Keeping children safe in education Government consultation

Launch date 14 December 2017Respond by 22 February 2018

ContentsIntroduction

About this consultation

Respond online

Other ways to respond

Section 1

Part one and two of KCSIE

What to do if you have a concern about a child

Children Missing Education

Online Safety

Sexual Harassment and Sexual Violence in Schools

Children with special educational needs and disabilities (SEND)

Part three of KCSIE – Safer recruitment

Single Central Record (SCR)

Annex E: Host families – homestay during exchange visits

Section 2 10

Part three – Safer recruitment 10

Secretary of State Prohibitions 10

Pre-appointment checks 10

Flowchart of Disclosure and Barring Service criminal record checks and barred list checks 11

Obtaining references 11

Providing references 12

Part four – Allegations of abuse made against teachers and other staff 12

Duties as an employer and an employee 12

Initial considerations 13

Section 3 14

General questions about KCSIE 14

Individuals who have lived or worked outside the UK 14

The size and scope of KCSIE 14

Part three and Part four 16

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IntroductionThe purpose of this consultation is to seek views about proposed changes to Keeping children safe in education (KCSIE) statutory guidance. KCSIE sets out those legal duties that schools and colleges must comply with, together with what schools and colleges should do in order to keep children safe. Schools and colleges must have regard to KCSIE when carrying out their duties to safeguard and promote the welfare of children. The consultation also seeks views on a new departmental advice document covering sexual violence and sexual harassment between children in schools and colleges, that is summarised in Annex A of KCSIE. The full advice is available here.

Who this is for School and college staff Governing bodies, proprietors and management committees Children’s services Professionals working in social care Teaching Unions Safeguarding practitioners, including training providers Supply agencies

Consultation datesThe consultation was issued on 14 December 2017. To allow sufficient time for schools and colleges to consider and comment on the proposals, we have taken account of the Christmas break. The consultation closes on 22 February 2018.

EnquiriesIf your enquiry is related to the policy content of the consultation, you can contact the team at: Safeguarding.SCHOOLS@education.gov.uk

If your enquiry is related to the DfE e-consultation website or the consultation process in general, you can contact the DfE Ministerial and Public Communications Division by email: Coordinator.CONSULTATIONS@education.gov.uk or by telephone: 0370 000 2288 or via the DfE Contact us page.

Additional copiesAdditional copies are available electronically and can be downloaded from GOV.UK DfE consultations.

The responseThe results of the consultation and the department's response will be published on GOV.UK in early summer 2018.

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About this consultationThis consultation document explains a number of proposed changes to KCSIE statutory guidance. The aim is to help schools and colleges better understand what they are required to do by law and what we strongly advise they should do. Many of the changes are technical in nature and respond to requests from schools, local authorities and safeguarding training providers for additional clarification.

Section 1 explains the more substantive revisions that we propose to make to the guidance and invites comment on the clarity of those changes. Following revisions made in 2016, we are seeking views on how best to further improve the effectiveness of the Online safety and the What to do if you have concerns about a child’ sections of KCSIE. We are also seeking views on the new sexual violence and sexual harassment departmental advice, the summary of the advice in Annex A of KCSIE and the best long-term home for this advice.

Section 2 of this consultation references, and seeks views on, a number of minor changes. These are designed to clarify sections of Part three - Safer recruitment and Part four – Allegations of abuse made against teachers and other school staff.

Section 3 seeks to extend our evidence base by gathering a broad range of intelligence about how schools and colleges put KCSIE into practice. This is focused on Part three and Part four of the guidance. We anticipate the intelligence around usual practice that is gathered during this exercise will be used to help inform any future development of departmental guidance. We explore the length and scope of the full KCSIE guidance document and also focus on the length and scope of Part one and Annex A.

We do not ask questions about every change we are proposing to make. However, a table that explains all of the proposed changes can be found at Annex H of the draft guidance.

We have made changes throughout the guidance to reflect the changes colleagues are making, in parallel, to Working Together to Safeguard Children (WT). WT is being consulted on separately (here) and any resulting revisions to the final version will be reflected in KCSIE.

We would like to hear your views on our proposals.

Respond online

To help us analyse the responses please use the online system wherever possible. Visit GOV.UK DfE consultations to submit your response.

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Other ways to respond

If, for exceptional reasons, you are unable to use the online system - for example, because you use specialist accessibility software that is not compatible with the system - you may download a word document version of the form and email it to Safeguarding.SCHOOLS@education.gov.uk

DeadlineThe consultation closes on 22 February 2018.

