Childcare Act and the White Paper

The purpose of this paper is to outline the governments proposals for early years. Apologies for the length, but you will see the amount of documentation recently produced!

The Childcare Bill received Royal Assent on 16 March and its contents are beginning to be implemented. As I have noted previously, the Act is shortwhat has been described as a skeleton Billand a plethora of papers have come from DfE as it begins to implement the proposals.

At the same time, in March a White Paper called Educational Excellence Everywhere was published. Much of this focused on state schools, covering teacher recruitment and training, school leadership, the move towards all schools becoming academies, processes for school improvement, a national curriculum for the 21st century, pupil progress and school funding. It says little directly about early years, although in several places there are possible implications for the PVI sector Thus (para 1.52) speaks about a clearly defined role for local authorities different to their current role. This would cover ensuring that every child has a school place, ensuring the needs of vulnerable children are met, and acting as champions for all parents and families. The places for children and special needs work seems likely to affect PVI settings, with the free place funding. Paragraph 4.76 also refers to the 2-, 3-, and 4-year old funding, noting that local authorities are responsible for delivering the funded hours. It does not say this will be done. It does say that the roles of the Director of Childrens Services and of the Lead Member for Children will have to be reviewed. The White Paper also refers to what is in effect a level playing field across all state schools (no mention of PVI here!). Qualified teacher status will be awarded only after a stronger, more challenging accreditation based on classroom performance as judged by great schools. This raising of the bar seems likely to affect EY qualifications where these relate to QT status (Early Years Educator and Early Years Teacher).   The change will not affect currently qualified teachers. The White Paper is also heavily critical of fads like Brain Gym, quoting one critic as saying it is a series of elaborate physical movements with silly pseudoscientific justifications! The slightly ominous implication of this section of the Paper is that the government intends to be much more proactive in outlining teaching methods.

Another area which has implications for PVI settings is how effective school leadership will be judged. Instead of relying heavily on Ofsted judgements, as we do now, our approach will be based on more timely and accurate dataà ¢Ã¢ €š ¬ ¦ This is an important shift and outstanding leaders are often well placed to support others. Change proposed for assessment and the curriculum do not directly refer to early years, probably as baseline assessment was in place when the White Paper was published, although it has since been withdrawn. References to inspection changes are confined to school inspection, but may affect PVI inspections due to the Common Inspection Framework. It is noted that many inspectors are now serving heads and senior leaders. Complaints are now being dealt with by education professionals with no involvement in inspecting for Ofsted (!), inspections increasingly focus on underperformance, good schools will receive a one day visit by one inspector (although its hard to see how the EY inspections can be reduced further) once in around every three years.

Prior to the White Paper the DfE published a policy statement in December 2015 which sought to build upon the previous Review on the cost of providing childcare. The statement outlined the basis for the funding of the additional 15 hours. AS I have noted before, the current 15 hours is a universal benefit for all, but the additional hours will be means tested whereby at least one parent must receive pay above what might be earned for 16 hours at the National Living Wage, or where neither parent earns over £100,000 a year. There are various exemptions around absence from work for parental, maternity or paternity leave, adoption leave, sickness, other caring responsibilities, and disablement or incapacity. Some local authorities seem to have been caught out by not realising that HM Revenue and Customs will provide the eligibility check, so removing that role from LAs (and their capacity to charge for doing it). There has been a lot of discussion about how much of the additional 15 hours will be taken up. DfE suggests about 14 hours, but NDNAs research suggests a lower figureeven as low as 3 hours in addition to the 15 universal hours. One point worth noting is that where a four year old attends a reception class, they cannot access the EY funding for wrap around care. The government intends to support LAs in drawing up agreements between them and local childcare providers via a national agreement (so meeting criticisms about different requirements in different LAs). This would appear to cover things like food safety and hygiene standards. There is no consideration of implications around funding viability, instead the good financial settlement from the Treasury is applauded.

The Childcare Act has been followed by the Children and Young Persons, England, Childcare Regulations 2016. This is a set of Statutory Instruments by which DE will implement the Actgoing back to the Act being a skeleton which is then interpreted by DfE without MPs having the chance to scrutinise them before publication. The 19 pages of regulations begin with a strong statement that the main reason (for the funding) à ¢Ã¢ €š ¬ ¦ is to enable the parent to work. Most of the next 8 pages deal with various family situationsincluding polygamous marriages. Parents will have to make a declaration of eligibility which will have to be electronic via HMRC using a form which they will provide. Guidance will be provided on information about the scheme, reviews and appeals systems and time limits for these, including an appeals tribunal. LAs will have a duty to secure early years provision. EY providers can be excluded (para 32 (2)) if they do not promote fundamental British values, or if they promote as evidence-based views or theories contrary to established scientific or historic evidence and explanations. The additional 1565 hours will cover 570 hours in any year and be over no fewer than 38 weeks a year. Para 34 says that LAs must secure (i.e. provide funding) for a place where a parent chooses to send their child if the early years provider is willing to provide it and the provider is willing to accept any terms (set by the LA) and any requirements which would be imposed in respect of itclearly these need to be absolutely clear before anyone signs up to the scheme.   Provision other than childminders registered with an agency must be satisfactory or requires improvement or better. Agency childminders must be at least effective or be waiting for inspection. In both cases, registration with the LA will cease if provision is inadequate.

