House of Commons - Explanatory Note
Childcare Bill - continued          House of Commons

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Clause 27 - Duty to provide information, advice and assistance

62.     Clause 27 places a duty on local authorities to provide parents and prospective parents with information relating to childcare and other services for children and young people aged up to age 20.

63.     Subsection (2) requires local authorities to provide parents and prospective parents with information on services, facilities and publications that may benefit them or children or young people. The details of the information which must be provided will be dealt with in regulations.

64.     Subsection (3) allows local authorities to provide additional information to parents and prospective parents and to provide information to other persons.

65.     Subsection (4) requires local authorities to provide advice and assistance to parents or prospective parents using or seeking childcare.

66.     Subsection (5) requires the local authority to ensure that the information service is accessible to those who might benefit from it, in particular parents who might otherwise have difficulty accessing it.

67.     Subsection (6) requires local authorities to take account of guidance issued by the Assembly when discharging their duty.

Clauses 28 and 29 - Inspection and Powers of Assembly to secure proper performance etc.

68.     Clauses 28 and 29 ensure that a Welsh local authority's functions under Part 2 (to secure sufficient childcare and to provide information) are inspected by Her Majesty's Chief Inspector of Education and Training in Wales and subject to the powers of the Assembly to secure proper performance through sections 496, 497, 497A, 497AA and 497B of the Education Act 1996.

Clause 30 - Interpretation of Part 2

69.     Clause 30 defines childcare for the purposes of Part 2 as being care which is required to be registered by the Assembly under Part 10A of the Children Act 1989 or care approved through a scheme made by the Assembly under section 12(5) of the Tax Credits Act 2002.

PART 3 - REGULATION OF PROVISION OF CHILDCARE IN ENGLAND

Chapter 1

Clause 31 - General functions of the Chief Inspector

70.     Clause 31 sets out the general functions of the Her Majesty's Chief Inspector of Schools (subsequently referred to as the Chief Inspector) which include keeping the Secretary of State informed about the quality and standards of registered early years provision and unregistered early years provision in schools and its contribution to the well-being of children, and advising the Secretary of State on matters relating to early and later years provision.

Clause 32 - Maintenance of the two childcare registers

71.     Clause 32 requires the Chief Inspector to maintain two registers:

  • an early years register on which everyone who is required to register as an early years provider (and has registered) is listed; and

  • a general childcare register which is split into two Parts-

    a)     Part A which lists all childcare providers who are required to register on the general register i.e. those caring for children over 5 but under 8;

    b)     Part B which lists all childcare providers who have registered voluntarily.

Chapter 2

Clause 33 - Requirement to register: early years childminders

72.     Clause 33 prohibits a person from providing early years childminding unless he is registered in the early years register. Early years childminding is early years provision provided on domestic premises for reward where there are no more than three people providing the care or assisting with its provision (see clause 94(4) and (5)).

73.     Subsection (2) allows the Secretary of State to exempt certain persons from the requirement to register. This power may be used to exempt, for example, nannies and babysitters.

74.     Subsection (4) sets out what happens where a person who should register as an early years childminder under subsection (1) fails to do so. In such cases the Chief Inspector may serve an enforcement notice on that person and that person may then be prosecuted if they continue to childmind without registering (see subsection (7)). The notice will stay in effect until revoked by the Chief Inspector.

Clause 34 - Requirement to register: other early years providers

75.     Clause 34 sets out the requirement to register for other early years providers. Such provision must be registered in respect of specified premises.

76.      Subsection (2) specifically exempts from this requirement early years provision made at a maintained school, non-maintained special school or independent school where that provision is made by the school and one or more pupils attend it. Subsection (3) also makes provision for the Secretary of State to exempt providers from the requirement to register by order.

77.      It is an offence to provide non-exempt later years provision without registration (see subsection (5)).

Clause 35 - Applications for registration: early years childminders

78.     Clause 35 deals with applications for registration by early years childminders who are required to register.

79.     Subsection (3) requires the Chief Inspector to grant an application for registration as an early years childminder if the applicant is not disqualified from registration and the childminder meets the requirements set out in regulations for registration. (Subsection (5) sets out some of the areas which the regulations may deal with which may include (but is not limited to) the premises on which the childminding is to be provided and any person who may be caring for the child.)

80.     Subsection (4) requires the Chief Inspector to refuse an application from an applicant who is either disqualified and/or does not meet the requirements set out in regulations.

Clause 36 - Applications for registration: other early years providers

81.     Clause 36 makes similar provision for applications by other early years providers. It differs from the provision for childminders in that applications are required to be made in respect of particular premises.

