Select Committee on Delegated Powers and Deregulation Second Report


Part V: Child Minding and Day Care

105.  The primary purpose of this Part of the Bill is to change the arrangements for the regulation regime for child minding and day care services for children under 8 years of age. In England, the function will transfer from local authorities to the Office for Standards in Education (Ofsted) in the person of its head, Her Majesty's Chief Inspector of Schools (HMCIS). In Wales, the responsibility for child care regulation will move to the part of the National Assembly for Wales ("the Assembly") which will be established to regulate social care. Part V also makes some other changes to the present arrangements.

106.  In legislative terms, this will be achieved by using a single clause, Clause 68, to insert a new Part XA into the Children Act 1989. Part XA will apply to England and Wales, whilst the existing Part X and Schedule 9 will continue to apply to Scotland. The notes below refer to regulation making powers contained in the new provisions due to be inserted into the 1989 Act under Clause 68 and Schedule 2.

107.  Section 79B Subsections (3)(a) and (4)(a) allow the Secretary of State to prescribe in regulations the people - other than the child minder/day care provider and anyone else looking after the children - who must meet the requirement to be suitable to look after children under the age of eight. This would be a necessary qualification of registration. Subsection (3) relates to child minding and subsection (4) to day care. These powers are designed particularly to catch proprietors, managers and committee members of establishments, who may - from time to time - look after children. The list of prescribed persons is not definitive because the Department anticipates the need to make future changes to the criteria for registration to further protect young children as the sector evolves and retain some flexibility when deciding what persons qualify for registration. Also, there is no single legal structure for day care providers and describing adequately the relevant categories of person is a technical exercise suited to secondary legislation.

108.  Section 79C(1) gives the Secretary of State a general power to make regulations governing the activities of registered persons who act as child minders or provide day care on premises in England. This power enables the Secretary of State to set National Minimum Standards to ensure that the safety and welfare needs of the child being looked after are being adequately provided for. These regulatory powers are based on precedents in existing regulations for children's homes and replicate or extend previous arrangements provided by The Children Act 1989 Section 72 & 73 and detailed guidance (set out in: The Children Act 1989 Guidance and Regulations Volume 2 Family Support, Day Care and Education Provision for Young Children).

109.  It is anticipated that regulations made under this section will be lengthy and detailed in order to cover a myriad of activities of providers. These regulations are designed to ensure that the fundamental matters regarding the well being and safety of children are addressed. Examples may include (subject to consultation with the sector) equal opportunities, staffing ratios, notification of changes (regarding persons or facilities) to the regulator and so on. This level of detail is best set out in regulations rather than primary legislation. We also anticipate that changes will be made to these regulations to reflect likely future changes in the activities of providers and regulatory arrangements provide the necessary flexibility (e.g. standards relating to use of information technology which we anticipate will become increasingly important in the future).

110.  Section 79C(2) gives the Welsh Assembly similar regulation making powers as conferred to HMCIS above at 79C(1) governing the activities of registered persons who act as child minders or provide day care on premises in Wales.

111.  Under Section 79C(3) the regulations may in particular deal with certain matters concerning how providers deliver their services. These include:

(i)  welfare and development of children (e.g. provision of rest facilities, equal opportunities);

(ii)  suitability of persons (e.g. what should and should not be taken into account in any assessment of suitability);

(iii)  qualifications and training (e.g. to increase the emphasis on raising quality);

(iv)  maximum numbers of children to be looked after and persons required to look after them;

(v)  premises and equipment (e.g. space requirements, fire safety arrangements);

(vi)  record keeping (e.g. registers of attendance and accident books); and

  1. provision of information (e.g. to parents about the service offered, (including for example requiring inspection reports to be made available) and policies e.g. special needs).

112.  Clearly, these matters will contain a considerable amount of detail not well suited to primary legislation. The Department also needs time to consult with the sector/HMCIS and carefully think through all matters to be incorporated within the new regulatory framework (to clearly distinguish binding national minimum requirements, and those elements of best practice, more suited to guidance). This arrangement will also give the Secretary of State flexibility to ensure that a better system of regulation can continue to evolve from this legislation. Alongside, clear national standards will, for the first time, deliver clarity for both the regulated and the regulator, and allow consistency of enforcement of those standards on a national basis. A number of elements considered above are currently in primary legislation e.g. record keeping and equal opportunities (Part X sections 72(2) and 74(6) respectively). Due consideration was given to move these elements into regulatory provision. Taking all of the above elements together, an enhanced more holistic approach can be developed to take full account of the needs and well being of children, while also allowing an opportunity to respond quickly and effectively to emerging situations and needs of the regulator and regulated.

