6.4 Allegations against People who Work with, Care for or Volunteer with Children

1. Introduction

All organisations which have employees or volunteers working with children (people in positions of trust) should have clear and accessible policies and procedures, consistent with these Pan Sussex Child Protection and Safeguarding Procedures, which explain what should happen when allegations are made about the behaviour of a member of staff or volunteer. These should include the requirement to appoint a designated safeguarding lead to whom these allegations are reported. It is the responsibility of this designated safeguarding lead to report allegations to, and liaise with, the local authority designated officer (LADO) who has the responsibility to manage and have oversight of allegations against people who work with children (see Working Together to Safeguard Children, Department for Education).

Safeguarding Partnerships should have arrangements in place for monitoring and evaluating the effectiveness of the arrangements to manage allegations across the Partnership.

All references in this document to ‘members of staff’ and ’employment’ should be interpreted as meaning all paid or unpaid staff aged 16 or over (whether directly employed or through an agency / supply staff) and volunteers, including foster carers and prospective adopters. All references to ’employers’ should be taken to include any agency or organisation with responsibility for paid or unpaid staff and volunteers, including foster carers and prospective adopters. This chapter also applies to any person, who manages or facilitates access to an establishment where children are present.

The acronym LADO (Local Authority Designated Officer) is used throughout these procedures to refer to the specific role of the designated officer employed by the local authority to manage and have oversight of allegations across the children’s workforce. This term is used in order to distinguish between safeguarding leads in health and education who can also be referred to as ‘designated’ leads.

2. Scope

2.1 Definition

These procedures should be applied when there is an allegation that any person who works with children has:

• behaved in a way that has harmed a child, or may have harmed a child;
• possibly committed a criminal offence against or related to a child;
• behaved towards a child or children in a way that indicates they may pose a risk of harm to children;
• behaved or may have behaved in a way that indicates they may not be suitable to work with children.

Allegations can be made in relation to physical, emotional, sexual harm and / or neglect.

Finally, these procedures should be followed where a person’s employment is covered by the Childcare Act 2006 and is living in the same household where another person who is disqualified lives or is employed – a person is disqualified if they are ‘found to have committed’ an offence.

Disqualification under the Childcare Act 2006 (Department for Education) – Disqualification by association is only relevant where childcare is provided in domestic settings (for example where childminding is provided in the home) or under registration on domestic premises, including where an assistant works on non-domestic premises up to 50% of the time under a domestic registration.

It is also important to note that, whilst not specifically covered by statutory guidance, the risks associated with the wider family and close associates of the member of staff may also need to be considered even if their work with children does not fall within the remit of the statutory guidance.

The procedures for dealing with allegations need to be applied with common sense and judgement. A decision about whether a case satisfies the criteria should only be taken in consultation with the LADO. In these cases, employers should follow their safeguarding and other relevant procedures to resolve cases without delay.

3. The Difference between an Allegation and a Concern

It might not be clear whether an incident constitutes an ‘allegation’. It is important to remember that to be an allegation the alleged incident has to be sufficiently serious as to suggest that harm has or may have been caused harm to a child/ren or that the alleged behaviour indicates the individual may pose a risk of harm to children (or otherwise meet the criteria above). Issues that do not meet this threshold may constitute conduct or disciplinary issues and should be addressed by employers using the appropriate organisational procedures.

If it is difficult to determine the level of risk associated with an incident the following should be considered:

• Was the incident a disproportionate or inappropriate response in the context of a challenging situation?
• Where the incident involved an inappropriate response to challenging behaviour, had the member of staff had training in managing this?
• Does the member of staff understand that their behaviour was inappropriate and express a wish to behave differently in the future? For example, are they willing to undergo training?
• Does the child or family want to report the incident to the police or would they prefer the matter to be dealt with by the employer?
• Have similar allegations been made against the employee – is there a pattern developing?

Incidents which fall short of the threshold could include an accusation that is made second or third hand and the facts are not clear, or the member of staff alleged to have done this was not there at the time; or there is confusion about the account.

An allegation is where one of the four threshold criteria is met. A concern is an incident that does not reach threshold.

