The Early Years Foundation Stage (Welfare Requirements) Regulations 2012

Citation and commencementE+W

1.  These Regulations may be cited as the Early Years Foundation Stage (Welfare Requirements) Regulations 2012 and come into force on 1st September 2012.

InterpretationE+W

2.  In these Regulations—

“the Act” means the Childcare Act 2006;

[F1“the Document” means the document entitled “Statutory Framework for the Early Years Foundation Stage” dated 31st March 2021 and published by the Secretary of State on the gov.uk website;]

[F2“registered early years provider” means a person who is registered under Chapter 2 of Part 3 of the Act in the early years register or with an early years childminder agency;]

[F3“relevant person” means—

(a)

in the case of a person registered in the early years register, the Chief Inspector, and

(b)

in the case of a person registered with an early years childminder agency, the agency;]

[F4“the relevant provisions of the Document” means the provisions in Section 3 of the Document that use the word “should”.]

Textual Amendments

[F5ReviewE+W

2A.—(1) The Secretary of State must from time to time—

(a)carry out a review of the regulatory provision contained in regulations 2 to 6 and in regulation 8A,

(b)publish a report setting out the conclusions of the review.

(2) The first report must be published before 1st January 2021.

(3) Subsequent reports must be published at intervals not exceeding 5 years.

(4) Section 30(4) of the Small Business, Enterprise and Employment Act 2015 requires that a review carried out under this article must, in particular–

(a)set out the objectives intended to be achieved by the regulatory provision referred to in paragraphs 1(a) and 1(b),

(b)assess the extent to which those objectives are achieved,

(c)assess whether those objectives remain appropriate, and

(d)if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

(5) In this regulation, “regulatory provision” has the same meaning as in sections 28 to 32 of the Small Business Enterprise and Employment Act 2015 (see section 32 of that Act).]

Textual Amendments

Specification of the welfare requirementsE+W

3.—(1) Regulations [F67 to 9] specify welfare requirements under section 39(1)(b) of the Act.

(2) It is directed that the [F7obligatory provisions] of the Document have effect, for the purposes of specifying the welfare requirements under section 39(1)(b) of the Act.

[F8(2A) In this regulation, “the obligatory provisions” means the provisions in Section 3 of the Document that, by virtue of their use of the word “must”, express requirements, except for those contained in paragraphs 3.16, 3.17, 3.18, 3.52, 3.53, 3.77 and 3.78.]

(3) Early years providers to whom section 40 of the Act M1 applies must have regard to the matters in [F9the relevant provisions] of the Document in securing that the early years provision they provide complies with the welfare requirements.

Textual Amendments

Marginal Citations

M1Section 40 of the Act imposes a duty on early years providers to comply with the welfare requirements in addition to meeting the learning and development requirements.

[F10Temporary modification of the welfare requirements in the DocumentE+W

3A.—(1) The welfare requirements prescribed in Section 3 of the Document have effect during the relevant period subject to the modifications set out in this regulation.

(2) The requirements in Section 3 of the Document specified in paragraph (3) are to be treated as discharged if the provider has used its reasonable endeavours to discharge the requirement.

(3) The following requirements are specified for the purposes of paragraph (2)—

(a)in paragraph 3.23, the requirement for at least half of all other staff (excluding the manager) to hold at least a full and relevant level 2 qualification;

(b)in paragraphs 3.31, 3.32, 3.34 and 3.36 the requirement for at least half of all other staff (excluding the member of staff who holds a full and relevant level 3 qualification) to hold a full and relevant level 2 qualification;

(c)in paragraph 3.33, the requirement for at least one other member of staff (excluding the member of staff who holds a suitable level 6 qualification) to hold a full and relevant level 3 qualification;

(d)in paragraph 3.35, the requirement for at least one other member of staff (excluding the member of staff who holds a suitable level 6 qualification, an instructor, or another suitably qualified overseas trained teacher) to hold a full and relevant level 3 qualification; and

(e)in paragraph 3.37—

(i)the requirement for at least one member of staff to be a school teacher, as defined by section 122 of the Education Act 2002 but only if the requirements in paragraph 3.34 (as modified by sub-paragraph (b)) are satisfied; and

(ii)the requirement for at least one other member of staff (excluding the member of staff who is a school teacher, as defined by section 122 of the Education Act 2002) to hold a full and relevant level 3 qualification.