LAs conditions for admitting providers to the scheme are that

  • Provision is free of charge;
  • Provision is in a pattern to suit the needs of the parents;
  • Funding is used properly;
  • Meets the needs of disabled children and those with SEN;
  • There is effective safeguarding and promotion of childrens welfare;
  • Fundamental British values or democracy, the rule of law, individual liberty and mutual respect and tolerance of those with different faiths and beliefs;
  • Do not promote as evidence-based views or theories contrary to established scientific or historic evidence and explanations;
  • Where a provider is graded as less than good in overall effectiveness, the provider must take the measures identified in the inspection report, including where appropriate, a training or other quality improvement programme.

But LAs will not be able to impose its own QA process or require a provider to attend a training or other quality improvement programme other than where this is identified in an inspection report.

In March DfE also published a draft of Early education and childcare: statutory guidance for local authorities. This sets out the eligibility for 2 year old and 3 and 4 year old funding as these stand. It then outlines Three and four-year olds of working parents (extended entitlement)emphasising the difference between the two types of 3 and 4 year old funding. It is a more user-friendly way of outlining the Statutory Instruments. It does add a bit to the Statutory Instruments, seeing the LA as a broker between overall parental demand and provider capacity, encouraging strong partnership working across sectors, with flexible packages of funded hours. As part of the role, the LA must take into account the state of the local childcare market and of the labour market, as well as encouraging schools to offer wrap around care between 0800 and 1800. They will have to report annually to councillors on what local demand is and how they are meeting it both overall and for specific groups such as disabled children, workers with irregular hours and the need for holiday care as well as how gaps in childcare provision will be addressed. This last has some potential for creating problems if the LA decides to support new provision, like schools admitting 2 year olds in competition with PVI providers who do not join the scheme.

  • No session should be longer than 10 hours
  • None should be shorter than 3 hours between 9.00am and 3.30pm
  • Not before 6.00am or after 8.00pm
  • A maximum of three providers.

As a minimum, parents should receive a place in the following patterns:

  • 5 hours a day over 3 days a week
  • 3 hours a day over 5 days a week

Parents and providers should be aware that funded places can be delivered:

  • Over more than 38 weeks a year
  • Outside school terms; or
  • At weekends (DfEs emphasis)

Various combinations or the universal and extended hours are outlined. LAs must rely solely on the Ofsted inspection judgement of the providerà ¢Ã¢ €š ¬ ¦. as the benchmark of quality. Details of the means of withdrawing funding are given where there is an inadequate judgement. Funding formulae must be locally-determined and transparent with funds given to providers being maximised rather than centrally retained. Any supplements provided by LAs must be understood by providers and help drive positive outcomes. A Prompt Payment Code produced by the Institute of Credit Management for the Dept for Business, Innovation and Skills must be used.

Parents must be given information via the Family Information Service about local provision. This was set out in another Statutory Instrument  The Childcare Act 2016 (Provision of information to Parents) (England)(Amendment) Regulations 2016. Although this specifies   annual publication of provision, it does not say when this will first be published. LAs are also required by law to secure information, advice and training for providers on meeting the EYFS, meeting SEN, and effective safeguarding and child protection. They can only do this if the providers request it.

Local authorities were also asked by the Education Funding Agency to bid for capital funding for early years settings to support the delivery of the 30 hours extended entitlement. This was designed to help LAs to work with providers to produce an outline estimate of outcomes (number of places), value for money, and a delivery plan. Responses had to be in by 29 April 2016.

As if all this is not enough, on April 3 DfE published Childcare free entitlement: delivery model, a consultation for response by 6 June 2016. MSA will be responding. This notes that from September 2016 early implementor (pilot) areas will run the 30 hours scheme in York, Northumberland, Newham, Hertfordshire, Portsmouth, Swindon, Staffordshire and Wigan (slightly oddly they say some parents in these areas will benefitpresumably meaning not all will qualify). All other LA areas will come on stream in September 2017. There will also be early innovator areas developing models for the proposed system.

The consultation can be accessed on www.gov.uk/dfe/consultations. Although a lengthy 41 page document, the first section repeats much of what other documents have said. It outlines the background to the policy, then deals with eligibility, including grace period where family circumstances change. It asks two questions about this. Flexible provision is discussed and the questions here are relevant to MSA memberstypes of flexible provision, barriers to this (nothing on being able to access premises out of normal hours), the extended year, how to encourage providers to offer the extended entitlement (eg by working with schools or PVIs). Supporting SEN is seen as having a significant LA input, and the questions relate to the LAs possible strategic role here. Reforming the LA delivery models includes issues of prompt payment, the model agreement (which really mainly applies to chains and there is an implicit assumption that the way forward is via chains), and questions include whether parents should be restricted to using up to 3 providers for the funding. Information to parents is considered, and we are asked to comment on whether this is best given electronically and what information should be given. Finally a series of additional questions includes are there any particular types of providers for which the impact of these regulations will be significant?

I shall be drafting a response to the questions and will circulate it to the Advisory Council before submitting it.

Martin Bradley


Montessori Schools Association