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Section 1This section of this consultation explains the substantive revisions that we propose to make to the guidance and invites you to comment on the clarity of those changes.

Part one and two of KCSIE

What to do if you have a concern about a child

We made revisions to Part one of KCSIE in September 2016. We have since received feedback which tells us the clarity of this section has improved. However, feedback also suggests that further revision to the drafting would be welcomed to support school and college staff in making decisions when there are concerns about a child.

Proposals

We have provided more information on early help and provided more information for staff on what they should do when they have concerns about a child.

Question 1: Is the additional information on early help at paragraph 17 helpful?

Question 2: Have the changes to paragraphs 22-35 improved the clarity of this section?

Children Missing Education

As part of the department’s response to a coroner child death report, it committed to updating KCSIE to reflect the coroner’s recommendation that schools and colleges should hold more than one emergency contact number.

Proposals

We have provided additional information regarding children missing education in a safeguarding context at paragraph 55. We have also said that, where reasonably possible, schools and colleges should go beyond the legal minimum requirement to hold one emergency contact number. Our understanding is many schools and colleges already do this as a matter of best practice.

Question 3: Does your school or college already hold more than one emergency contact number?

Question 4: Is suggesting schools and colleges go beyond the legal minimum a sensible approach?

As many schools and colleges already engage in such practice, it seems sensible for the statutory guidance to include this as an explicit suggestion.

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Online Safety

Following the positive responses received to our consultation on revisions to KCSIE in 2015, for the first time we included in the September 2016 version (paragraph 67) of KCSIE an Online safety section. Additional information was provided in the new Annex C.

Proposals

We want to help schools and colleges to continue to protect their children when they are online. We do not expect to make any further changes to the Online safety section (now at paragraph 77 in the revised guidance). However, we want to hear from schools, colleges, software providers and sector experts on whether there is anything more that we might consider in order to improve Annex C.

Question 5: What changes can we make to Annex C to help schools and colleges keep their pupils safe online?

It would be useful to signpost to organisations who can help schools to implement sufficient filtering and monitoring systems, as well as those which provide advice, guidance and resources for schools. NGA would also recommend that reference is made to guidance produced by the UK Council for Child Internet Safety (UKCCIS) for governors and trustees - Online safety in schools and colleges: Questions from the Governing Board.

Sexual Harassment and Sexual Violence in Schools

In our 2015 consultation, we asked about the information that would assist governing bodies, proprietors and management committees to develop appropriate peer on peer abuse policies and procedures. As a result of that consultation, we included more information about peer on peer abuse.

Since the commencement of the revised guidance in September 2016, the Women and Equalities Committee has held an inquiry into sexual harassment and sexual violence in schools and this raised a wide range of issues.1

As part of the government’s response to the inquiry,2 the department set up an advisory group to review existing departmental guidance, including KCSIE and behaviour and bullying guidance. The first meeting of the advisory group took place on 24 th January 2017. The department used feedback from the advisory group to revise our bullying guidance: the update was published in July this year.3

1 publications - parliament2 Government response 3 Preventing-and-tackling-bullying

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The department has worked with the advisory group and other stakeholders to draft an advice document that covers child on child sexual violence and sexual harassment in schools and colleges. We are open to improving our advice. We are seeking comments below. We have summarised this advice in Annex A of the revised KCSIE. We want to explore the best long-term place for the advice.

Proposals

We have published the advice and it is available here.

We have provided a summary of the advice in Annex A of KCSIE. We have also updated paragraph 86.

Question 6(a): Do you have any comments on the effectiveness of the sexual violence and sexual harassment advice?

For governing boards, there is a clear overview of the legal responsibilities and duties deriving from the various legislation which helps to demonstrate the breadth of the duty to safeguard children in this regard.

Question 6(b): Do you have any comments on the effectiveness of the sexual violence and sexual harassment advice at Annex A of KCSIE, including whether the summary is of an appropriate length?

The length of the summary seems appropriate and adequately covers key points from the advice.

Question 7: Which of the following options would you support and why?

The department publishes standalone advice and summarises it in Annex A of KCSIE; or

Move the advice to a new ‘Part 5’ of KCSIE which addresses peer on peer abuse and withdraw the standalone advice

Given the importance and seemingly increasing prevalence of peer-on-peer abuse, we would suggest that the advice is given prominence in Keeping Children Safe in Education. However, we would suggest that it would also be useful to publish this (and other guidance referred to in the document) as standalone advice, alongside KCSIE so that it can be more easily accessible to those who it is most relevant to.