(4) In paragraph 3.25—

(a)the words from “All newly qualified entrants” to “in an early years setting.” are disapplied; and

(b)the requirement for at least one person who has a current paediatric first aid (“PFA”) certificate to be on the premises and available at all times when children are present and to accompany children on outings is to be treated as discharged if the provider has used its best endeavours to discharge the requirement and the conditions in paragraph (5) are satisfied.

(5) The conditions are that—

(a)all children being cared for on the premises are two years old or more;

(b)at least one person who holds a first aid at work certificate or holds an emergency PFA certificate is present on the premises at all times when children are present and accompanies children on outings;

(c)the provider has undertaken a written risk assessment which considers the likely occurrence of a serious incident taking place taking into account all relevant factors including—

(i)the number of children on the premises;

(ii)the needs of the individual children attending the premises;

(iii)staff to child ratios;

(iv)the types of activities undertaken with the children on the premises;

(v)the likely need for first aid;

(vi)first aider knowledge among staff on the premises; and

(vii)the mitigations available to reduce the risk of such an incident; and

(d)following that risk assessment the provider is satisfied that they have taken all reasonable steps to ensure the safety of children in their care.

(6) The relevant period starts when this regulation comes into force and ends on 25th September 2020.

(7) [F11Except in relation to the requirement in paragraph (4)(b)] [F11Subject to paragraph (8)], where on 24th September 2020 a provider complies with the welfare requirements only by virtue of this regulation the provider is to be taken to continue to comply with the welfare requirement so long as—

(a)the provider does not on or after 25th September 2020 further reduce [F12the level of qualifications held by staff during that period] [F12compliance with the welfare requirements]; and

(b)the provider complies with the welfare requirements as set out in the Document on or before the 25th November 2020.]

[F13(8) Paragraph (7) does not apply to a provider at any time when regulation 3B applies to that provider.]

Textual Amendments

F10Reg. 3A inserted (24.4.2020) by The Early Years Foundation Stage (Learning and Development and Welfare Requirements) (Coronavirus) (Amendment) Regulations 2020 (S.I. 2020/444), regs. 1, 8 (which amendment falls (4.1.2024) by virtue of the revocation of the affecting provision by S.I. 2023/1338, regs. 1(2), 5(a))

F11Words in reg. 3A(7) substituted (temp.) (26.9.2020 until 31.8.2021) by The Early Years Foundation Stage (Learning and Development and Welfare Requirements) (Coronavirus) (Amendment) (No. 2) Regulations 2020 (S.I. 2020/939), regs. 1, 5(2)(a)(i) (with reg. 3(2)) (which amendment falls (4.1.2024) by virtue of the revocation of the affecting provision by S.I. 2023/1338, regs. 1(2), 5(b))

F12Words in reg. 3A(7) substituted (temp.) (26.9.2020 until 31.8.2021) by The Early Years Foundation Stage (Learning and Development and Welfare Requirements) (Coronavirus) (Amendment) (No. 2) Regulations 2020 (S.I. 2020/939), regs. 1, 5(2)(a)(ii) (with reg. 3(2))(which amendment falls (4.1.2024) by virtue of the revocation of the affecting provision by S.I. 2023/1338, regs. 1(2), 5(b))

F13Reg. 3A(8) inserted (temp.) (26.9.2020 until 31.8.2021) by The Early Years Foundation Stage (Learning and Development and Welfare Requirements) (Coronavirus) (Amendment) (No. 2) Regulations 2020 (S.I. 2020/939), regs. 1, 5(2)(b) (with reg. 3(2)) (which amendment falls (4.1.2024) by virtue of the revocation of the affecting provision by S.I. 2023/1338, regs. 1(2), 5(b))

[F14Further temporary modification of the welfare requirements in the DocumentE+W

3B.—(1) At any time when paragraph (2) applies in relation to a provider, the welfare requirements prescribed in Section 3 of the Document have effect subject to the modifications set out in regulation 3A(2) to (5).

