Application of Primary Safeguarding Legislation

1. Safeguarding Policies Must Align With the Law

Local safeguarding policies play an important role in guiding operational practice. However, such policies must not override, conflict with, or reinterpret primary legislation.

GSCP is clear that:

• Primary legislation takes precedence at all times
• Local policies must operate within the law, not above it
• Where a policy conflicts with legislation or statutory guidance, the law must be followed

Safeguarding arrangements that are inconsistent with legislation may undermine effective joint working and, in some circumstances, place children at greater risk.

2. Statutory Guidance Does Not Replace Primary Legislation

Keeping Children Safe in Education (KCSIE) is statutory guidance. It is explicit that:

• Schools and colleges must comply with primary legislation at all times
• Local policies must not conflict with the law
• Professional judgement must be applied in context

KCSIE must always be read alongside:

• The Protection of Freedoms Act 2012
• Working Together to Safeguard Children 2026
• Other relevant statutory frameworks

3. GSCP Position on Visiting Professionals and DBS Requirements

Where external professionals attend a setting in a professional capacity, KCSIE is clear and GSCP expects the following approach.

Schools and colleges should:

• ✅ Check official photo identification
• ✅ Seek assurance from the employing organisation that appropriate DBS checks have been completed
• ❌ Not request sight of a DBS certificate

This applies to visiting safeguarding professionals, including (but not limited to):

• Local authority children’s social care staff
• Early Help practitioners
• Police officers
• Health professionals
• Educational psychologists

Assurance provided by the employing organisation (for example, via an official letter) is lawful and sufficient.

4. No Entitlement to View DBS Certificates

Under the Protection of Freedoms Act 2012, DBS arrangements are founded on the principles of lawful entitlement and proportionality.

GSCP expectations are clear:

• DBS certificates contain sensitive personal data
• Only an Organisation legally entitled to request a DBS Check, may view the certificate. For clarity the employer of the employee is the only organisation legally entitled to do this
• If a setting has no legal basis to carry out a DBS check, for example the professional who has been vetted is not their employee, it has no lawful basis to view the DBS Certificate

Requesting sight of a DBS certificate where there is no entitlement:

• Risks breach of the DBS Code of Practice
• Risks breach of UK GDPR and data protection principles
• Undermines trust between safeguarding partners

Local safeguarding policies must not require actions that are unlawful or disproportionate.

5. Working Together 2026: Removing Barriers, Not Creating Them

Working Together to Safeguard Children 2026 requires agencies to:

• Co‑operate with safeguarding partners
• Act in a coordinated and proportionate way
• Avoid practices that obstruct statutory duties

A blanket or inflexible requirement for DBS certificates, or repeated “refresh” checks for visiting safeguarding professionals, cuts across these principles and is inconsistent with statutory expectations.

GSCP expects settings to:

• Facilitate, not hinder, multi‑agency safeguarding activity
• Apply policy with professional judgement and legal awareness
• Review and amend policies that conflict with legislation or statutory guidance

6. Where Policies Are Not Legally Aligned

Where a safeguarding policy:

• Is not aligned with primary legislation or statutory guidance, and
• Conflicts with the legal duties of other statutory agencies, and
• Has the potential to negatively impact the safety or welfare of children

It is reasonable, necessary and expected that the policy is reviewed and amended in the best interests of the child.

7. Escalation, Accountability and Assurance

Where a setting, organisation or partner does not adhere to the GSCP expectations set out above, and as a result fails to act in accordance with national legislation and statutory guidance, this must be escalated without delay.

GSCP is clear that:

• Non‑compliance with primary legislation
• Application of local policy that conflicts with statutory frameworks
• Actions that create barriers to lawful multi‑agency safeguarding practice are not acceptable and present potential risk to the safety and welfare of children.

In such circumstances, professionals must:

• Escalate concerns immediately
• Follow the GSCP Escalation Protocol
• Ensure the issue is appropriately recorded and reviewed to support lawful, child‑centred decision‑making

The GSCP Escalation Protocol provides a structured and transparent framework to:

• Resolve professional challenge constructively
• Address systemic or organisational barriers
• Secure appropriate senior oversight and accountability

Failure to resolve matters at operational level may result in progression through the escalation stages, including strategic review and scrutiny where required.

🔗 GSCP Escalation Protocol:

GSCP expects all partners to use the escalation process consistently to uphold the law, support effective multi‑agency working and ensure that the best interests of children remain paramount.

Where a setting does not respond to safeguarding escalation using local safeguarding partnership arrangements, and concerns about the safety or welfare of children remain unresolved, it is essential that these concerns are escalated further. In such circumstances, and following appropriate professional challenge and information‑sharing, the next step may be to inform Ofsted of safeguarding concerns relating to the setting, particularly where there are indications of systemic failure, weak leadership, or ineffective safeguarding arrangements. This ensures that concerns are appropriately considered within regulatory oversight and supports the shared statutory duty to safeguard and promote the welfare of children.

8. Who can report safeguarding concerns to Ofsted?

Anyone can report safeguarding concerns about an education setting, including:

• Local authorities and their services
• Safeguarding partners (health, police, probation)
• Other public bodies and commissioned organisations
• Voluntary and community sector organisations
• Parents, carers, staff, former staff, and whistleblowers

Organisations subject to Section 11 of the Children Act 2004 are expected to identify, challenge, and share concerns where a setting may not be safeguarding children effectively.

When should an organisation report to Ofsted?

Reporting to Ofsted is appropriate where concerns indicate:

• Serious or systemic safeguarding failures
• Weak leadership, governance, or safeguarding culture
• Failure to follow statutory guidance or respond to known risks
• A setting does not respond to clear professional advice or local escalation
• Ongoing risk to children despite concerns being raised appropriately

Reporting to Ofsted should not replace statutory safeguarding action.
Immediate risk must be referred to:

• Children’s Social Care
• Police
• LADO (for allegations against staff)

Link to Section 11 duties

For organisations with Section 11 duties, informing Ofsted of safeguarding concerns—particularly where a setting has failed to respond to advice and escalation, can form part of discharging their statutory responsibility to safeguard and promote children’s welfare.

This demonstrates appropriate:

• Professional challenge
• Information sharing
• Escalation where another body’s safeguarding arrangements appear ineffective

Where a setting does not act on clear safeguarding advice or escalation, organisations have the option, and, for Section 11 bodies, a legitimate duty to inform Ofsted of safeguarding concerns relating to the setting.