Whether an incident reaches the threshold for an allegation should always be discussed by the LADO and the employer’s safeguarding lead. If it does not meet the threshold there may still be a role for the LADO to provide advice and support to the employer. Where the matter constitutes a conduct or performance issue, the employer should follow the appropriate disciplinary procedures.

Where the LADO is consulted on matters which do not reach the threshold of an allegation, such consultations should be recorded with details of the organisation and details of the individual. Where an individual’s details are identified and recorded the employer should advise the adult that the LADO was consulted.

The LADO should keep a clear record of all referrals.

4. Organised Abuse

Investigators should be alert to signs of organised or widespread abuse and/or the involvement of other perpetrators or institutions.  They should consider whether the matter should be dealt with in accordance with complex abuse procedures which, if applicable, will take priority. See Complex (Organised and Multiple) Abuse chapter.

5. Non-Recent Abuse

Allegations of non-recent abuse should be responded to and reported in the same way as contemporary allegations. In cases of non-recent abuse, the person against whom the allegation is made may still be working with children and it will be important to investigate whether this is the case.

6. Relevant Statutory Guidance

Working Together to Safeguard Children (Department for Education)

Keeping Children Safe in Education (Department for Education)

Use of Reasonable Force in Schools (Department for Education)

Disqualification under the Childcare Act 2006 (Department for Education)

Making Barring Referrals to the DBS (Disclosure and Barring Service)

7. Procedures in Specific Organisations

It is recognised that many organisations will have their own procedures in place, some of which may need to take into account particular regulations and guidance, e.g. schools, registered child care providers, foster carers, etc.

Where organisations do have specific procedures, they should be compatible with these procedures and additionally provide the contact details for:

• the Designated Senior Manager to whom all allegations should be reported;
• the person to whom all allegations should be reported in the absence of the Designated Senior Manager or where that person is the subject of the allegation;
• the Local Authority Designated Officer (LADO).

For guidance regarding the legal duty to refer and power, see DBS Barring Referral Guidance (Disclosure and Barring Service)

8. Roles and Responsibilities

8.1 Roles and responsibilities for all organisations

Working Together to Safeguard Children requires that County level and unitary local authorities ensure that allegations against people who work with children are not dealt with in isolation. Any action necessary to address corresponding welfare concerns in relation to the child or children involved should be taken without delay and in a coordinated manner.

Local authorities should have a LADO, or team of LADOs (either as part of multi-agency arrangements or otherwise), to be involved in the management and oversight of allegations against people that work with children. The LADO should be sufficiently qualified and experienced to be able to fulfil this role effectively. Any new appointments to such a role, other than current or former designated officers moving between local authorities, should be qualified social workers. Arrangements should be put in place to ensure that any allegations about those who work with children are passed to the LADO without delay.

Local authorities should put in place arrangements to provide advice and guidance to employers, voluntary organisations and agencies on how to deal with allegations against people who work with children. Local authorities should also ensure that there are appropriate arrangements in place to effectively liaise with the police and other agencies to monitor the progress of cases and ensure that they are dealt with as quickly as possible, consistent with a thorough and fair process.

Each organisation providing a service to children and families must have its own policy on how it manages child safeguarding concerns so that staff, children and families know how to identify and report abuse and neglect. The policies should be consistent with and refer to these Pan Sussex Child Protection and Safeguarding Procedures. Safeguarding training for staff should be provided and refreshed regularly.  Children and families should be regularly reminded of how they can report concerns.

Where services for children and families are being commissioned, commissioners should ensure that contracts include these requirements.

Each organisation should identify a named senior manager with overall responsibility for:

• ensuring that the organisation deals with allegations in accordance with these Pan Sussex Child Protection and Safeguarding;
• resolving any inter-agency issues;
• making statutory notifications to professional bodies and the Disclosure and Barring Service (DBS);
• liaising with the local safeguarding partnership.

Organisations should also appoint:

• a designated safeguarding lead to whom allegations or concerns should be reported. This person should be a senior manager. They should:
  • seek advice from the LADO regarding incidents where it is unclear whether it is an allegation or a concern;
  • report all allegations to the LADO within one working day
• a deputy to whom reports should be made in the absence of the designated safeguarding lead or where that person is the subject of the allegation or concern.