Children with special educational needs and disabilities (SEND)

KCSIE already highlights the additional safeguarding challenges children with SEND can face and sets out that this should be reflected in the child protection policy. We have received feedback that restraint can be a particularly difficult issue, especially when considering children with SEND.

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Proposals

We have highlighted the importance of making the link between restraint and safeguarding and welfare in a new paragraph 97. This is especially important for children with SEND, due in part to the additional challenges that are set out at paragraph 96 of the revised guidance. We have included a link to the departmental advice.

Question 8: Is making the link between children with SEND and considerations regarding restraint helpful?

Yes, as it aids with the understanding of the impact of restraint and the wellbeing of children.

Question 9: Do you have any comments on any other changes made to Part 1 and Part 2? Please be clear as to which section and paragraph you are referring.

Part 2 – Paragraph 53 places an expectation on governing bodies and proprietors to have a senior board level lead to take leadership responsibility for their school’s safeguarding arrangements. Whilst we appreciate that the reference to ‘proprietors’ would capture academy trusts, including mutli-academy trusts (MATs), it would be useful to explicitly acknowledge and refer to these structures, and provide further insight into how local safeguarding practice is fed back to the trust. NGA offers safeguarding training to all governing boards and has found that practice differs between standalone schools (maintained schools and single academy trustes) and those part of a MAT. Increasingly, MAT boards appoint a safeguarding trustee and senior member of the central team who is responsible for ensuring all the schools in the trust are complying with trust policies and procedures. The safeguarding trustee will liaise with the senior lead to build an understanding of how these policies and procedures are implemented across the trust.

Similarly, governing boards of standalone schools will appoint a safeguarding governor/trustee who will meet regularly with the designated safeguarding lead to better understand how safeguarding works in practice. However, in our experience, this often includes checking compliance with statutory requirements, such as completion of the single central record (SCR), which blurs the line between operational and strategic. This is a matter of concern to us, as this level of checking constitutes an audit, and untrained governors and trustees should not be carrying out this role. The assurance they should be seeking is that senior leaders have been trained in completing this important task, and that checks and balances are in place to ensure they are carried out to the right standard – as is routine with matters such as financial systems, fire safety etc.

There is further confusion concerning the information which should be accessible to this individual, such as details about specific safeguarding incidents which identify the individuals involved. Again, such details are unnecessary and inappropriate for governors/trustees since they are not practitioners and therefore, do not require such

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personal information. NGA would welcome clarity from the Department regarding this role.

Paragraph 57 now requires governing bodies and proprietors to ensure a senior member of staff from the leadership team, is appointed as designated safeguarding lead, rather than appointing an individual to this role. NGA would agree that the governing board is responsible for this but that the appointment itself can, and should, be delegated to the senior executive leader to determine who is best placed to fulfil the role. Nevertheless, the role of the designated teacher for looked after children is arguably less senior than the designated safeguarding lead, yet the role is one which calls for a governing body appointment. Whilst we understand that this requirement derives from the Children and Young Persons Act 2008, we would suggest that it would be most appropriate for this designation to be delegated to the senior executive leader, as in the case of the appointment of the designated safeguarding lead. Regulation 18 of the School Governance (Roles, Procedures and Allowances) Regulations 2013 allows the governing body of a maintained school to delegate certain functions to a committee, individual governor or the headteacher. Restrictions on delegation are outlined in Reguation 19 and relate to:

The discontinuance of a maintained school Approval of the first formal budget plan of the financial year Suspension of governors Exclusion of pupils Powers conferred and duties imposed on the governing body by or under the

School Governance (Constitution) Regulations 2007 or 2012 Powers conferred and duties imposed on the governing body by or under the

School Staffing Regulations 2009.

For academy trusts, there is no restriction on delegation outlined in the model articles of association. Therefore, we would suggest it is most appropriate for the designations of both the safeguarding lead and teacher for looked after children, to be made by senior leaders as an operational matter.

Part three of KCSIE – Safer recruitment

Single Central Record (SCR)

This section of KCSIE sets out the mandatory information that must be recorded on the SCR.

Proposals

We have included additional text to clarify that schools and colleges can record non-mandatory information on the SCR if they choose to do so.

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Question 10: Do the changes now make clear what information must be recorded on the SCR?