113.  Supporting the powers outlined above, Section 79C(4) provides that the regulations may confer powers or impose duties on HMCIS. These powers and duties will allow HMCIS to effectively develop and carry out his regulatory functions in relation to activities on premises in England. The regulations here will again contain considerable technical detail and the Secretary of State will require some flexibility around what powers and duties he confers or imposes on HMCIS through the transitional period as the new systems are embedded and into the future as these evolve.

114.  Meanwhile, Section 79C(5) gives the Secretary of State power in the regulations to require or authorise HMCIS in exercising his function to have regard to or meet factors or standards prescribed or referred to in the regulations. National minimum standards (supported by 99% of respondents to the DH/DfEE Consultation Paper on the Regulation of Early Education and Day Care in 1998) will ensure greater consistency for both providers and regulatory staff at a local and regional level. As explained above, national minimum standards will be detailed and complex. It would not, therefore, be appropriate to address these issues in primary legislation.

115.  Section 79C(6) allows the Secretary of State to require that any failure to comply with any requirement in regulations must be taken into account by HMCIS/ the NAW in the exercise of their functions. He may also require that the failure is taken into account in any proceedings under Part XA.. The latter will deter providers from disregarding the national minimum standards and other prescribed matters. This reinforces the importance of set national minimum standards referred to in section 79C(5) above.

116.  Section 79C(7)(a) allows the Secretary of State to create an offence for of failure to comply with any requirement of the regulations. Section 79C(7)(b) specifies that the Secretary of State may provide that a person guilty of such an offence shall be liable on summary conviction to a fine not exceeding level 5.

117.  Section 79E(2) allows the Secretary of State to prescribe by regulations the information and matters which a person wishing to act as a child minder or day care provider must supply and cover in their application to register as a provider. These regulatory powers carry forward existing provisions set out in the Children Act 1989 sections 72 & 73 and detailed guidance (The Children Act 1989 Guidance and Regulations Volume 2 Family Support, Day Care and Education Provision for Young Children) which have worked effectively. For example, these regulations might specify that the provider must list the persons living or employed at the premises used for childminding in order that checks may be carried out to determine their suitability to look after or be in the proximity of children. Such technical administrative detail is more appropriate for regulations rather than primary legislation. It also allows for flexibility in the application procedure so necessary future changes or improvements can be made with minimal delay.

118.  Section 79F(1)(b) allows the Secretary of State to prescribe the amount of the fee to accompany an application for registration for child minding. These regulatory powers carry forward existing provisions set out in the Children Act 1989 Schedule 9, paragraph 1(3) and guidance (The Children Act 1989 Guidance and Regulations Volume 2 Family Support, Day Care and Education Provision for Young Children) which have worked effectively. Currently a fee of £12.50 is levied for registration. These provision would allow the Secretary of State the flexibility, for example, to vary the level or cancel the fee (e.g. to charge on a per place basis, or not to charge).

119.  Section 79F(2)(b) makes the same provision as subsection (1)(b) but for day care. Currently a fee of £110.00 is levied for registration. The provision to allow the Secretary of State to make the applicant pay a prescribed fee would again allow the flexibility, for example, to vary the level or cancel the fee (e.g. to charge on a per place basis) and in addition to exempt certain categories of day care providers (e.g. small providers); and/or, apply different charges to different categories of day care providers (e.g. charge voluntary providers less).

120.  The Government has also made a commitment to review existing charging arrangements. It is therefore considered more appropriate to continue to specify the amount to be paid in regulations as opposed to primary legislation.

121.  Section 79H(1) allows the Secretary of State to make regulations which would provide for the suspension of registration by the regulatory body. The current Part X of the Children Act makes no provision for suspension, only cancellation. It is envisaged the power will be exercised under two circumstances when children are considered potentially to be at risk:

(i)  pending investigations which may lead to cancellation of registration; and

(ii)  pending the outcome of registration cancellation proceedings.

122.  This power was taken in light of requests from the Sector for a less drastic provision to sit alongside existing emergency order powers designed to protect children 'likely to suffer significant harm'. It is designed to address 'other concerns' quickly and effectively without resorting to emergency proceedings and cancellation of registration. This route would also allow the regulator to take fuller account of the business needs of the provider. The regulations under this section will detail periods of and circumstances under which a suspension will be imposed. Again, these matters are quite procedural and will contain some administrative detail. Alongside, Section 79H(2) may allow providers a right of appeal to the Tribunal against suspension, a provision necessary to satisfy the requirements of the European Convention on Human Rights.