In practice, the named senior manager and the designated safeguarding lead may be the same person.

9. Whistleblowing

All staff should be made aware of the organisation’s whistleblowing policy and feel confident to voice concerns about the attitude or actions of colleagues.

If a member of staff believes that a reported allegation or concern is not being dealt with appropriately by their organisation, they should report the matter to their LADO. See also local safeguarding partnership procedure.

10. Roles and Responsibilities for Local Authorities in addition to their Role as an Employer

Local authorities should assign a LADO, or a team of LADOs, to:

• receive reports about allegations and to be involved in the management and oversight of individual cases;
• provide advice and guidance to employers and voluntary organisations;
• liaise with the police and other agencies;
• monitor the progress of cases to ensure that they are dealt with as quickly as possible, consistent with a thorough and fair process;
• provide advice and guidance to employers in relation to making referrals to the Disclosure and Barring Service (DBS) and regulatory bodies such as Ofsted, the General Medical Council (GMC) etc.

It is important to be aware that LADOs do not carry out investigations into allegations.  Responsibility for the investigation remains with the employer (or whoever is commissioned by the employer to investigate the process) and/or the police. The LADO can provide advice and, where necessary, co-ordinate the process. Where it is not straightforward to establish which organisation should lead an investigation, for example, where responsibility may be shared between an employment agency and the organisation where the person was working, the LADO will also provide advice regarding which organisation is best placed to lead the investigation.

11. Cases which Cross Local Authority Boundaries

Cases will often be relevant to more than one Local Authority. For example, an allegation could be made against an agency worker who works across multiple authorities and whose agency is based in a further authority. Decisions about which LADO should take the lead are complex and should consider the following:

• which agency holds the greatest risk? For example, if an agency worker has only worked one day in the school where the allegation has taken place and won’t be returning, it might be that the employment agency holds the most risk;
• where is organisational learning required? For example, an agency worker may have only worked in a school for a day, but if the school did not follow good practice with the worker and this contributed to the incident, the greatest learning might be with the school where the current risk is.

12. Roles and Responsibilities for Sussex Police

The Multi Agency Safeguarding Hub Detective Chief Inspector will:

• have strategic oversight of LADO process and protocols;
• act as point of escalation to resolve professional dispute;
• liaise with the Safeguarding Partnership
• in consultation with the LADO, undertake review of the progression of cases

The Investigating Officer will:

• have oversight of the police investigation against the person subject to the allegation;
• liaise with the LADO;
• engage in any meetings or professional discussions regarding the allegation;
• ensure information is shared as appropriate, during and on completion of an investigation, including any details of disposal decision;
• engage in the review process for the purposes of ongoing safeguarding.

13. Responding to an Allegation or Concern – the Role of the Employer

An allegation or concern raised about a member of staff or volunteer may arise from a number of sources, for example, a report from a child, a concern raised by another adult in the organisation, or a complaint by a parent. It may also arise in the context of the member of staff and their life outside work or at home.

14. Initial Action by Person Receiving or Identifying an Allegation or Concern

The person to whom an allegation or concern is first reported should treat the matter seriously and keep an open mind. They should not:

• investigate or ask leading questions;
• make assumptions or offer alternative explanations;
• promise confidentiality.

They should follow their organisation’s procedures, which should include the following:

• making a written record of the information (where possible in the child / adult’s own words), including the time, date and place of incident/s, persons present and what was said;
• signing and dating the written record;
• immediately reporting the matter to the designated safeguarding lead, or the deputy in their absence or; where the designated safeguarding lead is the subject of the allegation report to the deputy or other appropriate senior manager

If the child is believed to have suffered or be at risk of suffering significant harm, the employer should make a referral to Children’s Social Care in the area in which the child resides. If it is outside of normal office hours, a referral should be made to the relevant out of hours team. Children’s Social Care will make a decision regarding whether the concern reaches threshold for a strategy meeting to be convened.

Allegations where it is believed a crime has been committed should be immediately reported to the police. This will also enable prompt action to be taken to safeguard the child and gather evidence.