Clause 37 - Entry on the register and certificates

82.     Clause 37 places an obligation on the Chief Inspector to place successful applicants in the early years register and to issue them with certificates of registration. This clause makes a distinction between early years childminders and early years providers who are not childminders. This is because, when a childminder is registered, the registration is not linked to any particular premises. In the case of other early years providers, however, the registration is in respect of particular premises. This means that early years providers (other than childminders) may have separate entries in the register in respect of different premises (where they provide childcare at more than one location).

83.     Clause 37 also requires the certificate of registration to set out particular information, as prescribed through regulations. Provision is made for amendment of registration certificates. Subsection (5) requires the Chief Inspector to provide a copy of a lost or destroyed registration certificate when paid a fee as required by regulations.

Clause 38 - Conditions on registration

84.     Clause 38 deals with conditions on registration for compulsorily registered early years providers. It allows the Chief Inspector to impose any conditions he thinks fit at any time and to vary or remove any conditions at any time. Conditions may include (but are not limited to) conditions to ensure that providers comply with regulations. It is an offence for a person not to comply with conditions on his registration.

Clause 39 - The Early Years Foundation Stage

85.     This clause places a duty on the Secretary of State to specify certain requirements for the purpose of promoting the well-being (as defined by clause 1 (2) of this Bill) of young children who are receiving early years provision. These requirements comprise requirements relating to learning by and the development of young children, (the 'learning and development requirements') which the Secretary of State must specify by order and requirements relating to the welfare of young children and the organisation and staffing of early years settings (the 'welfare requirements'), which the Secretary of State must prescribe by regulations. These requirements are together to be known as the Early Years Foundation Stage (EYFS).

Clause 40 - Duty to implement the Early Years Foundation Stage

86.     Clause 40 sets out which providers are required to implement the EYFS. This includes all early years providers who are required to be registered under clauses 33 and 34 of the Bill, as well as early years providers who are exempted from the requirement to be registered under clause 34(2) (i.e. certain provision made by schools for children aged 3 and over).

87.     Subsection (2) places these providers under a duty to implement the EYFS.

Clause 41 - The learning and development requirements

88.     This clause sets out what may and may not be covered by a learning and development order made by the Secretary of State under clause 39(1) (a). The 'learning and development requirements' must cover six areas of learning and development, which are listed in subsection (2). In relation to these six areas, the 'learning and development requirements' may specify:

  • early learning goals, setting out what most young children are expected to achieve by 1st September following their 5th birthday

  • educational programmes, setting out what should be taught to young children attending early years provision, although the order may not require providers to allocate any particular periods of time to the delivery of such a programme

  • arrangements for assessing the learning and development of young children attending early years provision.

Clause 42 - Further provisions about assessment arrangements

89.     This clause enables the Secretary of State, when making a learning and development order, to specify inspection arrangements with which the persons listed under subsection (2) must comply. The order may specify, for example, when, how and by whom young children are to be assessed, as well as the purpose of any such arrangements. Provision must be made for ascertaining whether the purpose of the assessment arrangements is being achieved, and to facilitate this providers may be required to allow anyone on whom the order has conferred such functions to enter premises and monitor assessment arrangements.

90.     Subsection (6) allows for a learning and development order to specify that detailed assessment arrangements may be published in a separate document and shall have the same effect as if they were prescribed in the order.

Clause 43 - Welfare requirements

91.     Clause 43 sets out the matters that may be covered by regulations made by the Secretary of State under clause 39(1)(b) - the 'welfare requirements'. They relate to measures for securing young children's welfare when they are receiving early years provision and the effective organisation of an early years setting, as well as procedures for dealing with complaints and the provision of information.

92.     The regulations may also provide that a person is guilty of an offence if they fail to comply with a requirement, and that they are liable to pay a fine if they commit such an offence.

Clause 44 - Instruments specifying learning and development or welfare requirements

93.     Clause 44 refers to a "relevant instrument". Subsection (5) explains that a "relevant instrument" means a learning and development order (made under clause 39(1)(a)) or regulations prescribing welfare requirements (made under clause 39(1)(b)). A relevant instrument may, instead of setting out all the provisions to be made, give effect to provisions set out in a separate document.

94.     Under subsections (2) and (3), a relevant instrument may also confer powers and impose duties on the Chief Inspector in the exercise of his functions under Part 3. In particular it may require the Chief Inspector, in exercising these functions, to have regard to factors, standards and other matters prescribed by or referred to in the instrument.

