Regulation of Early Education and Childcare :6

Regulation of Early Education and Childcare

Chapter 4: How to Regulate

Background

1. This chapter looks at how regulation of childcare is currently organised and whether any changes are desirable to improve either effectiveness or efficiency. At a conceptual level regulatory bodies in the childcare field currently undertake three main functions:

registration: undertaking initial checks prior to provision being allowed to operate;
inspection: visiting provision once set up to see whether standards are adhered to or to form a more general view on the experience offered to children; and
development support: providing advice and encouragement towards the enhancement of existing provision.

Of the three concepts, registration and inspection seem inherent to any regulatory system in this field. Development support is less so: childcare and early education providers can receive advice, training and encouragement on their development from a variety of sources including national organisations and outside training providers. There is a good deal of diversity in the way in which development work is carried out at present. Inspection can identify areas for improvement and thus the need for development support. In some areas inspection staff may work with managers of facilities outside the formal inspection to achieve the desired improvements. In others support for quality improvement may be provided separately. This continuing support, however provided, is more likely to deal with the child's experience of education and care than measurable inputs.

2. As set out in Chapter 2, regulation is at present organised in different ways depending mainly on whether provision is

local authority or independent school education, or public, private and voluntary sector care -

but

private and voluntary sector care providers who provide pre-school education as an integral part of care may additionally be subject to education type regulation.

3. With the extension of pre-school education some problems arose from having two separate systems for regulating early education and childcare. Particularly burdensome for private and voluntary providers offering voucher-supported pre-school education was the need for separate annual inspection visits by local authorities (for childcare provision) and by HM Inspectors (for education).

4. With the move away from vouchers, however, HM Inspectors' inspection visits will now be on a more extended cycle, similar to that for other local authority education. Private and voluntary providers commissioned by local authorities to provide pre-school education will, of course, have to meet the quality assurance requirements of local authority education departments. At the moment some local authorities combine this quality assurance with regulation under the Children Act but not all do.

5. In looking at how to regulate there are three main areas for attention:

the organisational structure for regulation;
whether regulation is governed mainly by statute or by guidance; and
the balance between regulation focused on outputs and on inputs.

Organisational Structure

6. As set out above, there are 3 main components to regulation: registration, inspection and development.

7. We believe that registration and inspection should be carried out separately from development support. That is not to say that the registration or inspection process should not include helpful advice or tips. It does, however, mean that those responsible for registration and inspection should not be so closely involved with a provider that it is difficult for them to undertake inspection objectively. For example, if inspection indicates a number of areas for improvement, and those responsible for the inspection report are closely involved in development work with the provider to implement the report's findings, there is a risk that it may be difficult on a later inspection visit to assess objectively how far the provider has now achieved the standard set.

8. Local authorities are also providers of childcare at their own hand, in part to meet statutory responsibilities for children in need, as defined in 1989 Act. The combination of roles as regulator and provider poses further problems. Provider pressures can, potentially, conflict with and compromise regulatory activity. Concerns may also arise as to whether local authority and other provision are treated equally. Some local authorities have addressed this issue by placing the functions of provider and developer, and of registrar & inspector, in different sections or departments within the authority. This creates so-called "Chinese walls". One possibility would be to stipulate either in guidance or statute that this practice should be general. It would, however, still leave the local authority as ultimately responsible for both provision and regulation. The Government therefore intends to put responsibility for the carrying out of registration and inspection of childcare provision in a separate, independent body. In the White Paper Aiming for Excellence the Government has set out its intention to create a new regulatory body, the Scottish Commission for the Regulation of Care, which, in addition to registration and inspection of residential and home-based social care, will also regulate non-residential childcare.

9. The new regulatory body will be responsible for registration of new childcare provision and for annual (and where appropriate, more frequent) inspection of such provision. The Government sees a continued role for HM Inspectors in relation to childcare provision that embraces publicly funded pre-school education. HM Inspectorate will continue to inspect publicly funded pre-school education provision in all settings on a cycle of some years. This role for HM Inspectors will enable them to ensure that new provision is suitable for delivery of the pre-school curriculum and that its delivery makes desired links with later education in schools. Given the lesser frequency of inspection by HM Inspectors we do not believe that this will be a significant burden for providers. Of course, all childcare for children below school age should promote educational development. This may not involve following a specific curriculum but should entail suitable and varied stimulation to the benefit of the child's personal and social development. The new regulatory body will take this into account in assessing the overall quality of care, as local authorities are asked to do at present.

10. There will still be an essential role for local authorities in providing development support and promoting quality assurance. As provider or purchaser local authorities should ensure that care is of good quality and promote continuous improvement. As members of Childcare Partnerships, local authorities are also asked to provide support to all providers where it is necessary and additional funding is being provided from 1998/99 for this. Local authority staff (or staff from other bodies contracted by local authorities) will have an important role in helping providers to follow up inspection recommendations while not being compromised by carrying out both the supporting and inspection roles.