Please also see Making a Referral chapter.

15. Initial Action by the Designated Safeguarding Lead (if different)

When informed of a concern or allegation, the designated safeguarding lead should not investigate the matter but they should continue to gather factual information in regards to the incident and ensure any evidence is preserved. This fact-finding should be a neutral process and should not amount to an investigation of the incident.

They should:

• obtain written details of the concern / allegation, signed and dated by the person receiving it (not the child / adult making the allegation);
• approve and date the written details;
• record any information about times, dates and location of incident/s and names of any potential witnesses;
• record discussions about the child and/or member of staff, any decisions made, and the reasons for those decisions.

The Designated Safeguarding Lead must inform their LADO within one working day when an allegation is made and prior to any further investigation taking place. A failure to report an allegation in accordance with procedures is a potential disciplinary matter.

An immediate risk assessment should be carried out by the employer.

If it is believed a crime has been committed then the police should also be notified within one working day – or immediately if necessary.

16. Managing Interim Risk

In all situations the perceived level of risk during the investigation needs to be considered and managed.

In certain situations the level may require the member of staff not to be working with specific children or young people or all children and young people until the investigation is completed.

If this is the case then various options are open to the employer including:

• redeployment so not to come into contact with one or more children;
• refraining (agreeing that the person will not work with children during the investigation); or
• suspension.

Refraining or suspension should not be automatic or considered as a default option. They should be considered in any case where:

• there is cause to suspect a child is at risk of significant harm;
• the allegation warrants investigation by the police; or
• the allegation is so serious that it might be grounds for dismissal.
• if suspension is deemed appropriate, the reasons and justification should be recorded and the individual notified of the reasons.

The LADO will be invited to attend a strategy meeting chaired by Children’s Social Care in order to gain relevant information regarding an allegation and canvass professionals’ views on refraining/suspension and inform the employer. Only the employer, however, has the power to refrain/suspend an accused employee and they cannot be required to do so by a local authority or the police.

At the conclusion of the strategy meeting, the LADO may continue discussions with the relevant professionals. In order to respect the confidentiality of the allegations management element, only those professionals relevant to the person of concern and the agency will remain in the meeting.

The possible risks to children should be evaluated in terms of the child(ren) involved in the incident. Additionally, consideration must be given to the risks of any children related to, living with or in contact with through other work or community life, to the accused member of staff.

If the child also lives with the member of staff, for example in situations such as foster care or boarding school, then the welfare of the child should be considered paramount and the risk managed in a way which ensures the minimum of disruption, and encourages placement stability, but maximises the protection of the child/ren.

17. Agency Staff

In some circumstances settings will have to consider an allegation against an individual not directly employed by them, where its disciplinary procedures do not fully apply, for example, supply teachers provided by an employment agency or business.

Whilst these settings are not the employer of agency staff, they should ensure allegations are dealt with properly.  This includes the setting referring the incident to the LADO.  The setting should provide the agency with all information gathered regarding the incident/allegation for example any statements from staff, children or, if required, CCTV.

The Agency Designated Safeguarding Lead will take the overall lead in any investigation as it is the agency who is the employer and it is the agency who will need to advise the LADO of the outcome.  The agency will need to seek advice and guidance with the LADO regarding the allegation to ensure allegations management is in place.

18. Schools and Colleges: Supply Teachers

In some circumstances schools and colleges will have to consider an allegation against an individual not directly employed by them, where its disciplinary procedures do not fully apply, for example, supply teachers provided by an employment agency or business.

Whilst schools and colleges are not the employer of supply teachers, they should ensure allegations are dealt with properly. In no circumstances should a school or college decide to cease to use a supply teacher due to safeguarding concerns, without finding out the facts and liaising with the LADO to determine a suitable outcome. Governing bodies and proprietors should discuss with the agency whether it is appropriate to suspend the supply teacher, or redeploy them to another part of the school, whilst they carry out their investigation.