(2) This paragraph applies when it is not reasonably practicable for a provider to comply with the prescribed requirements referred to in paragraph (1) as a result of—

(a)restrictions or requirements imposed by regulations made under the Public Health (Control of Disease) Act 1984 for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2);

(b)prohibitions, requirements or restrictions imposed by a direction made under any regulations referred to in sub-paragraph (a); or

(c)a direction made under schedule 16 or 17 to the Coronavirus Act 2020.

(3) Paragraph (4) applies during the 14 day period beginning with the first day after the date on which all regulations or directions falling under paragraph (2) cease to apply to a provider.

(4) Where this paragraph applies, the welfare requirements specified in regulation 3A(3) and (4)(b) are to be treated as discharged provided that—

(a)in the period immediately preceding that 14 day period, the provider was treated as having discharged those requirements by virtue of paragraph (1); and

(b)during the 14 day period—

(i)in relation to the requirements specified in regulation 3A(3), the provider continues to use reasonable endeavours to discharge those requirements; and

(ii)in relation to the requirement specified in regulation 3A(4)(b), the provider continues to use its best endeavours to discharge the requirement and the conditions in regulation 3A(5) are satisfied.]

Textual Amendments

F14Reg. 3B inserted (temp.) (26.9.2020 until 31.8.2021) by The Early Years Foundation Stage (Learning and Development and Welfare Requirements) (Coronavirus) (Amendment) (No. 2) Regulations 2020 (S.I. 2020/939), regs. 1, 5(3) (with reg. 3(2)) (which amendment falls (4.1.2024) by virtue of the revocation of the affecting provision by S.I. 2023/1338, regs. 1(2), 5(b))

Requirement on the Chief Inspector [F15and early years childminder agencies]E+W

4.  The Chief Inspector [F16and early years childminder agencies] must have regard to the welfare requirements specified in regulation 3 and the matters in [F17the relevant provisions] of the Document in exercising functions under Part 3 of the Act.

Textual Amendments

Matters to be considered by the Chief InspectorE+W

5.—[F18(1)] Any allegation that an early years provider has—

(a)failed to meet the welfare requirements; or

(b)failed to have regard to the matters in [F19the relevant provisions] of the Document

may be taken into account by the Chief Inspector in the exercise of functions under Part 3 of the Act.

[F20(2) Any allegation that an early years childminder agency has failed to meet the requirement in regulation 4 may be taken into account by the Chief Inspector in the exercise of functions under Part 3 of the Act.]

Textual Amendments

[F21Matters to be considered by early years childminder agenciesE+W

5A.  Any allegation that an early years provider has—

(a)failed to meet the welfare requirements; or

(b)failed to have regard to the matters in [F22the relevant provisions] of the Document,

may be taken into account by an early years childminder agency in the exercise of functions under Part 3 of the Act.]

Textual Amendments

[F23Matters to be considered by early years childminder agencies: effect of temporary closure directionsE+W

5B.—(1) In relation to a period during which a temporary closure direction has effect in relation to an early years provider, an early years childminder agency must, in exercising functions under Part 3 of the Act, take account of the direction in dealing with any allegation under article 6A (a) or (b).

(2) In paragraph (1) “temporary closure direction” means a direction issued under section 37(1) and paragraph 3(2)(b) of Schedule 16 to the Coronavirus Act 2020.]

