Regulation of Early Education and Childcare

Chapter 2: Why Review the Present Regulatory Frameworks?

1. The preceding chapter set out why childcare and early education should be subject to regulation. Regulatory frameworks exist at the moment but the time is ripe to review these. Pre-school education and childcare have recently gone through major changes.

2. In pre-school education the vouchers system has been abolished and a substantial expansion of provision is underway. Investment of £138 million following the Comprehensive Spending Review will build upon the existing commitment to a quality part-time pre-school education place for every child in the pre-school year by extending this to all three year olds by 2002.

3. The Government is aiming at a massive expansion of childcare as set out in the Green Paper Meeting the Childcare Challenge: A Childcare Strategy for Scotland. The Scottish Office will be investing an extra £91 million over the years 1999-2002; the new Working Families Tax Credit from October 1999 will, through its childcare element, bring in around a further £25-30 million annually into childcare in Scotland; and the New Opportunities Fund will be making £25 million in lottery resources available in Scotland to help start and develop out of school childcare over the years 1999-2003.

4. The present system is showing some signs of stress - in terms of coping with the volume of casework and as a result of anomalies caused by sometimes very similar provision being subject to different systems of regulation. There may also be some providers who should be registered and regulated but are not, if only through ignorance of the requirements. Although not considered in this paper, there will be a clear need to publicise any new arrangements. Recent and proposed expansion makes review more urgent.

5. This consultation paper looks at how the present framework could be improved and different elements better integrated and made more consistent. It takes account of the Early Education and Day Care Review published by the Better Regulation Task Force. It raises similar issues to the Consultation Paper on the Regulation of Early Education and Day Care published jointly by the Department for Education and Employment and the Department of Health. But that publication dealt with England. In Scotland there are differences in the nature of pre-school and childcare provision and in regulatory frameworks. We need a regulatory system appropriate to the pre-school education and childcare we expect and want to achieve and develop in the 21st century.

Current Regulatory Frameworks

Childcare (day care and childminding)

6. Most providers of formal, non-residential childcare for children under the age of 8 are required to register with the local authority under Part X of the Children Act 1989. The registration requirement applies to day nurseries, crèches and playgroups and similar establishments where children are looked after for more than two hours in the day for 6 days or longer period in any year. It also extends to childminders working in their own home who look after children under 8 for reward. The Children Act registration provisions also apply to nursery education in various settings, though not in schools which are local authority run or in independent schools registered under the Education Act 1980 (see paragraphs 14-18 below). Those required to register under the Children Act are visited prior to registration and are subject to at least one inspection per year thereafter.

7. Informal care provided by relatives, care provided unpaid by friends and care within the parental home (of not more than 2 families) by nannies, au pairs or other employees is not subject to registration or inspection.

8. The Children Act 1989 sets out the framework for registration and inspection and this has been supplemented by guidance from The Scottish Office.

9. Guidance covers a number of aspects including: staffing, in terms of adult:child ratios for different age ranges of children and qualifications; space and other standards in premises; applicants for registration or the persons providing the childcare being 'fit persons' for this role; and criminal records checks.

Different staff and space standards are set out for childminders providing care in a domestic setting on the one hand, and other provision in non-domestic settings on the other.

10. Scottish Office guidance is advisory with local authorities having discretion on how they exercise their registration and inspection function. This has led to some variation between standards either through different interpretations of what guidance means or through decisions to apply different standards from those recommended in guidance. The latter includes responses to the circumstances of individual providers but also some authorities' decisions to apply different standards right across their area. In general, local authorities, where differing from the guidance, have done so by imposing more rather than less onerous conditions on matters such as adult: child ratios. These more onerous standards may not be applied equally across all types of provision.

11. As well as checking whether provision complies with staff and space ratios etc., local authorities are able to consider the overall standard of care provided. Indeed the guidance encourages this and the provision of associated advice. The extent to which this happens may vary from authority to authority.

12. As explained, local authorities have a regulatory role in relation to private and voluntary sector providers of childcare and pre-school education. In addition, almost all local authorities will, to varying extents, commission (purchase) pre-school education provision from such providers to meet the Government's commitment to free part-time places. In these instances the local authority may set particular conditions over and above the standards set through regulation under the 1989 Act.

13. Private and voluntary providers may themselves choose to pursue various quality assurance approaches to help ensure that they meet or exceed regulatory requirements and to demonstrate this to parents. National organisations such as the Scottish Independent Nurseries Association, the Scottish Pre-school Play Association and others have developed quality assurance systems for their members. These are voluntary and will usually involve a fee. The subjects covered by such schemes can be quite wide and include both input and outputs. For example, the Scottish Independent Nurseries Association's focuses on six areas of quality: learning environment, social experience, staffing, partnerships, management, and accommodation and resources.

Pre-school education and local authority schools

14. Local authority nursery schools are subject to a different regulatory system. Local authorities currently have a power, rather than a duty, to provide pre-school education under section 1(2) of the Education (Scotland) Act 1980. The delivery of education in local authority nursery schools and classes is governed by The Schools Code 1956 (as amended). These set out adult:child ratios and the types of qualifications which staff should possess. The Schools Premises (General Requirements and Standards) (Scotland) Regulations 1967 (as amended) set out space and other standards for accommodation used for such education.

