Small Business, Enterprise and Employment Bill

Written evidence submitted by Pre-school Learning Alliance (SB 61)

1 About the Pre-school Learning Alliance

The Pre-school Learning Alliance is the largest and most representative early years membership organisation in England. A registered educational charity, it also provides high quality affordable childcare and education to support children and families in areas of deprivation throughout the country.

The Alliance represents 14,000 member settings and supports them to deliver care and learning to over 800,000 families every year. We deliver family learning projects, offer information and advice, produce specialist publications, run acclaimed training and accreditation schemes and campaign to influence early years policy and practice.

2 Summary

2.1 This written evidence concerns Part 5, Clause 64 of the bill: the proposed extension of the exemption from the requirement to register as early years provider to schools taking children agreed two and over – and Part 2, Clauses 15 - 17: the proposal to introduce a Small Business Appeals Champion or ‘reviewer’ for each national non-economic regulator.

2.2 We are firmly opposed to the former proposal, as we believe that this will have a detrimental impact on early learning experiences, as outlined below. We broadly support the latter proposal insofar as it may assist early years providers when appealing against Ofsted inspection judgements– however, we have serious reservations about the limited powers of the reviewer as the role is currently proposed.

3 Part 5, Clause 64 - contextual notes

3.1 There are two important, but distinct, key issues related to this proposed change. The first is whether it is appropriate for schools to take children as young as two. The second is whether schools should have to register separately to take children aged two. As schools are already permitted to take children aged two (providing they register separately), only the latter point is directly relevant to discussions on clause 64. As such, arguments such as ‘Allowing schools to take two-year-olds will make it easier for parents with older children as they can be dropped off and picked up from the same site’ are based on a false premise, as schools are already ‘allowed’ to take two-year-olds. The question at hand is whether or not they should be required to register separately to do so. It’s important that this distinction is clear when discussing this proposal.

3.2 It is also important to be clear what we are referring to when we say ‘schools’. Primary school nursery classes and standalone nursery schools tend to be discussed as if they are one and the same. This is not the case. Nursery schools specialise specifically in delivering care and learning for under-fives and have early years specialist headteachers. This is not true of primary schools. It is particularly important to bear this distinction in mind when discussion the quality of the different types of provision. The performance of nursery schools is often incorrectly ascribed to primary school nursery provision. According to the Ofsted Early Years Annual Report, published in April 2014, there are over 16,000 maintained schools providing early years care, and of these, 94% are primary schools while just 3% are standalone nursery schools. As such, we believe that discussions on the suitability of schools with regard to the provision of care and learning for two-year-olds should focus on primary schools as they make up the vast proportion of maintained early years provision. All references to schools in this evidence submission should therefore be taken as references to primary school nursery provision.

4 Part 5, Clause 64 – Pre-school Learning Alliance evidence

4.1 We are fully opposed to the proposal to allow schools to take children aged two without being required to register separately with Ofsted.

4.2 There is a tendency to talk about two-year-olds as if they were essentially small three-year-olds. This is a flawed and potentially dangerous misunderstanding of child development. The time between turning two and turning three is a pivotal and unique period of early growth; a time during which most children experience rapid development in their language, cognitive and motor skills.

4.3 It is vital, therefore, that any school that wishes to take two-year-olds be assessed on their ability to provide appropriate care and early learning opportunities for this particular age group, in an age-appropriate physical environment, through a separate Ofsted registration or inspection process. It is not simply a case of ‘extending their existing offers downwards’ or ‘reducing a bureaucratic burden’ as stated by the Department for Business, Innovation and Skills in its Small Business, Enterprise and Employment Bill Childcare and Schools factsheet (page 2). If a school views the requirement to demonstrate how it is meeting the specific needs of two-year-olds as a ‘bureaucratic burden’, we would strongly argue that they are not suitable to provide this care.

4.4 According to the Childcare and Early Years Providers Survey 2013, published in September 2014, two-year-olds only account for 2% of all children attending primary schools with nursery provision. Similarly, the Provision for children under five years of age in England, released in June 2014, revealed that, as of January 2014, only 1% of funded (i.e. eligible for the free entitlement) two-year-olds were in primary school nursery settings (in comparison, 96% were in PVI settings). This clearly demonstrates that, as a provision type, schools have extremely limited experience in providing care and learning for this age group. We would argue that, for this reason, it is even more important that the requirement for schools to register, and be inspected, separately if taking two-year-olds remains in place.

4.5 We reject the argument that Clause 64 will "help improve the quality of childcare [as] research shows that having a teacher-led provision has the biggest influence on quality of that provision", as stated by the Small Business, Enterprise and Employment Bill Childcare and Schools factsheet. Firstly, much of the evidence on the impact of qualifications on early years outcomes relates to children aged three or over and so should not be automatically extrapolated to younger children. It should also be noted that the Initial Teacher Training criteria, as published by the National College of Teaching and Leadership, states that the foundation stage age range is from three to five years. This means that most trainee teachers, though broadly defined as being ‘highly-qualified’, will not be trained to meet the specific needs of two-year-olds. The suggestion, therefore, that schools can offer a higher quality of care for children of this age because school-based provision is more likely to be graduate-led is fundamentally flawed.