Textual Amendments

F23Reg. 5B inserted (24.4.2020) by The Early Years Foundation Stage (Learning and Development and Welfare Requirements) (Coronavirus) (Amendment) Regulations 2020 (S.I. 2020/444), regs. 1, 9 (which amendment falls (4.1.2024) by virtue of the revocation of the affecting provision by S.I. 2023/1338, regs. 1(2), 5(a))

Proceedings under Part 3 of the ActE+W

6.—[F24(1)] Any allegation that an early years provider has—

(a)failed to meet the welfare requirements; or

(b)failed to have regard to the matters in [F25the relevant provisions] of the Document

may be taken into account in any proceedings under Part 3 of the Act.

[F26(2) Any allegation that an early years childminder agency has failed to meet the requirement in regulation 4 may be taken into account in any proceedings under Part 3 of the Act.]

Textual Amendments

Welfare of children: prohibition on corporal punishmentE+W

7.—(1) A registered early years provider must not use corporal punishment on a child for whom early years provision is provided and, so far as is reasonably practicable, must ensure that corporal punishment is not used on any such child by—

(a)any person who cares for, or is in regular contact with, children; or

(b)any person living or working on the premises on which the early years provision is provided.

(2) A person will not be taken to have used corporal punishment for the purposes of paragraph (1) if the action was taken for reasons that include averting an immediate danger of personal injury to, or an immediate danger of death of, any person including the child.

(3) For the purposes of paragraphs (1) and (2) above, “corporal punishment” means anything done for the purposes of punishing the child (whether or not there are other reasons for doing it) which, absent any justification, would constitute battery.

Provision of informationE+W

8.—(1) A registered early years provider must notify the [F27relevant person] of the occurrence of any of the events set out in the Schedule to these Regulations and must at the same time provide the [F27relevant person] with the information specified in that Schedule in respect of that event.

(2) The notification and information referred to in paragraph (1) must be provided to the [F27relevant person]—

(a)where it is reasonably practicable to do so, in advance of the event occurring; and

(b)in all other cases as soon as reasonably practicable, but in any event within 14 days beginning with the date that the event occurred.

(3) Where the registered early years provider is required to notify the [F27relevant person] of a change of person under paragraphs 11(a) or 12(a) or (b) of the Schedule, the notification must include the new person's—

(a)full name, and any former name or alias,

(b)date of birth, and

(c)home address.

Textual Amendments

[F28Approval of the suitability of additional premisesE+W

8A.—(1) This regulation applies if a registered early years provider (“P”) proposes to provide early years provision (“the proposed provision”) on additional premises.

(2) If the proposed provision is early years childminding and the additional premises are non-domestic premises, P must—

(a)demonstrate to the relevant person that the requirements in paragraphs 7 to 9 of Schedule 1 to the 2008 Regulations will be satisfied, and are likely to continue to be satisfied, in relation to the proposed provision; and

(b)send to the relevant person the information in paragraphs 18 and 21 to 23 of Schedule 1 to the 2008 Regulations.

(3) If the proposed provision would be early years childminding but for section 96(5) of the Act, P must—

(a)demonstrate to the relevant person that the requirements in paragraphs 5 to 8, 13 and 14 of Schedule 2 to the 2008 Regulations will be satisfied, and are likely to continue to be satisfied, in relation to the proposed provision; and

(b)send to the relevant person the information in paragraphs 24 to 26 of Schedule 2 to the 2008 Regulations.

(4) If the proposed provision does not fall within paragraphs (2) or (3), P must—

(a)demonstrate to the relevant person that the requirements in paragraphs 5 to 8 and 13 of Schedule 2 to the 2008 Regulations will be satisfied, and are likely to continue to be satisfied, in relation to the proposed provision; and

(b)send to the relevant person the information in paragraphs 25 and 26 of Schedule 2 to the 2008 Regulations.