Yes, it is helpful that additional paragraphs have been included to suggest which other types of information may be recorded in the SCR as in practice, many schools already include such information.

However, we are particularly concerned about the confusion around barred list checks for governors and trustees. Paragraph 116 provides that a section 128 direction will be disclosed on an enhanced DBS certificate which includes a barred list check, yet paragraphs 122 and 152 state that the DBS cannot provide barred list information for those who are not in, or seeking to be in, regulated activity.

Regulation 20(5)(a)(i) and 20(6)(a)(i) of the Education (Independent School Standards) Regulations 2014 as amended, are clear that the relevant standard will be met if an individual (chair or member of the proprietor body):

“…is not barred from regulated activity relating to children in accordance with section 3(2) of the 2006 Act where that individual is or will be engaging in activity which is regulated activity within the meaning of Part 1 of Schedule 4 to that Act…”

Further, Regulation 20(5)(b)(i) and 20(6)(b)(i) require enhanced criminal record checks of the chair and other academy trustees and members “where relevant”. In turn, Regulation 2(5) is explicit that “…an enhanced criminal record check is only relevant where a person or individual is or will be engaging in—

(a) regulated activity within the meaning of Part 1 of Schedule 4 to the 2006 Act; or

(b) regulated activity relating to children within the meaning of Part 1 of Schedule 4 to the 2006 Act as it had effect immediately before the coming into force of section 64 of the Protection of Freedoms Act 2012.”

The nature of the role of academy trustees and members of academy trusts is such, that post holders will not be in regulated activity. Indeed, the guidance recognises this to be the case in relation to maintained school governors at paragraph 153.

The current and proposed guidance echoes the regulations in this regard which could lead one to think that such checks are not necessary for these particular individuals (paragraphs 155 to 158).

Further, the model articles of association state:

“78. … a person shall be disqualified from holding or continuing to hold office as a Trustee if he has not provided to the chairman of the Trustees a criminal records certificate at an enhanced disclosure level under section 113B of the Police Act 1997…”

In our experience, this has caused some confusion around whether or not academy trustees are required to have an enhanced DBS check upon appointment/election, or

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whether it is sufficient for an existing certificate to be supplied. However, Regulation 20(8)(a) and (b) make clear that the standards referred to at paragraphs (5)(b) and (6)(b) will be met where the relevant checks are completed before or as soon as possible after an individual’s appointment as a member or trustee. Therefore, simply providing an enhanced DBS certificate to the chair, will not achieve the necessary standards.

Also, although article 78 of the model articles of association applies with respect to members of a local governing body, there is little reference in KCSIE to MAT structures. We think it is important for KCSIE to explicitly refer to such structures and be clear about the expectations on MATs regarding DBS and other checks for those serving on academy committees, whether they have delegated functions or are advisory bodies.

Similarly, paragraph 111 states that “A section 128 direction also prohibits a person from taking up a position as governor of a maintained school.” Whilst we appreciate that this is stipulated in the School Governance (Constitution) Regulations 2012, the issue of obtaining such information remains the same as for academy trustees and members, given the issue around requesting a barred list check.

Question 11: If, in the future, the requirements for what schools and colleges must record on the SCR were reviewed, is there any other information that you think should be recorded?

There are clear differences between the information that must be recorded on the SCR for maintained school governors and academy trustees. Further, there is no guidance regarding the recording of information of academy committee members, even though they are in school more often than trustees of the MAT. We would like to see some harmonisation of the requirements for recording relevant safeguarding information relating to those who govern in maintained schools and academies, in order to achieve consistency across the sector. For example, since maintained school governors are required to provide enhanced DBS cerificates or request a check if they do not hold one, it would be logical for details of such checks to be recorded on the SCR, as is the case for members and trustees in academy trusts.

It would also be useful for the Department to provide a view regarding the recording of information on the SCR either at trust level, academy level, or both.

Annex E: Host families – homestay during exchange visits

This section of KCSIE sets out the arrangements for safeguarding and promoting the welfare of children who are taking part in any school exchange that a school or college arranges.

Proposals

Following requests for clarification, we have revised Annex E to provide additional information about how best to minimise the risk of harm to children taking part in school

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exchange visits. This includes explaining in more detail when schools and colleges should carry out DBS checks on UK host (homestay) families and that they should work with partner schools/colleges abroad to ensure satisfactory safeguarding arrangements are in place.

Question 12: Is the revised Annex E clear about a school or college’s responsibilities when arranging exchange visits? If not, which parts are unclear?

