"THE SINGLE CENTRAL REGISTER AND DATA PROTECTION ISSUES"
THE SINGLE CENTRAL REGISTER AND DATA PROTECTION ISSUES GUIDANCE FOR DIVISIONS IN ENGLAND NOVEMBER 2009 This guidance document is to clarify the requirements of the Single Central Register and to look critically at the differences between the legislative provisions and the policy aims of the DCSF and OFSTED. INTRODUCTION As part of the Government’s safeguarding initiative and, as a consequence of the School Staffing Regulations, schools have been under a duty since 1 April 2007 to maintain a ‘single central register’. The single central register requires schools to record the dates on which they carry out identity and qualification checks, checks on List 99 (or the Children’s List as it is now called) and, where relevant, CRB checks and also the right to work in England checks on all new appointees and staff in post. Unfortunately, there has been a lack of clarity surrounding the statutory requirements of the register and this has led to uncertainty as to the quantity and detail of personal information to be held by schools. SUMMARY OF NUT’s POSITION The NUT’s position may be summarised as follows. All teachers employed after February 2008 – whether British citizens or otherwise – are required by law to provide their passports or, alternatively, their birth/adoption certificates for checking. Copies of these documents must be retained on file. Teachers employed before February 2008 and not subject to immigration control are under no obligation to produce their passports or birth/adoption certificates for checking and retention. The NUT believes teachers should not be asked to produce original qualification certificates or certified copies of the same where the GTCE is able to provide schools with qualification information. Head teachers are not required by statute to include centrally employed staff in the school central register. There are certain obligations, however, to include information relating to agency supply staff. The NUT’s advice is that, except in exceptional circumstances (i.e., where there is cause for concern), schools and local authorities should destroy CRB disclosure information within six months of receiving the same. However, schools should record in the central register the date the Disclosure was obtained, who obtained it, the level of the Disclosure and the unique reference number. 1 Teachers should not be expected to produce marriage certificates as proof of identity unless they are happy to do so. Schools should ask instead to see a driver’s licence, if one is available, or let teachers decide which official document to disclose. Schools that have previously retained documents other than those they are entitled to retain by law should take steps now to destroy the same and notify the school workforce once such steps have been taken. Members whose personal details have been copied and retained against their wishes should make their objections known in writing to the school. Head teachers should seek to use OFSTED’s appeals process where schools are penalised for failing to record in the central register information which is not a legal requirement. Below is a detailed explanation of the Union’s reasons for adopting the position stated above. THE SINGLE CENTRAL REGISTER – THE LEGAL REQUIREMENTS The School Staffing (England) Regulations 2009 require maintained schools to keep a register (the single central register) showing, in relation to each member of staff appointed after 1 January 2007 or before that date but still in post on 1 April 2007, whether various checks have been carried out and the date on which each such check was completed. The DCSF has suggested the following pro forma when schools are compiling a central record: Right to work Overseas Identity Qualification List 99 CRB in the checks UK Name Address Date Evidenced Qualification Qualification Check Check Checks Checks Checks of and date required: evidenced evidenced evidenced required required required birth Yes/No and date and date and date Yes/No Yes/No Yes/No It should be noted that the School Staffing Regulations require original documents to be checked and for the checks to be recorded on a central record. There is no additional requirement to retain copies of the documents checked. However, the Immigration (Restrictions on Employment) Order 2007 and the Education (Supply of Information about the School Workforce) (No.2)(England) Regulations 2007, which run parallel with the requirements of the School Staffing regulations, impose additional obligations on schools. 