Local authorities are changing their interpretations of the Children Act ahead of the new arm
of Ofsted taking over regulation and
inspection, says Annette Rawstrone
Manoeuvring around the quagmire of rules and regulations surrounding registering a nursery has always been difficult but some aspiring nursery owners are finding themselves even more bogged down by local authorities' seemingly bizarre new rulings and interpretations of the Children Act.
It appears that despite a new arm of Ofsted taking over Children Act inspections next September and a written warning from employment and equal opportunities minister Margaret Hodge against tampering with regulations, some local authorities are continuing to change their interpretations of the Children Act.
Writing to all Early Years Development and Childcare Partnerships back in June (Nursery World, 22 June 2000), Margaret Hodge's letter stated, 'We have become aware of a number of authorities that are reviewing their regulatory arrangements, in some cases proposing to set new standards which are more stringent than those set out in the Children Act guidance.
'I am very concerned that this activity may make it more difficult or costly for new providers to set up. It may therefore discourage them or cause existing providers to give up. This would be damaging to the National Childcare Strategy.'
Nursery World has been told of many 'stringent' new standards or odd interpretations being made including reducing the number of registered places, problems with the colours a nursery can be painted, the need for large areas to be set aside for storage and even an indoor play area being deemed too big.
Kids Unlimited operations director Sue Torkington thinks this is set to continue until the new Care Standards come into force and Ofsted takes over Children Act inspections in September 2001.
'I do not think that Hodge's letter has helped,' she says. 'Local authorities are stuck firm with their individual interpretations while they are waiting for the national standards. This is how they have always operated in the past and no-one has properly challenged them to stop doing it.
'Space allocation problems are a main issue. The Children Act clearly lays down the square footage but local authorities interpret this differently. Another area of contention is outside play where different areas are stated but the Children Act does not stipulate anything.'
These local quirks and petty rulings randomly enforced by Registration and Inspection Units are causing problems, and in many cases loss of money, for nursery owners. Many in the process of opening or taking over nurseries do not bargain for the chaos which can be caused by this additional bureaucracy.
Hackney social services' decision to impose new local standards, regardless of Hodge's letter, could force a nursery out of business. The authority is insisting on a 25 per cent increase for floor space per child, with additional sleeping space, leaving one nursery owner facing a loss of almost one third of registered places.
The owner (who prefers to remain anonymous) says, 'The policy that the unit is seeking to implement does not serve the needs of the people of Hackney by reducing the number of nursery places and reducing employment. The costs of this exercise are enormous, and the policy will be in place just months before the Care Standards Act comes into operation.'
If the nursery manages to stay afloat the number of children and staff will yo-yo back up in September 2001 when the proposed standards (Nursery World, 10 August) will actually reduce the amount of space required per child.
Khalid Iqbal is another frustrated provider. He anticipated opening his third Magic Roundabout nursery within the next two months but now can't imagine that happening before next summer. Contractors are on hold while Iqbal resolves issues raised by his registration officer.
'The registration officers have their own interpretations of the Children Act but it is just their opinion,' he says. 'I get the feeling they seem to be against big nurseries and just want you to set up small 20-place nurseries.'
So far, plans have been changed to incorporate additional storage space, a corridor and more windows. The 300 square metre indoor play area has been made into two rooms because the inspector decided it was too daunting for young children and there is a dispute about outdoor space.
'In the outside play area she wanted nine square metres per child which is ridiculous. I know she has got that figure from the recommendations for schools but we're in inner London and there is no way we're going to get that. I know other nurseries in the area do not have that amount of space,' Iqbal says. 'They are only recommendations and it should not be a problem as long as the children have opportunities to play in local parks.'
Iqbal is not alone. A Lincolnshire nursery owner, who does not want to be named, felt victimised by social services who said she was not qualified to be a nursery manager despite holding a first class honours degree in social and behavioural studies, a masters in business administration and undertaking a Montessori diploma. Before starting her own business she had worked as a nursery manager and helped develop a nursery chain.
'You can imagine my shock as well as my pride being dented when I got a letter from the council saying I was only acceptably qualified as a nursery assistant,' she says. 'The timing was all wrong because I had to get the nursery up and running so my sister was put down as nursery manager. When we were operating we made the challenge and wrote to them.'
She appealed the decision and, after involving a solicitor, was eventually allowed to be named manager. 'It was like victimisation and the decision would not have been changed if I hadn't been strong enough to pursue,' she says.
Torkington agrees, 'Daycare pro-viders have to realise that you can challenge what the local authorities say whereas the Children Act clearly sets out legislative law. Local authority interpretations can be queried because they are only guidance.'
Another anonymous nursery owner, this time in Waltham Forest, is actually hoping the two-year long dispute about his extended nursery will now drag on until the regulation of daycare transfers to Ofsted's new arm. Extending the nursery into a neighbouring building has caused problems because new registration officers want to reduce the number of children and want to renege on previously approved plans.
'The change in management at the local authority has left us wide open to their new interpretation,' says the nursery owner. 'There has to be continuity because we run a business and there are people involved. The authority needs flexibility and to see what is reasonable and appropriate but it backtracks and contradicts what it says.
'Fortunately I have now found a far more positive approach from the principal registration and inspection officer. However, had we merely accepted the new proposed limitations our business could have faced closure.
'I am prepared to go to the High Court if need be. By the time I appeal and it goes to court the process could take us past next September and everything will then be under different regulations again.'
Questioning interpretations, appealing decisions or lasting them out until the Care Standards come into force seems to be the agreed course of action because practitioners anticipate that local authorities will grasp on to power until Ofsted sweeps them aside. Torkington says, 'It is something that local authorities have been doing for so long that it makes it difficult for them to back down. To back down gracefully would be seen as defeat.' NW