One of the amendments in the September 2016 version of Keeping Children Safe in Education (KCSIE) is at Annex E and relates to checks to be undertaken on host families. The slightly amended wording is intended just to clarify the requirements and does not represent a change in DfE policy on this issue; however, it has led to a number of queries from schools as to whether and when checks need to be carried out on host families.
The wording at Annex E provides that “Where a private fostering arrangement is made by the school or college or a third party (such as a language school) and the school, college or third party has the power to terminate the arrangement, then it could be the regulated activity provider for the purposes of the Safeguarding Vulnerable Groups Act 2006.” It later goes on to state that “…where the parents make the arrangements themselves, this will be a private matter between the child’s parents and the host parents and in these circumstances the school or college will not be the regulated activity provider.” This has led to confusion as to what the applicable rules are if parents are responsible for selecting the family but the school is also involved in the arrangement.
In our view, the reference to whether the school “has the power to terminate the arrangement” is key in determining whether checks are required by law. This wording comes directly from the Safeguarding Vulnerable Groups Act 2006, the piece of legislation that introduced the concept of regulated activity, and in these circumstances will be indicative of whether the school is the regulated activity provider. Scenarios may be divided into the following basic categories:
- If the school has power to terminate the host family arrangement, it is likely to amount to regulated activity and therefore an enhanced DBS check with barred list should be carried out. This will be the case even if the parents select the host family. It is worth noting that in these circumstances, it is just the main care-giver in the family who is required to be checked. Adults who are not care-givers are not required to be checked simply because they are present.
- If the school is involved in the arrangement, but does not have power to terminate it, then it is unlikely to amount to regulated activity and DBS checks do not need to be undertaken. To ensure there can be no doubt over this, schools are able to enter into an agreement with parents which ensures absolute clarity. For example, parents could be asked to sign an agreement which confirms that the hosting is a personal arrangement which the school does not have the right to terminate and also demonstrates that parents are aware that the school has, therefore, not undertaken any checks on the host parents.
- If the arrangements are made directly by the parents with no involvement by the school at all, this will be a private arrangement and therefore not regulated activity and no checks are required by law.
Clearly where host families are overseas, it will not be possible to carry out DBS checks. In such circumstances, where possible schools should seek reassurances from overseas partners to determine the suitability of host parents, and should always undertake a risk assessment. It would be sensible to put an agreement in place with parents to ensure they understand what checks or risk assessments the school has been able to undertake to support parental decisions, if it is to be a private arrangement between families.
Regardless of whether a DBS check is undertaken, decisions to use host families should take account of relevant factors such as the length of the stay, knowledge of the family by any overseas partners and the age of the pupils. Schools can also take steps to reduce any risk identified, and examples of this are usefully set out in the September 2016 ISI Commentary on the Regulatory Requirements at paragraphs 358-360. Those examples include ensuring pupils are seen by a member of staff every day while away from home, have access to a mobile phone with signal or know who to contact and how, if they have any concerns about their own safety. It is important to thoroughly document any decisions, risk factors identified and steps taken to reduce risk.
The intention behind these provisions is not to prevent schools undertaking valuable extra-curricular trips such as language exchanges or make them so administratively unwieldy that they are no longer viable. However, it is, of course, important to remember that obligations towards pupils go further than simply ensuring regulatory compliance and schools may want to go further than they are obliged to. Schools should always act sensibly and reasonably and may wish to undertake checks on host families even where the arrangement would not strictly amount to regulated activity.
Summary of Practical Steps
- Consider implementing an agreement with parents to document that arrangements to use host families are outside the scope of regulated activity. This would need to specify that the school does not have power to terminate the arrangement.
- If you determine that the arrangements amount to regulated activity and therefore that an enhanced DBS with list check is required, determine who the adult care-givers are. This must be at least one, but does not need to include all adults in the house. In any agreement with the parents, you should cover who has been checked. In our view, it is not necessarily the case that the adult care-giver must be present in the home at all times during the stay, but clearly to be considered a “care-giver” they will need to be present for considerable periods in order to look after the child. A common sense approach should be taken. This will be a factor for consideration in a risk assessment, and the age of the child will be important in determining whether this is necessary. It is also something that can be referred to in any agreement with the parents.
- Always undertake a risk assessment and thoroughly document it.
- Put in place adequate steps to reduce the inherent risks associated with using host families.