watermark
London Safeguarding Children Board: Child Protection Procedures 5th Edition London SCB Powered by tri.x Powered by tri.x
regsiter for alerts Search

7. Allegations against staff or volunteers, who work with children

Text Size: View this website with small text View this website with medium text View this website with large text View this website with high visibility


For amendment and updates see the Amendments and Archives tab above.


Contents

7.1

Introduction

7.2

Allegations dealt with by these procedures

7.3

Relevant statutory guidance

7.4

Roles and responsibilities

7.5

Responding to an allegation or concern – the role of the employer

7.6

The role of the LADO

7.7

Outcomes following an investigation

7.8

Substantiated allegations

7.9

Disciplinary or suitability process and investigations

7.10

General responsibilities when investigating an allegation


7.1

Introduction


7.1.1


Despite all efforts to recruit safely there will be occasions when allegations are made of abuse by staff or volunteers against children. All organisations which have employees or volunteers working with children should therefore have clear and accessible policies and procedures, consistent with these London Child Protection Procedures, which explain what should happen when allegations about the behaviour of a member of staff or volunteer are raised. 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 otherwise 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 Working Together 2018.

7.1.2

Local Safeguarding Children Boards (LSCBs) should have arrangements in place for monitoring and evaluating the effectiveness of the arrangements to manage allegations.

7.1.3

All references in this document to 'members of staff' and ‘employment’ should be interpreted as meaning all paid or unpaid 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.

7.1.4

This document uses the abbreviation LADO (local authority designated officer) throughout, 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.

7.2

Allegations dealt with by these procedures


Definition

7.2.1

These procedures should be applied when there is an allegation that any person who works with children, in connection with their employment or voluntary activity, 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.

7.2.2

Allegations can be made in relation to physical chastisement and restraint but can also relate to inappropriate relationships between members of staff and children or young people, for example:

  • Having a sexual relationship with a child under 18 if in a position of trust in respect of that child, even if consensual (see ss16-19 Sexual Offences Act 2003);
  • 'Grooming', i.e. meeting a child under 16 with intent to commit a relevant offence (see s15 Sexual Offences Act 2003);
  • Other 'grooming' behaviour giving rise to concerns of a broader child protection nature e.g. inappropriate text / e-mail messages or images, gifts, socialising etc;
  • Possession of indecent photographs / pseudo-photographs of children.

7.2.3

In addition, these procedures should be applied when there is an allegation that any person who works with children:

  • Has behaved in a way in their personal life that raises safeguarding concerns. These concerns do not have to directly relate to a child but could, for example, include arrest for possession of a weapon;
  • As a parent or carer, has become subject to child protection procedures;
  • Is closely associated with someone in their personal lives (e.g. partner, member of the family or other household member) who may present a risk of harm to child/ren for whom the member of staff is responsible in their employment/volunteering.

7.2.4

Finally, these procedures should be followed where a person’s employment is covered by the Childcare Act 2006 (See definition in the statutory guidance [1]) and:

This statutory guidance covers school settings where a person works with children under the age of 8 as well as early years’ childcare.

[1] See ‘Staff covered and relevant settings’, Pages 6-8 in Statutory guidance, ‘Disqualification under the Childcare Act 2006’ - Staff are covered by this legislation if they are employed and/or provide early years childcare (this covers the age range from birth until 1 September following a child’s fifth birthday i.e. up to and including reception age) or later years childcare (this covers children above reception age but who have not attained the age of 8) in nursery, primary or secondary school settings, or if they are directly concerned with the management of such childcare

7.2.5

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.

7.2.6

These procedures should be followed where allegations are made against a 16 and 17 year old who has been put in a position of trust by an organisation in relation to anyone under the age of 18. For example, where they might be involved in coaching a sport or in other school or out of school activities.

7.2.7

The procedures for dealing with allegations need to be applied with common sense and judgement. Many cases may well either not meet the criteria set out above, or may do so without warranting consideration of either a police investigation or enquiries by local authority children’s social care services. In these cases, employers should follow their safeguarding and other relevant procedures to resolve cases without delay.

The difference between an allegation and a concern

7.2.8

It might not be clear whether an incident constitutes an ‘allegation’. It is important to remember that in order 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.

7.2.9

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?

7.2.10

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.

7.2.11

Whether an incident constitutes an allegation and hence needs to be dealt with through these procedures, may need to be discussed by the LADO and the employer’s safeguarding lead. If it falls short of this 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 and let the LADO know of the outcome.