123.  Section 79M(5) allows the Secretary of State to prescribe by regulations further functions be performed by HMCIS, in addition to other functions detailed elsewhere in the Bill. We envisage these further functions will need to evolve as the sector itself expands and evolves (as envisaged by the National Childcare Strategy), and the emphasis on quality of provision is strengthened. In addition, the Secretary of State considers transfer of functions and staff from local authorities to Ofsted to be a considerable task and is keen to ensure that the transition is managed effectively. The Department would like some flexibility in relation to HMCIS's functions through the transition and beyond to ensure the protection of the welfare and safety of children; the maintenance of high standards of service delivery and management; and the effective regulation of child minders and day care providers.

124.  Section 79P(1) provides that the inspection of child minding is to be carried out at intervals set out in regulations. Under the existing legislation there is a requirement in primary legislation that the inspection must be carried out annually. This is considered to be too rigid for the longer term in (a) determining appropriate intervals of inspection for providers in different categories and (b) allowing full co-ordination and maximum integration with nursery education inspections under Schedule 26 of the School Standards and Framework Act. These latter inspections are carried out at prescribed intervals and the co-ordination of the two inspections is a key aspect of the policy of the Early Years provisions of the Bill. It is envisaged that in the first instance at least the minimum interval, which will be imposed in regulations between inspections, will continue to be one year.

125.  Section 79P(2) provides, as above for child minders, that the inspection of day care is to be carried out at intervals set out in regulations.

126.  In addition, Section 79P(4) allows the Secretary of State in prescribing the intervals for inspection, to specify the period within which a first inspection will take place. Section 79Q(1) allows the Secretary of State to prescribe the period within which a written inspection report on a provider must be provided to HMCIS. This provision is similar to that in respect of inspection reports on early years education in subparagraph 13(1) of Schedule 26 to the School Standards and Framework Act (SSFA) 1998. Subsection (2) gives a regulation making power to prescribe the bodies or individuals to whom HMCIS must send copies of inspection reports (or copies of the parts he considers appropriate). This provision is similar to that in respect of inspection reports on early years education in subparagraph 13(2) of Schedule 26 to the SSFA. A further power is given to prescribe other bodies or individuals to whom HMCIS may send copies of inspection reports (or copies of the parts he considers appropriate). This approach gives greater flexibility and an ability to make amendments in response to changing circumstances.

127.  Section 79T allows duties to be placed, under certain conditions on those providers of care for children aged over seven. Subsection (3) sets one of the conditions as being that the provider would otherwise have to register under Part XA (or, as the case may be, Part XA if it were subject to prescribed modifications) were it not for the fact of the children's age. This power to prescribe modifications enables regulations to be made which alter the criteria under which a care provider for children over seven would, in theory, have to register under Part XA. This would enable anomalies to be identified and overcome. For example, regulations could amend the requirement that care has to be provided for in excess of two hours in a day. A delegated powers approach is necessary in order to take account of any changes made by regulation elsewhere in Part XA.

128.  Section 79T(4) enables regulations to be made which will require a provider falling under this section to hold a certificate issued by the registration authority. The certificate will indicate the suitability of the provider and anyone else prescribed in the regulations (for example, people, such as employees or volunteers, who may have regular contact with the children) to look after children.

129.  Section 79T(5) sets out some of the issues which the regulations may, in particular deal with, such as applications for certificates (for example, the time and manner of an application) or the information to be contained in a certificate (for example, the level of personal detail to be included).

130.  Sections 79T(6) and (7) enable the regulations to provide that a person is guilty of an offence: if he does not hold a valid certificate; if he fails to produce it when asked to do so by a prescribed person (for example, a registered inspector); or if he knowingly makes a false or misleading statement in order to obtain a certificate.

131.  Under Section 79T(8), the regulations may provide that a person committing an offence under this section will be liable for a fine of up to level 5 on the standard scale.

132.  The detail necessary for these provisions would be better set out in regulations rather than on the face of the Bill. In addition, powers in delegated legislation will ensure flexibility in responding to any teething troubles which may arise when the new arrangements are put into practice. The regulation will also allow evolving Home Office legislation regarding fitness to work with children.


 
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