81.Section 33 prohibits a person from providing early years childminding unless he is registered in the early years register. Early years childminding is early years provision provided on domestic premises for reward where there are no more than three people providing the care or assisting with its provision (see section 96(4) and (5)).
82.Subsection (2) allows the Secretary of State to exempt certain persons from the requirement to be registered. This power may be used to exempt, for example, nannies and babysitters.
83.Subsection (4) sets out what happens where a person who should be registered as an early years childminder under subsection (1) fails to register. In such cases the Chief Inspector may serve an enforcement notice on that person and that person may then be prosecuted if they continue to childmind without being registered (see subsection (7)). The notice will stay in effect until revoked by the Chief Inspector.
84.Section 34 sets out the requirement for early years providers, other than childminders, to be registered. Such early years providers must register in respect of particular premises.
85.Subsection (2) exempts from this requirement early years provision made for children aged 3 and over at a maintained school, non-maintained special school or independent school where that provision is made by the school and one or more pupils attend it. Subsection (3) makes provision for the Secretary of State to exempt by order certain providers from the requirement to be registered.
86.It is an offence to provide non-exempt early years provision without being registered (see subsection (5)).
87.Section 35 deals with applications for registration by early years childminders who are required to be registered.
88.Subsection (3) requires the Chief Inspector to grant an application for registration as an early years childminder if the applicant is not disqualified from registration and the requirements for registration set out in regulations are satisfied and are likely to continue to be satisfied. (Subsection (5) sets out some of the areas which the regulations may deal with and these include (but are not limited to) the premises on which the childminding is to be provided and any person who may be caring for the child.)
89.Subsection (4) requires the Chief Inspector to refuse an application where the applicant is disqualified and/or where the requirements set out in regulations are not satisfied.
90.Section 36 makes similar provision to section 35 for applications by other early years providers. It differs from the provision for childminders in that applications are required to be made in respect of particular premises.
91.Section 37 places an obligation on the Chief Inspector to place successful applicants in the early years register and to issue them with certificates of registration. This section makes a distinction between early years childminders and early years providers who are not childminders. This is because, when a childminder is registered, the registration is not linked to any particular premises. In the case of other early years providers, however, the registration is in respect of particular premises. This means that early years providers (other than childminders) may have separate entries in the register in respect of different premises (where they provide childcare at more than one location).
92.Section 37 also requires the certificate of registration to set out particular information, as prescribed through regulations. Provision is made for amendment of registration certificates. Subsection (5) requires the Chief Inspector to provide a copy of a lost or destroyed registration certificate when paid a fee as required by regulations.
93.Section 38 deals with conditions on registration for compulsorily registered early years providers. It allows the Chief Inspector to impose any conditions he thinks fit at any time and to vary or remove any conditions at any time. Conditions may include (but are not limited to) conditions to ensure that providers comply with regulations. It is an offence for a person not to comply with conditions on his registration.
94.This section places a duty on the Secretary of State to specify certain requirements for the purpose of promoting the well-being (as defined by section 1(2) of the Act) of young children who are receiving early years provision. These requirements relate to learning by and the development of young children (the ‘learning and development requirements’) which the Secretary of State must specify by order and to the welfare of young children and the organisation and staffing of early years settings (the ‘welfare requirements’), which the Secretary of State must prescribe by regulations. These requirements are together to be known as the Early Years Foundation Stage (EYFS).
95.Section 40 sets out which providers are required to implement the EYFS. This includes all early years providers who are required to be registered under sections 33 and 34 of the Act, as well as early years providers who are exempted by section 34(2) from the requirement to be registered (i.e. provision made on school premises by schools for children aged 3 and over).
96.Subsection (2) places these providers under a duty to implement the EYFS.
97.This section sets out what may and may not be covered by a learning and development order made by the Secretary of State under section 39(1)(a). The ‘learning and development requirements’ must cover six areas of learning and development, which are listed in subsection (2). In relation to these six areas, the ‘learning and development requirements’ may specify:
early learning goals, setting out what most young children are expected to achieve before 1st September following their 5th birthday;
educational programmes, setting out what should be taught to young children attending early years provision, although the order may not require providers to allocate any particular periods of time to the delivery of such a programme;
arrangements for assessing the learning and development of young children attending early years provision.
98.This section enables the Secretary of State, when making a learning and development order under section 39(1)(a) specifying assessment arrangements, to confer or impose functions on the persons listed under subsection (2). The order may specify, for example, when, how and by whom young children are to be assessed, as well as the purpose of any such arrangements. Provision must be made for ascertaining whether the purpose of the assessment arrangements is being achieved, and to facilitate this providers may be required to allow anyone on whom the order has conferred functions relating to the monitoring of assessment arrangements to enter premises and monitor those arrangements.
99.Subsection (6) allows a learning and development order to provide that details of assessment arrangements may be published in a separate document. The provision made by the separate document has effect as if it had been made in the learning and development order.