Organised abuse

7.2.12

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 Organised and Complex Abuse Procedure.

Non-recent abuse

7.2.13

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.

7.3

Relevant statutory guidance


7.3.1


Working Together to Safeguard Children: Statutory guidance on inter-agency working to safeguard and promote the welfare of children. Available at: GOV.UK - Working together to safeguard children

Detailed guidance can be found for schools and all educational establishments in Keeping Children Safe in Education: Statutory Guidance for Schools and Colleges (September 2016).

Guidance about the use of physical restraint in schools for governing bodies, headteachers and school staff. Available at: GOV.UK - Use of reasonable force in schools

Additionally new statutory guidance has been issued ‘Disqualification under the Childcare Act 2006’ (February 2015) which replaces the supplementary advice that was issued by the Department for Education on 10 October 2014. Available at: GOV.UK - Disqualification under the Childcare Act 2006

Guidance regarding making a referral to the Disclosure and Barring Service (DBS) website is available at: GOV.UK - Making barring referrals to the DBS

Guidance regarding the legal duty to refer and power to refer to the DBS is available at: GOV.UK - DBS barring referral guidance

7.4

Roles and responsibilities


Roles and responsibilities for all organisations

7.4.1

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 London Child Protection Procedures. Safeguarding training for staff should be provided and refreshed regularly and children and families should be regularly reminded of how they can report concerns.

7.4.2

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

7.4.3

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

  • Ensuring that the organisation deals with allegations in accordance with these London Child Protection Procedures;
  • Resolving any inter-agency issues;
  • Making statutory notifications to professional bodies and the Disclosure and Barring Service (DBS);
  • Liaising with the LSCB on the subject.

7.4.4

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 of harm to the LADO.
  • 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 names senior manager and the designated safeguarding lead may be the same person.

Whistle-blowing

7.4.5

All staff should be made aware of the organisation's whistle-blowing policy and feel confident to voice concerns about the attitude or actions of colleagues.

7.4.6

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 Children Boards Procedure.

Roles and responsibilities for local authorities – in addition to their role as an employer

7.4.7

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.

7.4.8

It is very important that those giving advice have expertise in this area, as any errors in the advice could have serious ramifications, both for those individuals who have had allegations made against them and for those making the allegation.

7.4.9

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. The LADO is also responsible for ensuring an appropriate outcome is reached. 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.

Cases which cross borough boundaries

7.4.10

Cases will often be relevant to more than one borough. For example, an allegation could be made against an agency worker who works across multiple boroughs and whose agency is based in a further borough. 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.

Roles and responsibilities for the police

7.4.11

The police detective inspector on each child abuse investigation team will:

  • Have strategic oversight of the local police arrangements for managing allegations against staff and volunteers. This will include, for example, responsibility for informing partners of changes to police practice (such as the changes to bail conditions) and keeping partners aware of the number of cases they are dealing with and any themes which emerge from them;
  • Liaise with the LSCB on the issue and, in particular, which section of the police will lead the investigation;
  • Ensure compliance with these procedures.

7.4.12

The police should designate a detective sergeant/s to:

  • Liaise with the LADO and their team;
  • Take part in meetings / discussions;
  • Review the progress of cases in which there is a police investigation;
  • Share information as appropriate, on completion of an investigation or related prosecution.

If a police officer receives an allegation, they should, without delay, report it to the designated detective sergeant on the child abuse investigation team (CAIT). The detective sergeant should then immediately inform the LADO.

7.5

Responding to an allegation or concern – the role of the employer


7.5.1


An allegation or concern raised about a member of staff 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.

Initial action by person receiving or identifying an allegation or concern

7.5.2

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.

7.5.3

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.

Some, very serious allegations, should be immediately reported to the police – this will also enable prompt action to be taken to gather evidence from mobile phones etc.

Initial action by the designated safeguarding lead (if different)

7.5.4

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.

Deciding if it is an allegation of harm or a concern

7.5.5

The designated safeguarding lead should review the information available and consideration should be given as to whether the case meets the threshold of harm/risk of harm.

  • If it is decided it meets the threshold of harm/risk of harm and therefore is an allegation they should follow the procedures below and notify the LADO within one working day. If appropriate, the police should also be notified within one working day – or immediately if necessary;
  • If it is decided that the incident does not meet the threshold of harm/risk of harm and is a concern only, then they should take steps to ensure any conduct or behaviour issues are addressed with the member of staff through normal employment practices;
  • If the designated safeguarding lead is unclear whether the incident meets the threshold of harm/risk of harm they may wish to seek advice from the LADO.