95.     Subsection (4) provides that where a relevant instrument requires a person other than the Chief Inspector to have regard to or meet factors, standards and other matters, it may also allow for any allegation that the person has failed to do so to be taken into account by the Chief Inspector in the exercise of his functions under Part 3 or in any proceedings under that Part.

Clause 45 - Power to enable exemptions to be conferred

96.     Clause 45 enables the Secretary of State to confer exemptions from the learning and development requirements in certain prescribed circumstances. Regulations may provide that the learning and development requirements should not apply, or should apply with specified modifications, to a particular early years provider or to a group of early years providers. Regulations may also enable an early years provider to determine that the learning and development requirements do not apply, or apply with modifications, in respect of a particular child.

Clause 46 - Independent Schools

97.     Subsection (1) of this clause amends section 157 of the Education Act 2002 so that the independent school standards prescribed by regulations made under that section do not apply in relation to early years provision for pupils of independent schools who have not attained the age of 3. Separate requirements for such provision are made by Part 3 of the Bill. Independent schools providing early years provision for children under 3 are required to register under Part 3 of the Bill and to implement the Early Years Foundation Stage.

98.     Subsection (2) amends section 157 of the Education Act 2002 so that, for early years provision for pupils of independent schools who have attained the age of 3, the independent school standards include the Early Years Foundation Stage

Clause 47 and Schedule 1 - Amendments relating to curriculum

99.     This clause introduces Schedule 1. Schedule 1 amends section 23 of the Education Act 1997, which sets out the functions of the Qualifications and Curriculum Authority (QCA), in order to remove references to nursery education as a consequence of the provisions of chapter 2 of Part 3. It also inserts a power for the Secretary of State to provide by order that the QCA shall have functions relating to children who are receiving early years provision under clause 40 of this Bill. The Secretary of State is required to consult the QCA before conferring such functions.

100.     Schedule 1 also makes amendments to Part 6 of the Education Act 2002 as a consequence of the provisions of Chapter 2 of Part 3. Part 6 of the Education Act 2002 makes provision for the National Curriculum for England including in relation to the foundation stage (which currently covers children aged 3 to the end of the school year in which they turn 5). As the Early Years Foundation Stage will cover all such children, provisions relating to the foundation stage are being removed from Part 6 of the Education Act 2002.

Clause 48 - Inspections

101.     Clause 48 relates to inspection of early years provision and requires the Chief Inspector to inspect early years provision at intervals (to be prescribed in regulations) and on request from the Secretary of State. It also allows the Chief Inspector to inspect early years provision at any other time when he considers it appropriate.

102.     Subsection (3) allows regulations to be made setting out circumstances in which the Chief Inspector will not be required to carry out an inspection when it falls due. Regulations could, for example, provide that an inspection is not required where the provider does not have any children on the roll.

103.     Subsection (4) allows regulations to be made providing that the Chief Inspector is not required to carry out an inspection at an independent school where the early years provision would be inspected by a body approved by the Secretary of State.

104.     Subsection (6) provides for regulations to require the registered person to notify particular people of an inspection.

Clause 49 - Report of inspections

105.     This clause sets out requirements for the Chief Inspector to report in writing on any early years provision which he inspects and makes provision for the distribution of copies of the report. Subsection (4) applies subsections (2) to (4) of section 11 of the Education Act 2005. This provision allows the Chief Inspector to publish the report by electronic means and provides for reports to be privileged for the purposes of defamation unless they have been made with malice.

Clause 50 - Interpretation of Chapter 2

106.     This clause defines the meanings of terms used in Chapter 2 of Part 3.

Chapter 3

Clause 51 - Requirement to register: later years childminders for children under eight

107.     This clause prohibits persons from providing later years childminding for children up to the age of 8 unless they they are registered on Part A of the general childcare register as childminders. There is provision for the Secretary of State to exempt providers from the requirement to register by order.

108.      Subsection (4) sets out what happens where a person who should register as an early years childminder under subsection (1) fails to do so. In such cases the Chief Inspector may serve an enforcement notice on that person and that person may then be prosecuted if they continue to childmind without registering (see subsection (7)). The notice will stay in effect until revoked by the Chief Inspector.

Clause 52 - Requirement to register: other later years providers for children under eight

109.     This clause sets out the requirement for registration for other later years provision for children up to the age of 8. Such provision must be registered in respect of specified premises.