Agencies should be fully involved and co-operate in any enquiries from the LADO, police and/or children’s social services. The school or college will usually take the lead because agencies do not have direct access to children or other school staff, so they will not be able to collect the facts when an allegation is made, nor do they have all the relevant information required by the LADO as part of the referral process. Supply teachers, whilst not employed by the school or college, are under the supervision, direction and control of the governing body or proprietor when working in the school or college. They should be advised to contact their trade union representative if they have one, or a colleague for support. The allegations management meeting which is often arranged by the LADO should address issues such as information sharing, to ensure that any previous concerns or allegations known to the agency are taken into account by the school during the investigation.

When using an agency, schools and colleges should inform the agency of its process for managing allegations. This should include inviting the agency’s human resource manager or equivalent to meetings and keeping them up to date with information about its policies

19. Schools and Colleges: Interim Prohibition Orders

In cases where a school or college is made aware that the Secretary of State has made an Interim Prohibition Order in respect of an individual at the school or college, it will be necessary to immediately suspend that person from teaching pending the findings of the Department for Education and Teaching Regulation Agency. The TRA explains that an interim prohibition order prevents a person from teaching until their case has been fully considered and concluded.

20. Managerless Organisations

LADO’s often receive referrals where there are concerns about a person who is self-employed.

Examples of managerless organisations may include, individuals appointed by the family as part of a direct payment agreement, such as personal assistants, private tutors, sports coaches, music teachers or self-employed nannies that are not on the voluntary child care register.

There is good practice guidance to refer to in such instances Good Practice Guide: Managerless Organisations 

21. Role of the LADO

The LADO will triage all reported concerns to decide if the threshold for allegations management has been met, or if it is a concern. In cases where it is not clear whether the threshold has been met, it might be necessary to have further discussion with other agencies and gather further information.

It is essential to keep the employer who raised the concern informed whilst the concern is being triaged. Organisations raising concerns may want to challenge or discuss decisions made by the LADO and will need to be updated on any action taken.

Consideration should be given to the risk or potential risk to both the child / children directly affected by the issue and any other children who may also be at risk.

Where it is decided that the incident does not meet the threshold for allegations management and is a concern, then the employer should take steps to ensure any conduct or behaviour issues are addressed with the member of staff through normal employment practices.

There are up to three strands in the consideration of an allegation:

• a police investigation of a possible criminal offence;
• local authority Children’s social care enquiries and / or assessment about whether a child is in need of protection or services;
• consideration by an employer of disciplinary action in relation to possible performance/ conduct issues;

22. An Allegations Management Meeting

Where the child is deemed to be at risk of significant harm, a strategy meeting should be convened and chaired by Children’s Social Care. This meeting will determine whether a S47 is needed. The LADO should attend this meeting to give advice and identify and actions relating to the allegations management process. An AMM can be held concurrently with the strategy meeting if needed, or a separate AMM convened if this is more suitable.

An AMM will decide the next steps for managing the allegation. The AMM, chaired by the LADO, will include relevant personnel from Children’s Social Care, police, the employer/s and governing or regulatory bodies. The employer is advised to bring a human resources advisor.

An AMM will only be convened when it has been decided that the threshold for allegations management has been met. Meetings should not be used to further investigate concerns about inappropriate behaviour or conduct where there are not clear indications of harm /risk of harm to a child.

The AMM should:

• consider the current allegation in the context of any previous allegations or concerns;
• where appropriate, take account of any entitlement by staff to use reasonable force to control or restrain children;
• decide whether there should be a police investigation;
• consider whether any parallel disciplinary process / internal investigation can commence and agree protocols for sharing information;
• consider whether a complex abuse investigation is applicable;
• plan enquiries if needed, allocate tasks and set timescales;
• decide what information can be shared, with whom and when;
• ensure that arrangements are made to protect the child/ren involved and any other child/ren affected, including taking emergency action where needed;
• consider what support should be provided to all children who may be affected;
• consider what support should be provided to the member of staff and others who may be affected and how they will be kept up to date with the progress of the investigation;
• ensure that investigations are sufficiently independent;
• make recommendations where appropriate regarding suspension, or alternatives to suspension;
• identify a lead contact manager within each agency;
• agree protocols for reviewing investigations and monitoring progress by the LADO;
• consider issues for the attention of senior management (e.g. media interest, resource implications);
• consider reports for consideration of DBS referral;
• consider risk assessments to inform the employer’s safeguarding arrangements;
• agree dates for future meetings / discussions.