Notifying the LADO within one working day of an allegation

7.5.6

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.

  • If it is outside of normal working hours and there is an immediate risk to a child, the local authority emergency duty team for children’s social care. The LADO should be informed as soon as possible;
  • An immediate risk assessment should be carried out;
  • If appropriate the police should also should also be notified within one working day – or immediately if necessary;
  • It is important to note that information gathering is distinct from investigation. Employers should continue to gather information about the facts of the case, for example, checking if there is any evidence and taking statements from other witnesses.

Suspension – when it should be considered

7.5.7

Suspension should be considered only in cases where there is cause to suspect a child or other children at the place of employment is/are at risk of harm or the case is so serious that it might be grounds for dismissal. The case manager must consider carefully whether the circumstances warrant suspension from contact with children until the allegation is resolved, and may wish to seek advice from their personnel adviser and the LADO(s).

7.5.8

The case manager should also consider whether the result that would be achieved by immediate suspension could be obtained by alternative arrangements. In many cases an investigation can be resolved quickly and without the need for suspension. If the LADO(s), police and children’s social care services have no objections to the member of staff continuing to work during the investigation, the case manager should be as inventive as possible to avoid suspension. Based on assessment of risk, the following alternatives should be considered by the case manager before suspending a member of staff:

  • Redeployment so that the individual does not have direct contact with the child or children concerned;
  • Providing an assistant to be present when the individual has contact with children;
  • Redeploying to alternative work so the individual does not have unsupervised access to children;
  • Temporarily redeploying the member of staff to another role in a different location.

7.5.9

These alternatives allow time for an informed decision regarding the suspension. This will, however, depend upon the nature of the allegation. The case manager should consider the potential permanent professional reputational damage to employees that can result from suspension where an allegation is later found to be unsubstantiated or maliciously intended.

7.5.10

If immediate suspension is considered necessary, the rationale and justification for such a course of action should be agreed and recorded by both the case manager and the LADO(s). This should also include what alternatives to suspension have been considered and why they were rejected.

7.5.11

Where it has been deemed appropriate to suspend the person, written confirmation should be dispatched within one working day, giving as much detail as appropriate for the reasons for the suspension. It is not acceptable for an employer to leave a person who has been suspended without any support. The person should be informed at the point of their suspension who their named contact is within the organisation and provided with their contact details.

7.5.12

Children’s social care services or the police cannot require the case manager to suspend a member of staff or a volunteer, although they should give appropriate weight to their advice. The power to suspend is vested in the employer. However, where a discussion concludes that there should be enquiries by the children’s social care services and/or an investigation by the police, the LADO(s) should canvass police and children’s social care services for views about whether the accused member of staff needs to be suspended from contact with children in order to inform consideration of suspension. Police involvement does not make it mandatory to suspend a member of staff; this decision should be taken on a case-by-case basis having undertaken a risk assessment.

7.5.13

If a suspended person is to return to work, the employer should consider what help and support might be appropriate (e.g. a phased return to work and/or provision of a mentor), and also how best to manage the member of staff's contact with the child concerned, if still in the workplace.

7.5.14

Police bail

It should be noted that police guidelines on arrest have changed and it is now the case that the defendant will not be arrested unless there is a need for bail conditions.  Cases may be dealt with by an interview under caution. The lack of an arrest can impact on the strength of the case to suspend someone so it is very important to have clear information about the police decision making process and why actions were and were not taken.

7.5.15

Schools and colleges - interim prohibition order

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 National College for Teaching and Leadership’s (NCTL) investigation.


7.6

The role of the LADO


Initial consideration of an allegation by the designated safeguarding lead and the LADO

7.6.1

Deciding if it is an allegation of harm or a concern

  • All concerns reported to the LADO should be assessed to decide if the threshold for an allegation has been met. In cases where it is not clear whether the threshold has been met, it might be necessary to have a discussion (by phone or in a meeting) to evaluate whether the threshold is met – sometimes referred to as an evaluation meeting;
  • It is essential to keep the employer who raised the concern informed whilst the case is being assessed. Organisations raising concerns may want to challenge or discuss decisions made by the LADO and will need to be updated on any action taken;
  • The employer and the LADO should discuss the incident and agree whether or not it meets the threshold for risk of harm. 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 of harm/risk of harm and is a concern only, then the employer should take steps to ensure any conduct or behaviour issues are addressed with the member of staff through normal employment practices.