Annex E is clear about schools’ and colleges’ responsibilities when arranging exchange visits.

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Section 2This section of the consultation references, and seeks views on, a number of minor changes that we are proposing to make to KCSIE.

Part three – Safer recruitment

Part three of KCSIE sets out the minimum statutory requirements for pre-appointment checks that schools and colleges must carry out and advice on what the Government strongly recommends they should do to help satisfy themselves that an individual is suitable to work with children.

Proposals

We have identified the following areas as causing some concern to schools and colleges and where minor changes to KCSIE to provide clarification are proposed and where additional intelligence is sought about usual practice.

Secretary of State Prohibitions

The title of this section is amended to Prohibitions, directions, sanctions and restrictions. We now explain the meaning of these headings, and the system that can be used to establish whether an individual has a prohibition, direction, sanction or restriction imposed against them. Information about checking for section 128 barring decisions now forms part of this section.

Question 13: Does this section make clear the differences between prohibitions, directions, sanctions and restrictions and when they would prevent an individual from being employed in particular roles? If not, which part is not clear and why?

Yes.

Question 14: Does this section make clear how checks for prohibitions, directions, sanctions and restrictions can be made? If not, which part is not clear and why?

Yes, in relation to school staff but not in relation to checks for maintained school governors and academy trustees.

We are particularly concerned about the confusion around barred list checks for governors and trustees. Paragraph 116 provides that a section 128 direction will be disclosed on an enhanced DBS certificate which includes a barred list check yet paragraphs 122 and 152 state that the DBS cannot provide barred list information for those who are not in, or seeking to be in, regulated activity.

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Regulation 20(5)(a)(i) and 20(6)(a)(i) of the Education (Independent School Standards) Regulations 2014 as amended, are clear that the relevant standard will be met if an individual (chair or member of the proprietor body):

“…is not barred from regulated activity relating to children in accordance with section 3(2) of the 2006 Act where that individual is or will be engaging in activity which is regulated activity within the meaning of Part 1 of Schedule 4 to that Act…”

Further, Regulation 20(5)(b)(i) and 20(6)(b)(i) require enhanced criminal record checks of the chair and other academy trustees and members “where relevant”. In turn, Regulation 2(5) is explicit that “…an enhanced criminal record check is only relevant where a person or individual is or will be engaging in—

(a) regulated activity within the meaning of Part 1 of Schedule 4 to the 2006 Act; or

(b) regulated activity relating to children within the meaning of Part 1 of Schedule 4 to the 2006 Act as it had effect immediately before the coming into force of section 64 of the Protection of Freedoms Act 2012.”

The nature of the role of academy trustees and members of academy trusts is such, that post holders will not be in regulated activity. Indeed, the guidance recognises this to be the case in relation to maintained school governors at paragraph 153.

The current and proposed guidance echoes the regulations in this regard which could lead one to think that such checks are not necessary for these particular individuals (paragraphs 155 to 158).

Further, the model articles of association state:

“78. … a person shall be disqualified from holding or continuing to hold office as a Trustee if he has not provided to the chairman of the Trustees a criminal records certificate at an enhanced disclosure level under section 113B of the Police Act 1997…”

In our experience, this has caused some confusion around whether or not academy trustees are required to have an enhanced DBS check upon appointment/election, or whether it is sufficient for an existing certificate to be supplied. However, Regulation 20(8)(a) and (b) make clear that the standards referred to at paragraphs (5)(b) and (6)(b) will be met where the relevant checks are completed before or as soon as possible after an individual’s appointment as a member or trustee. Therefore, simply providing an enhanced DBS certificate to the chair, will not achieve the necessary standards.

Also, although article 78 of the model articles of association applies with respect to members of a local governing body, there is little reference in KCSIE to MAT structures. We think it is important for KCSIE to explicitly refer to such structures and be clear about the expectations on MATs regarding DBS and other checks for those serving on academy committees, whether they have delegated functions or are advisory bodies.

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Similarly, paragraph 111 states that “A section 128 direction also prohibits a person from taking up a position as governor of a maintained school.” Whilst we appreciate that this is stipulated in the School Governance (Constitution) Regulations 2012, the issue of obtaining such information remains the same as for academy trustees and members, given the issue around requesting a barred list check.

Pre-appointment checks

This section is amended to provide additional clarity about the circumstances in which an enhanced DBS certificate is not required, with paragraph 121 being revised to reflect the wording set out in regulations.

