Fourth Report of Session 2021–22 Contents

Appendix 1

S.I. 2021/432

Early Years Foundation Stage (Miscellaneous Amendments) and Childcare Fees (Amendment) Regulations 2021

1.In its letter to the Department for Education of 19 May 2021, the Joint Select Committee requested a memorandum on the following points

Explain (1) how the requirement in section 42(6C) of the Childcare Act 2006 to specify the manner of publication of delegated supplementary provisions is complied with, and (2) where it is intended that those provisions be published.

2.This memorandum has been prepared by the Legal Adviser’s Office in the Department for Education.

3.Section 42(6C) of the Childcare Act 2006 provides: “Any delegated supplementary provisions, on being published as specified in the order under which they are made, are to have effect for the purposes of this Chapter as if made by the order”. The Department’s interpretation of that section has been that any delegated supplementary provisions (DSP) published will have the same effect, i.e., the same legal force, as if they were made by the Order itself.

4.We acknowledge that in view of the fact that a delegated supplementary provision document is treated as if part of the Order made under section 39(1)(a), section 44 applies to it, including the publication requirement at sub section (1), and thus the manner of publication should have been specified. We will amend the Order at the next available opportunity.

5.In the meantime, we would like to reassure the Committee that Ofqual and other interested persons are and were aware of how and where the DSP would be published as Gov.uk is the usual online platform where these sorts of provisions are published.

6.The Standards and Testing Agency (STA) published the DSP for the RBA in May 2021 in the annual statutory guidance to schools on assessment and reporting arrangements for the RBA here: 2021 Reception baseline assessment: assessment and reporting arrangements. This sets out schools’ legal duties on administering the assessment and reporting of assessment information for pupils.

7.An email was sent to schools, local authorities and stakeholders by the STA to alert them to the publication of the DSP (the Assessment and Reporting Arrangements) via an Assessment Update dated 6 May 2021, which was sent early on 7 May 2021.

Department for Education

25 May 2021




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