7.6.2

Considering an allegation

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

  • A police investigation of a possible criminal offence;
  • LA 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;
  • Whether action in regards to the person making the allegation should be considered where the allegation has no foundation and may be malicious.

The LADO and the designated safeguarding lead should consider first whether further details are needed and whether there is evidence or information that establishes that the allegation is false or unfounded.

If the allegation is not demonstrably false and there is cause to suspect that the adult (or in specific circumstances the 16 or 17 year old) poses a risk of harm, the LADO should convene an Allegations against Staff and Volunteers (ASV) meeting / discussion. This will sometimes have to take place immediately but the speed at which it is convened should be commensurate to the risk. 

If the allegation does not meet the threshold for risk of harm, but there are concerns that a child has been harmed or there is no evidence of harm but there is concern about inappropriate behaviour etc. the LADO should inform the employer of this who will then take responsibility for addressing the issue. The LADO can provide advice and support to the employer where necessary.

The police must be consulted about any case in which a criminal offence may have been committed.

If the threshold for harm is not reached, but a police investigation might be needed, the LADO should immediately discuss the case with the police and, where necessary, convene a meeting, to include the police, employer and other agencies involved with the child.

An ‘Allegations against Staff and Volunteers’ (ASV) meeting/discussion

7.6.3

An ASV meeting / discussion will decide the strategy for managing the allegation. Where necessary this will be a face-to-face meeting.  Many cases can be managed through a discussion between the designated safeguarding lead, the police, any other relevant agency and the LADO. Where communication is via phone or email records should be kept for audit purposes.

7.6.4

Where there is a larger number of people involved in the case, the benefit of convening a face-face meeting is increased.

7.6.5

An ASV meeting will normally only be convened when it has been decided that the threshold of harm/risk of harm 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.

7.6.6

The ASV will be chaired by the LADO. It will normally be attended by the police, a social worker for the child (where there is one], and the employer. The employer is advised to bring a human resources advisor. In situations where the allegation is against a health professional, the designated or named nurse for safeguarding [Clinical Commissioning Group/CCG) should be invited.

7.6.7

The meeting / discussion should:

  • Decide whether there should be a s47 enquiry and / or police investigation;
  • Consider whether any parallel disciplinary process can take place and agree protocols for sharing information;
  • 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 (e.g. https://www.gov.uk/government/publications/use-of-reasonable-force-in-schools);
  • Consider whether a complex abuse investigation is applicable (see Organised and Complex Abuse Procedure);
  • Plan enquiries if needed, allocate tasks and set timescales;
  • Decide what information can be shared, with whom and when.

7.6.8

The meeting /discussion should also:

  • 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, having regard to the target timescales;
  • Consider issues for the attention of senior management (e.g. media interest, resource implications);
  • Consider reports for consideration of barring;
  • Consider risk assessments to inform the employer's safeguarding arrangements;
  • Agree dates for future meetings / discussions.

A final meeting /discussion should be held to ensure that all tasks have been completed, including any referrals to the DBS if appropriate, and, where appropriate, agree an action plan for future practice based on lessons learnt.

7.6.9

Meetings/discussions in relation to allegations against staff in their personal lives

If an allegation arises about a member of staff, outside of their work with children, and this may present a risk of harm/risk of harm to child/ren for whom the member of staff is responsible through their employment/volunteering, a meeting / discussion should be convened to decide whether the concern justifies:

  • Approaching the member of staff's employer for further information, in order to assess the level of risk of harm; and / or
  • Inviting the employer to a further meeting / discussion about dealing with the possible risk of harm.

If the member of staff lives in a different authority area to that which covers their workplace, liaison should take place between the relevant agencies in both areas and a joint meeting / discussion convened.

In some cases, an allegation of abuse against someone closely associated with a member of staff (e.g. partner, member of the family or other household member) may present a risk of harm to child/ren for whom the member of staff is responsible through their employment/volunteering. In these circumstances, a meeting / discussion should be convened to consider:

  • The ability and/or willingness of the member of staff to adequately protect the child/ren;
  • Whether measures need to be put in place to ensure their protection;
  • Whether the role of the member of staff is compromised.