15. Local authorities have their own quality assurance arrangements for their education provision. How these are carried out is ultimately at authorities' discretion but HM Inspectors of Schools work closely with authorities to help their development. Local authority nursery schools are also subject to periodic inspection by HM Inspectors of Schools in the same way as any other education delivered in local authority schools.

16. Although the statutory requirements of the Schools Code and Schools Premises Regulations focus on inputs such as staff ratios and space standards, inspection by HM Inspectors of Schools is much broader based, focusing on outputs in terms of children's educational experience. Indeed, observation of the Schools Code and Schools Premises Regulations is not routinely commented although, if staff ratios or poor accommodation were thought to be having an adverse effect on the educational experience, this would be pursued.

17. In looking at outputs HM Inspectors will form a judgement on the child's overall experience but as part of this will examine whether certain specific standards have been met. The full range of areas at which they look are set out in A Curriculum Framework for Children in their Pre-school Year, together with examples of specific aspects that they might look at within each broad area. Examples of the latter include: whether children learn to recognise some familiar words or letters such as the initial letter in their name; whether children listen with enjoyment and respond to stories, songs, music, rhymes and other poetry; whether children recognise patterns, shapes and colours in the world around them.

HM Inspectors do not use such standards in a 'checklist' fashion but will rather try to form an overall judgement.

Out of school care

18. It should be noted that where bodies other than the school itself use school premises for non-residential childcare for children aged under eight, this is regulated under the Children Act 1989. For example, where an after-school club is run on school premises by a voluntary body such as a management committee of parents, this comes under the 1989 Act.

Independent schools

19. A clear distinction exists between private nurseries that are registered under the Children Act 1989 and nursery departments of independent schools. Independent schools are required by section 98 of the Education (Scotland) Act 1980 to be registered with the Secretary of State. They are not subject to any prescribed standards in relation to space and staff requirements. They are subject to inspection by HM Inspectors of Schools and the Secretary of State has powers under section 99 to serve a notice of complaint if he is satisfied that a school is objectionable on any or all of a number of grounds, including that: efficient and suitable instruction is not being provided at the school, having regard to the ages and sex of pupils; school premises are unsuitable for a school; accommodation provided at the school premises is inadequate or unsuitable, having regard to the number, ages and sex of pupils; the proprietor of the school or any teacher employed therein is not a proper person to be the proprietor of an independent school, or to be a teacher in any school, as the case may be.

A notice of complaint can ultimately lead to a school being struck off the Register of Independent Schools.

20. When an application for registration as an independent school is made, applicants are given provisional registration and provided with detailed information on registration requirements, including advisory information on class sizes and space requirements in force in the state sector. Provisionally registered schools are then inspected by HM Inspectors of Schools to assess whether they are suitable for final registration. They normally visit a provisionally registered school around a year after it first opens.

21. Although there are no prescribed staff or space requirements, independent schools are expected to make reasonable provision to ensure that efficient and suitable instruction can be provided. In practice, HM Inspectors use staff ratios and space standards in force in the state sector, where available, as benchmarks to assess independent schools' performance as part of their General Inspection Programme and to provide advice on such matters as optimum rolls.

22. Education provision by independent schools is thus subject to regulation that is analogous to that for local authority schools. Where, however, independent schools have childcare - in some cases for very young children - amongst the provision that they offer, this is not subject to regulation.

Comparison of systems

23. The following points merit further comment: All of the different systems make some provision for regulation of inputs (staff and space ratios etc) and outputs (overall experience for the child). Minimum standards of inputs are set in statute in the local authority education sector but in guidance for most private and voluntary provision and for local authority provision of childcare outside nursery schools. Inspection of education provision by HM Inspectors focuses on outputs and all judgements will include attention to certain specified areas. Inspection of childcare provision under the Children Act 1989 includes attention to outputs but areas for attention are not prescribed. Insofar as guidance on inspection under the Children Act 1989 looks at outputs, this is more in the context of how judgements might be formed rather than setting out specific standards. Issues for judgement might include assessing the individual attention children receive, variety of activity, and quality of relationships between children. The differences between input standards are not always very great. Also, the balance of stringency does not always lie in the same direction. For example, local authority pre-school education provision has a minimum pupil:staff ratio in local authority nursery schools/classes of 1:10, i.e. one teacher (with a special qualification to act as a principal teacher of a nursery school or a teacher in a nursery school) and at least one nursery nurse/helper for every class of 20 children. Similar private or voluntary sector provision has a minimum adult:child ratio of 1:8; with at least half of the staff to be qualified but with no requirement for a qualified teacher. Differences in input standards do not necessarily reflect what happens in reality. Local authority education provision has a minimum staff ratio of 1:10. As at September 1997 the average ratio for Scotland was 1:7.2. although this will hide variations at school level. Only four local authorities had an average above 1:8 but there will be some differences in how ratios are calculated, including whether the ratio is an average over the day or in existence at all times. This compares to the minimum ratio for private and voluntary provision under the Children Act guidance of 1:8. Some local authorities require staff ratios or the holding of qualifications above the minima set out in guidance. Sometimes this may be applied generally; in other cases it relates only to authorities' requirements when commissioning nursery education from private and voluntary providers.

Conclusion

24. This chapter has set out the nature of current regulatory frameworks. The following chapters look at whether any changes might make this system more effective.