It is essential to prioritise achieving the right outcome over meeting specific timescales. Investigations should always aim to minimise delay, provide full written information, remain open, and ensure access to independent support.

Where disciplinary action is considered, the employer and LADO should assess whether internal resources are sufficient or if an independent investigation is needed for objectivity. Investigations must strive to produce a fair, balanced, and accurate record to inform decisions about disciplinary action and the individual’s suitability to work with children.

If child protection concerns arise, the investigation must pause and only resume with agreement from Children’s Social Care and the Police. Suspension should be reconsidered in light of new information.

The LADO must monitor and record case progress monthly, via ASV meetings or direct liaison with relevant parties—and maintain comprehensive records to avoid unnecessary delays. Police investigations should be reviewed within four weeks of the ASV meeting, with monthly follow-ups agreed based on case complexity.

23. Outcomes Following an Investigation

The following definitions should be used by employers when determining the outcome of allegation investigations:

• substantiated – a substantiated allegation is one which is supported or established by evidence or proof;
• unsubstantiated – an unsubstantiated allegation is not the same as a false allegation. It simply means that there is insufficient identifiable evidence to prove or disprove the allegation. The term, therefore, does not imply guilt or innocence;
• unfounded – there is no evidence or proper basis which supports the allegation being made. It might also indicate that the person making the allegation misinterpreted the incident or was mistaken about what they saw. Alternatively, they may not have been aware of all the circumstances;
• false – there is sufficient evidence to disprove the allegation;
• malicious – there is clear evidence to prove there has been a deliberate act to deceive and the allegation is entirely false.

False allegations may be an indicator of abuse elsewhere which requires further exploration.  If an allegation is demonstrably false, the employer, in consultation with the LADO, should refer the matter to local authority children’s social care to determine whether the child is in need of services, or might have been abused by someone else

The outcome decision is made by the employer, although the views of others involved will be canvassed. The LADO will record the employer’s decision. The LADO will also record any difference of opinion.

Where the allegation is substantiated, the outcome should be made clear when providing references to prospective employers. This is particularly important where the person moves into another position involving working with children.

Only cases in which an allegation was proven to be substantiated should be included in employer references.

24. Record Keeping in Relation to the Outcome of an Investigation

It is important that a clear and comprehensive summary of the allegation, details of how the allegation was followed up and resolved, and a note of any action taken and decisions reached, is kept on the confidential personnel file of the accused, and a copy provided to the person concerned. The purpose of the record is to enable accurate information to be given in response to any future request for a reference, where appropriate. It will provide clarification in cases where future DBS checks reveal information from the police about an allegation that did not result in a criminal conviction and it will help to prevent unnecessary re-investigation if, as sometimes happens, an allegation re-surfaces after a period of time.

The record should be retained at least until the accused has reached normal pension age or for a period of 10 years from the date of the allegation if that is longer. The Information Commissioner has published guidance on employment records in its Employment Practices Code and supplementary guidance, which provides some practical advice on record retention.

25. Substantiated Allegations

25.1 Referral to the Disclosure and Barring Service (DBS)

The Disclosure and Barring Service was established under the Protection of Freedoms Act 2012 which merged the functions previously carried out by the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA). See Chapter 5 Safeguarding vulnerable groups, criminal records etc. Protection of Freedoms Act 2012.

“There is a legal requirement for Regulated activity providers (employers or volunteer managers of people working in regulated activity in England, Wales and Northern Ireland) and personnel suppliers to refer to the DBS where certain conditions are met. This applies even when a referral has also been made to a local authority safeguarding team or professional regulator.” An employer or volunteer manager is breaking the law if they knowingly employ someone in a regulated activity with a group from which they are barred from working

If an allegation is substantiated then the guidance regarding making a referral should be followed – see Disclosure and Barring Service. The DBS will require information to support a barring referral and the DBS uses the civil burden of proof, on the balance of possibilities. A referral to DBS should be made simultaneously to a report to the Teaching Regulation Agency and any other regulatory body, particularly where the legal duty to refer has been met.

