Education Act 2002

Education Act 2002

2002 CHAPTER 32

Commentary on Sections and Schedules

Part 9 – Childcare and Nursery Education

Childcare

Section 152 and Schedule 13: Regulation of child minding and day care

307. Schedule 13 amends Part 10A of and Schedule 9A to the CA. Part 10A of the CA was inserted by section 79 of the Care Standards Act 2000 and transferred the function of regulating persons who act as child minders or who provide day care from local authorities to HMCI in England and the NAW in Wales. The amendments proposed include:

• Consent to checks on suitability: The registration authority (HMCI in England and the NAW in Wales) is required under the CA to determine whether a person is qualified for registration as a child minder or a provider of day care. A person is so qualified if he is suitable to look after children under the age of eight and if his “associates” are suitable to look after or (as the case may be) to be in regular contact with children under the age of eight. “Associates” in this context means persons who look after children on premises on which child minding or day care takes place, persons who live or are employed on the premises (in the case of child minding) or who live and work on the premises (in the case of day care). As part of this assessment of a person’s suitability, the registration authority will need to carry out certain checks (eg criminal record checks) on individuals. This provision permits the registration authority to treat failure by a person or his associates to give consent to a check as a ground on which it may conclude that the person in question is not suitable and consequently that a person is not qualified for registration.

• Suspension of registration: An amendment to section 79H of the CA will ensure that a person whose registration is suspended under regulations made by virtue of that section, but who continues to operate as a childminder or day care provider, will, in the absence of reasonable excuse, be committing an offence in the same way as a person who acts as a childminder or provides day care without being registered.

• Rights of appeal in relation to registration: An amendment to section 79M of the CA permits the matters which may be brought before the tribunal established under section 9 of the POCA (the Care Standards Tribunal (CST)) to be extended. This provision gives the Secretary of State and the NAW the power to prescribe in regulations additional decisions arising under Part 10A which may be appealed to the CST. For example, decisions on the issue of certificates of suitability for persons working with children over the age of seven under section 79W of the CA cannot be appealed to the CST at present, but would be able to be included through regulations made under the proposed provision.

• Inspections by HMCI: An amendment to section 79Q of the CA allows the inspections to be carried out either by the Chief Inspector (ie Ofsted) directly as well as by registered inspectors (as allowed for in the powers of delegation available to the Chief Inspector in the SIA). The amendment is needed because many inspectors are now employees of Ofsted rather than independent contractors. This provision applies to England only.

• Rights of entry: An amendment to section 79U of the CA will ensure that an inspector is authorised by the registration authority before he or she has the right of entry. Existing legislation gives right of entry to inspectors by virtue of being registered alone.

• Disqualification for registration: An amendment to Schedule 9A of the CA will introduce a power for regulations to be made permitting the registration authority to waive disqualification for registration where a person has disclosed to the registration authority a matter (eg criminal conviction) which would under existing regulations lead to that person’s disqualification. If the registration authority withdraws its consent to registration, a person will once more be disqualified. It is intended that the registration authority will give consent where it considers the reason for disqualification irrelevant to registration. This power was previously available to local authorities when they were responsible for registration and inspection.

• The Schedule also includes amendments to sections 113 and 115 of the Police Act 1997 which provide, respectively, for the issue of criminal record certificates and enhanced criminal record certificates. These amendments make three main changes to existing legislation.

• First, they ensure that when a criminal record certificate is applied for under section 113 as part of the registration authority’s assessment of a person’s suitability certain additional matters specific to a person’s suitability to work with children (such as whether a person is included in the list kept under section 1 of the POCA) can be obtained not only in relation to persons applying to be registered, or already registered, but also in relation to their “associates” (as defined in the first bullet of this paragraph above). At present the legislation only permits this in relation to the former categories.

• Second, the amendments provide that the enhanced criminal record certificate (under section 115), as well as the criminal record certificate (under section 113), can contain the additional matters specific to a person’s suitability to work with children, where such a certificate is applied for in connection with registration under Part 10A.

• Third, the amendments provide that a criminal record certificate and an enhanced criminal record certificate (including the additional matters referred to above) can be obtained in relation to an applicant for, or a holder of, a certificate under section 79W and his associates. Section 79W applies, broadly, to a person who looks after or provides care to children over the age of seven and under the age of 15 or, in the case of disabled children, 17.