Question 15: When recruiting staff who have worked in a school in England during the three months prior to their appointment, does the revision make clear the circumstances in which a check must be undertaken?

Yes.

Question 16: Do you have any evidence to suggest that information about criminal activity, that would have been relevant to an individual’s suitability to be employed, would not be obtained as a result of only undertaking a barred list check?

N/A

Question 17: If your answer to question 16 is yes:

what action would you take if new information emerged; and

if that new information had been available to you sooner, would it have altered your initial decision to appoint that individual?

Question 18: When recruiting staff who have worked in a school in England during the three months prior to their appointment, is your school or college’s normal practice to request an enhanced DBS certificate in all cases? If yes, we are keen to understand why your school considers this necessary.

In NGA’s experience, many schools request an enhanced DBS check – not just a certificate – upon appointing new staff, regardless of whether or not they have been working in a school in England, three months prior to their appointment. This is unless the employee is subscribed to the DBS Update service. Our understanding is that this practice is followed due to the fact that DBS checks are a snapshot of information at the time it is requested and as such, becomes out of date almost immediately. Conducting further checks during the course of employment, enables the school to ensure it is fulfilling its safeguarding obligations but it would be useful for the Department to provide its view on what would be a sensible approach to this.

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Flowchart of Disclosure and Barring Service criminal record checks and barred list checks

The flowchart has been replaced so that information about checks for contractors is consistent with information contained in the body of the guidance at paragraph 159-162.

Question 19: Is the flowchart clear about when you must/should carry out a DBS check? If not, why not?

It does not appear that the content of the flowchart has changed from the current version but the chart itself is much easier to read and follow.

Obtaining references

It is extremely important to ensure that employers obtain references from suitable referees and that the employer verifies all details provided directly by the applicant, e.g. in references and CVs, including where information is given verbally.

We are providing additional guidance in the section about employment history and references to emphasise the importance of confirming employment history, including exploring the reason(s) for any gaps or inconsistencies, and why the individual left their previous employment.

We have evidence of a small number of cases where applicants have provided inaccurate or incomplete information. New employers were prevented from finding out about allegations of misconduct and disciplinary action as a result of inaccurately and/ or falsely recording:

the reason for leaving (e.g. a change of role, promotion or redundancy); the date they left previous employment; details of their most recent period of employment; and the source of a reference via a bogus email address.

Whilst we believe the vast majority of applications received by schools and colleges will provide a wholly accurate reflection of an individual’s employment history, our aim is to ensure KCSIE highlights the importance of checking that all information obtained is authentic.

Question 20: Does KCSIE provide sufficient information to assist employers to ensure references and CVs are accurate and complete, including where they are received electronically? If not, what do you think is missing?

The guidance does not account for the requirements in the School Staffing Regulations 2009 and the model funding agreement, for schools to provide written details upon request concerning any capability proceedings brought against a member of teaching

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staff in the previous two years, the concerns which gave rise to these, the duration of proceedings and the outcome.

Question 21: Have you ever established that an applicant has provided inaccurate information as part of a reference or CV? If yes, please give details.

N/A.

Providing references

KCSIE advises: “Cases in which an allegation was proven to be false, unsubstantiated or malicious should not be included in employer references. A history of repeated concerns or allegations which have all been found to be false, unsubstantiated or malicious should also not be included in any reference.” Feedback from schools and colleges suggests that, in the case of unsubstantiated allegations, this creates a barrier to a new employer being able to consider potential patterns in behaviour, should an allegation of a similar nature emerge in future. The Advisory, Conciliation and Arbitration Service (ACAS) website advice explains that references should be fair, factual and accurate and remain free from conjecture.

Questions 22: Do you consider that it is possible to provide a reference which includes information about an unsubstantiated allegation that is fair, factual, accurate and free of conjecture? If so, what information do you consider could be included and in what circumstances?

Whilst we appreciate the feedback regarding future employers’ inability to consider potential patterns of behaviour in the case of unsubstantiated allegations, NGA is concerned about the negative impact such references could have on individual employees, who may have done nothing wrong, as well as the the potential legal challenge against employers, should they include information about unsubstantiated allegations in references. Each case would be subjective and therefore, it is difficult to prescribe what information could be included and in what circumstances.

There may also be allegations referred to the police for investigation depending on their severity. An unsubstantiated allegation may be included in an an enhanced DBS certificate if the police deem it relevant to do so and we would suggest it is most appropriate for the police authorities to make that judgement.