Role of National Organisations

11. As set out in chapter 2, a number of national organisations run or are developing quality assurance schemes. These organisations are voluntary in nature and have varying coverage of their client groups. It therefore seems inappropriate to give them a lead role in regulation. But it might be possible to give an enhanced role to such arrangements in any regulatory framework. There might, for example, be scope for the Scottish Commission for the Regulation of Care to take successful registration with such a scheme as satisfying some of the regulatory requirements. This would need to be subject to some kind of sample checking and there would need to be clear standards which schemes would need to meet in eg frequency of inspection visits and the criteria which they set for registrations. At present, however, such quality assurance schemes are usually designed as additional to registration with the local authority or a means of preparing for inspection. Do consultees see a role for national organisations' quality assurance schemes in regulation or should they be seen as additional to regulation?

Statute and Guidance

12. Any regulatory system needs a basis in statute. But the degree to which it is set down in statute can vary. For local authority education provision the Schools Code and Schools Premises Regulations set down extensive regulatory standards in secondary legislation. For other provision the Children Act 1989 gives local authorities their regulatory duty but relevant standards are set out in non-mandatory Scottish Office guidance.

13. Setting standards down in statute can be expected to promote uniformity and ensure minimum standards are reached but gives little scope to adapt standards to specific circumstances. Using guidance allows flexibility but with the possibility of desired minimum standards not always being met.

14. Investigating the present regulatory scene suggests a less simple contrast. While local authority education provision has extensive statutory regulations, it is not clear how far these are observed. On the other hand, Scottish Office guidance to local authorities under the Children Act is not mandatory but there do not appear to have been problems from minimum standards not being observed. Problems have arisen more from local authorities imposing higher standards than set out in guidance. In some circumstances - for example care for children with special needs who may require higher staff ratios - higher standards are laudable. When applied as a matter of course they may risk being disproportionate and disadvantage particular providers.

15. There are, then, problems with over-emphasis on both statute and on guidance. The difficulties of changing statutory regulations can lead to them becoming ossified and ignored - although opportunities for revision of legislation may be greater with a Scottish Parliament. The recently published Education White Paper - Targeting Excellence: Modernising Scotland's Schools - makes clear that Ministers are committed to full consultation on the Schools (Scotland) Code with a view to general deregulation.

16. With the move towards an independent regulatory body, the possibility of guidance giving rise to application of diverging standards to similar provision should be much diminished. Particularly taking that into account, we believe that proceeding mainly through guidance is the best approach. This should allow regulation more easily to respond to individual circumstances. In setting out guidance, however, it might be made clearer than before that divergence from this should be in response to the individual circumstances of particular provision rather than a blanket policy.

17. Against the intention to establish an independent regulatory body, do consultees agree that it is right to focus on guidance?

Inputs and Outputs

18. Inspection can look at inputs or outputs or, more typically, a combination of these. Inputs that are looked at in the context of childcare and early education include such things as space ratios, adequacy of accommodation in terms of toilet provision etc, and numbers and qualifications of staff. Outputs, ie the quality of experience provided, can be harder to measure. Outputs, in this sense, covers not some 'end product' at the end of a childcare or pre-school education session but more the quality of interaction between the child, the other children, the staff, and opportunities provided for the child's stimulation and enjoyment. A child's development can of course be measured but such outcomes will not result exclusively from the care or education environment.

19. The Department is currently working to produce a guide entitled How Good is our Pre-school Centre, which will make it easier for providers to measure outputs against a range of performance indicators. In turn, this may make it easier for regulators to benchmark performance. Where children spend the greater part of their waking hours in an institutional setting it seems particularly important to judge whether their overall experience is satisfactory. However, it is questionable how far one can prescribe output standards, which should be met by all providers. For example, one would not want to discourage the establishment of parent led provision which cannot initially meet output standards but which aspires to meet these over a period of time. Generally we believe that emphasis should be placed more on continuous improvement, with regulation requiring attention to outputs without prescription of minimum standards but pointing specifically to registration being refused where provision is inadequate. Where, however, providers seek registration for provision of publicly funded pre-school education, specific output standards, linked to the curriculum, will continue to be required.

20. The type of experience looked for in after school care will be different from pre-school, as children will be involved separately in education as opposed to a pre-school experience that achieves educational objectives through play. Also, valid experiences for out of school care will vary between children. Some may want to play sports; some may look for more mental stimulation; others may simply want to relax for an hour or two after a demanding school day. School age children will also have more ability than those in a younger age group to voice their own opinions and wants. It may therefore be acceptable for inspection at this age level to focus to a greater degree on inputs, on the quality of relationships in a setting, and on whether attempt is taken to take account of children's preferences, and to a lesser degree on specific set outputs. This would not preclude local authorities and Local Childcare Partnerships encouraging pursuit of quality assurance schemes - also taking account of children's views - or making this a condition of funding.

21. Do consultees agree that, as at present, regulation should look not just at measurable inputs but at the wider experience of the child? In doing so can or should specific standards be prescribed? Does guidance need to deal separately with out of school care?