Timescales for completing investigations of allegations [2]

7.6.10

It is in everyone’s interest to resolve cases as quickly as possible consistent with a fair and thorough investigation. All allegations should be investigated as a priority to avoid any delay.  The time taken to investigate and resolve individual cases depends on a variety of factors including the nature, seriousness and complexity of the allegation, but these targets should be achieved in all but truly exceptional cases. Target timescales are shown below:

  • For those cases where it is clear immediately that the allegation is unsubstantiated or malicious, they should be resolved within one week;
  • Where the initial consideration decides that the allegation does not involve a possible criminal offence it will be for the employer to deal with it, although if there are concerns about child protection, the employer should discuss them with the LADO;
    • In such cases, if the nature of the allegation does not require formal disciplinary action, the employer should institute appropriate action within three working days;
    • If a disciplinary hearing is required and can be held without further investigation, the hearing should be held within 15 working days

It is expected that:

  • 80 per cent of cases should be resolved within one month;
  • 90 per cent should be resolved within three months;
  • All but the most exceptional cases should be completed within 12 months.

[2] Taken from keeping Children Safe in Education [Sept 2016]

Monitoring progress

7.6.11

The LADO should monitor and record the progress of each case, either fortnightly or monthly depending on its complexity.  This could be by way of review meetings / discussions or direct liaison with the police, LA children's social care, or employer, as appropriate.  Where the target timescales cannot be met, the LADO should record the reasons.

7.6.12

The LADO should keep comprehensive records in order to ensure that each case is being dealt with expeditiously and that there are no undue delays.  The records will also assist the LSCB to monitor and evaluate the effectiveness of the procedures for managing allegations and provide statistical information to the Department for Education (DfE) as required.

7.6.13

If a police investigation is to be conducted, the police should set a date for reviewing its progress and consulting the Crown Prosecution Service (CPS) about continuing or closing the investigation or charging the individual.  Wherever possible, this should be no later than four weeks after the meeting / discussion.  Dates for further reviews should also be agreed, either fortnightly or monthly depending on the complexity of the investigation.


7.7

Outcomes following an investigation


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

Substantiated allegations

7.7.1

There is sufficient evidence to prove the allegation that a child has been harmed or there is a risk of harm.

If the facts of the incident are found to be true but it is not found that a child has been harmed or there is a risk of harm, then consideration should be given to deciding that the outcome is ‘unsubstantiated’ or ‘unfounded’.

Malicious

7.7.2

There is sufficient evidence to disprove the allegation and there has been a deliberate act to deceive. The police should be asked to consider what action may be appropriate in these circumstances.

False allegations

7.7.3

There is sufficient evidence to disprove the allegation, however, there is no evidence to suggest that there was an deliberate intention to deceive.

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 LA children's social care to determine whether the child is in need of services, or might have been abused by someone else.

Unsubstantiated allegations

7.7.4

There is insufficient evidence to either prove or disprove the allegation. The term, therefore, does not imply guilt or innocence.

Unfounded

7.7.5

The additional definition of ‘unfounded’ can be used to reflect cases where 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.

The Chair of the meeting / discussion should make a record of the agreed outcome and forward this to the employer.

References in cases where the allegation is false, unsubstantiated or malicious

7.7.6

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.

Record keeping in relation to the outcome of an investigation

7.7.7

Details of allegations that are found to have been malicious should be removed from personnel records. However, for all other allegations, 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.

7.8

Substantiated allegations

Referral to the Disclosure and Barring Service (DBS)

7.8.1

The DBS was established under the Protection of Freedoms Act 2012 and merges the functions previously carried out by the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA). The relevant legislation is set out in the Protection of Freedoms Act 2012.

7.8.2

There is a legal requirement for employers to make a referral to the DBS where they think that an individual has engaged in conduct that harmed (or is likely to harm) a child; or if a person otherwise poses a risk of harm to a child; or is there is an investigation and the outcome is substantiated either by criminal investigation or by the balance of probabilities

7.8.3

If an allegation is substantiated and the person is dismissed or the employer ceases to use the person's service or the person resigns or otherwise ceases to provide his/her services, the guidance regarding making a referral - available on the Disclosure and Barring Service website.

The DBS will refer cases involving teachers to the National College for Teaching and Leadership (NCTL) to consider prohibiting the individual from teaching.

Legal duty to refer and power to refer

7.8.4

See the DBS referral guidance and tools

The following groups have legal duty to refer information to the DBS:

  • Regulated activity suppliers ( employers and volunteer managers);
  • Personnel suppliers that  may be an employment agency, employment business or an educational institution;

7.8.5

The following groups have the power to refer information to the DBS;

The power to refer may be used when a local authority or regulatory body is acting in a role other than as a regulated activity provider, for example, when undertaking a safeguarding role.