Part four – Allegations of abuse made against teachers and other staffPart four of KCSIE provides guidance about managing cases of allegations of abuse made against teachers and other staff, including volunteers.

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Proposals

We have identified the following areas as causing some concern to schools and colleges and are proposing minor amendments that will provide clarification in KCSIE.

Duties as an employer and an employee

A footnote to explain what is meant by the ‘harm test’ has been added to paragraph 173. In addition, the third bullet point has been revised to read ’may’ pose a risk of harm to children, making this consistent with the wording in the department’s Working together to safeguard children guidance.

Initial considerations

This section of KCSIE provides a list of definitions that should be used when determining the outcome following the consideration of allegations. Following feedback, the term ‘unfounded’, previously shown as a footnote reference, is moved into the main list.

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Section 3

General questions about KCSIE

We are seeking to extend our evidence base regarding pre-employment checks for those who have lived outside the UK and we are seeking to extend our evidence base to help us better understand the usual practices of schools and colleges when implementing parts three and four of KCSIE. We also want to explore the optimum length of KCSIE.

Individuals who have lived or worked outside the UK

KCSIE states: “Individuals who have lived or worked outside of the UK must undergo the same checks as all other staff in schools and colleges. In addition, schools and colleges must make further checks they think appropriate so that any relevant events that occurred outside the UK can be considered.”

We are interested to understand more about what further pre-appointment checks schools and colleges think are appropriate to make in respect of any individuals who have lived or worked outside of the UK.

Question 23: How easy is it for you to identify information that would enable you to identify relevant events that may have taken place abroad?

Question 24: When appointing individuals who have lived or worked abroad, what “further checks” do you think it would be appropriate to make?

Question 25: Has the requirement to “carry out further checks as considered appropriate” created any barriers to being able to employ individuals who have lived or worked abroad? If so, what barriers have you experienced and what was the resulting impact?

The size and scope of KCSIE

Size and scope of the full documentWe want to explore the optimum length and scope of KCSIE. We receive mixed feedback on this point. Whilst some suggest the guidance should be more detailed with extra advice on a number of areas, others suggest that the longer the guidance becomes, the less effective it can be as it discourages people from reading it and makes it harder and more time consuming to implement.

Is there an optimum length with regards to the guidance? At a certain point, despite all the information being useful, would an overly long document become an obstacle to effective safeguarding?

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Question 26: Considering the full KCSIE document which of the following would you select?

A. The proposed length of the new KCSIE is about rightB. KCSIE should be shorterC. KCSIE should be longer

Please explain the reasons for your answer.

Given the importance and seemingly increasing prevalence of peer-on-peer abuse, we would suggest that the Sexual violence and sexual harassment between children in schools and colleges advice, is given prominence in Keeping Children Safe in Education. However, we would suggest that it would also be useful to publish this (and other guidance referred to in the document) as standalone advice, alongside KCSIE so that it can be more easily accessible to those who it is most relevant to.

Length of Part one of KCSIEWe want to explore the optimum length and scope of Part one of KCSIE. We know many schools and colleges use Part one as a basis of their child protection and safeguarding training. We are also aware that many schools and colleges use Part one as their starting point when considering what to do when there is a concern about a child. We receive mixed feedback on the size and scope of Part one. Some suggest a page or two would provide the top line messages that all staff need and safeguarding training is where additional information should be provided. Others suggest that, as it is such an important reference document for school and college staff, additional information would further enhance it, as well as providing staff with a fuller picture in one place with regard to their safeguarding responsibilities.

Question 27: Considering Part one of KCSIE, which of the following would you select?

A. The proposed length of the new Part one is about rightB. Part one should be shorterC. Part one should be longer

Please explain the reasons for your answer.

Part one includes sufficient information about the duties and responsibilities of school staff to safeguard and promote the wellbeing of children and young people, whilst signposting to other relevant resources for specific types of safeguarding issues.

Length of Annex AWe want to explore the optimum length of Annex A of KCSIE. Currently Annex A provides different levels of additional information with regard to various safeguarding issues. In most cases, Annex A is a summary of advice that is available elsewhere in government advice and guidance. We receive mixed feedback on Annex A. Some

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suggest it should cover the full range of safeguarding harms that are flagged up at paragraph 50 in the revised KCSIE. Others say that, as advice is available elsewhere, Annex A simply creates additional reading that is not necessarily helpful and that it would be better to simply rely on paragraph 50 in the revised KCSIE and the cross references that are provided to other advice and guidance.