2 While the School Workforce regulations do not impose a duty on schools to retain copies of documents checked for the purposes of the school workforce census, the Immigration Order requires employers in England and Wales to check and retain copies of passports or alternatively, birth/adoption certificates belonging to people appointed on and after 29 February 2008. In respect of appointments after February 2008, therefore, immigration law does require all appointees to produce sensitive personal information for checking and copying. However, because of the single central record, many schools have asked all staff in post, whether appointed before or after February 2008, to produce official documents for checking and also for retention on file. THE DCSF and OFSTED POSITION IN RELATION TO THE CENTRAL REGISTER The DCSF’s position is set out in its guidance document ‘Safeguarding Children and Safer Recruitment in Education’ (2007). Local authorities, governing bodies and proprietors of FE colleges, CTCs and Academies have been told that they must have regard to the document for the purposes of the Education Act 2002. The document is currently in the process of being revised. OFSTED’s procedures require inspectors to take account of the extent to which schools ensure that adults working with pupils are appropriately recruited and vetted. In doing so, inspectors check that a single central record of staff is in place and that the appropriate identity checks have been carried out. OFSTED inspectors are not required to ensure that copies of the documents checked have been appended to the register and/or retained in personal files. Advice to OFSTED inspectors on the requirements of the central register is contained in the document ‘Briefing for Section 5 Inspectors on Safeguarding Children’ (October 2009). The DCSF and OFSTED position in relation to the separate requirements of the central register are set out below. What is the DCSF and OFSTED approach to identity and qualification checks? The DCSF advises schools to check birth certificates, driving licences or passports, combined with evidence of address before an appointment is made in order to ensure that the person is who he or she claims to be. The guidance also says: “Employers must always verify that the candidate has actually obtained any qualifications legally required for the job and claimed in their application, e.g., by asking to see the relevant certificate or diploma, or a letter of confirmation from the awarding institution. If original documents are not available, employers should see a properly certified copy (paragraph 4.28).” Schools are further advised to keep a copy of the documents used to verify the successful candidate’s identity and qualifications (paragraph 3.39). In relation to OFSTED, inspectors are advised to check the central register for evidence that identity checks have been carried out. Inspectors are also advised that, although good practice, it is not required to show addresses on the register. 3 With regard to qualifications, inspectors are advised to check that the central register records qualifications, such as QTS or NPQH, where the qualification is a requirement of the job. Is the approach adopted by the DCSF and OFSTED in conflict with the requirements of the Data Protection Act? In relation to identity checks, the Union takes the view that adherence to DCSF guidance may result in a breach of the Data Protection Act. The School Staffing Regulations impose a duty on schools to record in a central register the identity checks they carry out. Schools are not required to append to their record copies of the documents checked. Under the Data Protection Act, sensitive information of the kind used to verify a person’s identity cannot be copied and retained on file in the absence of a statutory right to do so or in the absence of the data subject’s express consent. In relation to qualification checks, the Union takes the view that confirmation from the GTCE that a person is qualified to teach in a school is sufficient to meet the requirements of the School Staffing Regulations. Requests to see qualification certificates or certified copies of the same where records exist at the GTCE may breach the requirement under data protection legislation that personal data should be “adequate, relevant and not excessive in relation to the purpose or purposes for which it is processed”. Furthermore, the practice by some schools of appending copy qualification certificates to records may be in breach of the requirements of Data Protection Act. Legitimate interests may be pursued by schools and local authorities so long as they do not cause “prejudice to the rights and freedoms or legitimate interests of the data subject”. In the Union’s view, the retention of certificates on file exceeds the requirements or purpose of the School Staffing Regulations (which is to check on appointment that the successful candidate has the right qualifications) and is, therefore, contrary to the legitimate interests of the school workforce. Can schools insist on checking qualification certificates or certified copies of the same even where legislation does not require it? The NUT believes employers must be able to confirm teachers’ qualifications satisfactorily. This could be through various forms of evidence. The NUT view is that GTCE registration should be sufficient proof of qualification. This is because the GTCE checks degree certificates and other qualifications before registering individuals. However, where schools do not accept the NUT position, either because the GTCE is unable to confirm that an individual’s original qualifications were checked at the time of registration or because of some other reason, the lengths to which individuals are expected to go to obtain original documents or certified copies should be proportionate. What is the DCSF and OFSTED position in relation to Right to Work in the UK checks? The DCSF has provided surprisingly little guidance to schools