(5) In this regulation—

“the 2008 Regulations” means the Childcare (Early Years Register) Regulations 2008; and

“additional premises” means premises which the relevant person has not already approved as suitable for the purposes of paragraph 11A of Schedule 1 or paragraph 14A of Schedule 2 to the 2008 Regulations in relation to P.]

Textual Amendments

Provision of information relating to disqualificationE+W

9.—(1) A registered early years provider must provide the following information to the [F29relevant person]—

(a)details of any order, determination, conviction or other ground for disqualification from registration made or applying in relation to a person listed in paragraph (2) which results in that person being disqualified from registration under regulations made under section 75 of the Act (disqualification from registration);

(b)the date when the order, determination or conviction was made or when any other ground for disqualification from registration arose;

(c)the body or court by which the order, determination or conviction was made and the sentence, if any, imposed;

(d)in relation to an order or conviction, a certified copy of the relevant order or court order.

(2) The persons in respect of whom the information referred to in paragraph (1) must be provided are—

(a)the registered early years provider; and

(b)any person who lives in the same household as the registered early years provider or who is employed in that household.

(3) The information referred to in paragraph (1) must be provided to the [F29relevant person] as soon as reasonably practicable, but in any event within 14 days beginning with the date on which the registered early years provider became aware of that information or ought reasonably to have become aware of it if they had made reasonable enquiries.

Textual Amendments

Failure to comply with welfare requirements noticeE+W

10.—(1) Where the Chief Inspector considers that [F30an early years provider who is registered in the early years register and] to whom section 40 applies has failed or is failing to comply with the welfare requirements the Chief Inspector may give a notice to the registered early years provider specifying—

(a)in what respect the registered early years provider has failed or is failing to comply with those requirements; and

(b)where appropriate—

(i)what action the registered early years provider should take to comply; and

(ii)the period within which the registered early years provider should take that action, such period to begin with the date of the notice.

(2) The registered early years provider must comply with the terms of the notice within the period specified in the notice.

(3) A notice under this regulation must be given in accordance with regulation 11.

Textual Amendments

Service of the welfare requirements noticeE+W

11.—(1) A notice may be given to a registered early years provider by the Chief Inspector—

(a)by delivering it to the provider,

(b)by sending it by post,

(c)subject to paragraph (2), by transmitting it electronically.

(2) If the notice is transmitted electronically, it is to be treated as given only if the following requirements are met—

(a)the person upon whom the notice is required or authorised to be given must have indicated to the Chief Inspector a willingness to receive notices transmitted by electronic means and must have provided an address suitable for that purpose; and

(b)the notice must be sent to the address provided by the person.

(3) An indication given for the purposes of paragraph (2) must be given for the purpose of the service of notices under this regulation.

(4) For the purposes of section 7 of the Interpretation Act 1978 (references to service by post) a notice under this regulation is to be treated as properly addressed if it is addressed to the registered early years provider at the address notified to the Chief Inspector as the address to which correspondence to the registered early years provider should be sent.

OffenceE+W

12.—(1) A registered early years provider who, without reasonable excuse, fails to comply with the requirements of regulation 7(1), 8(1), 8(2) or 10(2) is guilty of an offence and is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(2) Proceedings under this regulation may only be taken—

(a)by the Chief Inspector, and

(b)after the Chief Inspector has allowed a period not exceeding one month, beginning with the date the Chief Inspector notified the registered early years provider of the decision to take proceedings, for the registered early years provider to make representations.

RevocationsE+W

13.  The following regulations are revoked—

The Early Years Foundation Stage (Welfare Requirements) Regulations 2007 M2;

  • The Early Years Foundation Stage (Welfare Requirements) (Amendment) Regulations 2008 M3;

  • The Early Years Foundation Stage (Welfare Requirements) (Amendment) Regulations 2009 M4.

Marginal Citations

Sarah Teather

Minister of State

Department for Education