4.6 The Department for Education’s Two-year-old demonstration project in schools: baseline survey – which surveyed 49 schools which were either offering or considering offering two-year-old provision – found that 34% of the participating schools had reported challenges around identifying/allocating funding for their current provision, while 37% had voiced concerns about the future financial stability of offering places. It is important, therefore, that only those schools committed and able to invest in suitable provision for two-year-olds are permitted to offer such provision, and we believe that separate registration is a vital step in ensuring this.

5. Part 2, Clauses 15-17

5.1 We are broadly supportive of the proposal to appoint a ‘reviewer’ or Small Business Appeals Champion. We believe that having an independent body to support early years providers who are appealing against – or making a ‘complaint’ about, as is the official Ofsted terminology – an Ofsted inspection or judgement is much needed. However, we believe that scope of the reviewer’s proposed duties as currently proposed is far too limited to have any notable positive impact on the current complaint process.

5.1.1 It should be noted that, as highlighted in the Department for Business, Innovation and Skill’s report, Review of enforcement in the childcare sector: Focus on Enforcement regulatory reviews Ofsted do not currently provide childcare providers with a separate channel through which to appeal an Ofsted judgement (as opposed to complaining about an inspector’s conduct). Both such grievances are termed as ‘complaints’ and must be filed through the same ‘complaints process’. We believe that this is a flawed approach and that a formal, separate appeals process should be introduced.

5.2 At present, formal complaints about early years inspections are, at the first stage, investigated by an investigating officer from one of the two third-party inspection contractors Tribal or Prospects, the very same companies who will have carried out the original inspection. This has understandably led to serious concerns about the lack of objectivity within this part of the process, as these companies are essentially investigating themselves.

5.3 The next step in the formal complaints process, as advised by Ofsted, is to file a complaint with Independent Complaints Adjudication Service for Ofsted (ICASO). However, ICASO can only look into complaints regarding: failure to follow procedures; failure to respond in a timely manner; discourtesy; failure to apologise or accept mistakes; or inspector/staff conduct. It cannot review judgements or decisions made by Ofsted. It should also be noted that by the time providers are able to seek an independent assessment of their situation from the adjudicator, significant damage may have already been done to their reputation and business. ICASO’s powers following a review are also limited. It can provide recommendations, advice and guidance to Ofsted on how to improve the complaints handling process; however, Ofsted is not required to act on these recommendations (in 2011-2012, Ofsted acted less than three-quarters of ICASO recommendations). ICASO also cannot overturn inspection judgements.

5.4 We are concerned that the reviewer’s duties and powers, as currently proposed in the Bill, do not differ in any significant way from those of ICASO. ICASO already produce an annual report which reviews the way in which Ofsted has handled complaints, and includes recommendations, and this would seem to replicate the proposed role of the reviewer as outlined in subsection 2. As such, we would call for the subsection 5 to be amended to allow the reviewer to address, make recommendations on and, where appropriate, make overriding decisions on individual cases. It may be that such an approach is not appropriate for all national non-economic regulators and so separate supplementary guidance for the role, duties and powers of the reviewer in relation to childcare businesses in particular may be necessary.

5.5 Equally, just as it is vital that early years inspectors have an in-depth understanding of early learning and child development, it is important that any reviews of early years inspections are undertaken by individuals with a knowledge and understanding of the provision of early care and learning. As such, we also propose that, with regard to Ofsted inspections of childcare providers, the reviewer be required to review inspection judgements in conjunction with one or more independent sector representatives.

5.6 We believe that it is vital that, with regard to the current Ofsted complaints process, the reviewer be given the power to review and where necessary overturn decisions on individual cases for a number of reasons, as outlined below.

5.6.1 Only a tiny proportion of childcare providers are successful in getting an Ofsted judgement overturned after going through the current complaints process. An Alliance Freedom of Information request filed in September 2013 found that, out of 990 complaints made by childcare providers against Ofsted between September 2012 and August 2013, only seven resulted in an improved Ofsted grade.

5.6.2 There are more questions being raised about the quality and consistency of early years inspections than any other type of Ofsted inspection. The Ofsted Annual Report and Accounts 2013-2014, published in June 2014, revealed that 66% of formal complaints against Ofsted and 72% of internal review complaints come from early years providers. Given that early years providers only account for around half of Ofsted inspections, this is disproportionately high.

5.6.3. Recent changes to local authority statutory guidance have meant that a childcare provider’s Ofsted judgement is now a key factor in whether they can offer funded early education for two-, three- and four-year-olds. This means that if a provider is unfairly downgraded, they are at risk of losing their free entitlement funding as a consequence. For this reason, it is imperative that flawed inspection decisions are rectified as soon as possible and we believe that a reviewer with the power to review individual decisions would be crucial to this. It should be noted that because of the significant negative impact that an unfair inspection judgement can have on the viability of a childcare business, failure to implement a fair, transparent and inclusive inspection appeals process will inevitability result in an increase in formal legal challenges, including judicial reviews.

5.7 Despite the fact that the reviewer is termed a ‘Small Business Appeals Champion’, it is important that all childcare providers, regardless of size, benefit from the introduction of the reviewer. As such, we would request that it be made clear, either in the Bill itself or in supplementary guidance, that this is the case.

October 2014