about what documents to check in order to meet the requirements of the central register. Schools are advised simply to ensure that the documents of overseas staff are checked (Appendix 8 of the 4 Safeguarding document). OFSTED, too, requires inspectors to ensure merely that the central register records evidence of ‘right to work’ in the UK checks. In any event, DCSF guidance has been superseded by the Immigration (Restrictions on Employment) Order 2007. Under the Order, employers must take all reasonable steps to check the validity of certain original documentation before employing a teacher and also retain copies of the same on file for a period of not less than two years after the employment has come to an end. Employers are not required to hold passport and other details listed in the Order in respect of teachers employed before 29 February 2008 and free from immigration control. Nor is it a requirement of the single central register that employers take copies of passports in respect of such teachers. What steps have some employers taken in the absence of DCSF guidance? A number of local authorities and governing bodies have asked all staff, irrespective of the date on which their employment commenced, to present their passports for checking and photocopying. Are employers right to take that approach? No. The Union believes that local authorities and schools should take the following approach in relation to right to work in the UK checks. Teachers subject to immigration control may be asked at any time to produce their passports and other relevant documents for checking and copying. Indeed, legislation requires the employer to check such documents at least once a year. However, employers should check and retain documents on file only for the purpose of complying with their legal obligations. Teachers not subject to immigration control and employed prior to 29 February 2008 are under no obligation to produce their passports or birth/adoption certificates for checking and copying and should not be asked to do so. Teachers not subject to immigration control and employed on or after 29 February 2008 may be asked to produce their passports or birth/adoption certificates for checking and copying. However, it must be clearly explained to such teachers (and preferably in writing) why the request is being made; how copies will be held and who the documents will or may be disclosed to. The Union would also want teachers to receive assurance that the information will be destroyed once it has served its purpose (the relevant legislation requires the information to be held for no more than two years after the termination of the teacher’s employment). Agency teachers should have their passports and other relevant documents checked by the agency and not by the school or local authority to which they are assigned. There is a danger, otherwise, that every school or authority to which the agency teacher is assigned will hold copies of his or her official documents, increasing the risk of identity theft for that teacher. 5 What is the DCSF and OFSTED position in relation to CRB checks? The DCSF guidance document provides that “the Disclosure information must be kept in secure conditions and must be destroyed, by secure means, as soon as it is no longer needed” (paragraph 4.52). It further provides that “before the Disclosure is destroyed, records need to be kept detailing the date the Disclosure was obtained, who obtained it (i.e., school, FE college, local authority, supply agency), the level of the Disclosure, and the unique reference number” (paragraph 4.53). OFSTED inspectors have been advised to check that: all staff employed since March 2002, and who have had a break in service of three months or more, have been CRB checked, if they have regular contact with or unsupervised access to children; all staff appointed since May 2006, whether or not they have regular contact with children, have been CRB checked; and the central register includes evidence that supply teachers who work at the school regularly have been checked against list 99 or have a CRB check. Is the advice from OFSTED consistent with the requirements of legislation? Yes, where the reference to ‘supply teachers’, in the third bullet point, is a reference to agency supply teachers. Under the School Staffing Regulations, schools are required to check the identity of the supply teacher assigned to the school; to obtain a letter from the employing organisation or agency confirming that all relevant checks (including List 99/Children’s List checks) have been carried out and to seek to obtain a CRB certificate from the employing organisation/agency where one exists. Evidence that these steps have been taken must be recorded in the central register. However, neither the School Staffing Regulations nor the DCSF guidance document require schools to carry out CRB and List 99 checks on staff appointed by another body or organisation. OFSTED has been asked by the Union to explain why, contrary to the statutory provisions, some schools have been penalised (wrongly) for failing to carry out CRB and List 99 checks on agency supply teachers and teachers employed centrally. For how long should schools hold CRB information on file? In relation to the retention of Disclosure information, the DCSF guidance document provides that “the Disclosure information must be kept in secure conditions and must be destroyed, by secure means, as soon as it is no longer needed” (paragraph 4.52). The Union takes the view that data protection legislation and guidance from the Information Commissioner requires Disclosure information to be destroyed within six months of a successful candidate’s appointment. Disclosure information should be kept for the same period of time in relation to staff already in post unless there is justification for retaining the information beyond that period. 