110.      Subsection (2) specifically exempts from this requirement early years provision made at a maintained school, non-maintained special school or independent school where that provision is made by the school and one or more pupils attends it. Subsection (3) makes provision for the Secretary of State to exempt providers from the requirement to register by order. It is an offence to provide non-exempt later years provision without registration.

Clause 53 - Applications for registration: later years childminders

111.     This clause deals with applications for registration as a later years childminder for children under 8. It requires applicants to give certain information to the Chief Inspector and pay a fee. The Chief Inspector must register the person if they are not disqualified from registering and if he is satisfied that they will meet and continue to meet registration requirements. A person may be disqualified from registration by regulations made under clause 74. These will be used to disqualify, for example, persons on the list kept under section 1 of the Protection of Children Act 1999 (c.14). Registration requirements may include requirements relating to the premises on which the provision is to be provided.

Clause 54 - Applications for registration: other later years providers

112.     This clause deals with applications for registration by other later years providers (who are not childminders) for children under 8. Applicants are required to give certain information to the Chief Inspector and pay a fee. As with applications for childminding, the Chief Inspector must register the person if they are not disqualified from registering and if he is satisfied that they will meet and continue to meet registration requirements.

Clause 55 - Entry on the register and certificates

113.     This clause requires the Chief Inspector to enter successful applicants on Part A of the general childcare register and give them a registration certificate. Should changes in circumstance mean that the certificate needs to be changed then the Chief Inspector must give the registered person an amended certificate. The Chief Inspector must also provide a copy of lost or destroyed certificates on payment of a fee.

Clause 56 - Special procedure for registered early years providers

114.     This requires the Chief Inspector, on request, to register a person in Part A of the general childcare register if he is already registered as an early years provider in the early years register.

115.     For providers other than childminders this only applies where the care for over 5s is being provided on the same set of premises as the care in respect of which the provider is registered in the early years register.

116.     The usual rules about amendment and loss of certificates apply to certificates granted under this special procedure (see subsection (3)).

Clause 57 - Conditions on registration

117.     This clause deals with conditions on registration for compulsorily registered later years providers. It allows the Chief Inspector to impose any conditions he thinks fit at any time and to vary or remove any conditions at any time. Conditions may include (but are not limited to) conditions to ensure that providers comply with regulations. It is an offence for a person not to comply with conditions on his registration.

Clause 58 - Regulations governing activities

118.     This clause allows the Secretary of State to make regulations governing the activities of compulsorily registered later years providers. These may cover issues such as the welfare of children, suitable persons and premises, complaints procedures and the provision of information. The Chief Inspector may take into account failure to meet requirements imposed by the regulations. Regulations may also be made making breach of requirements imposed by the regulations an offence.

Clause 59 - Inspections

119.     Clause 59 requires the Chief Inspector to inspect compulsorily registered later years provision at any times when the Secretary of State requires it. Such a requirement may relate to particular later years provision or to later years provision provided at a particular class of premises. The clause also gives the Chief Inspector power to inspect when he considers it appropriate to do so.

Clause 60 - Report of inspections

120.     Clause 60 means that after an inspection of compulsory registered later years provision the Chief Inspector may if he decides that it is appropriate to do so write a report. The report may cover matters such as the quality and standards of the later years provision and its contribution to well-being of the children being looked after. Subsections (2) and (3) deal with publication of the report.

Chapter 4

Clause 61 - Applications for registration on the general register: childminders

121.     Clause 61 deals with applications for voluntary registration by childminders. This applies to childminders who are not required to register, for example, because they only care for children aged 8 and over or because they are exempt from registration by virtue of an order made by the Secretary of State under clause 33(2) (which deals with early years childminders) or clause 52(2) (which deals with later years childminders). Such childminders are able to make an application to register on Part B of the general childcare register.

Clause 62 - Applications for registration on the general register: other childcare providers

122.     This clause makes provision for the voluntary registration of childcare providers (other than childminders) who are not required to register. It is similar to the provision made by clause 61 for childminders but applications must be made in respect of particular premises.

Clause 63 - Entry on the register and certificates

123.     Clause 63 requires the Chief Inspector to enter successful applicants on Part B of the general childcare register and to give them a registration certificate.

Clause 64 - Special procedure for persons already registered

124.     Clause 64 requires the Chief Inspector, on request, to register on Part B of the general childcare register any person who is already registered either as an early years provider on the early years register or as a later years provider on Part A of the general childcare register. For providers who are not childminders, this only applies where the care which is not required to be registered is being provided on the same set of premises as the care which is registered.

 
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Prepared: 8 November 2005