Question 28: Considering Annex A in KCSIE, which of the following would you select?

A. The proposed new Annex A is about rightB. Annex A creates addition reading that is not necessarily helpful. Information

provided at paragraph 50 is sufficientC. Annex A should provide a school and college context across all the safeguarding

issues listed at paragraph 50

Please explain the reasons behind your answer.

The proposed new Annex A contains information which is particularly useful for designated safeguarding leads, but not necessarily for all school staff. Nevertheless, we appreciate that this Annex helps to highlight prevalent safeguarding issues which is useful for all those with responsibility for safeguarding.

Part three and Part four

We are also interested to hear from you about the content of Part three and Part four of KCSIE more generally and welcome your thoughts on the following questions:

Question 29: Which, if any, of the safer recruitment requirements in KCSIE do you find most confusing or difficult to understand and why?

We are particularly concerned about the confusion around barred list checks for governors and trustees. Paragraph 116 provides that a section 128 direction will be disclosed on an enhanced DBS certificate which includes a barred list check yet paragraphs 122 and 152 state that the DBS cannot provide barred list information for those who are not in, or seeking to be in, regulated activity.

Regulation 20(5)(a)(i) and 20(6)(a)(i) of the Education (Independent School Standards) Regulations 2014 as amended, are clear that the relevant standard will be met if an individual (chair or member of the proprietor body):

“…is not barred from regulated activity relating to children in accordance with section 3(2) of the 2006 Act where that individual is or will be engaging in activity which is regulated activity within the meaning of Part 1 of Schedule 4 to that Act…”

Further, Regulation 20(5)(b)(i) and 20(6)(b)(i) require enhanced criminal record checks of the chair and other academy trustees and members “where relevant”. In turn,

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Regulation 2(5) is explicit that “…an enhanced criminal record check is only relevant where a person or individual is or will be engaging in—

(a) regulated activity within the meaning of Part 1 of Schedule 4 to the 2006 Act; or

(b) regulated activity relating to children within the meaning of Part 1 of Schedule 4 to the 2006 Act as it had effect immediately before the coming into force of section 64 of the Protection of Freedoms Act 2012.”

The nature of the role of academy trustees and members of academy trusts is such, that post holders will not be in regulated activity. Indeed, the guidance recognises this to be the case in relation to maintained school governors at paragraph 153.

The current and proposed guidance echoes the regulations in this regard which could lead one to think that such checks are not necessary for these particular individuals (paragraphs 155 to 158).

Further, the model articles of association state:

“78. … a person shall be disqualified from holding or continuing to hold office as a Trustee if he has not provided to the chairman of the Trustees a criminal records certificate at an enhanced disclosure level under section 113B of the Police Act 1997…”

In our experience, this has caused some confusion around whether or not academy trustees are required to have an enhanced DBS check upon appointment/election, or whether it is sufficient for an existing certificate to be supplied. However, Regulation 20(8)(a) and (b) make clear that the standards referred to at paragraphs (5)(b) and (6)(b) will be met where the relevant checks are completed before or as soon as possible after an individual’s appointment as a member or trustee. Therefore, simply providing an enhanced DBS certificate to the chair, will not achieve the necessary standards.

Also, although article 78 of the model articles of association applies with respect to members of a local governing body, there is little reference in KCSIE to MAT structures. We think it is important for KCSIE to explicitly refer to such structures and be clear about the expectations on MATs regarding DBS and other checks for those serving on academy committees, whether they have delegated functions or are advisory bodies.

Similarly, paragraph 111 states that “A section 128 direction also prohibits a person from taking up a position as governor of a maintained school.” Whilst we appreciate that this is stipulated in the School Governance (Constitution) Regulations 2012, the issue of obtaining such information remains the same as for academy trustees and members, given the issue around requesting a barred list check.

Question 30: Is there anything that you are currently required to do when completing safer recruitment activities that you find difficult? If so, what makes it difficult?

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Question 31: If you could change one thing about the safer recruitment requirements set out in KCSIE, which in your view would further safeguard against the possible risks to children, what would that be?

A recommendation from the Department for Education regarding criminal records checks for staff throughout the course of their employment.

Question 32: If you could change anything about the current requirements placed on schools and colleges regarding handling of allegations of abuse, in order to strengthen against possible risks to children, what would that be?

Question 33: Is there anything that you are currently required to do when addressing allegations of abuse that you find difficult? If so, what makes it difficult?

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