6 What are overseas checks and what does the DCSF require schools to do in relation to such checks? Overseas checks are necessary where overseas trained teachers or teachers who have taught mainly outside the UK apply to work at a school in England. However, overseas checks are not necessary in relation to service personnel and their families. The School Staffing Regulations provide that where obtaining an enhanced CRB certificate is not sufficient to establish the ‘suitability’ of someone who has lived outside the UK, “the governing body must make such further checks as it considers appropriate, having regard to any guidance issued by the Secretary of State”. Guidance from the Secretary of State is contained in the DCSF safeguarding document. This recommends the following in addition to CRB checks. Obtaining certificates of good conduct from relevant embassies or police forces. Where the applicant has no means of obtaining relevant information, e.g., because he or she is a refugee, additional references should be sought and references should be followed up by phone as well as letter. What should individuals do where schools ask for evidence beyond the legal requirements of the central register? Individual members of staff should be encouraged to make their objections known in writing to the school. That way it cannot be said at some later date that they ‘consented’ to the processing of their personal information. What should head teachers do where OFSTED makes demands of the school beyond the legal requirements of the central register? The Union recognises that head teachers will be in the difficult position of balancing the rights of the workforce against the demands of OFSTED. Whilst schools must be careful not to breach the data subject rights of individuals, the Union takes the view that head teachers may seek to satisfy the demands of OFSTED where the workforce is able and willing to provide documentation. However, information held on file for OFSTED inspections should be destroyed immediately after such an inspection has taken place unless there is a legal obligation to retain it on file. Head teachers may make a formal complaint to OFSTED at any stage during an inspection or up to 30 calendar days from the date a report is published, or 30 days from the end of the inspection where there is no report. In exceptional circumstances, OFSTED may accept complaints up to three calendar months from the inspection. OFSTED will only delay publication of an inspection report in exceptional circumstances. Complaints must be made in writing, including email. If a complaint is made by phone, no formal action will be taken until a written complaint is received. The reasons for the complaint should be set out clearly and supported by examples. In the Union’s experience, it is useful to use the official OFSTED inspection documentation to structure the complaint and to highlight where recommended or statutory practices have not been adhered to by the inspection team. It is also essential to provide as much evidence as possible to support the complaint, for example, any alternative evidence about standards 7 which inspectors were provided with during the inspection visit or “witness” statements from those present at the formal feedback meeting. An OFSTED complaints manager will assess the complaint and decide who will carry out the investigation. The school will be sent an acknowledgement of receipt within two working days. A response to the complaint should be received within 20 working days. If the school is unhappy with the outcome of the investigation, it has the right to ask for an internal review. This request should be made within one month of the date of the response to the original complaint. It should indicate which parts of the original complaint and the response need to be reviewed and why. The internal review will be carried out by a senior manager and another investigation into the complaint will be undertaken if necessary. A response should be received within 20 working days. If the school is still not satisfied following the internal review, it may appeal to the Ofsted Adjudicator Service. The Adjudicator will look at conduct and procedure, including how the complaint has been handled by OFSTED. The Adjudicator cannot change the professional judgements of OFSTED or its inspectors. A complaint to the Adjudication Service must be sent within three months from the date of the internal review response letter. The OFSTED leaflet ‘Complaints Procedure - Raising Concerns and Making Complaints about Ofsted’ contains contact details for all stages of the complaints procedure. It is available to download from the OFSTED website www.ofsted.gov.uk 8