26. Legal Duty to Refer and Power to Refer

The following groups have legal duty to make a barring referral to the DBS:

• ‘regulated activity suppliers’ – employers or volunteer managers of people working in regulated activity in England, Wales or Northern Ireland.
• ‘personnel suppliers’ – employment agencies, employment business or an educational institution that makes arrangements with a personal with a view to supplying that person to employers to undertake regulated activity.  See DBS Barring Referral Guidance (DBS)

26.1 Power to refer

Under legislation the following can make referrals to the DBS:

• local authorities;
• education authority in Northern Ireland;
• health and social care bodies in Northern Ireland;
• keepers of register in England, Wales or Northern Ireland;
• supervisory authorities in England, Wales or Northern Ireland, and the power to refer happens when an organisation is not acting as a regulated activity provider. This will usually be when the organisation is undertaking their safeguarding role.

DBS are required by law to consider any and all information sent to us from any source. This includes information sent to us where the legal referral conditions are not met.

A referral to the DBS should be made simultaneously to a report to the Teaching Regulation Agency and any other regulatory body, particularly where the legal duty to refer has been met.

From a DBS perspective it is not necessary to determine whether your referral is due to the legal duty to refer or power to refer. What is important is that organisations understand when they have a legal duty to make a barring referral to the DBS and that they act on this.

The DBS Regional Outreach service focuses on working with organisations of all sizes and sectors from across the UK, providing dedicated support in relation to DBS products and services. The aim of the work is to identify how the DBS can collaborate and share key messages among the safeguarding community, working towards the DBS vision of making recruitment safer.

27. Notifying Ofsted

Ofsted should be informed by the setting / employer of all allegations or concerns made against a:

• foster carer;
• prospective adopter;
• member of staff in a residential childcare facility;
• member of staff in any day care establishment for children under eight;
• registered childminder.

28. Resignations and ‘Compromise Agreements’

Every effort should be made to reach a conclusion in all cases even if:

• the individual refuses to cooperate, having been given a full opportunity to answer the allegation and make representations;
• it may not be possible to apply any disciplinary sanctions if a person’s period of notice expires before the process is complete.
• the individual leaves, resigns or ceases to provide their services.

It is important that every effort is made to reach a conclusion in all cases of allegations bearing on the safety or welfare of children, including any in which the person concerned refuses to cooperate

‘Settlement agreements’ (sometimes referred to as compromise agreements), by which a person agrees to resign if the employer agrees not to pursue disciplinary action, and both parties agree a form of words to be used in any future reference, should not be used in cases of refusal to cooperate or resignation before the person’s notice period expires. A settlement/compromise agreement which prevents the employer from making a DBS referral when the criteria are met for so doing would likely result in a criminal offence being committed for failure to comply with the duty to refer. Nor should they be used as a way of concluding any disciplinary investigation where there is a substantiated outcome. Such an agreement will not prevent a thorough police investigation where that is appropriate.

The organisation must make a referral to the Disclosure and Barring Service to consider whether to add the individual to the barred list. This applies irrespective of whether a referral has been made to local authority children’s social care and/or the designated officer or team of officers. It is an offence to fail to make a referral without good reason. See GOV.UK, DBS referral guidance and tools.

29. Learning Lessons

The employer and the LADO should review the circumstances of the case to determine whether there are any improvements to be made to the organisation’s procedures or practice.

30. General Responsibilities when Investigating an Allegation

30.1 Support to the child and family involved

The organisation, together with local authority children’s social care and / or police, where they are involved, should consider the impact on the child concerned and provide support as appropriate. Liaison between the agencies should take place in order to ensure that the child’s needs are addressed.

30.2 Keeping parents / carers and children informed

The employer must inform the parents/carers of the child/ren involved of the allegation and the process that is being followed unless this will impede the disciplinary or investigative processes. The LADO can advise the employer whether or not the parents/carers should be informed. However, in some circumstances, the parent/s may need to be told straight away (e.g. if a child is injured and requires medical treatment).