100.Section 43 sets out the matters that may be covered by regulations made by the Secretary of State under section 39(1)(b) (the ‘welfare requirements’). They relate to measures for securing young children’s safety and welfare when they are receiving early years provision and the effective organisation of an early years setting, as well as procedures for dealing with complaints and the provision of information.
101.The regulations may also provide that a person is guilty of an offence if they fail to comply with a requirement, and that they are liable to pay a fine if they commit such an offence.
102.Section 44 refers to a “relevant instrument”. Subsection (5) explains that a “relevant instrument” means a learning and development order (made under section 39(1)(a)) or regulations prescribing welfare requirements (made under section 39(1)(b)). A relevant instrument may, instead of setting out all the provisions to be made, give effect to provisions set out in a separate document.
103.Under subsections (2) and (3), a relevant instrument may also confer powers and impose duties on the Chief Inspector in the exercise of his functions under Part 3. In particular it may require the Chief Inspector, in exercising these functions, to have regard to factors, standards and other matters prescribed by or referred to in the instrument.
104.Subsection (4) provides that where a relevant instrument requires a person other than the Chief Inspector to have regard to or meet factors, standards and other matters, it may also allow for any allegation that the person has failed to do so to be taken into account by the Chief Inspector in the exercise of his functions under Part 3 or in any proceedings under that Part.
105.This section sets out the consultation procedure required when the Secretary of State proposes to make an order under section 39(1)(a) to specify the early learning goals or educational programmes for the Early Years Foundation Stage. It requires that the Secretary of State consult relevant bodies in the early years sector about any proposals for the order.
106.The draft order will then be published, along with a summary of views expressed during the consultation, to enable all with a special interest in early years provision to provide any further representations within a period allowed by the Secretary of State (which must not be less than a month). The Secretary of State may then make the order with or without modifications.
107.Section 46 enables the Secretary of State to confer exemptions from the learning and development requirements in certain prescribed circumstances. Regulations may provide that the learning and development requirements should not apply, or should apply with specified modifications, to a particular early years provider or to a group of early years providers. Regulations may also enable an early years provider to determine that the learning and development requirements do not apply, or apply with modifications, in respect of a particular child.
108.Subsection (1) of this section amends section 157 of the Education Act 2002 so that the independent school standards prescribed by regulations made under that section do not apply in relation to early years provision for pupils of independent schools who have not attained the age of 3. Independent schools providing early years provision for children under 3 are required to be registered under Part 3 of this Act and to implement the Early Years Foundation Stage.
109.Subsection (2) amends section 157 of the Education Act 2002 so that, for early years provision for pupils of independent schools who have attained the age of 3, the independent school standards include the Early Years Foundation Stage
110.This section gives effect to Schedule 1. As a consequence of the provisions of Chapter 2 of Part 3, Schedule 1 amends section 23 of the Education Act 1997, which sets out the functions of the Qualifications and Curriculum Authority (QCA), in order to remove references to funded nursery education. It also inserts a power for the Secretary of State to provide by order that the QCA shall have functions relating to children who are receiving early years provision from early years providers who are under a duty to implement the Early Years Foundation Stage. The Secretary of State is required to consult the QCA before conferring such functions.
111.Schedule 1 also makes amendments to Part 6 of the Education Act 2002 as a consequence of the provisions of Chapter 2 of Part 3. Part 6 of the Education Act 2002 makes provision for the National Curriculum for England including the foundation stage (which currently covers children from the age of 3 to the end of the school year in which they turn 5). As the Early Years Foundation Stage will cover all such children, provisions relating to the foundation stage are being removed from Part 6 of the Education Act 2002.
112.Section 49 relates to inspection of early years provision and requires the Chief Inspector to inspect early years provision at intervals (to be prescribed in regulations) and on request from the Secretary of State. It also allows the Chief Inspector to inspect early years provision at any other time when he considers it appropriate.
113.Subsection (3) allows regulations to be made setting out circumstances in which the Chief Inspector will not be required to carry out an inspection when it falls due. Regulations could, for example, provide that an inspection is not required where the provider does not have any children on the roll.
114.Subsection (4) allows regulations to be made providing that the Chief Inspector is not required to carry out an inspection at an independent school where the early years provision would be inspected by a body approved by the Secretary of State.
115.Subsection (6) provides for regulations to require the registered person to notify particular people of an inspection.
116.This section sets out requirements for the Chief Inspector to report in writing on any early years provision which he inspects and makes provision for the distribution of copies of the report. Subsection (4) applies subsections (2) to (4) of section 11 of the Education Act 2005. This provision allows the Chief Inspector to publish the report by electronic means and provides for reports to be privileged for the purposes of defamation unless they have been made with malice.
117.This section defines the meanings of terms used in Chapter 2 of Part 3.