Dai Durbridge considers the current management of allegations against staff and some possible changes on the horizon, with reference to the ISA and enhanced CRB checks

With the new Independent Safeguarding Authority (ISA) receiving a lot of press at the moment, some education professionals have expressed concern about the ‘soft information’. This material could be collated by the ISA following allegations of abuse against staff. With these concerns in mind and with a recent consultation on new guidance, Dai Durbridge considers the current management of allegations against staff and some possible changes on the horizon.

Is there current guidance on handling allegations against staff?

Yes. It can be found in Chapter 5 of Safeguarding Children and Safer Recruitment in Education, published by the DfES (now the DCSF). The guidance came into effect on 1 January 2007, although it largely restates previous guidance.

Do we have to follow it?

The guidance says that all educational establishments must be aware of it, but it stops short of demanding rigid adherence. However, it should be remembered that any departure from the recommended procedure needs to be justified and will undoubtedly be noticed on inspections. Therefore, schools are advised to follow the guidance in their policies, and most importantly, in practice.

Why is has there been a consultation on new guidance?

There are a number of reasons. Firstly, the guidance in its current form is nearly three years old and a lot has changed in three years. Put simply, it was time for an update.

Secondly, there has been real concern that with allegations against education professionals, it is forgotten that school staff, like anyone else accused of wrongdoing, should be considered innocent until proven guilty.

Thirdly, a number of those following the guidance have found that the requirement to refer cases to the local authority at a very early stage leads to a prolonged and exhaustive investigation. More discretion for headteachers has been mooted as a potential improvement on the current guidance.

When can we expect to see new guidance?

Hopefully this will happen by the end of the year. Along with the DCSF consultation, the House of Commons Children, Schools and Families Committee provided a 132-page report in July. It sets out its view on how allegations are handled and how they could and should be improved. The consultation responses and the committee report will inform the new guidance. Having reviewed the committee report, we anticipate that the new guidance will address the key issues referred to above, specifically the issue of giving headteachers more power at the outset of an allegation and ensuring that teachers are afforded more protection.

What about the issue of soft information resulting from allegations being passed to the ISA and appearing on enhanced disclosures?

This is the key question and the point where new guidance must surely offer support to teachers who have had malicious or false allegations made against them. The current position is that any allegation reported to the police could appear on an enhanced CRB check, regardless of its merits. This is because the police have a power under Part V of the Police Act 1997 to provide any relevant information that the police believe ought to be included in the certificate. An assistant chief constable provided evidence to the House of Commons committee that he personally exercised this power and stated that in the majority of cases, he authorised disclosure of additional information.

There may well be light at the end of the tunnel, however. The committee has recommended that the ISA assess proposed disclosures of ‘soft’ information. While we do not know whether this recommendation has been accepted as yet, it provides support to teachers who have evidence of a malicious allegation noted on their enhanced CRB.

Will teachers know in advance whether a malicious allegation will be included by the police as ‘soft information’ on their enhanced CRBs?

No, an applicant for a post who has an enhanced CRB check will not know in advance what ‘soft’ information held on police records is likely to be disclosed. To find out, they can make a subject access request to the police under the Data Protection Act.

Will the new guidance provide advice on how to properly record the outcome of investigations so that any ‘soft information’ will be more accurate?

This is something the committee report recommends and it suggests the police would also benefit from incorporating the same guidance into their own policy. If those recommendations are accepted and implemented, this may go some way to ensuring that maliciously or falsely accused teachers can continue with their careers without the risk of an adverse reaction to ‘soft information’ contained in an enhanced CRB.

This e-bulletin issue was first published in October 2009

About the author: Dai Durbridge