The parents/carers and the child, if sufficiently mature, should be helped to understand the processes involved and be kept informed about the progress of the case and of the outcome where there is no criminal prosecution. This will include the outcome of any disciplinary process, but not the deliberations of, or the information used in, a hearing.

There may be exceptional circumstances where it would not be appropriate for the employer to inform the parents/carers, or the individual subject to the allegation is self-employed; in these circumstances there should be a discussion with the LADO about who is the most suitable person to do this.

30.3 Responsibilities to the person subject to the allegation

As soon as possible after an allegation has been received, the accused member of staff should be advised to contact their union or professional association. Human resources should be consulted at the earliest opportunity in order that appropriate support can be provided via the organisation’s occupational health or employee welfare arrangements.

Subject to restrictions on the information that can be shared, the employer should, as soon as possible, inform the accused person about the nature of the allegation, how enquiries will be conducted and the possible outcome (e.g. disciplinary action, and dismissal or referral to the DBS or regulatory body).

The accused member of staff should:

• be treated fairly and honestly and helped to understand the concerns expressed and processes involved;
• be kept informed of the progress and outcome of any investigation and the implications for any disciplinary or related process;
• if suspended, be kept up to date about events in the workplace.

The employer may need to seek advice from their LADO, the police and / or local authority children’s social care about how much information should be disclosed to the accused person. However, providing information to the accused person throughout the process of dealing with the concern or allegation is an essential part of the common law duty to act fairly. The person that is alleged to be responsible for abuse and/or neglect should be provided with sufficient information to enable them to understand what it is that they are alleged to have done or threatened to do that is wrong and to allow their view to be heard and considered. This also needs to be seen in the wider context of prevention, for example, information can be used to support people to change or modify their behaviour. Feedback should be provided in a way that will not exacerbate the situation or breach the Data Protection Act 2018 or UK General Data Protection Regulations.

Consideration should be given to withholding information in the following circumstances:

• whether it is safe to disclose – this applies both to any child/ren and any witnesses particularly where there is domestic abuse;
• if the matter is subject to police involvement, the police should always be consulted so criminal investigations are not compromised.

The Local Government Ombudsman and the Parliamentary and Health Ombudsman can provide advice and the Information Commissioner provides advice on sharing information.

31. Confidentiality

Every effort should be made to maintain confidentiality and guard against publicity while an allegation is being investigated or considered. Apart from keeping the child, parents and accused person (where this would not place the child at further risk) up to date with progress of the case, information should be restricted to those who have a need to know in order to protect children, facilitate enquiries and manage related disciplinary or suitability processes.

The police should not provide identifying information to the press or media, unless and until a person is charged, except in exceptional circumstances (e.g. an appeal to trace a suspect).  In such cases, the reasons should be documented, and partner agencies consulted beforehand.

32. Reporting Restrictions regarding Allegations against Teachers

Parents and carers should also be made aware of the requirement to maintain confidentiality about any allegations made against teachers whilst investigations are ongoing as set out in Section 13 of the Education Act 2011. If parents or carers wish to apply to the court to have reporting restrictions removed, they should be advised to seek legal advice.

The restrictions remain in place unless or until the teacher is charged with a criminal offence, though they may be dispensed with on the application to the Magistrates’ Court by any person, if the court is satisfied that it is in the interests of justice to do so, having regard to the welfare of:

1. the person who is the subject of the allegation; and
2. the victim of the offence to which the allegation relates.

There is a right of appeal to the Crown Court.

This restriction will apply to allegations made against any teacher who works at a school, including supply and peripatetic teachers. ‘School’ includes academies, Free Schools, independent schools and all types of maintained schools.

The reporting restrictions also cease to apply if the individual to whom the restrictions apply effectively waives their right to anonymity by going public themselves or by giving their written consent for another to do so or if a judge lifts restrictions in response to a request to do so.

The legislation imposing restrictions makes clear that “publication” of material that may lead to the identification of the teacher who is the subject of the allegation is prohibited. “Publication” includes “any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public”. This means that a parent who, for example, published details of the allegation on a social networking site would be in breach of the reporting restrictions (if what was published could lead to the identification of the teacher by members of the public).