confirm they are not disqualified
• repeat this check annually by asking staff to declare any changes in their DBS status
• act promptly if they become aware of any circumstance that might trigger disqualification

The requirement to make annual declarations should be documented and retained on the personnel file.