By Francesca Snape – Regulatory Law Specialist at Stephensons

Nurseries and early years childcare providers must ensure they have robust policies and procedures in place with regard to the vetting of potential staff and recruitment practices, or they may face enforcement action by Ofsted.
A recent case, which has been widely publicised, demonstrates the importance of early years providers ensuring their policies and procedures for vetting, staff recruitment and safeguarding are in line with statutory requirements as well as the guidance set out by Ofsted. A nursery owner was issued with a Notice of Intention to cancel her registration by Ofsted in April 2018 as a result of a safeguarding investigation, which uncovered that she had employed her partner who had a criminal record for a number of offences and a caution for wilful neglect. It is reported that the nursery owner initially informed Ofsted that she was not aware of her partners caution for wilful neglect from 2005, however, when she provided a copy of her partners DBS certificate to Ofsted, it was noted that this did disclose the caution.
Requirements
One of the areas Ofsted considers when carrying out inspections is the safeguarding procedures in place – and this includes recruitment processes. Ofsted expects early years settings to be able to demonstrate that they meet all regulations and duties for the purposes of safeguarding judgements in the inspection handbook. At an inspection, inspectors are expected to check that the provider is able to produce evidence of suitability of relevant staff and adults that work at and attend the setting.
Section 3 of the Early Years Foundation Stage framework (“the Framework”) outlines the standards that all early years providers must meet to ensure that children are kept safe and specific guidance is provided on suitable people, staff qualifications, training, support and skills. Specifically, providers, other than childminders, must obtain an enhanced criminal records check in respect of every person aged 16 and over, including for unsupervised volunteers and supervised volunteers, who provide personal care, and who:
– Works directly with children;
– Lives on the premises on which the childcare is provided and/or;
– Works on the premises on which childcare is provided (unless they do not work on the part of the premises where the childcare takes place, or do not work there at times when children are present).
‘Personal care’ includes helping a child, for reasons of age, illness or disability, with eating or drinking, or in connection with toileting, washing, bathing and dressing.
In addition to the above requirements, registered providers must also carry out an additional criminal record check (or checks if more than one country) for anyone who has lived or worked abroad.
Registered providers are responsible for ensuring that they carry out assessments of staff suitability and this will also be considered during inspections. Ofsted are responsible for considering the suitability of a provider or registered manager but they will not assess the suitability of other members of staff. As such, to determine whether a provider is carrying out sufficient checks in this regard, inspectors will consider whether there is evidence of the following, although this is not an exhaustive list:
– An enhanced DBS check;
– References;
– Full employment history;
– Qualifications;
– Interviews;
– Medical suitability;
– Any other checks undertaken.
Providers must not allow people to have unsupervised contact with children being cared for until such a time that these checks have been undertaken. It is vitally important that Providers keep a record in staff files of all checks undertaken so that this can be evidenced during inspections.
Under the Framework, Ofsted specifically state that providers must tell staff that they are expected to disclose any convictions, cautions, court orders, reprimands and warnings that may affect their suitability to work with children and this is regardless of whether it was received before or during their employment at the setting.
Conclusion
It is often the case where Ofsted identify a serious safeguarding issue that a nursery’s registration will be suspended in order for a further investigation to be undertaken and if this investigation reveals further or wider issues with the policies and procedures at the setting, Ofsted will normally consider further enforcement action, including cancellation of registration. It appears that in the recently publicised case that the concerns regarding staff suitability checks prompted a wider investigation into the setting which ultimately led to more serious enforcement action being taken.
It is vitally important that providers seek specialist legal advice and assistance where Ofsted are seeking to take enforcement action. Often there are very short timeframes to appeal or challenge action taken by Ofsted, but assistance from specialists at a very early stage can increase the likelihood of preventing further enforcement action being taken.