  • Local authorities;
  • A Health and Social care (HSC) trust;
  • Keepers of registers e.g. General Medical Council, Nursing and Midwifery Council, HCPC in England, Wales and Northern Ireland;
  • Supervisory authorities e.g. Care Quality Commission, Ofsted. in England, Wales and Northern Ireland

7.8.6

The DBS will refer cases involving teachers to the National College for Teaching and Leadership (NCTL) to consider prohibiting the individual from teaching. The NCTL is part of the Department for Education and is responsible for the regulation of teachers in respect of serious misconduct.

7.8.7

Whenever a local authority refers a person to the DBS, they must consider whether they are doing so under the duty to refer or their power to refer.

Notifying Ofsted

7.8.8

Child minders and day care

Ofsted should be informed of any allegation or concern made against a member of staff in any day care establishment for children under 8 or against a registered child minder. They should also be invited to take part in any subsequent meeting / discussion.

7.8.9

Foster carers, prospective adopters and residential care

A senior manager of the employer or fostering agency should inform Ofsted of all allegations made against a foster carer, prospective adopter, or member of staff in a residential child care facility. There are established notification processes in place.


7.9

Disciplinary or suitability process and investigations

Notifying Ofsted

7.9.1

The LADO and the employer should discuss whether disciplinary action is appropriate where:

  • It is clear at the outset or decided by a meeting / discussion that a police investigation or LA children's social care enquiry is not necessary; 

    Or
  • The employer or the LADO is informed by the police or the Crown Prosecution Service that a criminal investigation and any subsequent trial is complete, or that an investigation is to be closed without charge, or a prosecution discontinued.

7.9.2

The discussion should consider any potential misconduct or gross misconduct on the part of the member of staff, and take into account:

  • Information provided by the police and / or LA children's social care;
  • The result of any investigation or trial;
  • The different standard of proof in disciplinary and criminal proceedings.

7.9.3

In the case of supply, contract and volunteer workers, normal disciplinary procedures may not apply.  In these circumstances, the LADO and employer should act jointly with the providing agency, if any, in deciding whether to continue to use the person's services, or provide future work with children, and if not, whether to make a report for consideration of barring or other action. See Substantiated allegations and referral to the DBS.

If a disciplinary hearing is required, and further investigation is not required, it should be held within the timeframe laid out in the employer’s procedures.

If formal disciplinary action is not required, the employer should meet the employee, discuss fully the outcome of the allegation and ensure they are reintegrated into the work environment.

Further investigation

7.9.4

If further investigation is needed to decide upon disciplinary action, the designated safeguarding lead and the LADO should discuss whether the employer has appropriate resources or whether the employer should commission an independent investigation because of the nature and/or complexity of the case and in order to ensure objectivity. The investigation should not be conducted by a relative or friend of the member of staff.

7.9.5

The aim of an investigation is to obtain, as far as possible, a fair, balanced and accurate record in order to consider the appropriateness of disciplinary action and / or the risk of harm to children. Its purpose is not to prove or disprove the allegation.

7.9.6

If, at any stage, new information emerges that requires a child protection referral, the investigation should be held in abeyance and only resumed if agreed with LA children's social care and the police. Consideration should again be given as to whether suspension is appropriate in light of the new information.

The investigating officer should aim to provide a report within ten working days.

On receipt of the report the employer should follow their disciplinary procedures.

7.9.7

Sharing information for disciplinary purposes

Wherever possible, police and LA children's social care should, during the course of their investigations and enquiries, obtain consent to provide the employer and/or regulatory body with statements and evidence for disciplinary purposes.

If the police or CPS decide not to charge, or decide to administer a caution, or the person is acquitted, the police should pass all relevant information to the employer without delay.

If the person is convicted, the police should inform the employer and the LADO straight away so that appropriate action can be taken.

Resignations and 'compromise agreements'

7.9.8

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.

7.9.9

‘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. 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.

Learning lessons

7.9.10

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.

7.10

General responsibilities when investigating an allegation

Support to the child and family involved

7.10.1

The organisation, together with LA 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.

7.10.2

Keeping parents/cares and children informed

  • The employer must inform the parents 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 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 parent/s 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.

Responsibilities to employees/volunteers alleged to have caused harm

7.10.3

Support to the accused member of staff

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.

7.10.4

Keeping the accused member of staff informed

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 LA 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 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.

Confidentiality

7.10.5

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.

7.10.6

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.

Reporting restrictions regarding allegations against teachers

7.10.7

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 (which amended the Education Act 2002). If parents or carers wish to apply to the court to have reporting restrictions removed, they should be advised to seek legal advice.

7.10.8

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.

7.10.9

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.

7.10.10

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.

7.10.11

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).